Volume 135 — Indiana Reports

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

<p>Quieting Title. — Decedent's Estate. — Partition.—Heirs.—Where all the heirs of a deceased person, except A., B.,and C., join in executing a deed conveying to O. their interest in certain of the land which had descended to them from said decedent, and O. afterwards encumbers such land with a mortgage, which in due course of time is foreclosed and a sheriff’s deed executed therefor, and subsequent thereto a partition suit is brought to which all’ the heirs of said decedent, including A., B. and 0., are parties, to each of which heirs partition is jjuade, except 0., O. having been impliedly accredited with the portion conveyed to him by deed, — the purchaser holding title by virtue of the sheriff’s deed is entitled to have his title quieted against A. and B., they, by the partition proceedings, having received, or being presumed to have received, their due proportion of the lands so descending.</p>

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

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

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

<p>Criminal Law. — Argument to Jury. — Failure of Defendant to Testify.— Comment on. — Where, in a criminal prosecution, the prosecuting attorney, in his argument to the jury, used the following language: “Not a particle of evidence has come to you from the defendant, from his side of the case,” the defendant not having testified in the cause, such language does not come within the inhibition of clause 4, section 1798, R. S. 1881, which forbids comment on the fact that a defendant, in such an action, did not testify in his own behalf.</p> <p>Same.— Evidence.— Burglary. — A Series of Crimes. — Association of Parties. — Stolen Goods. — Under a charge of burglary and larceny, the State may prove that a part of the stolen goods were found on the person of another with whom the defendant was frequently-seen, both before and after the crime, and, also, the conduct of such other party, tending to show that he was one of the thieves, and, also, mutually dependent crimes when committed under a system which becomes relevant to the issue. ,</p>

<p>Appeal. — Defective Record. — Joinder in Error.- — Waiver.—Defectof Parties Appellees. — Dismissal of Appeal. — Where a party appeals, and does not make all the opposite parties in whose favor judgment was rendered appellees therein, the record is defective, and a joinder in errors does not waive the defect, and the appeal will be dismissed, as the appellate tribunal has not the power to disturb the judgment as to some of the parties thereto without disturbing it as to all, and it has no jurisdiction to disturb it as to those who are not parties to the appeal.</p>

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

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

<p>Natural Gas. — Begnlation of Price.— Statute Construed.— Case Overruled. — The act of March 7, 1887 (Elliott’s Supp., section 800), does not confer upon municipal corporations the power to regulate the price at which natural gas shall be furnished, and such have no such power. City of BushviUe v. Bushville Natural Gas Co., 132 Ind. 575, overruled.</p>

<p>Natural Gas. — Duty of Company to Furnish. — Precedent Conditions.— Mandamus. — A natural gas company, occupying the streets of a town or city with its mains, owes it as a duty to furnish gas to those who own or occupy the houses abutting on such streets, where such owners or occupiers make the necessary arrangements to receive it, and comply with the reasonable regulations of such company, and if the company neglects and refuses to perform such duty, it may be compelled to do so by writ of mandamus. .</p>

<p>Appellate Court. — Jurisdiction.—Personal Judgment. — Money Demand. -Ditch Assessments. — Of an appeal from a judgment in personam, for §700 for ditch assessments, to which judgment a motion was made to eliminate the personal feature, which was overruled, the jurisdiction is in the Appellate Court.</p>

<p>Common Carrier. — Passenger.—Personal Injury. — Third Parties Contributing to Injury. — Damages.—Defenses.—In an action by a passenger against a common carrier, for injuries sustained while being so carried, by the negligence of the company’s servants, "the company will not be permitted to show, in defense, that a third party, or parties, contributed to the injury, or that it stood by and permitted others to take charge of its affairs, thereby causing injury to the person to whom it owed the duty of a carrier to its passenger.</p> <p>Negligence.— Proximate Cause of Injury. — Definition.—Proximate cause is any cause -which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which the result would not have occurred.</p>

<p>Liquor Law. — License.—Remonstrance.—Amendment of to Make More Specific. — When Error to Disallow. — Discretion.-—It is error, as abuse of discretion, for the court, in an application for liquor license, to refuse to allow the remonstrators to make the remonstrance more specific, when such application was made before the jury was impaneled and sworn, and before any witness was sworn, where such a motion would necessarily have been granted, if made by the applicant for license, such amendments being clearly in the interests of a fair trial.</p> <p>Same. — Eemonstrance.—Evidence.—Allowing Minors to Congregate. — ■ Gambling With Minors. — In an application for liquor license, remonstrators may show that the applicant, at various times, as saloon keeper, under a prpvious license, allowed minors to be about a pool table in his saloon, and that he threw dice with a minor in his saloon, when things of value were won and lost.</p> <p>Same. — Instructions to Jury. — Province of Court, of Jury. — Where the court, in an application for license to sell intoxicating liquor, instructed the jury, in substance, that if the applicant did throw dice with a certain minor to ascertain who should buy the lemonade, and, also, as to who should buy the beer, and did play pool with a minor in his saloon, these facts alone would not be sufficient to defeat his application, but the jury must consider such facts in connection with all the other facts given in the cause, to determine the fitness of the applicant, such instruction is clearly erroneous, it not being within the province of the court to take from the jury the facts necessary to determine the fitness of the applicant.</p>

<p>Lien. — Foreclosure.—Ditch Assessment. — Erroneous Description. — Bona Fide Purchaser from Owner. — Lien Purchaser. — Respective Rights.— Subrogation. — Where land sought to be affected by ditch assessments, was, in all the proceedings, erroneously described as being in the northeast quarter, instead of in the northwest quarter, of a certain section of land, and the land so described, upon failure to pay the assessments, was foreclosed upon, under the lien, and sold, the purchaser of the land under the foreclosure proceedings was subrogated to all the rights of the lien holder, and the lien was such as .might have been enforced against the owner of the land at the time of the ditch proceedings, but can not be enforced against the bona fide assignee for value, of such owner, or one holding through such assignee.</p>

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

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

<p>Action. — Remedy.—Injunction. — Replevin. — Damages. — Execution.— Levy on Personalty of Party not an Execution Defendant. — -Where a sheriff, in proceeding to satisfy a judgment, levies upon personal property of a third party, not belonging to the judgment defendant, and is proceeding to sell the same, the owner may suffer the property to be sold and rely on his remedy for damages, or he may bring his action in replevin, but he can not have equitable relief by way of injunction, except where it is satisfactorily shown that the plaintiff has no other complete and adequate remedy.</p>

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

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

<p>Trust and Trustee. — Resulting Trust. — Naked or Nominal Trust. — Conveyance by Husband and Wife without Consideration. — Parol Agreement to Reconvey Part to Wife. — Where a husband and wife join in the conveyance of the husband’s lands by a deed absolute upon its face, to one A., without consideration, with the agreement and understanding between the grantors and the grantee that the grantee should immediately .reconvey an undivided one-third of the same in fee simple to the wife, and that he should hold the other two-thirds in trust for the husband until a certain debt owing by the husband to him should be paid, but failed and refused to reconvey the one-third thereof to the wife, and died not having reconveyed said one-third to the wife, A. will be deemed to have held the undivided one-third in trust for the wife, and the trust being a mere naked or nominal one, the law puts the title at once in the beneficiary; the ownership of the one-third was never in A., and the one-third, at his death, did not descend to his heirs; and the wife is entitled to have her interest in the lands set off to her.</p> <p>Same. — Statute of Frauds. — As a Cover for Fraud. — Parol Evidence.— The statute of frauds can not be used as a cover for fraud, and trusts such as above set out may be proved by parol evidence.</p>

<p>Evidence.- — Will.— Execution of.— Contest. — • Unsoundness of Mind.— Conditions Prior and Subsequent. — In an action to test the validity of a will, where one of the grounds of contest is unsoundness of mind of the testator at the time the will was executed, conditions prior or subsequent to the execution of the will are proper evidence in determining the condition of the mind at the time of executing the will.</p> <p>Same. — Cross-Examination.-—Scope of.- — -Witness' Understanding of Question. — On cross-examination, there is no error in inquiring of the witness if he understood a question propounded to him on examination in chiéf.</p> <p>Same.' — -Answer Not Sesponsive. — When May Be Stricken Out. — -Where an answer is in nowise responsive to the question asked, it may be properly stricken out, although otherwise permissible.</p> <p>Same. — Examination of Witness. — Objection to Question. — Puling of Court. — Abandonment of Question. — -Where a question is asked a witness, which is objected to, and the objection is overruled, but the question is abandoned and left unanswered, no harm is done by the ruling of the court, even if the ruling had been wrong.</p> <p>Same.- — Objections.—When Made. — Motion to Strike Out. — Objections to testimony, in practice, are usually addressed to the questions, and it is not a favored practice to permit counsel to delay until he learns whether the answer is favorable to him, and, if not, then move to strike it out.</p> <p>Same. — Competent and Incompetent Commingled: — Appellate Tribunal Will Not Sift. — The appellate tribunal, sitting as a court of review, will not sift out competent evidence from incompetent, when the appellant has permitted a mixture of the two to reach this court.</p> <p>Same.- — Incompetent.—Estoppel.—A party who has opened a way for the admission of incompetent testimony, is in no position to object if the opposite side follows in such way.</p> <p>Same. — Impeaching Question. — Form and Substance of. — A question put to an impeaching witness need not be in the exact words of the question asked of the witness sought’to be impeached, hut they should be identical as to time, place and substance, and should be so framed as to admit of a negative or an affirmative answer.</p> <p>Deposition. — ■Objections, When Made. — Competency of Deponent.— Where objection is made to a deposition on account of the incompetency of the deponent, such objection may be made when the evidence is offered, and as it is offered, the same as if the witness were upon the stand before the court and jury; and it is not required to be made before the trial, under section 439, R. S. 1881.</p> <p>Will.— Witness to Will, an Attorney who Drafted It. — Competency.-— Waiver. — Attorney and Client. — Where a testator selects as one of the witnesses of his will, an attorney whom he has employed to draft the will, by such act, the testator will be deemed to have waived all objections that might otherwise have been made to the testimony of such witness of facts acquired in the professional relation of attorney and client. The testator will be presumed to have acted with a desire to support his sanity and the validity of his- will, and that, in choosing a witness, he intended .to waive every obstacle to the witness’ competency.</p> <p>Instructions to Juky. — Erroneous Instruction.-f-Beversal of Judgment. —All Not Shown to be in Transcript. — An instruction given which, of itself, is erroneous, will not work a reversal of the judgment, where the record fails to show that other instructions were not given than those contained in the transcript, the presumption being in favor of the action of the lower court, until the contrary is shown.</p>

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

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

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

<p>Verdict. — Sufficiency of Evidence to Sustain. — That the evidence is insufficient to sustain the verdict, see opinion.</p> <p>Mortgage. — Mortgagee in Good Eaith. — Valuable Consideration. — That a mortgagee is one in good faith and for a valuable consideration, see opinion.</p> <p>Judgment. — Beversal.— Who Affected by. — A reversal of a judgment only operates as to those appealing, and leaves the judgment undisturbed as to those not appealing.</p> <p>Supreme Court Practice. — Sufficiency of Evidence to Support Verdict. —Where there is evidence for and against the finding of a necessary fact, it is the duty of the appellate tribunal to determine whether there was a failure of evidence to support a material issue involved.</p> <p>Opinion on petition for rehearing by Howard, J.</p>

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

<p>TJnsotjndness op Mind. — Person of Unsound Mind. — Care for.- — Compensation for Care. — -Charge Against Ward's Estate.- — Seasonableness of. — Question of Pact. — Where the guardian of a person of unsound mind makes a contract 'with, another for the boarding, clothing and caring for his ward, compensation for such services is a proper charge against the ward’s estate, and the reasonableness of such a claim is a question for the court, after hearing and considering the evidence.</p> <p>Same. — Appearance.—How Made. — Practice.—In such a case, the ward can only appear in court by his guardian, and any papers filed in the name of the ward alone should be stricken out and disregarded.</p>

<p>Action. — Complaint.—Dismissal Without Prejudice. — Estoppel.—Harmless Error. — When Bight of Action Not Defeated. — Where two actions between the same parties had each been dismissed by the plaintiff, without prejudice, and a third action instituted, the plaintiff is not estopped from prosecuting his last action because certain allegations therein are repugnant to allegations in the complaints in the action's dismissed. A right of action can not be defeated by a harmless error of the plaintiff in instituting his action.</p>

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

<p>Criminal Law. — Plea of Guilty.- — Bepresentations as to Sentence.— When not Error to Befuse Leave to Withdraw Such Plea. — Where a defendant in a criminal action was informed, by a stranger to the court, that three of his associates in the alleged crime had pleaded guilty, and that their sentences were suspended during good behavior, and that if the defendant would plead guilty he would probably receive the same judgment, and that acting upon such representation, the defendant pleaded guilty, and the judge took the case under advisement from December 23d, 1892, until January 2d, 1893, when the defendant was brought into court for sentence, and the court stated to defendant that he had concluded to fix his punishment at commitment in the reform school, and the court then announced that if any one present desired to interpose in behalf of the defendant, an opportunity would be given to do so, but no steps having been taken, the court passed the sentence as announced, — the defendant can not thereafter, as a matter of right, have the judgment set aside, and obtain leave to withdraw his plea of guilty, such action being in the sound discretion of the court, the court having given the defendant his due rights and opportunities.</p>

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

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

<p>Sheriff’s Sale. — Action to Set Aside. — Fraud.—Fquitable Lien. — Burden of Proof. — Fstoppel.—Contract.—A., at the time of his death, owned a certain tract of land, which he devised to B. and C. for . life, and the remainder; in fee, to their children, providing that upon failure of B. and C. to pay the taxes thereon, his executor should . take charge and possession of said land and apply the rents to the payment of such taxes. After the death of A., B. and C. failed to pay the taxes assessed against said land, and the land was sold for taxes to D., and, the land not being redeemed, D. received a tax deed therefor. B. and C. procured E. to purchase D.’s interest in the land, under a verbal agreement that E. should purchase the tax title, and foreclose, by due procedure, the lien given to purchasers at void tax sales, and that the premises should then be sold by the order of E., at sheriff’s sale, to satisfy the decree, and that E. should purchase, at such sale, the property, and hold the same for the use and benefit of B. and C. until the rents thereof should pay E. for the tax lien and costs of foreclosure, with interest, then E. should convey the same to B. and C., or to their children. E., in compliance with his agreement, purchased the tax title of D., foreclosed the lien, and had the land sold; but instead of purchasing at the sale, according to agreement with B. and C., he permitted E. to purchase, who was a tenant of the land, upon the understanding that F. should purchase as the agent of E., and that the sheriff’s deed therefor should be made to E., and that E. should protect E.’s lease interest in the land, which agreement between F. and E. was made to prevent competition at the sale. F. purchased the rents and profits for a period of seven years for §455.82, and repudiated the agreement with E., and claimed the rents and profits for the seven years, the rents and profits for such period being fairly worth §1,500. B. and C. seek to have the sale to F. set aside.</p> <p>Held, that F. is estopped from claiming the benefits of his purchase, and that B. and C. were not guilty of fraud leading to the result complained of, and that the sale should be set aside.</p> <p>Held, also, that F. is entitled to an equitable lien on the land for the purchase price of the rental paid by him.</p> <p>Held, also, that F. is bound by his contract with E. to the same extent that E. would have been bound had he purchased at the sale.</p> <p>Held, also, that the burden is noton B. and O. to'show that any person would have bid more for the land than F.; neither is a failure of the finding to show such fact equivalent to a finding that no person would have bid more; and since the purpose of S', was to prevent competition, he can not he heard to say that his purpose was not effectual.</p>

<p>Demurrer. — Sufficiency of. — Demurrer to Answer. — Cause of Action.— Cause of Defense. — A demurrer to answers, whichstates that “neither of said paragraphs states facts sufficient to constitute a cause of action,” does not raise the sufficiency of the paragraphs of answer, for the reason that answers are not required to state causes of action, but are sufficient when they state causes of defense.</p> <p>Assignment of Errors. — Modification of an Instruction. — When Can Not he Considered. — Instructions as a Whole. — An assignment of error that the court erred in modifying one of appellants’ instructions will not be considered where all the instructions are not in the record, it being established practice that the instructions must be considered as a whole.</p> <p>Verdict. — Sufficiency of the Evidence. — That the verdict is sustained by the evidence, see opinion.</p> <p>Statute of Limitations. — Defective Titles. — Imperfect Sales. — The statute of limitations applies to defective titles and imperfect sales.</p>

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

<p>Criminal Law. — Seduction.—Marriage of Seducer and the Seduced.— Bar to Action. — Where, in a prosecution for seduction, the seducer pleads, in bar to the action, that after the matters and things set up in the indictment he married the prosecuting witness, and that she is still his wife, such plea, if established, will be an effectual bar to the action.</p>

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

<p>Will.— Construction of. — Distribution, When Per Stirpes, When Per Capita. — Advancement?.—Where the provisions of a will, relating to the manner of distribution of the estate, are: “I will and direct that all my property, both real and personal, shall be distributed in equal portions among the children of the following named persons: * * * * * * x mean and intend that the children of these parties above named, without any regard to numbers, shall be counted as one family, and equally divided amongst them all,” the will must be construed to mean that a distribution should be made per capita and not per stirpes; and the fact that the will directs that money and property advanced to the parents of certain legatees shall be deducted from the legacies of the children of such parents in equal proportion, and that advancements to certain of the legatees shall be deducted from the legacy of each, does not affect the manner of distribution as indicated in the will, except that owing to such deductions of advancements, there can not strictly be a per capita distribution in equal amounts.</p> <p>Same. — Construction of. — Distribution Per Capita, Per Stirpes. — -Where the devise is to several persons belonging to different classes, bear- - ing different degrees of relationship to the testator, and the language of the will leaves the question of distribution in doubt, or the language does not exclude a distribution per stirpes, then the will must be construed as intending a distribution per stirpes and not per capita.</p> <p>Same. — Construction of. — Words in, Sow Construed. — Words employed in a will must be given their ordinary meaning, unless there is language in the will which indicates clearly that the testator did not use the words in question in their plain and ordinary sense.</p> <p>Same.— “Children,” Sow Construed. — When Includes (Grandchildren, When not. — The terpi “children,” when used in a will, will be construed in its ordihary and popular signification, and will not be construed to include grandchildren, when there are other persons in existence, at the date of the will or when the bequest or legacy takes effect, answering to such meaning of the term.</p>

<p>Deóedent’s Estate. — Claim Against. — Former Adjudication. — Plea in Bar. — Dismissal Without Prejudice. — Judgment.—Final Adjudication. —Where a claim is filed against a decedent’s estate, an issue formed, the case submitted to the court for trial, and the court takes the case under advisement, and, after several days, being fully advised in the premises, dismisses it, or disallows it, charging the costs to claimant, such judgment having never been set aside nor appealed from, the case has been decided upon its merits, and is a final adjudication, and is sufficient to bar another action, it having none of the characteristics of a nonsuit, or dismissal without prejudice.</p> <p>Same. — Claim.—Final Adjudication.— Time of Filing. — Exceptions.— Even if the judgment as above mentioned was not a final adjudication, but authorized a refiling of the claim, the claim could not be filed against the estate after thirty days before final settlement, unless the claim falls within the exceptions authorizing suits against heirs and distributees.</p>

<p>Criminal Law. — Self-Defense.—Excessive Violence by Officer in Attempting to Malee Arrest. — Bight to Bepel Force by Force. — A peace officer, in making an arrest, is not authorized to use more force than is reasonably necessary to subject the person to his authority; and if the officer use excessive force and violence upon such person, such person being where he has a right to be, he may repel force by force, and if, in the reasonable exercise of self-defense, he kills such officer, he is justifiable.</p> <p>Same. — Verdict Contrary to Evidence. — That the verdict is cohtrary to the evidence, see opinion.</p> <p>Same. — Arrest Without a Warrant. — Officer Informing Person of his Authority. — Bequest to Submit. — Besisting Arrest. — Degree of Force Authorized. — Where a peace officer attempts to make an arrest without a warrant, the reason for informing the person of his authority, and requesting him to submit thereto, is as great, if not greater, than where such officer acts under authority of a warrant; and where such officer informs the person sought to be arrested of his purpose to arrest him, and he refuses to submit, the officer having authority to make such arrest may use sufficient force to overcome such resistance, even to the taking of the life of the person resisting arrest.</p> <p>Same: — Openly Carrying Deadly and Dangerous Weapon.— When a Crime.— The act of openly carrying or wearing a dangerous or deadly weapon, with intent or avowed purpose of injuring another person, constitutes a crime; but such carrying or wearing in connection with threatening or menacing remarks against certain persons does not come within the statute.</p> <p>Same. — Dangerous and Deadly Weapon. — Drawing or Threatening to Draw. — Brandishing Such Weapon— The law does not make the brandishing or flourishing of a dangerous or deadly weapon a misdemeanor, but it is the drawing, or threatening to draw, such a weapon on any other person that is made a crime.</p> <p>Same. — Instructions to Jury. — Instruction Outside of Case Made. — Erroneous. — Where an instruction in a criminal action embraces a theory upon which there is no evidence, such instruction is erroneous if it tends to mislead the jury.</p> <p>Same. — Seasonable Doubt.- — -Self-Defense.—Insanity.—As long as there is a reasonable doubt of the sanity of a defendant in a criminal case, at the time of the commission of the alleged offense, there must necessarily be a reasonable doubt of Ms guilt; and as long as there is a reasonable doubt whether a homicide was not committed in the reasonable exercise of the right of self-defense, there is also a reasonable doubt of the guilt of the accused.</p> <p>Same. — Instructions to Jury. — Erroneous Instruction not Gured by Correct One, Except, etc. — An erroneous instruction can not be cured by giving a correct one, unless the erroneous instruction is thereby plainly withdrawn.</p>

<p>Appellate Coubt. — Jurisdiction.—Statutory Lions. — Jurisdiction, on appeal, of cases involving purely statutory liens, is in the Appellate Court.</p>

<p>Pleading. — Cross-Complaint.—Construction of. — Mortgage Peed. — Becurity of Wife for Husband. — Parties, Heirs or Administrator. — A. and B. agreed to exchange lands. . A. was indebted to C., and by agreement between A. and his wife, and B. and C., B., in making the exchange deed, deeded one hundred acres to A.’s wife, and three hundred and eleven acres to C., as security for the indebtedness ■ from A. to C. A. and his wife thereafter procured B. to convey to A.’s wife the three hundred and eleven acres conveyed to C. as security. A.’s wife brings suit to quiet her title to all of said land. O. having died intestate, his heirs, treating the deed as a mortgage, seek, by cross-complaint, to have it foreclosed to pay said indebtedness.</p> <p>Held, that the cross-complaint, in substance as the facts above set out, can not be construed as showing that the mortgage deed securing the husband’s debt included land of the wife, making her security for her husband, and therefore void.</p> <p>Held, also, that an objection that the cross-complaint was not by an administrator of C.’s estate, instead of by C.’s heirs, is untenable.</p> <p>Special Finding. — Peed.—Execution of. — Delivery.—A finding that a deed was executed includes the facts that the deed was written, acknowledged and delivered.</p> <p>New Trial. — As of Bight. — When Not Allowed. — Where, upon the issues adjudged against a party, no question of title is involved, a new trial as of right is not given by statute.</p>

<p>Gravel Road. — Proceeding Establishing. — Appeal from. — Reversal on Appeal.- — Judgment on Appeal Only Affects Parties Appealing. — Collateral Attack. — Injunction.—Where six freeholders affected by a proceeding establishing a free gravel road appealed from such proceedings in the commissioners’ court, in their own behalf, and for others who might desire to receive the benefits thereo'f, to the circuit court; and, upon a hearing by the circuit court, the proceedings in the commissioners’ court were declared void and without authority of law, such decree of the circuit court only enures to the benefit of the six appellants, and can not be taken advantage of by any other party affected by the proceedings in the commissioners’ court, and not appealing. The proceedings establishing the road not being coram non judice, they were not subject to collateral attack by way of injunction against the county treasurer, restraining him from collecting assessments therefor, by a party not having appealed to the circuit court and obtained the judgment as above mentioned.</p>

<p>Municipal Corporation. — Ordinance.—Validity of. — Regulating Conduct, Business, and Use of Property. — A municipal corporation seeking, by ordinance, to place a restriction on the lawful use of property, must specify in such ordinance the rules and conditions to be observed in such business, and must permit the exercise of the privilege to all citizens who will comply with the conditions, and must not admit.of the exercise, or of an opportunity of an exercise, of any arbitrary discrimination by municipal authorities between citizens so complying, otherwise the ordinance will be void.</p>

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

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

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

<p>Contract. — Signing and Acknowledging by Party of First Part. — Acceptance and Becording ■ by Party of Second Part. — Beal Estate.— Where a written instrument concerning the use of real estate has been signed and acknowledged by the party of the first part, but is not signed or acknowledged by the party of the second part, and the party of the second part accepts the same and has it recorded, such transactions make the instrument a contract .between the parties.</p> <p>Injunction. — Natural Gas. — Interference With (Contractual Bights.— Gas Well. — Contract.—Trespass.—Damages.—A., the owner of a certain eighty-acre tract of land, entered into a contract with B., whereby B. was granted the right to bore a gas well on a certain part thereof, 20 x 20 feet square, it being stipulated in the contract, on the part of A., that no other well should be driven on any other part of the eighty-acre tract, except that A. may bore a well for his own use and that of his neighbors. B.’s right to'continue in the possession and use of the tract, 20 x 20 feet, was upon certain conditions, and other rights were respectively granted by the one to the other. O., a stranger to the contract, without any right to do so, had erected a derrick on the eighty-acre tract other than the 20 x 20 feet square, and was threatening to bore a gas well. B. brought suit to enjoin O. from boring the well.</p> <p>Held, that injunction was the proper remedy, as an action for damages would not have been adequate; for the damage of C.’s well, if bored, to B.’s, as affecting the fiowage of gas, could not be measured.</p>

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

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

<p>Justice of the Peace. — Judgment.—Gollateral Attack. — Injunction.— Trial by Jury of Twelve Instead of Six. — A judgment of a justice of the peace i¿ not subject to collateral attack, by way of injunction, on the ground that the justice tried the case by a jury of twelve, instead of six. Such error or irregularity did not render the judgment void, and, hence, could not be collaterally attacked.</p> <p>Same. — Exception to Muling of No Avail. — Appeal.-—Trial deNovo. — An exception before a justice of the peace is of no avail, because on appeal the whole case is tried de novo, and final judgment rendered in the appellate tribunal without any regard to any error committed upon the trial before the justice.</p> <p>Opinion on petition for a rehearing by McCabe, J.</p>

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

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

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

<p>Criminal Law. — Indictment.—Sufficiency of . — Conspiracy.—False Pretenses. — Where an indictment alleged substantially that A, B, C and D entered into a conspiracy to cause and compel a certain municipal corporation to pay an extortionate and exorbitant sum of money for the construction of a public work, by means of certain alleged false pretenses, and thereby to fraudulently obtain from such corporation the sum of §5,000, the means for so obtaining such sum of money being that A should make a bid for a certain amount, much above the reasonable and adequate price of construction, and that B, C and D should each bid above A’s bid, by which means A should obtain the contract for the work, and pay B, C and D §300 each, such indictment did not state a public offense within the letter and spirit of the criminal statutes of this State.</p>

<p>Injunction. — Sufficiency of Complaint. — Watercourse.—Culvert.—JBm- , bankments. — Bailroad.—In an action by way of injunction to restrain a railroad company from constructing a stone arch culvert over a certain watercourse along its right of way and from constructing banks of earth on each side of such culvert, leaving no other means for the escape of water flowing in said stream save through said culvert, the complaint is sufficient, which shows that the culvert would be insufficient as a passage way of the water in said stream during ordinary or heavy ráinfalls, causing the water to be dammed up and to overflow lands, destroying crops and fences, and that such damage will be continuous from year to year, and that if such culvert and embankment should be so constructed, plaintiffs would be compelled, in order to recover from defendant compensation for the damage thus sustained, to bring numerous suits against the company.</p> <p>Same. — Restraining Order. — Modification of. — A temporary restraining order may be so modified as to protect the rights of all the parties affected thereby.</p>

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

<p>Will. — Evidence.—Sanity.—In an action contesting the validity of a will, alleging unsoundness of mind, testimony relating to the acts, conduct and language of the testatrix, in court, prior to her death, is admissible as bearing upon the question of sanity.</p> <p>Same. — Evidence.—Eeasonableness of Will. — Family Connections. — Property. — In such case, the fact that the testatrix disinherited her only child, that he was needy and with a young family, are circumstances which may be considered in determining the question of sanity, the reasonableness of the will, the testatrix’s family connections, and her property, being proper subjects of inquiry.</p> <p>Same.— Witness. — Privileged Communications. — Physician and Patient.— Attorney and Client. — Where a physician is present, in his professional capacity, when a testator makes his will, knowledge and information obtained then and there as to the sanity of the testator is privileged, and can not be brought in evidence, unless such privilege is waived; and the same is true of communications to the attorney who drew the will.</p> <p>Vebdict. — Sustained by the Evidence. — That the verdict is sustained by the evidence, see opinion.</p>

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

<p>Mandamus. — When Will Not Lie. — Sufficiency of Complaint. — Bailroad.— Farm Grossing, Manner of. — Judgment by Agreement. — Prior and Contemporaneous Stipulations. — Mandamus will not lie to compel a railroad company to construct and maintain a road crossing over its right of way, in line with the road intersected, instead of at right . angles with the right of way, the right of way crossing the road at acute angles, where a judgment by agreement in relation thereto was entered containing no stipulation as to the manner of crossing, but the plaintiff alleging in his complaint that it was the agreement of the parties that the farm crossing was to be placed across the railroad not at right angles, but at the angle the farm road would make in crossing the railroad, and that such was the intention of the parties and the court. In such case, there being no allegation of fraud or mistake, it must be presumed that plaintiff consented to the entry of the judgment in the form it stands, and such judgment being the repository of the final intentions of the' parties, in regard to the subject-matter of the agreement, it excludes proof of any prior and contemporaneous stipulations which would contradict it.</p>

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

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

<p>Mechanics’ Lien. — Scope of Act ofl 889. — Statute Construed. — The act of March 9,1889, concerning mechanics, laborers, etc., liens, is general in its provisions, and the spirit and intention of this statute is to prefer laborers as a class, and not to prefer one class of laborers to another.</p> <p>Same. — Lien Without Notice. — Scope of Provision. — Special and Remedial Statute Construed. — Section 1 of the acts of 1889, p. 257, creating a lien without notice, is remedial and specific in its terms, and is limited in its operation to the specified class of service mentioned therein; and does not extend to erections or structures other than those thus designated. The implements, boiler, engine, shafting, beam, derrick, reel, ropes and drill, when put in place and action for boring a well, do not come within the provisions of section 1, supra, and require notice of intention to hold a lien.</p> <p>Beceivee. — Power to Appoint. — The court has inherent power to appoint a receiver in any case where it is found necessary to protect the rights of all parties, and to properly execute the decree of the court.</p> <p>Pleading. — Agreement of Parties. — When Dispenses With Special and Supplemental Pleadings. — Belief.—JSstoppel.—Where the parties to an action agree before entering upon the trial, “that all facts in any way relating to the case in hand, or affecting the merits of the controversy on either side, may be introduced in evidence under the pleadings now on file,” such agreement precludes all insistence that the relief granted is broader than the pleadings authorize.</p>

<p>Assignment on Error. — When too General. — Necessary Foundation.— Motion for New Trial. — Where there was no motion for a new trial, in the court below, an assignment of error, on appeal, “that the court below erred in rendering the judgment above and herein set out,” such assignment is not only too general to be entertained, but has not the necessary foundation by motion for a new trial.</p> <p>Same. — Unavailable.—An assignment of error which has no foundation in fact can avail nothing.</p>

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

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

<p>Elections. — Statute Construed. — Penal Statute. — Punitive Damages.— Siring, etc., Elector to Vote, etc. — The act approved March 9, 1889, to secure the purity and freedom of the ballot, giving to the voter who has been hired, bought, or induced to vote or refrain from voting, by the means therein specified, a right of action on the liability thereby created, is constitutional. Such liability is not a debt, but is a penalty for a tortious act, and the act is not in violation of article 1, section 67, of the bill of rights, abolishing imprisonment for debt, except in case of fraud.</p> <p>Legislature. — Power to Modify Common Law and Provide Demedies.— The Legislature has ample power to create a remedy for wrongs, which, at common law, were without redress; and the common law may be changed by statute, and, in such case, the statute, and not the common law, prevails.</p> <p>Same.— Civil and, Criminal Actions for Same Act. — Punitive Damages.— Jeopardy. — The Legislature may provide for the recovery of punitive damages, in cases where injury is caused by an illegal act, notwithstanding the same illegal act may subject the defendant to a criminal action, and such proceedings do not operate to put the defendant twice in jeopardy.</p>

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

<p>Taxes. — Irregularities in Levy. — Injunction.—Payment or Tender of Part. Due. — Mere irregularities in the'levying of taxes or the making of assessments will not avoid their collection; and where any part of a tax or an assessment is due, that part must be paid, or at least offered to be paid, before suit will lie to enjoin the collection of the part alleged to be illegal.</p> <p>Same. — Injunction.—Collection of Assessment for Gravel Boad. — Injunction will not lie on account of the fact that provision was made for collecting a part of the assessment for the construction of a free gravel road before it was actually needed for the payment of bonds or interest to become due.</p> <p>County Auditor. — Duties.—Gravel Boad Assessment. — Division of. — Tax Duplicate. — It is the duty of the county auditor to divide the assessment made by the board of commissioners, in such manner as to meet the payment of principal and interest of the bonds issued, in. the construction of a free gravel road, as they become due; and to place such part as may be necessary to meet the payment of bonds and interest, upon the special tax duplicate.</p>

<p>Watercourse. — Befouling Same. — Artesian Well. — Sanitarium.—Injunction. — Damages.—Where one sinks an artesian well upon his own land, and uses the water to bathe the patients in a sanitarium or hospital erected by him on said premises, he is not liable to injunction and damages for allowing the water to flow into a stream which is the natural watercourse of the basin in which the artesian well i's situated, the owner being free from negligence or malice and using all due care in avoiding injury to his neighbor.</p> <p>Same. — Bight to Save Water Descend in Pure State. — Exceptions to. — ■ JReasonable Use a Question of Pact. — The natural right to have the water of a stream descend in its pure state must yield to the equal right of those above. It is not, under all circumstances, an unreasonable or unlawful use of a stream to throw or discharge into it water or impure matter; and whether, in any given case, such use would be reasonable or not, is a question for the jury.</p> <p>Damages. — Damnum Absque Injuria. — Lawful Work or Enterprise.- — Due Care. — Where a work is lawful in itself, and can not be carried on elsewhere than where nature located it, or where public necessity requires it to be, then those liable to receive injury from it have a right only to demand that it shall be conducted with all due care, so as to give as little annoyance as may be reasonably expected; and any injury that may result, notwithstanding such care in the management of the work, must be borne without compensation.</p> <p>Injunction. — -When Remedy Lost. — Remaining Silent. — Legal Rights.— A person may lose bis remedy by injunction, by remaining silent and inactive and allowing acts to be done and expenses to be incurred, and be compelled to assert his rights at law.</p> <p>Harmless Error. — Pleading.—Sustaining Demurrer to aParagraphof.— It is only where the allegations of a proper paragraph of pleading may be established by proof under other paragraphs, that the sustaining of a demurrer to the paragraph in question will be held harmless.</p> <p>Opinion on petition for a rehearing by Howard, J.</p>

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

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

<p>Railroad. — Consolidated Company. — Liability for Penalty Incurred by Lessee of an Extinguished Company . — A railroad company created by the consolidation of two or more cotiipanies, can not be held liable for a penalty incurred by the lessee of one of the companies extinguished by such consolidation.</p> <p>Same. — Notice of Arrival of Trains. — Blackboards.—Statute Construed.— Purpose of Statute. — The act approved March 9, 1889, requiring notice of arrival of trains, etc., relates to companies operating railways ; and an omission to comply with the statute does not involve property rights, but relates to the conduct and management of trains, for the information and accommodation of the traveling public. The owner of a railway, not operating it, is not within the letter or spirit of the act.</p>

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

<p>Prom tbe Elkhart Circuit Court.</p>

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

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

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

<p>Former Adjudication. — Failure of Consideration Pleaded to Part of a Series of Notes. — Practice.— Cancellation of Instrument.— Where a defendant has executed a series of notes with a mortgage, to secure the unpaid purchase price of land, and the payee of the notes bring suit upon the first two of the series, which have become due and are unpaid, and the defendant answered a failure of consideration as to the two -notes, the defendant can not again, in an action on another of the series of notes, plead the'facts which were pleaded to the first two notes, for the purpose of showing a failure of consideration of the note in suit, although the failure of ♦consideration was to the full value of the unpaid purchase price; the fact of failure of consideration being res adjudicata. Defendant’s remedy was to seek the cancellation of the whole series of notes in the first suit.</p>

<p>Demurrer. — Sufficiency of Fact. — Legal Capacity to Sue. — A demurrer for want of facts sufficient to constitute a cause of action does not raise the question of the legal capacity of the plaintiff to sue, such question being a separate ground of demurrer.</p> <p>Harmless Error. — Demurrer.—General Denial. — Where a general denial is sufficient, it is harmless error to sustain a demurrer to another paragraph of answer, which amounts only to a general denial.</p> <p>Exception to Decision oe Court.— Time of Talcing. — The party wishing to save exceptions to conclusions of law must except thereto at the time the conclusion is rendered, otherwise the conclusion will not be reviewed on appeal.</p> <p>Same. — II'lien Carried Forward by Motion For New Trial. — A motion for a new trial, under the proviso in section 626, R. S. 1881, carries forward to the term at which the motion for a new trial is overruled only such exceptions as are properly assignable as a cause for a new trial; and exceptions to conclusions of law are no ground for a motion for a new trial.</p> <p>New Trial. — Practice.—Special Finding. — Motion to Modify. — The proper remedy for relief against a special finding or special verdict, as being unsupported by, or contrary to, the evidence, is by motion for a new trial, and not by a motion to modify.</p> <p>Same. — Motion for. — -Time of Making. — Where a decision is rendered, and a motion for a new trial is not made at the same term of court, nor on the first day of the succeeding term, but is made on the 80th judicial day of the following term, such motion comes too late, and forms no part of the record.</p> <p>Conclusions oe Law. — •Exceptions to. — Practice.—Motion to Modify — The proper remedy as to errors in conclusions of law is by exception to the conclusions, and not by a motion to modify.</p>

<p>Harmless Error. — Ruling on Paragraph of Answer. — Where a ruling on a paragraph of answer is erroneous, it will amount only to harmless error, where it clearly appears that the finding and judgment of the court were on another paragraph of answer. or cross-complaint.</p> <p>Pleading. — Complaint, When Good as Against a Joint Demurrer. — If a complaint or cross-complaint is good against any of the defendants, it is good against a joint demurrer from all the defendants.</p> <p>Same. — Complaint.—Prayer.—Character of Pleading. — The fact that a complaint or cross-complaint for an accounting of partnership affairs concludes with a demand for a certain sum of money, does not change the complaint, from a demand for an accounting, into a mere demand for money due.</p> <p>Bill oe Exceptions.— Stenographer's Longhand Manuscript.— When Sufficiently Authenticated. — When not Part of Record. — Where a stenographer’s certificate to what purported to be a longhand manuscript of the shorthand report of the evidence was that the “foregoing is a correct, true, and complete longhand manuscript of the shorthand report, * * including all the oral and documentary testimony introduced in the trial of said cause,” not showing it to be a verbatim report, and there being no certificate from the clerk nor from the court, showing either the filing of the transcript in the clerk’s office, or its incorporation into the bill of exceptions, and containing no file mark, the manuscript is not sufficiently authenticated, and forms no part of the record.</p> <p>Partnership.— Who are Partners. — Liability as. — Where parties, by their acts, have made themselves partners of a firm, having participated in the business and profits of the firm, such persons are proper parties in an action for an accounting, and liable as partners.</p> <p>Opinion on petition for rehearing by Howard, J.</p>

<p>Receiver. — Death of. — Duty to Appoint Another. — Partnership.—Settlement of. — Where, upon application and satisfactory showing, a court has decreed a final settlement of a partnership, and appointed a receiver to take charge of the partnership assets and execute the orders of the court, and, before final settlement 'of the partnership, the receiver dies, it is the duty of the court, of its own motion, or on motion of a party, to appoint another receiver, or to vacate the order of the court appointing the receiver; for, by a refusal to appoint another receiver, or to vacate the order, the court still has possession of the assets of the firm, but refuses to carry out the purpose for which the possession was assumed.</p> <p>Master Commissioner. — Beportof.—Conclusions.—Binding of Pacts.— Mere conclusions in the report of a master commissioner, in a case referred to him for a finding of facts, have no controlling force.</p> <p>Practice. — Bight to Pile Papers in a Cause. — Motion to Set Aside Judgment. — It is a rule of practice that so long as a cause is pending in court, any party has a right to present and file in such cause any paper that, upon its face, shows that it is connected therewith, and is of such character that the court could properly take action thereon and afford to the party any relief; and, under this rule, comes a motion to set aside an erroneous judgment, it being the duty of the court to hear and pass upon the same, to enable the party to have all his exceptions presented to the appellate tribunal.</p>

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

<p>Pleading. — Complaint to Reform a Deed. — Sufficiency of. — Consideration. — A complaint to reform a deed, made by the husband to his wife through a third person for a past consideration of SI,000, is sufficient, on demurrer, as showing a conveyance upon a valuable consideration.</p> <p>Deed. — Mutual Mistake of Fact. — Misdescription.—Reformation of.— Susband and Wife. — Where a husband, desiring to convey land to his wife upon a money consideration, executed a deed to a third party, who, by agreement, was to, and did, execute a deed to the wife, but, by mutual mistake, neither of the deeds conveyed the land intended to be conveyed, the mistake was one of fact, and the wife is entitled to a reformation of the deed.</p>

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

<p>Prom tlie Madison Circuit Court.</p>

<p>Pleading. — Complaint, Sufficiency of. — Partition.—Beal Estate. — Wife’s Inchoate Interest. — Must Show Absolute Interest. — Where a complaint alleged, in substance, that plaintiffs husband conveyed land in which she did not join, and that subsequent to such conveyance he obtained a divorce from her, in the suit for which she obtained a decree for $200 alimony, which sum has not been paid; that the conveyance was made to defraud and defeat the collection of the alimony, and closing with a prayer that she be declared the owner in fee of one-third of such land, and that the same be set off to her, the complaint is insufficient, in not showing that the wife’s inchoate interest had become absolute.</p> <p>Same. — Wife’s Inchoate Interest. — Quieting Title. — Partition.— When Bight of Action Accrues. — Another paragraph of the same complaint alleging the same facts as above set out, except the divorce and the alleged fraud, and alleging further that the land was sold on execution on judgment in which the inchoate interest of the wife was not directed to be sold, from which sale there was redemption made, asking that her title be quieted, for partition, and that she be given possession of one-third of the land, is insufficient, in failing to show that the wife’s inchoate interest had become absolute under section 2508, R. S. 1881.</p>

<p>Judoment. — Review of. — Assignment of Error. — Sufficiency of. — Ground for New Trial. — An assignment of error, in a proceeding to review a judgment, as well as an appeal, is insufficient where the assignment is only a cause for a new trial.</p> <p>Bill of Exceptions. — Matter Stricken Out. — Sow Referred to in Bill. —Practice.—Where a question sought to be reviewed is the exclusion, from an affidavit for a continuance, of certain language, and the bill of exceptions attempts to show what part of the affidavit is stricken out, by referring to the page and line of the affidavit, where the same begun and where ended, the court can not know that the pages and lines of the affidavit, as copied into the record, are the same as the original, and no question is presented as to that ruling. The proper mode would have been to embody in the bill the language stricken out.</p> <p>Instructions to Jury. — Joint Assignment of Several Instructions.— When Available Error. — Where the giving, or refusal to give, several instructions is assigned as error, and the assignment joins all of the instructions by the conjunction “and,” in such case there can be no available error, unless all the instructions given and so joined, or all the instructions refused and so joined, are erroneous.</p> <p>Compromise. — Contract.—Prevention of Litigation.— Consideration.— Instructions to Jury. — In an action on a compromise agreement for the prevention of litigation, an instruction that “If the plaintiff had no legal claim against the defendant at the time of the alleged agreement and compromise, it would be what is called, in law, a naked promise, and void,” is palpably wrong, a valid legal cause of action not being necessary to support such an agreement.</p> <p>Change of Venue. — Court Buie.' — When Not Barred by. — Diligence.— Where a party does not apply for a change of venue within the time limited by court rule, but applies therefor afterwards, alleging as a cause bias and prejudice of which he had no knowledge until the making of the affidavit, the party is entitled to the change, it not being necessary to allege that affiant had used diligence to learn of the existence of such prejudice at an earlier date.</p> <p>New Trial. — Motion for. — Decisions and Exceptions Carried Forward. —Change of Venue. — A motion for a new trial, under the proviso of section 626, R. S. 1881, carries forward all decisions and exceptions thereto which are legally assignable as grounds for a new trial, to the time the motion is overruled, among which decisions is a ruling on a change of venue.</p> <p>Bill of Exceptions. — When Properly Authenticated. — Change of Venue. —Judges, Begular and Pro Tern. — Functions of Each. — Where a change of venue is taken from the regular presiding judge, and another is duly appointed and assumes jurisdiction of the case, the regular judge can perform no further functions in the case. And, in such case, where there are two bills of exceptions wholly dissimilar, except the formal beginning and conclusion, the one signed by the regular judge, the other following and signed by the judge pro tern., the bill signed by the judge pro tem. can not embrace and authenticate the bill signed by the regular judge; and, therefore, the matters contained in the bill signed by the regular judge are not in the record, not being properly authenticated.</p> <p>Opinion on petition for rehearing by McCabe, J.</p>

<p>Judgment. — Review of. — Effect Same as Appeal. — Reversal in Part.— Where, in an action to review a judgment foreclosing a mortgage, the decree in the review proceedings sets aside the judgment in foreclosure, as to parties holding junior incumbrances, such reversal of the judgment, in part, does not vacate the judgment in foreclosure as to the remaining judgment defendants in the foreclosure proceedings; the result of a successful application to review a judgment being the same as a successful appeal.</p>

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

<p>Exception to Decision of Couet. — Time of Talcing. — Conclusions of Law. — Exceptions to conclusions of law must be taken at the time the conclusions are announced, or objections thereto will be waived; four days after conclusions of law are made, and after a motion for a new trial has been made, being too late to except to the conclusions.</p> <p>Conclusion of Law. — When Appellant Will not be Heard to Complain. —Where a conclusion of law is such that, whether right or wrong, it could not prejudice the rights of the appellant, he is in no position to complain of it.</p> <p>New Trial. — As of Bight. — When Allowable. — A new trial as of right is not allowable, where the question of title is merely incidental to the substantive cause of action in which a new trial as of right is not permitted, — as in an action for subrogation.</p> <p>Judgment. — Motion to Modify. — Lien-Holder.—Priority of Liens. — A judgment fixing the priority of liens can not be so modified, on motion of one of the junior lien-holders, that any amount left after payment of the paramount lien should be turned over to the holder of such junior lien, he only having a right in common with the other lien-holders, to the payment of the liens in the order of their priority.</p> <p>Statute of Limitations. — Six Years. — Subrogation.—Decedent's Estate. —In an action for subrogation, where the complaint alleges that the plaintiff paid the judgment to which he-asks to be subrogated, more than six years before, and that within six years therefrom the debtor died, and alleging the substitution of the personal representative as required by section 298, B. S. 1881, the complaint is not demurrable on the ground of six years’ limitation.</p>

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

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

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

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