Volume 136 — Indiana Reports

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

<p>Special Finding. — Law and Fact. — Can not Aid Mach Other. — Mach Must he Complete Within Itself. — A special finding of facts, whether by the court or jury, is separate and distinct from the conclusions of law; and the court, in declaring the law on the facts, can not supply a missing fact, nor can the presence of a conclusion of law among the facts supply an omission in the declaration of law.</p> <p>Tax Sale. — Invalid Title. — Purchaser's Lien. — Time and Bate of Interest. — Time of Sale. — Amendatory Acts. — Statute Construed. — On the 5th day of March, 1883, certain land was sold for delinquent taxes, and the sale being invalid, the purchaser brought action to foreclose his lien for taxes, penalty and interest, and also for possession of the land and to quiet his title thereto. The defendant filed a cross-complaint asking that his title be quieted thereto. A judgment was rendered quieting defendant’s title to the land subject to plaintiff’s lien for taxes, penalty and interest, allowing interest for the whole time, at the rate of twenty per cent., the purchaser failing to take a tax deed for the land so purchased, within six months after the expiration of two years. Should any interest have been allowed after the two years and six months? If so, what rate of interest?</p> <p>Held, that interest was properly allowed for the whole time, the action not being based on section 6466, R. S. 1881, but on section 6497, R. S. 1881, as amended by the act of March 5th, 1883, fixing the rate of interest at twenty per cent., and, having an emergency clause to it, it. became a law on March 5th, the day of sale, and, therefore, interest was properly allowed at twenty per cent.</p> <p>Held, also, that the sale properly took place on the 5th day of March, 1883,' the act amendatory thereof changing the time of sale to the second Monday in February, having no emergency clause, and not taking effect till after the sale.</p> <p>Judgment. — Form of — Question as to, How Saved for Appeal. — •Waiver. —An objection to the form of a judgment must be first made in the court below, or it will be deemed waived on appeal.</p>

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

<p>Decedent’s Estate. — Presumption.—In Pavor of Testacy or Intestacy? —Election of Widow. — The change in the rule of election — section 428, Elliott’s Supp., requiring the widow to take under the will, unless she chooses, in legal manner, to take under the law — does not create a presumption against intestacy and in favor of testacy, but the presumption of intestacy still obtains.</p> <p>Real Estate. — Conveyance of Husband's Lands. — Joinder of Infant Wife. — Disaffirmance.— Inchoate Interest. — Recovery of.- — Where an infant wife joins with her husband in the conveyance of his lands, before such wife can maintain an independent action to set aside her deed made in infancy, she must disaffirm; but where the grantee gets into court first, and seeks a confirmation, it will not be too late, on that account, to disaffirm before filing her pleading to obtain her interest, if in fact she is required to disaffirm at all.</p> <p>Same. — Conveyance by Wife of Inchoate Interest. — Infancy.—Disaffirmance. — -Statute of Limitations. — Right of Action, -When Accrues. — Husband and Wife. — Where an infant wife joins in a conveyance of land by her husband, disaffirmance, after she obtains her majority, could lend no force to her rights, as long as her interest therein remains inchoate, and the statute of limitations will not begin to run until her interest becomes absolute by the death of her husband, for an action could not be maintained to annul the deed, to quiet title, or for possession, as long as the wife’s interest remains inchoate and contingent.</p> <p>Pleading. — Misnomer of. — Does not Affect Rights. — The name given to a pleading does not determine its character, and the rights of litigants are not lost by a misnomer of their pleading.</p>

<p>Railroad. — Personal Injury. — Damages.—Special Verdict. — Sufficiency of. — Ordinary Care. — Contributory Negligence. — Law and Pact. — In an action for damages against a railroad company for injuries received by plaintiff while crossing the railroad with a wagon and team, the special verdict as to plaintiff’s negligence found that plaintiff, with his brother, had crossed the railroad at the same place, from the opposite direction, but a short time before, and had observed the condition of the crossing, the view of the railroad and of approaching trains from either direction being obstructed by high buildings within a few feet of the railroad tracks, the building on the south side of the street and west side of the tracks being within three feet of the side track on which a box car was standing, the north end of which was near the middle of the street, the side track being but five and one-half feet west of the main track; that under these circumstances plaintiff, with his brother, attempted to recross the tracks, and stopping his team sixty feet west of the crossing, he looked and listened for approaching trains, and hearing and seeing none, he and his brother drove the team in a walk to make the crossing, one looking and listening south for trains, and the other looking and listening north for the same, and saw and heard none until the team was upon the main track, when it was struck by an engine approaching from the south, at the speed of thirty miles an hour, and without giving the statutory signals, nor any signals of its approach, whereby plaintiff was injured, etc.; that plaintiff could not have heard or seen the approaching train while so driving from the point where he stopped to the main track.</p> <p>Held, that the special verdict of the jury is not sufficient to warrant a judgment in favor of the plaintiff, by reason of the failure of the jury to find the inferential fact, from the facts found, that he exercised ordinary care under the particular circumstances in the case.</p> <p>Negligence. — Law and Fact. — When a Question of Fact. — -Where there is room for difference of opinion between reasonable men as to the existence of facts from which negligence, if found, must be inferred, or where there is room for difference of opinion as to inferences which might be fairly drawn from conceded facts, the question of negligence must be left to the jury, as one of fact.</p>

<p>Court. — Place of Holding. — Authority of Court Over. — Access to. — Elevator, Regulation of Use of. — County Commissioners. — Duty and Powers of. — It is the right and duty of the county commissioners to provide a suitable and convenient place for the holding of the courts of the county; and if they fail in the exercise of such right and in the discharge of such duty, the court can not, by their failure to act, or by an unwarranted act of theirs, be impeded in its own freedom of action under the constitution and laws of the State. And where a court house was constructed with an elevator as the principal and only convenient entrance into and exit from the court room, the court may, by order, regulate the operation of the elevator to the needs and reasonable convenience of the court, and the board of commissioners can not, i'n contravention of an order of the court, discontinue the use of the elevator.</p> <p>Same. — Order of. — Collateral Attack. — Injunction.—In such case, the order of court regulating the operation of the elevator, was not void, and could not be collaterally attacked by way of injunction.</p> <p>Same. — Jurisdiction.—Power of a Court to Set Aside or Modify an Order of Another. — A court has not the power, in an action, to set aside or modify the order of another court of similar jurisdiction.</p>

<p>Office and Officer. — Eligibility, Meaning of. — Constitution, Construction of. — The words “eligible to any office,” as used in section 10, article 2, of the constitution, mean “eligible to hold the office,” and do not refer to the election; for, if a person is eligible to hold the office when the time for induction into office arrives, he may take the office, though not eligible to hold the office when elected.</p> <p>Same.— Title to Office, When Vests, How Vested. — Commission not Necessary. — The election of an officer by the people and the declaration of the board of canvassers vests the title to an elective office, the Governor’s commission being nothing more than a convenient form of evidence that the title to such office has been vested in a person by the votes of the people, and not being necessary before the person elected may enter upon the discharge of his official duties.</p> <p>Same. — County Auditor. — Bond.—Immaterial Alteration. — Striking Out the Word “Commissioned.” — Where a person elected as county auditor filed his bond, and, before the approval of the same, the word “commissioned” was struck out in the absence of the sureties, such alteration is immaterial, not in any way changing the legal effect of the bond.</p> <p>Interrogatories to Jury. — Answers to, When Sufficient to Overthrow General Verdict. — Buie as to. — Presumption.—Intendment.—Answers of the jury to interrogatories override the general verdict only when both can not stand, and the antagonism must be apparent on the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, every presumption being indulged in favor of the general verdict. No intendment can be made in aid of answers to interrogatories, and they can not control where their meaning is so uncertain that it can not be definitely ascertained, nor will the answers control where they are contradictory or inconsistent with each other.</p>

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

<p>Record. — Bill of Exceptions.— What Need not be Incorporated in. — It is not necessary to incorporate special findings, conclusions of law and exceptions thereto into the bill of exceptions, as they become a part of the record without a bill of exceptions.</p> <p>Real Estate.— Conveyance of Mortgaged Lands to Mortgagee. — Reconveyance of Same to Mortgagor's Wife. — Merger.—Instantaneous Seizin. —Effect on Mortgage Lien. — Estoppel.—Where A. and wife execute a mortgage to B. on a certain tract of land belonging to A., and thereafter A. and wife join in a conveyance of such land to B., by warranty deed, and B., as a part of the same transaction, and for the purpose of transferring the title of the real estate from A. to A.’s wife, conveyed the land to A.’s wife, no money or other consideration being paid on account of such conveyances, and vesting in B. no beneficial interest in such land, the seizin being instantaneous, B. did not take a fee-simple interest in such land, merging his mortgage lien, and B. is not estopped to assert his rights under the mortgage.</p> <p>Special Finding. — Conclusions of Law. — Exceptions to. — Admission.— Intervening Errors. — Where a party excepts to conclusions of law, he thereby admits that the facts were properly found; and, in such case, the court will not examine to see whether or not there was any intervening error, as the case must either stand or fall by the facts found.</p> <p>Same. — Wien Can Not be Changed. — A special finding can not be changed after it has been filed.</p>

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

<p>Justice of the Peace. — Jurisdiction.—Criminal Law. — Filing of Affidavit, Time of. — Arrest and Production in Court. — To give a justice of the peace jurisdiction over the person of any one charged with a violation of the criminal law, the first step necessary is the filing of an affidavit naming the offense and the person charged with its commission. On the filing of the affidavit, a warrant issues, and on the apprehension and production in court of the defendant, the jurisdiction of the justice over the person is complete. An affidavit filed afterwards comes too late and can not be made to relate back so as to confer jurisdiction at the time of the trial.</p> <p>Same. — Jurisdiction.—How Shown. — To the record of a court of inferior and limited jurisdiction, as that of a justice of the peace, the same verity is given as to that of a court of general jurisdiction, only after it is shown that such court had jurisdiction of the subject-matter and of the person of the defendant. Recitals in the record showing jurisdiction are not conclusive, and, if denied, evidence - aliunde must be adduced to establish the jurisdiction.</p> <p>Habeas Corpus. — Justice of the Peace. — Becord of Verified by Parol Evidence. — -In a habeas corpus proceeding by a person imprisoned on a mittimus by a justice of the peace, wherein the correctness of the record of the justice is denied, it is ' error to refuse evidence that the affidavit set out in the record and purporting to be that on which a warrant issued for the defendant, and upon which he was tried, was, in fact, not filed with the justice until after the trial and imprisonment of the defendant.</p> <p>Same. — Irregularities in Procedure. — Beview of Judgment. — In such case, mere irregularities in the proceedings subsequent to the filing of the affidavit, constitute no ground for the discharge of the prisoner on a writ of habeas corpus; nor can a writ of habeas corpus be used for the purpose of reviewing a judgment.</p>

<p>Criminal Law. — Kidnaping.—What Constitutes the Offense. — Decoying a Girl. — Where a married man, somewhat intoxicated, was passing along a highway adjoining a field in which was a girl of his acquaintance, eighteen years old and unmarried, to whom he spoke, and talked with her a few minutes, and took from his pocket a bottle of whisky and invited her to drink with him, which she did* after which they talked a few minutes when they took another drink of whisky, and separated, she driving the cows to the barn, where the same man again met her, and, after taking another drink, they entered into an agreement by which she was to meet him at a designated place after the family with whom she was residing had retired for the night, for the purpose of taking a buggy ride, and in pursuance of such agreement she secretly left the house and met him at the place agreed upon, and got into the buggy with him and drove off, remaining with him all night, during which time they drove from Franklin county to Cincinnati, arriving there in the morning, and, after a short time crossed the river to Covington, ICy., at which place she requested him to take her back home, which he proceeded to do, and after returning home they concealed themselves in the woods one day, being together, in all, from Monday night until Friday night, and during such time were guilty of adultery on two different occasions, once when she was intoxicated and once when she was duly sober, she fully consenting on both occasions and making no objection to the intercourse, such facts are not sufficient to constitute the crime of kidnaping.</p>

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

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

<p>Fraudulent Conveyance. — Action to Set Aside. — Complaint, Necessary Allegations. — Decedent's Estate. — Husband and Wife. — In an action by an administrator to set aside a conveyance of land, by the husband to his wife, as fraudulent, an allegation that A. had recovered a judgment against the decedent and his wife setting aside the conveyance “as being fraudulently made,” does not state facts sufficient to constitute a fraudulent conveyance as against creditors. To make the complaint good, it should have alleged, among other things, that such conveyance did not leave the decedent property enough subject to execution to pay his then existing indebtedness, and that the conveyance was made with intent to defraud such creditors, that the grantee had notice of such intent, or that the conveyance was made without valuable consideration.</p> <p>Same. — Meal Estate. — Conveyance by Husband to Wife. — Decedent’s Estate. — Seconveyance by Wife to Husband’s Heirs. — When not Subject to Demands of Decedent’s Creditors. — In such case, the complaint failing to show that the conveyance by the decedent to his wife was invalid for any reason, the land in her hands was as free from the demands of the creditors of the decedent as if he had never owned it; and a conveyance by her to the heirs of her husband would still leave the land as free from the demands of such creditors as if she had conveyed it to a stranger to the decedent.</p>

<p>Criminal Law. — Indictment, Sufficiency of. — Time, When Ground for Quashing. — Where time is not of the essence of an offense, an indictment will not be insufficient on a motion to quash, either where it states no time or where the time is imperfectly stated.</p> <p>Same. — Larceny.—Obtaining Possession by Owner’s Oonsent.- — Deception. —Passing Confederate Bill. — Evidence.—In an action for grand larceny, where the State’s case, upon the evidence, rested upon the theory that the possession of the railroad ticket and money, the stolen property, was procured from the railway company by a deceitful and fraudulent method, in this, that pursuant to a previous felonious design, defendant called at the ticket window, asking for a round-trip ticket to and from Chicago, and, as he did so, handing to the agent a bill of the denomination of $50, the same being of the issue of the Confederate States of America, of the date of February 17, 1864, and not of the current money of the "United States; that as he handed the bill to the agent, he engaged the attention of the agent by stating the purpose of his trip, and the agent not recognizing the character of the bill, delivered to the defendant the ticket and $25, the agent not having sufficient money to pay the difference, the defendant designated a merchant of the town as his father, directing the agent to pay the balance of the difference to such merchant, the defendant feloniously carrying away and appropriating such ticket and money to his own use; under such theory of the case, the bill was admissible in evidence, for the theory stated, if supported by the evidence, constitutes larceny.</p> <p>Same. — Larceny.—Obtaining Possession by Owner’s Oonsent. — Deception. —-Larceny may exist where the possession of the stolen goods is obtained with the consent of the owner, if that consent is procured by deception and with intent not to return the same, but to appropriate the same and deprive the owner thereof and of a remedy for their loss.</p> <p>Same. — Seasonable Doubt. — Instructions to Jury. — General.—Specific.— A general instruction on the subject of reasonable doubt does not authorize a refusal of a specific instruction relating to the same subject and applicable to the charge and the evidence.</p>

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

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

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

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

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

<p>Railroad. — Notice of Arrival of Trains: — ■When Notice is Not Sequired. —Statute Construed. — Sections 1088 and 1089 of Elliott’s Supp., requiring notice of arrival of trains, have no application to trains of companies, which cover their entire route in less time than twenty minutes, the practical operation of the statute not being applicable to such trains.</p>

<p>Guardian and Ward. — Report.—Resignation.—Final Report. — Suit on Bond. — Res Adjudicata. — Where a guardian files his report and tenders his resignation, and the report'is approved and his resignation accepted, such settlement and-resignation are binding on all persons interested in the estate, as to the matters properly embraced in the report and its approval by the court, yet it is not final, and is-no bar to a suit on the bond of the guardian, as to matters not properly embraced in the adjudication.</p> <p>Same. — Joinder of Causes of Action. — Plea in Bar. — Res Adjudicata.— Negligence. — A ward may bring suit on his guardian’s bond and join therewith an action to set aside an order approving the last report of the guardian and discharging him from his trust; and the report of the guardian and order of the court discharging the guardian from his trust constitute no bar to such action, the matters complained of not being those disclosed in the report and adjudicated by the court, but rather the matters that were concealed from the knowledge of the court, and were not passed upon in the order of approval, relating to the negligence of the guardian.</p>

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

<p>Injunction.— Contract for Personal Services.— Breach of.— School Board. — School Teacher. — A board of school trustees can not be enjoined from violating its contract with a person, for his personal services as a teacher.</p>

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

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

<p>Criminal Law. — Arson.—Indictment, Sufficiency of. — Court Bouse.— Where an indictment for arson, omitting the formal parts, charged that the defendant “did then and there unlawfully, willfully, maliciously, and feloniously set fire to, burn, and thereby destroy large parts of the county court house, situated in Daviess county; in the State of Indiana, which was then and there the property of said Daviess county, and which parts of said county court house, so burned and destroyed as aforesaid, was then and there of the value of eight thousand dollars, and which said county court house was then and there of the value of fifty thousand dollars,” such indictment is sufficient, the setting to, etc., large parts of the house, was setting fire to the house itself; and even if not so construed, the indictment charges, at least, a fair attempt to burn the court house.</p>

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

<p>Interrogatories to Jury. — Answers to.— When in Record. — Submission by Cowrt. — Presumption.—Instructions.—In the absence of any showing on the subject, by the record, where interrogatories to the jury and their answers thereto appear in the record, it will be presumed that the trial court did its duty and submitted such interrogatories to the jury, with instructions to answer the same if they found a general verdict, and the interrogatories and answers are properly before the court for its consideration.</p> <p>Negligence. — Gross Negligence.— Willful Injury. — Contributory Negligence. — Becovery.—There is no middle ground between the negligent doing or omission of an act causing injury to another and the willful injury of the same, whereon the injured party may recover regardless of his own negligence, because of the gross negligence of the party inflicting the injury.</p> <p>Railroad. — Personal Injury. — Negligence.—Walking on Track in Front of Approaching Train. — Duty of Company. — Presumption.—Contributory Negligence. — Willful Injury. — -Where a person is walking on a railroad track in front of an approaching train, the servants in charge of the train have the right to presume,up to the last moment, that he will step off the track in time to avoid injury, where it is possible to do so; and ordinary care on the part of such servants does not require them to anticipate that he will not get off the track, and to stop the train and forcibly or otherwise remove him. And even if such person has a right to walk on the track, the right of the company in running its trains takes precedence over his, and he must, by a due exercise of his senses, take the proper precaution against injury, or such failure so to do will amount to contributory negligence and defeat a recovery, regardless of the company’s negligence, unless the injury was willfully inflicted.</p> <p>Same. — Personal Injury. — Damages.—General Verdict. — Answers to Interrogatories. — Irreconcilable Conflict. — Becovery.—Contributory Negligence. — In an action against a railroad company for damages for injuries inflicted upon one while walking upon the railroad track, a general verdict having been returned in favor of the injured party, upon issues formed by the general denial, such verdict necessarily affirmed that the intestate looked and listened for the approach of the train that struck and killed him, and that he exercised due care and caution to avoid the injury occasioned thereby, while the special verdict, in answer to interrogatories, contradicts such facts; under such circumstances, the court is required to treat the special finding as true, and the general verdict, to the extent of such conflict, as untrue.</p>

<p>Mortgage. — School Fund. — Sale.— Surplus. — Bight to.— Grantee.— Theory. — Becovery.-—A. was the assignee of lands subject to a school fund mortgage. The county auditor sold'the lands to satisfy the mortgage, and A. and wife executed power of attorney to B. to recover the land from such sale and to sell the same, B. executing' simultaneously with the power of attorney his contract of purchase of the land, agreeing to pay A. $500 when it should be realized out •of the land, such claim of A. for the $500 to be a lien on the land. While such power of attorney was still in force, B. recovered the land from the tax sale and sold the same to C., who purchased prior to the sale of the land by the auditor and the accruing of the surplus, with knowledge of the contract between A. and B.</p> <p>Held, that C. was the assignee of A., and entitled to the surplus proceeds of the lands after the school fund mortgage was satisfied.</p> <p>Held, also, that A. had a valid claim against C. for the $500 which B. agreed to pay, C. having purchased with knowledge of such fact, and that it was unpaid; but A. having brought suit for the surplus, he must recover upon that theory, if at all, that being the theory adopted in the court below.</p> <p>Burden of Proof. — Power of Attorney. — Presumption.—Where a complaint alleges that a power of attorney has been revoked by mutual agreement, the burden is on the plaintiff to prove such fact, and when there is no finding as to such fact, the presumption is that the-court found against the party having the onus.</p> <p>Pleading. — Answer.—Parties.—Substitution of. — Agent.—Husband and Wife. — Where, during the progress of an action, it is discovered that the husband, who is a party defendant to an action, was acting merely as agent for the wife, she may be substituted as defendant, in his place, and answers filed by him will stand asdhe wife’s answers without any change of names or refiling.</p> <p>Costs. — Party Defendant. — General Denial. — No Interest in Subject-Matter. — If a party defendant has an interest in the subject-matter in controversy at the time the suit is instituted, and subsequent thereto transfers such interest to another, and subsequent to the transfer answers in general denial, under such condition of the record the court can not do otherwise than render judgment against such de~ • fendant for costs.</p> <p>Parties. — Defendant.—Default.—New Trial. — Appeal.—Where a party defendant was duly defaulted and such party did not ask to be relieved therefrom, and the default has not been set aside, such defendant can not move for a new trial nor join in an appeal from the proceedings of the trial court.</p> <p>Same. — Defendant.—Supernumerary Party. — Where a party defendant stands in the position of purchaser pendente lite, being the purchaser of a certificate of sale of the land in controversy, having no interest in the disposition of the surplus in controversy, such party is a supernumerary one, against whom a judgment can not be rendered.</p>

<p>Criminal Law. — Murder.—Threats.—Motive.—Evidence.—In an action for murder, the State may prove, for the purpose of showing malice and motive, that the defendant or defendants had, on occasions previous to the crime charged, made threats of a general character, when the decedent was within the scope of the threats uttered.</p> <p>Same. — Evidence.—El-Will.—Explanation of Action. — Cross-Examination. — In such case, the court did not err in permitting a witness for the State, a policeman, to give his reasons for expelling one of the defendants from a saloon in the neighborhood of the decedent’s drug store prior to the time of the alleged crime, the defense, on cross-examination, having attempted to show that the acts of the witness in the expulsion were prompted by malice and ill-will.</p> <p>Same. — Evidence.—Cross-Examining Defendant as to Previous Arrests and Prosecutions. — In a criminal action, where the defendant testifies in his own behalf, such witness may be cross-examined as to certain arrests and prosecutions against him in the past, for the purpose of discrediting his testimony, the extent of such cross-examination being largely in the discretion of the trial court.</p> <p>Same. — Evidence.—Bes Gestee. — Mere Narration. — Murder.—Where, in an action for murder, the decedent, immediately after being shot in his drug store, ran up stairs, and, falling into his wife’s arms, exclaimed: “My God, Maida, I am shot. Those colored fellows that were in there when you were there are the ones that shot me,” his assailant not being present but having fled, such declaration, as to who shot him, is not admissible in evidence as part of the res gestee, being a mere narrative of a past occurrence.</p> <p>Same. — Alibi.—Instructions to Jury. — In such case, where the court, among other things, instructed the jury, on the question of alibi, that “the failure of either of the defendants to account for his whereabouts during all the time within which the offense might have been committed, is not of itself a circumstance tending to prove his guilt, but a failure of this character may be properly considered by you in connection with any other evidence in the case tending to prove guilt, if you find that there is such,” that part of the instruction in italics is erroneous.</p> <p>Same. — Defendant.—Bight to Save Jury Instructed. — A defendant in a criminal action has the right to insist that the court instruct the jury on all legal questions necessary to enable them to reach a true verdict, and a denial of such request will amount to error.</p> <p>Evidence. — Expert Testimony. — Qualification to Testify. — To entitle one to testify as an expert, no precise knowledge is required. Such witness may testify if he shows such acquaintance with the subject as to qualify him to give an opinion, the weight of his testimony depending upon the extent of his knowledge.</p>

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

<p>Elections. — Ballot.—Distinguishing Mark. — The following are held to be distinguishing marks rendering the ballot invalid: A leadpencil mark across the name of a candidate on the ballot; a ballot stamped in the small square to the left of the name of a candidate, and the stamp mark partially erased, causing a hole in the ticket, though otherwise properly stamped; a ballot stamped in a square containing a device, and also to the left of the name of a candidate in the list under such stamped device; a ballot stamped in a square containing a device, and also in the square to the left of each name in the list under such stamped device; aballot stamped in a square containing a device, and also to the left of two names in another list of candidates, the list under the stamped device being complete; a ballot stamped in the square to the left of the candidates voted for, in the various lists, and also in a square opposite to which there is no candidate’s name printed, a stamp in a square opposite no candidate’s name being a distinguishing mark; a ballot containing more than one stamp mark in a square containing a device.</p> <p>Same. — Manner of Stamping Ballot. — Statute Mandatory. — The statute relating to the manner of stamping a ballot is mandatory, and not merely directory.</p>

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

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

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

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

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

<p>Record. — Presumption.—Burden of Proof. — The presumption is always in favor of the correctness of a record, and, when it is challenged, the onus is cast upon the person who seeks to show that it does not speak the truth.</p> <p>Judgment. — Review of. — Causes for. — Execution.—Levy of. — Irregularities in.— Void or Voidable. — Misjoinder of Causes of Action. — In an action to review a judgment, only the errors committed prior to, and in connection with the judgment can he considered. If there were anything irregular as to the issuing of the execution, or in the levy to satisfy the same, or if, for any cause, the execution, or the levy thereunder, was void or voidable, such matters are not cause for, and can not he considered in, an action to review the judgment. The court may review any of its proceedings that enter into, or are connected with, and form part of, the judgment rendered by it, but not the acts of an officer, after judgment, in trying to enforce the collection of the same. For such irregularities a separate remedy exists, which can not be joined with an action to review.</p> <p>Harmless Error. — Demurrer.—Conclusions of Law.- — Error in the overruling of a demurrer may be cured by the conclusions of law upon the facts found.</p> <p>Supreme Court Practice.- — -Complaint.—How Questioned on Appeal.— Only the entire complaint can be questioned for the first time on appeal.</p> <p>Same. — Presumption.—Correctness of Decision. — -Where the evidence is not in the record, and there is no- showing as to what paragraph the judgment rests upon, this court will presume everything in favor of the correctness of the decision of the court below.</p> <p>Pleading. — Complaint.—-Exhibits Deferred to. — Failure to Set Out. — ■ Where a complaint refers to exhibits, and fails to set them out, such failure is not fatal to the pleading, where the exhibits referred to are not the basis of the action.</p> <p>Same.- — -Complaint.— Demand, When Sufficiently Alleged. — Waiver.— Where a demand is a prerequisite to a right of action, an allegation “that the defendants refused to pay” is sufficient, as such allegation impliedly shows a demand, or, if the refusal was without a demand, it was a waiver of demand.</p>

<p>Assignments of Error.— Conclusions of Law. — Exception to. — Assignment, How Made. — Where an assignment of error is that the court erred in overruling the exceptions to the conclusions of law, instead of that the court erred in its conclusions of law, the record not showing that the court did overrule such exceptions, and not being required to take such action, no question is presented as to the conclusions of law.</p> <p>Pleading — Indefiniteness.-—-Question, How liaised. — The objection that the complaint is too indefinite, can not, as a rule, be properly raised by demurrer.</p> <p>Same. — Complaint. — Indefiniteness. — Specific Performance. — Contingency. — Where the complaint alleges, among other things, in an action for specific performance of a parol contract to convey land, that the promisor offered and agreed with the plaintiff, his son, that if plaintiff would give up going to Illinois to live, and would, with his wife and children, move upon such tract of land, and settle upon the same, and remain there, so that plaintiff might be near him, and he might enjoy the society of plaintiff and his family, and if plaintiff would give him one-third of the grain raised on a certain part of said land, until such time as the promisor would get in better financial circumstances, the promisor would convey said land to plaintiff in fee-simple, the italicized phrase is not so vague and indefinite as to render the complaint insufficient on demurrer.</p> <p>Contract. — Parol for Conveyance of Land.— Contingency. — Part of Crops. — Landlord and Tenant. — Where one of the conditions in a parol contract between father and son, to convey land, was that the son should give to his father one-third of certain crops until the father should be in better financial circumstances, such condition did not make the son a tenant.</p> <p>Special Finding. — Sustained by Evidence. — That the finding of the court is sustained by the evidence, see opinion.</p>

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

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

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

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

<p>Married Woman. — Seal Estate. — Tenants by Entireties. — Mortgage.— Principal and Surety. — Where land was conveyed to a husband and wife as tenants by entirety, the purchase-money being advanced by a third party, for which the husband executed his note, and, as security for the note, the husband and wife executed a mortgage on said land, the wife, as to such transaction, is a principal and not a surety for her husband; and the mortgage constitutes a valid lien.</p> <p>Same.— When a Principal. — Whena Surety. — The question as to whether a married woman is surety is not to be determined by the form of the contract, nor from the basis from which the contract was had, but from the inquiry, was the wife to receive in person, or in benefit to her estate, the consideration upon which the contract rests? To the extent to which she receives the benefit she is a principal and not a surety.</p>

<p>Supreme Court Practice. — Presumption.—Decision of Trial Gourt.— Where the court instructed the jury to return a verdict for the appellee, and the evidence is not in the record, the presumption in favor of the action of the trial court must prevail on appeal.</p>

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

<p>Descent. — Ancestor, Legal Meaning of. — Property Acquired by Gift, Devise, or Descent.- — -How Descendible. — Purchase.—'-Mortgage Lien. — Personalty. — A. died testate, leaving his widow as his sole heir at law, to whom he devised, in fee-simple absolute, his entire estate. A.’s widow continued such to her death, leaving no child or father or mother surviving, but leaving her next of kin, viz: B., who was related by blood to A., through his father, being a niece of the widow by her deceased sister; C., a full brother of the widow; D., a half brother of the widow, being a child of her mother by a former marriage; E. et al., the children and grandchildren of a half sister, deceased, of the widow, being a child of her father by a former marriage. The widow died intestate, the owner of several parcels of land, of which parcels 1, 3 and 9 are in dispute as to who has the right to take by descent. Parcel No. 1 was conveyed to the widow by her husband, through a third person, the consideration being love and affection; parcel No. 3 was acquired by a conveyance in ’fee-simple, in satisfaction of a mortgage which passed to the widow as a part of her husband’s estate; parcel No. 9 was obtained by foreclosure of a mortgage which passed to the widow as a part of her husband’s estate, and on no other consideration.</p> <p>Held, that the husband was, by the law of descent, the ancestor of his-widow, and that, upon her death, such property as came to her by gift, devise or descent from her husband, shall descend according to section 2472, E. S. 1881, to those only who are of the full blood of the intestate and to such of the half blood as are of the blood of the ancestor, if any, and, if none, then to the other kindred of the half blood.</p> <p>Held, also, that parcel No. 1 came to the widow by gift from her husband, and was descendible to B. and O. alone, in equal proportions; but that parcels Nos. 3 and 9 were acquired by purchase, and descendible generally, the gift by will of all the interest which the-testator had as mortgagee of the real estate, being a bequest of personal property only, passed no title to the land.</p>

<p>Criminal Law. — Larceny . — Description of Goods, When Sufficient. — An indictment for larceny, which charges the defendant with stealing “one pair of shoes,” contains a sufficient description of the goods alleged to have been stolen, footwear used by mankind being understood.</p> <p>Same.- — Evidence, Competency of Determined by Court. — Confession Made Under Influence of Fear Produced by Threats. — Competency, Mow Determined. — It is the duty of the court to defermine the competency of evidence before it is permitted to go to the jury; and where objection is made to the competency of evidence offered to prove a confession made by a defendant, upon the ground that such confession was made under the influence of fear produced by threats, and evidence is offered to prove such facts, it is the duty of the court to hear such evidence, that it may determine therefrom the competency of the evidence offered to prove the confession, and not to relegate such question to the jury.</p>

<p>Master and Servant. — Respective Duties — Violation of. — Liability.-— Damages. — Vice-Principal.—Fellow-Servant.—Servants owe to their master a diligent and watchful care over his business, and they owe to each other vigilance and caution for their own safety. And the master is not liable for their neglect of the duty they owe each other, unless he continues them with knowledge of their unfaithfulness. The master is only liable in tort to his servant, where there has been a violation of the duty owing by the master to the servant, and such servant is free from negligence contributing thereto, and has not assumed the hazard. Whether the act or omission complained of, when performed by a servant, is a violation of a duty owing by the master to his servant, must be determined by ascertaining whether the act or omission is one the doing of which is charged by the master upon the servant as vice-principal, i. e., whether the servant has been put in the place of the master as to the particular service performed or omitted.</p> <p>Same. — Tort.—Liability of Master. — Complaint, Sufficiency of. — Vice-Principal. — Fellow-Servant.—Where the complaint, in an action by a servant against the master for damages for the negligent injury by another servant of the same master, alleged that such servant was defendant’s agent, with full authority to control the work of, and to employ and discharge the plaintiff from his employment, as well as other servants of said defendant; and, but for such allegation, it clearly appears that such servant and plaintiff were serving the same common master, and were engaged in the same common pursuit, in accomplishing the same object, the complaint is not sufficient to establish the position of vice-principal by the alleged negligent servant.</p>

<p>Judgment. — Review of. — Errors of Law. — Questions Brought into Record by Special Bill of Exceptions. — New Trial. — Assignment of Error. —Motion to Strike Out. — Questions pertaining to changes of venue and the competency of jurors must be brought into the record by special bill of exceptions, and then made the ground of a reason for a new trial, and both the exception and motion must be filed with the complaint to review, in order to be available on complaint to review the judgment; and when assignments of error, in such an action, have no proper foundation in the record, they may be stricken out on motion.</p> <p>Same. — Review of. — Errors of Law. — Gomplaint, Sufficiency of. — Assignments of Error. — In an action to review a judgment for error of law apparent on the face of the record, the complaint must set out so much of the record in the original cause as may be necessary to present the same questions on appeal; and rulings constituting proper reasons for a new trial can not be considered in review, unless embodied in a motion for a new trial.</p> <p>County Treasurer. — Suit on Bond. — Sufficiency of Complaint. — County Funds. — Failure to Account for. — In an action on the bond of a county treasurer, the complaint stated, in substance, omitting the formal parts, that on the 15th day of September, 1883, the defendant, -, entered upon his duties as treasurer of Harrison county, and thereafter, during the term of office for which he was elected, he collected and received, on account of taxes and other funds, money due such county, in the sum of §30,000, of the following funds, to wit: (setting them out); that on the 15th day of September, 1885, he duly qualified and entered upon the discharge of his duties as such treasurer for the second term, and “that said defendant did not then have on hand the sum of money so collected and received as aforesaid, and did not account for, or pay over to himself, as his own successor, said sum of money or any part thereof, hut had theretofore converted the same to his own use.”</p> <p>Held, that the complaint is sufficient, the italicized allegations establishing the facts that he did not have the money on hand at the beginning of his second term, that he did not account for it, and that he had converted it to his own use.</p>

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

<p>Amendment of Pleading. — Amended Complaint. — When Belates Bach to Filing of Original Complaint. — When Not. — Statute of Limitations. —An amendment of a complaint, which amounts to a restatement of the original cause of action relates back to the filing of the original complaint, but where the amended pleading states a different cause of action from that set up in the original complaint, it can not be made to relate back to the filing of the original complaint, so as to defeat the operation of the statute of limitations.</p> <p>Same. — Amended Complaint. — Different Cause of Action. — Partition.— Ejectment. — Where the cause of action stated in the original complaint was simply that of partition, which was amended so as to state a cause of action in ejectment, the amended complaint states a different cause of action, and does not relate back to the filing of the original complaint, so as to defeat the statute of limitations.</p> <p>Same. — Amended Complaint.— When States a Different Cause of Action. —Where the cause of action stated in the original complaint, and that stated in the amended complaint, do not correspond, either in their essential elements or in the evidence necessary to support each, the causes thus stated are different, and neither could operate as a bar to the other.</p>

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

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

<p>Pleading. — Complaint.—Motion to Malee More Specific. — Where the defendant desires more particularity in the allegations of the complaint, his remedy is by motion to that effect.</p> <p>Railroad. — Complaint.—Sufficiency of Allegation. — Inference.—Sail-road Bridge. — Where, in an action against a railroad company, by a brakeman on a freight train, for injuries received while in the discharge of his duty as such servant, the complaint alleged, .among other things, that the train ran past and under the bridge, whereby his head was brought in collision with the bridge above the train, the inference is that the only place the plaintiff could have occupied at the time the bridge came in contact with his head, was on the top of some of the cars in the train.</p> <p>Same.' — Complaint, Sufficiency of. — Knowledge of Danger. — Sailroad Bridge. — It sufficiently appears from such complaint that the plaintiff did not know of the dangerous character of the bridge, where the complaint alleges, and it is admitted by demurrer, that plaintiff had not, at or before he was injured, any knowledge or notice whatever that the bridge was so low that it would come in collision with his head or any part of his body as he passed under the same.</p> <p>Same. — Sufficiency of Complaint. — Knowledge of Defect. — Presumption. —In such case, knowledge on the part of the company of such defect, is sufficiently shown where the occurrence of the injury under the circumstances alleged in the complaint, and admitted by the demurrer, raises the presumption of negligence on the part of the defendant.</p> <p>Same. — Danger Incident to Service. — What is Not. — Low Overhead Bridge. — Brakeman.—The danger of an overhead bridge maintained by a railroad company, so low that it may come in contact with the heads of its brakemen while engaged in their duties on the tops of cars as they pass under such bridge, is not one of the dangers incident to such service.</p> <p>Same. — Duty of Company to Maintain Safe Trades and Bridges. — Presumption. — Employe.—It is the duty of a railroad company to construct and maintain its tracks and bridges in a safe condition, and its employes have the right to presume that it has performed this duty, and that if the company discovers any defect liable to endanger the lives or limbs of their employes operating the road, it will give them timely warning thereof.</p> <p>Assignment of Errors. — Instructions to Jury. — Conjunctive Assignment. An assignment of error that the court erred in giving (or in refusing to give) several instructions, naming them conjunctively, can not prevail unless all of the instructions so joined in the assignment are erroneous, if given, or, if refused, are good and entitled to be given to the jury.</p> <p>Bill of Exceptions. — Original Depositions, Now Made Part of Bill.— Certiorari. — Affidavit of Cleric. — An affidavit of a clerk in return to a writ of certiorari, that on a certain page of the bill of exceptions immediately following the stenographer’s report of the oral evidence and its incidents, space was left for depositions, and such depositions were placed inside of the bill of exceptions at said point, but not otherwise fastened, means that the original depositions were placed within the bill, at such point, without being fastened thereto. And, in such case, if the words “here insert” are omitted, the depositions must at least be fastened to the bill before they can constitute a part thereof.</p> <p>■Same. — Can Not be Attacked by Statements of Cleric. — Certiorari.—The integrity of a bill of exceptions can not be assailed and destroyed by the statements of the clerk in a return to a writ of certiorari.</p>

<p>Notice. — Insufficient.— Publication.— Jurisdiction.— Judgment, When a: Nullity. — Action to Set Aside. — Beal Estate. — Married Woman. — Notice, by publication, to John McCorkle and- McCorkle, his wife, of the pendency of an action to quiet title to real estate, which was instituted after the death of said John McCorkle, is not notice to Maria McCorkle, widow of said John McCorkle; and that being the only attempt to bring her into the action, and service of process not being waived by her, she not appearing to the action, and, in fact, having no knowledge of the pendency of the action,and being before, atthe time of, and since the institution of the action, a resident of the State but not of the county where the action was instituted, the court obtained no jurisdiction over her, and the judgment rendered therein was a nullity as to her, and may, as to her, be set aside, where fraud is shown; but where the finding of the court shows that she was a party to the record, or fails to show that she was not a party, and that there was a complete record of service, as to her, made in good faith, she is concluded from asserting the contrary.</p> <p>Real Estate.— Taxes. — Liability for. — Purchaser at Tax Sale. — Inchoate Interest. — Where a purchaser .at a tax sale buys land in which a wife holds an inchoate interest, he becomes the legal owner of the land, subject to her inchoate interest, and, as such, he is bound to keep the taxes paid, and in the event the wife’s interest becomes a title, on the death of her husband, she is not liable for any of the taxes accruing previous to the death of her husband, when her title became absolute.</p> <p>Statute oj? Limitations. — Inchoate Interest of Wife. — The statute of limitations does not begin to run against the inchoate interest of the wife, in lands held by her husband, until her husband’s death.</p> <p>Judgment. — Direct Attach. — Notice.—Fraud.—Where a judgment defendant assails a decree on the ground of want of actual notice and fraud in its procurement, it is a direct attack thereon.</p> <p>Tax Sale.— Title. — Inchoate Interest Not Affected. — Mamed Woman.— The sale of land for taxes does not extinguish an inchoate interest which a wife may have therein nor in anywise affect it. The purchaser at such sale only takes a derivative title.</p> <p>Parties. — Necessary Parties. — Quieting Title. — Inchoate Interest. — In an action to quiet title to land, a married woman claiming an inchoate interest therein, or, on death of her husband, claiming an absolute interest therein, is a necessary party to siich action.</p>

<p>County Commissioners. — Appeal From.— When Such Bight Exists. — ■ Judicial Act. — Discretionary Act. — Where the duty of a board of county commissioners involves judicial action, an appeal lies from its judgment, unless such right is denied expressly, or by necessary implication from the statute creating the duty; but when that duty does not involve judicial- action, but consists in the performance of administrative, ministerial, or discretionary powers, no appeal lies from such action, unless it is expressly authorized by statute.</p> <p>Same. — Discretionary Act. — Appeal.—Circuit Court and Superior Court Judges. — Salaries.—Increase of. — Statute Construed. — The act of the board of commissioners, under the act of March 4, 1893, fixing the salaries of judges of the circuit and superior courts, and providing for an increase of salary in certain cases, is final and conclusive when in compliance with the provisions of the act, from which no appeal lies, the fixing of the amount of the allowance, if any, being discretionary with the board.</p> <p>Statutory Construction. — When May is Construed to be Equivalent to Shall.- — In construing a statute the word may may be construed as the equivalent of shall, but this can not be done where it is evident that the act conferred discretionary powers, nor where it is not evident, from the whole act, that the legislative direction is mandatory.</p> <p>Same. — Public Interests. — Private Interests. — The rules of statutory construction require that legislation, in which the public at large arc interested, should be liberally construed, and that legislation granting powers or privileges to individuals, for their own advantage, • should be strictly construed.</p> <p>Dissenting opinion by McCabe, J.</p>

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

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

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

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

<p>Bill op Exceptions. — When not in the Record. — Presentation to Judge. —Signature.—Sixty days from June 16,1891, were given in which to prepare and to present to the judge, for his allowance and signature, a proper bill of exceptions, and the only part of the bill that contains any statement when it was presented to the judge for his approval and signature is the concluding clause thereof, viz: “And the plaintiff now presents and tenders this, his bill of exceptions, this-day of August, 1891, and asks that the same be signed, etc.,, which is now here done, * * this-day of August, 1891, and within the time allowed by the court therefor.”</p> <p>“--- Judge.”</p> <p>And somewhere on the bill, but not in body thereof, was found the following indorsement, to wit: “Presented August 6, 1891.</p> <p>“George V. Howie, Judge.”</p> <p>And Judge Howk, having died January 12th, 1892, the bill was-signed by his successor, George B. Oardwill, May 5,1892.</p> <p>Held, that there was no valid bill of exceptions in the record.</p>

<p>Supreme Court Practice. — Sufficiency of Evidence. — Conflicting Evidence. — Where the evidence is conflicting, and there is evidence sufficient to support the finding, the appellate tribunal will not disturb the finding.</p> <p>Evidence. — Beal Estate. — Specific Performance. — Quieting Title. — Possession. — Bent.—Taxes.—Bes Gestee. — In an action for specific performance of contract to convey land, and to quiet title, wherein it is alleged that the defendant’s decedent agreed with plaintiff that if she would make certain repairs thereon and pay the taxes, such land should belong to plaintiff at decedent’s death, alleging compliance with such agreement on the part of plaintiff, and possession by her of the land, it was not error to permit the defense to prove that the decedent was in possession for thirteen years thereafter, just previous to his death; that he paid the taxes thereon, made repairs, collected rents, and made declarations about the ownership of the property while thus in possession, such declarations being part of the res gestee, and inconsistent with the theory of the plaintiff.</p> <p>Same. — Impeaching Evidence. — Letter.—Foundation for Impeachment.— It is not error to admit in evidence a letter written by a witness, which is wholly inconsistent with, and tends to impeach, his testimony, even though no proper foundation was laid for the impeachment, where no objection was made to its admission, for such reason.</p>

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

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

<p>Assignment of Errors. — Conjunctive Assignment. — •When Must Fail.— An assignment of error that “The court erred in sustaining the demurrer of the appellee to the second and third paragraphs of appellant’s answer,” must fail if either paragraph is sufficient.</p> <p>Beal Estate. — Conveyance.—Breach of Covenant. — Purchase-Price.— Matter of Defense. — Incumbrance.—The fact that there is an outstanding tax title against land which is conveyed by deed containing the covenants of general warranty, will not constitute matter of defense to an action on a note given for purchase-money, and to foreclose a mortgage securing the same, where it does not appear but that the defendant took possession of the premises conveyed under the deed and has had perfect possession thereof ever since.</p> <p>Same. — Conveyance.—Breach of Covenant. — Incumbrance.—Matter of Defense. — Necessary Allegations. — In such case, the mere fact that the vendor represented the title to be clear and free from incumbrances, and that the vendee acted on such representations, and was deceived thereby, will not constitute matter of defense, where it does not appear that the representation was fraudulently made, or that the-defendant was induced by it to make the purchase, or that he had been either peaceably or forcibly compelled to surrender, or had surrendered, possession of the land, or that appellee was insolvent, or that the tax title constitutes a legal incumbrance on the defendant’s title.</p> <p>Plea in Abatement. — Order of. — A plea in abatement should precede and not follow an answer in bar.</p>

<p>Municipal Corporation. — Sewer.—Judgment of Gouneil as to Acceptance of Same can not be Questioned by Injunction. — Adequate Remedy at Law. — The matter of constructing sewers, and accepting the same when completed, is placed in the hands of the council, and the judgment of the council can not be questioned by collateral attack by way of injunction to restrain the city from accepting a system of sewers and from paying therefor by assessment or otherwise, on account of the defective construction thereof. The law affords the property owner a full and complete remedy therefor, and injunction will not lie.</p> <p>Same. — Sewer.—Gity not Liable for. — Liability on Property Benefited.— A city assumes no obligation to pay for the construction of a sewer, but the same is to be paid for out of assessments on the property benefited thereby.</p> <p>Statute. — Amendment.—Blends with Original. — The act of 1891, amending certain sections of the act of 1889 relating to sewers, blends with the latter and both constitute but one act.</p>

<p>Deed. — In Grantee’s Possession. — Presumption of Delivery. — Evidence. —Beal Estate. — Where a deed is found in the possession of the grantee, the presumption is that it was delivered on the day of its date, and evidence that the grantor handed the deed to the grantee with the direction to put it away, and that the grantee declared that “he did not expect to have the deed recorded until the old man died,” does not in any way rebut the presupmtion, the direction to “put it away” meaning nothing more than that the grantee should take care of the deed as his own.</p> <p>Same. — Delivery.—Lasting Improvements. — Evidence.—Beal Estate. — In such case, evidence that after the making of the deeds, and while in possession, the grantees made lasting and valuable improvements on the real estate, was competent as tending to show the intention of the grantor; that there had been a delivery of the deed in question, and that the title had passed to the grantee.</p>

<p>Criminal Law. — Affidavit and Information. — Venue.—In a criminal action based on affidavit and information, the affidavit sufficiently lays the venue where the caption shows the venue to be in Perry county, in the State of Indiana, while in the body of the affidavit it is charged that the offense was committed “at said county.”</p> <p>Same. — Affidavit and Information. — Sufficiency of Affidavit. — Tihile an indictment or information must contain the title of the action and the name of the court to which it is presented, yet in an affidavit this is not necessary.</p> <p>Same. — Affidavit.—Jurat, Sufficiency of. — Where an affidavit is made before a justice of the peace, his official character may be sufficiently designated by the abbreviations “J. P.”</p> <p>Same. — Bape.—Instruction to Jury. — Aye and Belai. ' of Parties. — Iy-. norance of Sexual Act. — In an action for rape, the curt correctly instructed the jury that “on reaching a conclusion on the question of consent, you may take into consideration the condition, age, and relations of the parties as they appear from the evidence. If you find that she was ignorant of the sexual act, you may consider this fact also.”</p> <p>Same. — Bape.—Besistance.—To constitute rape, the kind and degree of resistance that should be exerted in any given case must depend upon the circumstances surrounding it.</p> <p>Instructions to Jury. — XJncontradicted, Fact. — Assumption as True. — ■ It is not error for the court to assume as true, in an instruction to the jury, an uncontradicted fact.</p>

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

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

<p>Beal Estate. — Adverse Possession. — Presumption.—Color of Title.— The actual possession and improvement of land, as owners are accustomed to possess and improve their lands, without any payment of rent, or recognition of title in another, or disavowal of a title in himself, will, in the absence of other evidence, be sufficient to raise the presumption that such entry and holding was as absolute owner, and such possession for tw enty years will be effectual to confer title; and it is not essential that such possession should be under color of title.</p> <p>Same. — Line Pence. — Acquiesced in for Twenty Tears. — Becomes Binding. — Where the location of a division boundary fence is acquiesced in and acted upon, and the premises are improved up to the line by each, for twenty years, such fence becomes binding as the true line.</p> <p>Quieting Title. — Beal Estate. — Agreement to Survey. — Evidence.— Boundary Line. — Estate by Entireties. — In an action to quiet title to land, parol evidence of an agreement signed by one of the plaintiffs for the survey of some of the land in controversy, is not admissible in evidence, when the survey was never completed; and the land being held by entireties, neither the husband nor wife had the power, by any contract, to change the lines of the farm.</p>

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

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

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

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

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