Volume 137 — Indiana Reports

<p>Pleading.— Complaint, Sufficiency of. — Railroad.—Defective Switch-Lock. — Damages.—In an action against a railroad company for damages sustained by reason of a defective switch-lock, causing a derailment of an engine and cars, the complaint is sufficient, which alleges the duty of defendant in the premises, and also knowledge of, and negligence concerning, the defective machinery, and plaintiff’s freedom from contributory negligence; and the averment that the lock was “old, worn out, out of repair, broken, and unsafe,” is sufficient to apprise defendant of the charge made as to its defective condition.</p> <p>Interrogatories to Jury. — Answers to. — When General Verdict Will Prevail. — Where the answers to interrogatories, when construed together, are in harmony with the general verdict, and also with the complaint and the instructions of the court, the general verdict must stand.</p> <p>Instructions to Jury. — Refusal to Give. — Given Substantially in Another Instruction. — It is not error to refuse to give an instruction which is covered substantially by another instruction given, and which states the law on the subject more fully than the one refused.</p> <p>Evidence. — Bodily Harm. — Pain and Suffering. — Physician.—In an action for damages by reason of bodily harm, the testimony of an attending physician, as to the condition of plaintiff as ascertained</p> <p>from an examination of him, and from expressions of pain made by plaintiff, is competent.</p> <p>Same. — Same.—Attendants.—Degree of Injury. — In such case, evidence as to the number of persons that waited on plaintiff, was competent as showing his condition and the degree of his injury.</p> <p>Jurisdiction. — Objection to, When Comes Too Late. — Where a court assumes to act under lawful authority in a proceeding, an objection to its jurisdiction, made after trial, comes too late.</p>

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

<p>Taxes. — Omitted Property. — Assessment by County Auditor. — Insufficient Description. — Where a county auditor attempts to add omitted property to the assessment list, the description of the omitted property as “moneys loaned” and “credits” is not a sufficient identification of the property upon which to base an assessment.</p> <p>Same. — Deductions.—Constitutionality of Statute. — -Assessment by County Auditor. — Should Allow Proper Deductions. — Section 6332, R. S. 1881, providing for deducting bona fide indebtedness from the sum of the credits, in ascertaining the amount of taxable property, is constitutional and valid; and where certain credits are sought to be assessed by the county auditor, as omitted property, the property-owner, or his representative, may show that such credits are entitled to be deducted from the total credits, notwithstanding such credits and debits were not placed on the schedule at the time of the assessment, and, upon such showing, the auditor shall allow the proper deductions.</p> <p>Dissenting opinion by Howard, C. J.</p>

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

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

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

<p>Statute oe Limitations. — Fraudulent Conveyance. — Concealment, What Amounts to. — Where an action to set aside a conveyance as fraudulent was commenced on June 15, 1891, the conveyance in question having been executed and recorded July 9, 1883, there can be no recovery where the six years’ statute of limitation is pleaded, unless concealment of the cause of action is shown, i. e., some trick or artifice to prevent inquiry or elude investigation, or some fact misstated to or concealed from the party, by positive act or declaration, when inquiry is being made or information sought.</p> <p>Same. — Concealment.—Burden of Proof. — Special Finding. — The burden of showing concealment rests upon the party charging it, and where a special finding does not contain the fact of concealment, it is equivalent to a finding that it did not exist.</p>

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

<p>Criminal Law. — Larceny of Money. — Description, Sufficiency of. — In an indictment for larceny of money it is sufficient to simply describe it as money, without specifying any particular coin, note, bill or currency.</p> <p>Same. — Bobbery.—Included Offense. — Larceny.—The crime of robbery includes the offense of larceny, and the defendant may be convicted of larceny under a charge of robbery.</p> <p>Same. — Bobbery.—Talcing from the Person, what Constitutes. — A felonious taking of the stolen property by violence or putting in fear, from the presence of the person robbed, may constitute robbery.</p> <p>Same. — Harmless Error. — Instruction to Jury. — Bobbery.—Larceny.— An instruction relating only to the crime of robbery, if erroneous, amounts only to harmless error where the defendant was convicted of larceny.</p> <p>Same. — Instruction to Jury. — Bobbery.—The Thing Taken. — Where the jury were instructed, in a charge of robbery, that the taking of the “pocket-book” would make the defendant guilty, such instruction was not erroneous in the light of the uncontradicted evidence that the pocket-book contained ninety dollars in money.</p> <p>Same. — Instruction to Jury. — Amendment by Court. — In such case, the defendant asked the following instruction: “You should not allow the fact, if from the evidence you conclude it is a fact, that the defendant was, at the time alleged, guilty of winning the money mentioned in the indictment, from said Adams, by gambling, or by any wrongful means, other than those charged in the indictment, to influence you in making up verdict in this case, but should consider the case wholly and dispassionately with reference to the offense charged, ’ ’ to which the court added, ‘ ‘and if the evidence is sufficient to remove all reasonable doubt of the defendant’s guilt, you should find the defendant guilty.”</p> <p>Held, that there was no harm in giving the instruction as amended.</p> <p>Same. — Instruction to Jury. — Amendmentby Court. — Reasonable Doubt.— To an instruction asked by the defendant, that the State must prove every element material of the offense charged to your satisfaction, beyond a reasonable doubt, the court added: “And to the satisfaction of each member of the jury.”</p> <p>Held, that the instruction as amended was correct.</p> <p>Misconduct of Juey. — Affidavit.—Bill of Exceptions. — If misconduct of a juror is sought to be established by affidavit, the affidavit must be brought into the record by bill of exceptions.</p> <p>Same. — Criminal Law. — Defendant's Failure to Testify. — Comment on.— Inquiry. — Where, in a criminal action, after the defendant had rested his cause, one of the State’s attorneys spoke in a loud tone of voice, loud enough to be heard by the jury, and said: “Ain’t you going to examine the defendant?” to which language the defendant’s counsel excepted, the court will presume, in the absence of any showing to the contrary, that such inquiry was made in good faith, and that no injury was done the defendant.</p>

<p>Habeas Corpus. — Burden of Proof. — Bail.—Murder.—In a habeas corpus proceeding for admission to bail, in a prosecution for murder, the burden rests upon the plaintiff to show by the evidence, that the proof is not evident, and that the presumption is not strong.</p>

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

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

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

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

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

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

<p>Pleading. — Complaint.—Tax Lien. —Presumption.—Clerical Error — Supreme Court Practice. — Where, in an action to enforce a tax lien, the complaint alleges that the tax sale was made by the auditor> whereas the law requires such sale to be made by the county treasurer, the court will presume in favor of the regularity of the proceedings, and that such statement was a clerical error, which, on appeal, will be deemed to have been corrected.</p> <p>Shekiee’s Sale. — Bight of Purchaser bo Bedeem from Tax Sale. — Beal Estate. — The holder of a sheriff’s certificate of sale of real estate may, to protect his interest, redeem said land from a sale for taxes.</p> <p>Taxes. — Lien for. — Sow Bemoved. — The fact that some one is personally liable for taxes does not of itself relieve the real estate of the tax lien; that lien can only be removed by the actual payment of the taxes.</p>

<p>Contract. — Railroad.—Receiver's Certificates.• — Agreement to Postpone Certificates to Those of Another. — Scope of Agreement. — Breach of.— Fletcher & Co. purchased of the receiver of the Illinois Midland Railway receiver’s certificates. The receiver was, at the time of the sale of the certificates to Fletcher & Co., the agent of Waring Brothers, who held large amounts of the stock and bonds of the Midland Railway, and also large claims against the same, and the receiver, as such agent, made certain representations in relation to certain species of property connected with such railway, which property was then held by Waring Brothers. ' Waring Brothers, who, at the time of the sale of the certificates to Fletcher & Co., held receiver’s certificates for the use of certain rolling stock purchased for said road from them, entered into an agreement with Fletcher & Co., that the certificates owned by them shall be postponed and subordinated to said certificates to be issued by the receiver to Fletcher & Co. Fletcher & Co. bring suit to recover from Waring Brothers the balance left due on their certificates after the distribution of the assets of the Midland Railway.</p> <p>Held, that Fletcher & Co. could not, from such facts, at the'time of the purchase of their certificates, have understood that Waring Brothers’ certificates or rolling stock were in any manner pledged to them.</p> <p>Held, also, that Waring Brothers’ contract, by which they agreed that their certificates should be postponed to those of Fletcher & Co., was not in any manner violated.</p> <p>Same. — Lien.'—Waiver.— Beceiver’s Certificates. — Postponement.—Bail-road. — Where the court, in selling the railroad, found that certain parts of the right of way had been sold by Waring Brothers to the Midland Railway, for which they had not been paid, which parts were sold with the road, and Waring Brothers paid therefor out of the proceeds, for such parts of the right of way, Fletcher & Co. were entitled to a judgment against Waring Brothers for the amount so paid to the latter for their liens for right of way, by virtue of a contract whereby Waring Brothers waived their claims for first lien for right of way, and agreed that such claims for right of way should be postponed to the certificates to be sold to Fletcher & Co. by the receiver.</p> <p>Same. — Scope of Agreement.— Lien. — Postponement.—Bailroad.—The agreement above referred to, to waive claim for first lien for right of way, and to postpone the same in favor of Fletcher & Co., does not extend to parts of the right of way held by Waring Brothers as absolute owners.</p> <p>Supreme Court Practice. — Overruling Motion for New Trial. — Hxeeption. — Where no exception has been taken to the overruling of the motion for a new trial, no question relating thereto can be presented on appeal.</p>

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

<p>Fraudulent Conveyance. — Husband and Wife. — Sufficiency of Evidence. — Supreme Court Practice. — Where a wife furnished her husband with money with which to purchase real estate, and the husband purchased land, taking the deeds in his own name, of which the wife had knowledge, and which she acquiesced in until the husband had embarked in the mercantile business and had created indebtedness on the faith of his ownership of the lands under such deeds, then afterwards, by a secret conveyance made May 22, 1888, the husband and wife conveyed the same to S., without consideration, who on the following day conveyed the same to the wife, which latter deeds were not recorded until October 24th, 1888, the appellate tribunal will not disturb a judgment setting aside such conveyance as fraudulent.</p>

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

<p>Appeal. — Motion to Dismiss for Failure to Make Marginal Notes. — Leave Asked and Granted, Pending Motion, to Make Marginal Notes. — Where, pending a motion to dismiss an appeal for failure to make marginal notes on the transcript, as required by rule 31 of the Supreme Court, the appellant has asked and obtained leave to complete the record by the entry of .proper marginal notes and references, the appeal will not be dismissed.</p>

<p>Practice. — Motion to malee more Specific. — Addressed Conjunctively. — • When Unavailing. — If a motion to make more specific is addressed jointly to two or more paragraphs of a pleading, the motion will be unavailing if either paragraph is not subject to such motion.</p> <p>Contract. — Easement, Private Way. — Consideration.—When not Void as Against Public Policy. — Where A. sought to vacate a highway dividing his lands, and to establish another which would not divide his lands, which would entirely remove the highway from B.’s lands; and to compensate B. for the loss of the highway to his lands A. agreed to supply a private way for the benefit of B.’s lands and to induce B. to join in the petition for change of highway, such contract for right of private way was not void as against public policy.</p> <p>New Trial. — As of Bight. — Quieting Title to Easement. — In an action to quiet title to an easement, the party against whom judgment is rendered is entitled to a new trial as of right, when he has complied with the statutory requirements.</p>

<p>Master and Servant. — Railroad.—Injured Employe. — Recovery.—Instruction to Find for Defendant. — Where a railroad employe, a car repairer and carpenter, in helping to move a car upon the track, took a position at the draw-bar, under a running board, one end of which rested on the car which was being moved and the other end on another car, one end of which, when the car had been moved far enough, fell on the employe, injuring him, the employe being ignorant of the fact that such board had not been removed, but which he could easily have seen if he had looked, the danger being as obvious to the employe as to the employer, — the employe can not recover; and, in such case, it is the duty of the trial court to instruct the jury to find for the defendant, the employer.</p>

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

<p>Corporation. — Lodges and Societies. — Statute Construed.— Trustees.— Certificate of Election, Filing and Recording in Auditor's Office. — Section 3819, R. S. 1881, requiring the clerks of certain lodges and societies to deposit in the county recorder’s office a certificate of election of trustees, does not make such action, on the part of the clerk, a prerequisite to the exercise of the duties of trustees by those who have been elected to such office, the evident purpose of the statute being to enable the public to learn who constitute the official representatives of the organization, those possessing the power to sue and be sued on behalf of the organization.</p> <p>Same. — Same.—Trustees.—Bight to Sue. — Former Adjudication. — Collateral Attach. — Where the trustees elect of such lodge or society, before filing or recording of notice of election, have invoked the jurisdiction of the court to enforce the claims of the society, the organization having interposed no objection to such proceeding, the proceedings are not void, and a judgment rendered therein will operate to estop the trustees from making a collateral attack upon such proceeding.</p>

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

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

<p>County Commissioners. — Jurisdiction.— Question of Pact. — Collateral Attack. — Appeal.—Where a board of county commissioners, in acting upon a petition, passes upon a question of fact, the decision of the board can not be collaterally attacked, but the remedy is by appeal ; and where, upon petition, such board orders an election, such order is a finding by the board that the necessary facts are shown to exist to give the board jurisdiction.</p> <p>Constitutional Law. — Amending Act. — Provision Poreign to Title of Original Aet. — Where the title of an original act was: “An act to . authorize aid to the construction of railroads,” etc., whereas the body of the amendment provides also for aid in the “reconstruction” of railroads, the amended act is not, for that reason, uncon- ■ stitutional.</p> <p>Same. — Act Local or Special. — Voting Aid to Bailroads. — Neither is such act unconstitutional as being special or local, for it applies to all townships voting aid to railroads in the manner and under the ' conditions prescribed in the act; but the act not coming within section 22, article 4, of the State constitution, the decision of such question is for the Legislature.</p> <p>Opinion on petition for rehearing by Howard, C. J.</p>

<p>Assignment oe Errors. — Joint Assignment. — Must be Good as to all, or Fail Fntirely. — Parties.—If several parties unite in an assignment of errors, the assignment will be unavailing, unless it is good as to all joining therein.</p>

<p>Pleading. — Complaint.— Specific Performance. — Peed.—Escrow.—Exhibit.~ln an action by a receiver for specific performance of a contract for conveyance of lands, where the complaint alleged that as a part of the agreement of the parties the defendants made and acknowledged a deed for the property, and deposited the same for delivery upon payment of the agreed price, — not the deed, but the contract, was the basis of the action; and the deed could not be a proper exhibit, or part of the complaint.</p> <p>Same. — Complaint.—Authority of Receiver to Sue. — In such case, where the complaint alleges a direction from the court to sue and enforce the contract, sufficient authority is shown in the receiver to maintain the action.</p> <p>Pkincipal and Agent. — Special Agent. — Power to Bind Principal.— Specific Performance. — Conveyance.—Where a special agent was appointed to collect subscriptions, upon payment of the full amount subscribed, the principal had agreed to convey certain land to a creamery company, the company, or the receiver thereof, can not enforce specific performance of conveyance under an agreement between such agent and the solvent subscribers, that if the solvent subscribers to the contract would pay the amount of their subscriptions, the principal would execute to said company a deed of conveyance for said premisos and assume the amount of the subscription of the insolvent subscribers, where it does not appear that such agent had authority to make such contract, nor that his acts in relation thereto had been ratified.</p>

<p>Misconduct on Jury. — Intoxication of Jwror. — New Trial. — Criminal Law. — Murder.—Where a juror, in a prosecution for murder in the first degree, after the trial had been entered upon and evidence heard, and after the jury had been discharged for the day, became intoxicated by the intemperate use of intoxicating liquors — the verdict, in the finding of which such juror-participated, adjudging the defendant guilty and affixing the death penalty — such misconduct on the part of the juror was good ground for a new trial.</p>

<p>Judgment. — Sow May Become a Lien on Land Situate in Another County. — Attachment.—Transcript.—Pelease.—A judgment can only-become a lien on lands of the judgment defendant, situate in a county other than the one in which the judgment is rendered, by virtue of an attachment of the same, or by the filing of a transcript of the judgment in such other county before the judgment defendant has conveyed away his interest therein. And where lands, of the judgment defendant, including lands in another county, were attached, and the judgment ordered the sale of certain of the attached lands,-not including the land in such other county, the judgment was, in effect, a release of the lien of the writ of attachment upon the lands in such other county.</p> <p>Same. — Conveyance by Judgment Defendant. — Preferring Creditor. — ■ Fraud. — In such case, where the judgment defendant conveyed the land in such other county, in part payment of a bona fide debt, before the filing of a transcript of judgment, such conveyance did not constitute legal fraud, as the debtor had the right to prefer one creditor to another.</p>

<p>Supreme Court Practice. — Harmless Error. — A harmless error is not a sufficient reason for reversing a judgment where a right result has been reached.</p> <p>Highways. — Streets and Alleys. — Adverse Possession. — Statute of Limitations. — The statute of limitations does not run as to the occupancy of part of a public street or alley of a city or town, nor can an adjoining land-owner, by a permissive possession of a part of a street or alley, acquire any rights by such possession.</p> <p>Same. — Same.—Buildings Set Over Linein Alley.— Width of Alley. — Opposite Abutter. — A land-owner whose land abuts upon an alley, by setting his improvements over the line of and in such alley, can not insist that the alley shall be maintained to its full width at the expense of the land-owner whose land abuts on the opposite side of the alley, however long he may adversely hold the part of such alley covered by his improvements.</p>

<p>Appeal. — Dismissal of. — Failure of Becord to Disclose Final Judgment. —Bill of Exceptions.- — Where, on appeal, the transcript of the record discloses the filing of a complaint, demurrer thereto, the court’s ruling against the demurrer; and the bill of exceptions recites the further proceedings up to and including the general finding and judgment of the court in favor of the appellee, but does not show that any of such proceedings were entered upon the order-books of the court, no final judgment authorizing an appeal being properly disclosed, the appeal can not be entertained.</p>

<p>Supreme Court Practice. — Demurrer to Assignment of Errors — It is not necessary, on appeal, to demur to a defective assignment of errors in order to present the question of their sufficiency.</p> <p>Same. — Special Finding of Facts. — Assignment of Errors. — In order to ■ present any question, on appeal, concerning the correctness of the conclusions of law upon a special finding of facts, there must be an assignment of error to the effect that the court erred in its conclusions of law; and an assignment that the judgment of the court is contrary to law presents no question concerning their correctness.</p> <p>Same. — Exception to Conclusions of Law. — Practice.—To present any question, on appeal, concerning the correctness of the conclusions of law, an exception must be taken to them by the party complaining.</p> <p>Same. — Failure to Except to Conclusions of Law Can Not be Supplied.— An assignment of error that the “finding” or “judgment of the court is contrary to law,” can not take the place of an exception to the conclusions of law.</p> <p>Judgment. — Special Findings. — Modifying Judgment. — The judgment rendered on a special finding of facts must conform to the conclusions of law; and if it does not, a motion to modify such judgment so as to conform to such conclusions must be made in order to present any question, on appeal, concerning its correctness.</p> <p>New Trial. — Special Findings. — If the special finding of facts is contrary to law, or not sustained by sufficient evidence, the remedy Is by a motion for a new trial.</p> <p>Will. — Construction.—Intent of Testator. — In construing a will, the intention of the testator, if not inconsistent with some established rule of law, must control.</p> <p>Same.— Trust Fund, Interest Payable to Life Tenant. — Bemainderman.— Interest Collected and in Sands of Trustee at Death of Life Tenant.— In a will, it was provided as follows: “I devise * * to my affectionate wife, Amanda, during her life, the rents, profits and control of” certain described lands. “The said Amanda may sell and convey said land * * * and be entitled to all interest arising from the principal of such sale, subject to said trusteeship” provided for the management of the estate. “I also bequeath to’ my wife, Amanda, the interest or use of four thousand dollars from my personal estate. To the interest of this four thousand dollars she shall be entitled while she lives.” “At the death of my wife, Amanda, the principal and unpaid portion of interest of the whole amount bequeathed to her * * shall descend and vest in my children or their children.” It was the duty of the trustee, as provided by the will, to loan out this money and pay the interest to the widow.</p> <p>Seld, that her administrator or executor was not entitled to the interest on these funds invested for her benefit which had been earned and was in the hands of the trustee at her death; but, on the contrary, such interest was payable to the testator’s children or their descendants.</p> <p>Same. — Annuities.—Apportionableness.•—Death of Annuitant. — If an annuity is payable on fixed days during the life of the annuitant, and he die before the day fixed, his personal representative is not entitled to a proportionable part of the annuity.</p>

<p>Pleading. — Joint Parties. — Cause of Action as to Only One Party. — If a complaint assumes to state a cause of action in favor of two or more parties, and states a cause of action in favor of part only of the parties thus joined, it is bad on demurrer.</p> <p>Same. — Joint Parties. — Creditor's Bill. — If the parties are designated as plaintiffs in a complaint in the nature of a creditor’s bill, and there is a statement of the respective claims of creditors showing that each claim is several and distinct, and there is no attempt to state a joint cause of action in favor of those who are named in the title, the general rule requiring a joint cause of action to be stated in favor of all the parties does not apply.</p> <p>Same. — -Code.—Equitable Belief. — The code has not swept away former equitable rights, nor abrogated remedies that are essentially equitable ; and the fact that it has provided for one form of action does not imply that equitable rights and remedies have ceased to exist.</p> <p>Parties. — Fraudulent Conveyance.— Creditor's Bill. — In an action in the nature of a creditor’s bill, brought to subject property fraudulently conveyed to a satisfaction of a creditor’s claim, all creditors who make seasonable and appropriate application will be admitted as parties.</p> <p>Same. — Fraudulent Assignee. — A fraudulent assignee of property is a proper party in an action to subject such property to execution or the payment of the assignor’s debts.</p> <p>Fraudulent Conveyance. — Distribution of Assets. — Where property has been fraudulently conveyed to avoid the payment of debts, all creditors of the fraudulent debtor will be permitted to share, upon due application, in the proceeds of the property so conveyed.</p> <p>Same.— Qrantee, When Liable.- — A person who takes a conveyance of property with the intention of aiding the grantor in defrauding his creditors is liable to such creditors to the extent of the property he receives, even though he subsequently disposes of the property, such a vendee is a trustee for the creditors.</p> <p>Practice. — General Finding at One Term, Specific at Another. — In an action brought by creditors to subject property to the satisfaction of their claims, the court may make a general finding at one term of the court to the effect that the transaction was fraudulent and the conveyance should be set aside; and at another term make the necessary specific findings and appropriate decretal orders respecting the amount and claims of each separate creditor.</p> <p>Jurisdiction. — Equity Assumes for all Purposes.- — If a court of chancery assume jurisdiction of a case for one purpose it will retain jurisdiction for all purposes; and if a specific decree will not afford adequate relief, it will award compensation.</p> <p>Opinion on petition for rehearing by Dailey, J.</p>

<p>Municipal Corporation. — Annexation.—Seasons for. — City.—The statute for annexation of lands to a city does not prescribe the reasons which shall be sufficient for such annexation, but leaves that question to the sound discretion of the authority passing upon the petition for annexation.</p> <p>Same. — Platted and Unplatted Territory. — Jurisdiction.—Proof.—It must be alleged in the 'petition for annexation whether the territory sought to be annexed is platted or unplatted territory, in order to determine whether the board of county commissioners or city council have jurisdiction of the proceedings, and that fact must be proven on appeal to the circuit court, unless admitted.</p> <p>Platting. — Sufficiency.—Platting may consist alone in drawings and statements upon paper, and does not imply such markings and subdivisions upon the lands as to distinguish them from unplatted lands.</p>

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

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

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

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

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

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

<p>Indian Lands. — When Subject to Taxation.- — -Exemptionby Ordinance of 1787. — Under the ordinance of 1787, article 3, providing that the lands of the Indians should “never be taken from them without their consent,” and under the agreement of the State of Indiana, when admitted into the Union, to protect them in that right, the lands of the Indians reserved or allotted to them by the United States government are exempt from taxation, so long as such lands are held and acquired through such tribal relations; but when any of such lands passes to a white man, they are released from tribal conditions, and are subject to taxation, even though they be subsequently reconveyed to Indians.</p>

<p>Parties. — Plaintiff.—Substitution.—Practice.—It is not error, by permission of court, to substitute a party plaintiff, where the issues are not thereby changed, and the statute of limitations, or some like question, is not involved.</p> <p>Highway.— Streets and Alleys. — Dedication.—Bailroad Grossing.— Estoppel. — Where a railroad company kept its deed for right of way off the records for ten years, leaving its title to its right of way, during that time, to stand wholly upon the recorded plat of the town, which showed the street duly laid out across the right of way, and by its acts for the period of over fifteen years the company recognized the existence of the street, even so far as making maps for the use of its officers and employes, and for public record, as required by statute, in which the street was shown to extend across the right of way, and suffered the town and private persons to make improvements upon the street in faith of the existence of the crossing, and suffered the public to use the crossing as a public street, opening its trains for that purpose, — such acts are sufficient to constitute a dedication of the right of way for street purposes, and to estop the company from denying the rights of the public therein for street purposes.</p>

<p>Supreme Court Practice. — Sufficiency of Evidence. — Reversal.—The appellate tribunal will not reverse a cause on the mere weight of the evidence, if there is evidence tending to support the verdict as to all material facts.</p> <p>Jury. — Competency to Serve as Juror. — Opinion Formed and Expressed. —Judicial Discretion. — Where a juror on his voir dire states that he has formed or expressed an opinion as to the guilt or innocence of the defendant, in a criminal action, but that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court may, if satisfied that such juror is impartial and will render an impartial verdict, permit him to serve in the case, and the exercise of such discretion will not usually be reviewed on appeal.</p> <p>Misconduct of Counsel. — Argument to Jury. — Prosecuting Attorney.— Criminal Law. — Where the prosecuting attorney, in his closing argument to the jury, said: “It is the history of criminal prosecutions, that if a defendant does not plead guilty before the court, he always goes upon the witness stand and denies the charge,” to which statement the defendant, at the time, objected, and moved the court to withdraw the same from the jury, which motion the court overruled, to which ruling the defendant excepted, the defendant having testified in his own behalf, in the case, denying specifically any participation whatever in the crime with which he was charged, — such statement of the prosecuting attorney, under the circumstances, amounted to reversible error.</p>

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

<p>Gbavel Boad. — Re-assessment.—Special Term of Board of Commissioners.- — Proceedings for re-assessment of lands for. gravel road purposes may be had at a special term of the board of commissioners as well as at a regular term.</p> <p>Same. — -Additional Assessment. — Authority of Board. —Jurisdiction.—■ Notice. — The board of commissioners has authority, of its own motion and without petition, to make an additional assessment to pay the cost of the improvement, in case the original assessment proves insufficient, and where proper notice is given of the time and place where the board will hear objections to the report of the committee to re-assess and apportion the additional assessment on the lands affected, the board has jurisdiction both of the subject-matter and the parties.</p> <p>Same. — Itemized Statement of Costs. — Motion to Malee More Specific.— Discretion. — Practice.—The overruling or the sustaining of a motion to reject an itemized statement of expenditures in the construction of a free gravel road, and to require a full and complete statement of such expenditures, rests in the sound discretion of the court, and the appellate tribunal will reverse only where there has been an abuse of such discretion prejudicial to the rights of the complaining party.</p> <p>Same. — County Treasurer. — Payment of Bonds. — Gravel Boad Fund.— Where a county treasurer redeems gravel road bonds with money not belonging to the fund of such road, such treasurer should have an allowance therefor, which is properly chargeable against the fund of such road.</p> <p>Same. — County Treasurer. — Gravel Boad Tax. — Per Centum for Collecting. — A county treasurer is entitled to a per centum for collecting gravel road tax, and it is collectible out of the tax collected.</p> <p>Same. — Committee’s Beport. — Nature of. — The report of a committee to make an apportionment in a gravel road proceeding, is in the nature of a verdict, or special finding of facts, and does not perform the office of a complaint, and objections filed thereto are in the nature of objections to a verdict or finding.</p> <p>Same. — Apportionment of Assessment. — Too High. — Bemedy.—Practice. —If an apportionment made against lands is too high, it furnishes a ground for a new trial, but not for a motion to modify.</p> <p>Same. — Items Chargeable to Gravel Boad Fund. — The items of livery hire, of prospecting for gravel, of publishing notice, and of making tax duplicate, are not chargeable to the gravel road fund.</p> <p>Same. — Be-assessment.—How Made. — Appeal.—Trial De Novo. — Where an appeal is taken from a re-assessment proceeding, the case is tried de novo in the circuit court, and if the necessity for a re-assessment is adjudged to exist, it is made by such court, and the former re-assessment being superseded by the appeal, the question how it was made is not material.</p> <p>Special Finding. — Failure to Find as to a Fact in Issue. — Effect.•—Burden of Proof. — Where the court fails to make a finding on any fact in issue, such failure is equivalent to a finding against the party having the burden of the issue as to such fact.</p> <p>Same. — Sufficiency of Evidence. — That the finding is sustained by the evidence, see opinion.</p> <p>Notice. — Gravel Boad. — Additional Assessment. — Notice of the time and place of the meeting of the committee to make an apportionment of an additional assessment for gravel road purposes is not required.</p> <p>Evidence. — Formally Introducing Part of Becord of the Cause. — There is no error in formally introducing in evidence a paper which is a part of the record in the cause on trial.</p> <p>Rehearing.- — Questions Waived. — Brief.—Supreme Court Practice.— Questions waived by silence of appellant’s brief on original hearing can not be presented to this court on a petition for a rehearing.</p> <p>Harmless Error. — JEvidence.—Gravel Hoad. — Be-assessment.—Committee’s Beport. — The admission in evidence, on appeal to the circuit court of a gravel road proceeding, of the report of the committee to apportion a re-assessment, is harmless error, if error at all.</p>

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

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

<p>Conveyance. — Buie in Shelley's Case. — TheWord “Issue.” — BealEstate. —Gases Modified and Overruled. — Where “William Merrill and Annie Merrill, his wife, * * convey and warrant to Annie Merrill, Junior, * * for and during her life, with remainder over to the issue of her body born alive [Annie Merrill, Junior, at the time of the conveyance, being unmarried and without issue], but in the event of the said Annie Merrill, Junior, dying without issue of her body born alive, then with remainder over to John Merrill * *,’’ such conveyance does not come within the rule in Shelley’s case, the word “issue” being a word of purchase and not of limitation. Kingsr. Bea, 56 Ind. 1, modified; and Fletcher v. Fletcher, 88 Ind. 418, overruled.</p> <p>Same. — Life Estate. — Contingent Bemainder. — Vested Bemainder. — In such conveyance, Annie Merrill took a life estate on which a contingent remainder to the issue of her body born alive, was limited, and on which, also, was limited to John Merrill a remainder contingent on “issue” not being born alive of the body of Annie Merrill, Junior. Upon “issue” of Annie Merrill’s body being born alive, the contingent remainder as to such issue became a vested remainder by such birth; and the contingency (the failure of issue of Annie Merrill’s body born alive) on which John Merrill’s interest depended having ceased, he has, and can have, no further interest in said land.</p> <p>Same.— Vested Bemainder. — Opening up to Let in Others. — Under such conveyance, the remainder limited' to the “issue” of Annie Merrill’s body born alive became vested in such “issue” by the birth, subject to be opened up to let in those afterward born alive of Annie Merrill’s body, before the termination of her life estate.</p>

<p>Appellate Court. — Jurisdiction.—Money Demand. — Amount in Controversy. — Where the amount demanded in the complaint is $3,503.05, to which an answer of confession and avoidance, by a plea of the statute of limitations, is filed, to which answer a reply is made, confessing that all the amount sued for is barred by the statute, except the sum of $1,960, to which reply a demurrer was sustained, under such state of the record, the amount in controversy is only $1,960, and the jurisdiction of the case, on appeal, is in Appellate Court.</p>

<p>Injunction. — Supreme Gourt. — Appeal.—Annexation to Gity. — Injunctive Belief, When not Granted. — Imminent Necessity. — Where appellants, in an action annexing territory to a city, petition the Supreme Court for an injunction restraining the consideration of the judgment appealed from in the elections, taxation, and internal improvements of the city, none of the acts sought to be restrained being alleged to be imminent, except that of voting, the injunction will not be granted; for the fullest effect may be given to the decision of this court, notwithstanding the act of voting, and injunctive relief will not be awarded unless immediate and imperious necessity appears.</p>

<p>Highway. — Streets and Alleys. — Widening.—Appeal.—Dismissal of.— An appeal from proceedings to widen a street must be taken within thirty days after the confirmation of the report of the city commissioners by the common council; and where the notice given by the city treasurer “of the assessment, the date of filing, and the amount assessed,” and stating that the report was filed November 10, 1891, and accepted by the common council November 14, 1891, when in fact the report was approved November 10, 1891, an appeal taken December 14, 1891, was not taken in the prescribed time, and was properly dismissed.</p> <p>Same. — Same.—Appeal.—Estoppel.—City.-—The city treasurer, in stating in such notice the time when the common council approved the report, exceeded his duty, and the officer and the act both being public, and the notice being simply to require the land-owners affected by the proceedings to pay their assessments, the city is not estopped from showing that the appeal came too late.</p> <p>Same. — Same.—Appeal.—Estoppel.—The fact that the city authorities furnished appellants with a transcript of the record for appeal, does not estop the city from showing that the appeal came too late.</p> <p>Same. — Same.—Notice.—Jurisdiction.—-Where the land-owners affected by such proceeding were notified of the time, place, and purpose of the meeting of the city commissioners, they were within the jurisdiction of the city authorities, and are charged with knowledge of every act done up to the confirmation of the report of the commissioners.</p>

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

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

<p>Judgment. — Action to Unjoin Collection and Declare Null and Void.— Summons. — Sufficiency of Notice. — The collection of a judgment will not be enjoined, and the judgment set aside as null and void, as being rendered without sufficient notice, where it appears that the judgment defendants were not residents of the county in which the judgment was rendered, but were partners doing business in the county, and had offices or places of doing business in the county, and that summons was served upon at least two of defendant’s agents, or clerks, as contemplated by statute.</p> <p>Record.- — Appeal.—Transcript.-—-Omission of Seal from Cleric's Certificate. — -Where the clerk’s certificate of the transcript does not have the seal of the court attached, no error in the decision of the court is brought to the attention of the Supreme Court.</p>

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

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

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

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

<p>Pleading. — Joint Demurrer. — Practice.—A demurrer addressed to an entire complaint, of two or more paragraphs, is a joint demurrer and is not well taken if one paragraph is good.</p> <p>Judgment. — FraudinProcurement.—Injunction.—A judgment obtained by fraudulently preventing the appearance of the opposite party may be enjoined.</p> <p>Same. — Concealment of Fraud. — Statute of Limitations. — A suit to enjoin a judgment obtained by fraud and concealed, may, if the rights of third persons have not intervened, and if the positions of the parties have not been materially changed, be brought at any time within the statute of limitations, which only begins to run upon discovery of the cause of action.</p> <p>Same. — Voluntary Change of Position. — Estoppel. — A person who fraudulently obtains a judgment can not, by incurring expense in the issuance of an execution, so change his position as to estop the judgment defendant.</p>

<p>Taxation. — Railroad.—Public Aid to Rival Company. — Constitutional Law. — The property of a railroad company within a township which has voted a donation to aid in the construction of another and rival railroad therein, to be raised by a tax upon the property within the township, is subject to its share of the burden thus imposed.</p> <p>Same. — County Commissioners’ Proceedings. — Injunction.— Collateral Attack. — Questions which it is necessary for the board of county commissioners to pass upon to render valid the order granting the prayer of the petition to aid a railroad company, and the subsequent proceedings in making the appropriation and ordering the levy of a tax, can not afterwards be raised in a collateral proceeding for injunction.</p> <p>Same. — Consolidated Railroad. — Rights of in this State. — Where a railroad company, organized under the laws of this State, consolidates with a railroad company organized under the laws of another State, the consolidated company has, in this State, all the rights held by the Indiana company, of which it is in part formed.</p> <p>Same. — Property and Domicil of Railroad. — A railroad company which is one corporation, having one management and one board of directors, has a domicil in each State in which the road is situated, and, in relation to any State, is a separate corporation, governed by the laws of that State as to the property situated therein.</p> <p>Same. — Forfeiture of Aid Tax. — In the absence of a forfeiture declared in the manner provided by law, the collection of a tax levied in aid of the construction of a railroad can not be enjoined.</p> <p>Same. — Suspension of Collection of Aid Tax. — The county commissioners have authority to suspend the collection of a tax voted to aid in the construction of a railroad until the work thereon is under way, and the suspension does not forfeit the right to the aid, but the tax may be collected as if levied in the first instance.</p> <p>Same. — Purchaser of Property Takes Subject to Bight to Impose Taxes. — ■ Property is purchased subject to the right of the State to impose taxes, and where proceedings for the imposition of a tax have been begun, and later suspended by proper authority, a subsequent purchaser of property must take notice that the tax may afterwards be collected.</p> <p>Same. — Bailroad Aid Laws. — Not Bestricted to New Companies. — Bail-road aid laws are upheld on the ground of public benefit, and hence a donation may be voted to aid in the construction of the extension of a line already in operation as well as to aid in the construction of an entirely new road.</p>

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

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

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

<p>Criminal Law. — Verdict, Sufficiency of. — Assault and Battery With Intent to Commit Bape. — In a prosecution for assault and battery with intent to commit the crime of rape, the verdict, which was: “We, the jury, find the defendant guilty of assault and battery with intent to commit the crime of rape, and we further find that he should be confined in the State prison, etc.,” is not insufficient for failure to , contain the phrase, “as charged in the indictment.”</p> <p>Same.— Verdict. — Intendment.—Construction.—When Not Avoided. — A verdict is to have a reasonable intendment and a reasonable construction, and will not be avoided except from necessity; and will not be bad for informality, if the court can understand it.</p> <p>Same. — Assault and Battery With Intent to Commit a Bape. — Bape.— Felonies of Same Class. — Flection of State. — The crime of assault and battery with intent to commit a rape, and the crime of rape, are both felonies belonging to the same class, and where the State has elected to proceed on a charge of the former crime, the defendant can not object because the evidence shows him also guilty of the latter crime.</p> <p>Same. — Evidence.—Bape.—Failure of Child to Complain to Her Mother of Injuries. — In such case, it was not error to permit the injured party (being under the age of twelve years) to state the reason why she ¿id not complain of her injuries to her mother.</p> <p>Same. — Evidence.—Complaints Made to Others by Injured Party. — Nor was it error to permit the injured party to state the fact that she made complaint to others of the outrage that had been committed upon her.</p> <p>Same. — Evidence.—Expert Testimony. — Bes Gestee. — JResults of Examination. — Bape.—In such case, it was not error to permit the physician who examined the injured party to describe her then condition, and to give his opinion as an expert; nor was it error to permit her mother to testify that she examined her, and to state her condition at the time, and complaints made of physical suffering at the time of such examination are admissible as part of the res gestee.</p> <p>Same. — Evidence.—Bape.— Communication of Loathsome Disease by Defendant to His Wife. — Confidential Belations. — It was competent, in such case, for the wife of the defendant to testify that he had communicated to her a loathsome venereal disease; such conduct on his part being a gross breach of his duty as a husband, he could not shield himself from exposure in a court of justice, where such fact became material evidence, on the ground that such testimony was a breach of the confidential relations existing between husband and wife.</p> <p>Same. — Affidavit and Information. — Sufficiency.—Assault and Battery With Intent to Commit a Bape. — Where, in an affidavit for assault and battery with intent to commit a rape, the assault and battery is charged in the language of the statute creating that offense, and the felony, the intent to rape, which existed at the time the defendant committed the assault and battery, is described in appropriate terms, the affidavit is sufficient.</p> <p>Evidence. — Leading Questions. — When Permissible. — It is not reversible error to permit questions which are somewhat leading to be propounded to a witness who is young and inexperienced, where it does not appear that any injury resulted to appellant by reason of that fact.</p>

<p>Appeal. — Dismissal.—Appellant not a Party to Record. — Where the record does not show that the appellant was ever a party in the case in which he filed a motion, from the decision on which motion he appeals, the appeal has no merit, and will be dismissed.</p> <p>Judgment. — Collateral Attack. — Motion to Expunge Record and Refer Back to Master Commissioner. — Where the bill of exceptions shows that on October 7th, 1887, a judgment was entered on the finding of the master commissioner, which report had been filed seven months prior thereto, and no exception is shown to have been made to the report, and an appeal not having been taken from the judgment, the judgment is not void, and is not subject to collateral attack.</p>

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

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

<p>Bill of Exceptions. — Criminal Law. — Order Allowing Ninety Days in Which to File Bill. — Invalid Only as to Bxcess Over Sixty Days. — An order of the court, in a criminal proceeding, allowing ninety days in which to file a bill of exceptions, is not altogether void. The order was valid as to the sixty days it was permitted to allow by statute (section 1916, R. S. 1894), but, as to the time allowed beyond sixty days, it was invalid; and if the bill of exceptions be filed within the time validly allowed (sixty days), it was a substantial compliance with the statute, and it thereby became a part of the record.</p> <p>Same. — Closing Statement. — When Sufficient to Show that the Evidence Was All Introduced. — Where the closing statement in a bill of ex. ceptions is “That the above and foregoing longhand manuscript of the evidence so taken, reported and filed, as aforesaid, contains all the evidence in said cause,” such statement (when taken in connection with the caption of the bill, that “The following evidence was delivered and given to the jury trying the cause,” etc.), is clearly sufficient to show that the evidence was all introduced in the cause.</p> <p>Record. — Transcript.—Presumption that Proceedings Were Signed.— Certified transcripts of proceedings of courts need not show that such proceedings were signed, the presumption being that they were duly and properly signed, until the contrary is made to appear in the transcript.</p> <p>Criminal Law. — Perjury.—Evidence.—Materiality.—In a prosecution for perjury in giving false testimony as to misconduct of a railroad employe, in an action for damages alleged to have been sustained by reason of such misconduct, testimony of the accused, in the damage suit, which, alone, was not material to the question in issue, but when so connected with the truth of the accused’s testimony as to the misconduct of the employe, as to constitute a basis for the assignment of perjury thereon, is admissible in evidence.</p> <p>Same. — Evidence.—Allowance by Judge for Detective's Service.— When Beversible Error to Admit as Evidence. — In a prosecution for perjury, it was reversible error to allow the defendant to read in evidence, over the objection of the State, an allowance by the regular judge of an account for §819.13, and its payment out of the county treasury, in payment for services of detectives in discovering evidence of the guilt of the accused of the crime charged in the indictment.</p> <p>Evidence. — One's Own Declarations Inadmissible. — A party can not give his own declarations in evidence..</p> <p>Instructions to Jury.' — Plow Brought into the Becord. — Bill of Exceptions. — Criminal Law. — In a criminal case, instructions to the jury can only be brought into the record by bill of exceptions.</p>

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

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

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

<p>Will. — Construction.—Life Estate. — Power of Disposition. — Gift.—A will gave to the testator’s wife all of his property and provided that “it shall be hers without any interference from anybody, for the space of her life time; it shall be hers in the full sense of ownership, even so far that she is empowered to sell, mortgage or divide the same; * * but this shall not be so understood as that my said wife has the right to divide the property herein named among persons not kindred to me, to the disadvantage of our children, but they shall, after her death, divide the estate among them equally.”</p> <p>Meld, that the widow took a life estate only, with power of disposition for her own use and benefit, and that what was left at her death went equally to all the children.</p> <p>Held, also, that the widow could not dispose of notes received upon a sale of the real estate by way of gift to one of the children, but that she could use the proceeds of the sale in payment for her support.</p> <p>Party in Interest. — Sight to Sue. — When May be Questioned. — Supreme Court Practice. — A question as to the real party in interest, and as to the consequent right to sue can not be raised for the first time in the Supreme Court, but such a defense must be specially pleaded in bar.</p>

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

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

<p>Mechanic’s Lien.' — Notice.—Sufficiency of. — A mechanic’s lien notice is sufficient if it states the amount due, to whom and from whom, and for what it is due, and describes the premises.</p> <p>Same. — Imperfect Description of Beal Estate. — Aid by Extrinsic Evidence. —Imperfect descriptions of property in a mechanic’s lien notice may be aided by extrinsic evidence under proper allegations in the pleadings, and that is sufficiently certain which can be made certain.</p> <p>Same. — Contract.—Agency.—A mechanic’s lien can not be perfected where no contract is shown to have been made with the owner of the real estate, either in person or by agent.</p> <p>Same. — Landlord and Tenant. — -A tenant, as such, can not, by his contract, subject the real estate to a mechanic’s lien, except as to his own interest.</p> <p>Mortgage. — Beal and Chattel to Secure Same Debt. — Failure to Enforce. —One Does Not Affect Bights Under Other. — A creditor who holds a mortgage upon real estate, and also one upon chattels, as security for the same debt, does not lose any right under the former by not enforcing the latter.</p> <p>Same. — Acquisition of Fee. — When Mortgage Not Merged. — Mechanic’s Lien. — Where the holder of a purchase-money mortgage, which is prior to a mechanic’s lien, accepts a quitclaim deed to the property from his grantee, after the latter lien attaches, in consideration of the grantee’s release from personal liability on the notes secured by the mortgage, the notes however not being paid, a merger does not take place, but equity will preserve the prior lien of the mortgagor.</p> <p>Evidence. — Deed of Assignment. — Admission of Debt. — Harmless Exclusion. — A deed of assignment executed by a creditor, which specifies the debts to be paid by the trustee, is competent evidence to prove, as by an admission, a debt so specified, — but the exclusion of the deed is harmless where the only question at issue is as to the right to enforce a lien upon land.</p>

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

<p>State Board oe Tax Commissioners.- — Jurisdiction.—Where the State board of tax commissioners assumed to raise the assessment of the property of a national bank, made by the county board of review, there being no appeal from the action of the county board, the State board had no jurisdiction, and its action was a nullity.</p>

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

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

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