Volume 140 — Indiana Reports

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

<p>Contempt. — Direct and Indirect. — A direct contempt is committed in the presence of the court while in session; an indirect contempt is where the alleged contempt is not committed in the presence of the court.</p> <p>Same. — Indirect.—Verified Charge. — Rule to Plead. — Before any steps ' can he taken against a person for an indirect contempt, a verified charge, in the nature of a complaint or information, in which the facts must be alleged constituting the contempt, must be filed against the person supposed to have been guilty of the contempt; to which charge he is required to plead.</p> <p>Same. — Verified Charge and Answer Part of Record. — Bill of Exceptions. —The verified charge and the answer thereto are a part of the record without being incorporated in a bill of exceptions. Semble, the same is true of the motion for a new trial.</p> <p>Same. — Testing Sufficiency of Affidavit. — A motion to discharge the rule against the defendant to show cause, on the ground that the affidavit (or complaint) is not sufficient, is sufficient to test such affidavit (or complaint) charging the contempt.</p> <p>Same. — Indirect Contempt. — Sufficiency of Charge. — In an indirect contempt the defendant, before answering or being punished, is entitled to have served upon him a rule of the court clearly and distinctly setting forth the facts which are alleged to constitute the contempt, and specifying the time and place of such facts with such reasonable certainty as to inform the defendant of the nature and circumstances of the charge against him.</p> <p>Same.' — Indirect—Denying Charge. — Discharge of Defendant.- — Chancery Rule.- — In this State, in constructive or indirect contempts, if the defendant, by his motion or verified answer, fully denies the whole charge on which the rule for an attachment was granted, he must be discharged, and no further evidence can be heard. In chancery other evidence is heard, the defendant is examined on interrogatories, and then the court decides on the truthfulness of the charge.</p>

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

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

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

<p>Appeal. — In Name of Deceased Person. — No Substitution of Parties.— Jurisdiction. — Where an appeal is taken in the name of a deceased person, who died after judgment and before appeal, there is no valid appeal, and there can be no substitution of parties, either with or without the consent of the appellees, the appellate tribunal having no jurisdiction.</p>

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

<p>• Action. — For Personal Injury. — When Does Not Survive. — Under section 283, ft. S. 1894 (R. S. 1881, section 282), a cause of action, whether in tort or upon contract, to recover, damages caused by a personal injury, such as loss of time, inability to attend to business, expense incurred for the services of a physician, and the' like, dies with the person of either party.</p> <p>Same. — When Action Survives. — It is only where the injury complained of affects primarily and principally property and property rights, and the injury to the person is merely incidental, that the cause of action survives.</p>

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

<p>Pleading. — Complaint.—Filing Additional Paragraph after Reversal by Supreme Court, and Order for New Trial. — Amendment of Pleading.— Practice. — Where, after the reversal of a case in the Supreme Court, and it has been remanded for a new trial, an additional paragraph of answer is filed, which amounts to only a restatement of the original cause of action, in which other allegations as to defects in the engine complained of were made, there was no invasion of the defendant’s right in the filing of this additional paragraph.</p> <p>Struck Jury. — Objection to Manner of Selecting. — When can not be Made. — Where a struck jury has been requested, a party can not participate in the selection, and take his chances on securing a favorable verdict, and afterwards object to the manner in which the selection was made.</p> <p>Evidence. — Practice of Engineer in Making Running Switches. — Railroad. — Where the practice of an engineer, in making running switches, is sought to be shown, the engineer himself is competent to answer as to such practice, if proof thereof is admissible; but a fireman who was serving with the engineer on the particular occasion, and had been serving as fireman with said engineer for about three months previous, is not competent to testify as to such practice where his knowledge as to other running switches, made by such engineer, is not positive.</p> <p>Same. — Erroneous Admission of. — When Express Withdrawal will Cure Error, When not. — Where evidence has been improperly permitted to go to the jury, the error may be cured by an express withdrawal, provided that it is not of such a character that its express withdrawal by the court would not have cured the error.</p> <p>Same. — How a Party may Contradict his Witness. — A party may, in all cases, contradict his own witness by other evidence and by showing that he has made statements different from his present testimony.</p> <p>Master and Servant. — Railroad.—Notice of Defective Engine. — Foreman of Shops. — Notice to the foreman of a railroad company’s machine shops, of the defective condition of an engine, is notice to the company.</p> <p>Same. — Vice-Principal.—Fellow-Servant.—A servant appointed by the master to perform duties owing by the master, is not, in the performance of such duties, a co-employe.</p> <p>Same. — Foreman of Machine Shops. — Capacity of. — The foreman of machine shops may be both a fellow-servant and a vice-principal.</p> <p>Same. — Erroneous Instruction. — Negligence of Fellow-Servant. — Recovery. — In an action by a brakeman against a railroad company for damages for personal injury by reason of defective engine, an instruction that for any act of negligence on the part of the engineer, fireman, and other brakemen, he can not recover, is an erroneous statement of the law.</p> <p>Recovery. — Personal Injury. — Money Paid Out for Medical Attention.— Erroneous Instruction.- — Harmless Error. — -Where the first and the fourth paragraphs of complaint, in an action for damages by reason of personal injuries, alleged that “in consequence of said injuries-he was compelled to incur great expense to secure medical attention, and paid out on account thereof two hundred dollars,” but no such allegation is made in the second and the third paragraphs, it was error to instruct the jury that “in estimating the plaintiff’s damages you will take into consideration expenses actually incurred by him for medical attention,” where only a general verdict is returned; but the giving of such instruction was renderd harmless, since there was no evidence as to the value of such services or as to-any amount paid by the appellee therefor.</p>

<p>County Commissioneks. — Authority of to Insure Gounty Property. — If in the judgment and discretion of the county commissioners, it is necessary to insure county property, in order to properly care for and preserve such property, then the statute Confers the power on them to effectuate such insurance.</p> <p>Same. — Act of Insurance an Administrative One. — No Appeal from Order Allowing Premium. — The act of the board in effecting such insurance is a ministerial or administrative one, and not judicial, and an order allowing premiums therefor is merely incidental to the act of insurance, and no appeal lies therefrom. The allowance for premiums being incidental tc, or a part of, the insurance transactions, it partakes of the same character and can not be separated from it.</p>

<p>Criminal Law. — Deputy Prosecutor. — Misconduct of. — Talking to Juror, —It is misconduct for a deputy prosecuting attorney, while the jury are on their way to the jury room after being instructed in a criminal case, to speak to a juror who is afterwards appointed foreman, and volunteer to take a message to the latter’s family.</p> <p>Same. — Deliberations of Jury. — Misconduct of Foreman. — Pequiring Observance of Parliamentary Pules. — It is misconduct for the foreman of a jury, while a verdict in a criminal case is being deliberated upon, to refuse to allow any juror to express an opinion upon the case until he had first arisen and addressed the foreman and been recognized by him.</p> <p>Same. — When Misconduct Cause for New Trial. — Misconduct of the foregoing kind is cause for a new trial, where a conviction is had, unless it appears from the evidence, beyond any question, that the prisoner is guilty as charged.</p> <p>Same.' — Pape.'—Corroborative Proof. — Evidence of Sexual Intercourse.— Non-Access by Others. — The fact that an examination by a physician shows that sexual intercourse has been had with a married woman about the time of an alleged rape upon her, is not corroborative proof that a rape was perpetrated, in the absence of signs of violence and a showing of no access by others. Same. — Rape.—Insufficiency of Evidence. — For evidence considered and held not sufficient to sustain a conviction ior rape, see opinion.</p>

<p>Criminal Law. — Assignment of Error. — Must be Specific. — An assignment of error that the court erred “in overruling the motion of the appellant for a continuance,” is not sufficient where it appears that there are two separate and distinct rulings upon motions for continuances.</p> <p>Same. — Burglary.—Verdict.—Omission of Part of Penalty.— Waiver of Objection to Irregularity .■ — Where in a prosecution for burglary a verdict is returned fixing the penalty at imprisonment for nine years, but omitting to include disfranchisement in the punishment as provided by the statute (section 1929, R. S. 1881, section 2002, R. S. 1894), the failure of the defendant to ask a correction of the verdict at the time it is returned, waives the right to assail it after-wards on account of the irregularity.</p> <p>Supreme Court Practice. — Brief.—Marginal Notes. — Buies of Court.— Questions as to the admission of evidence will not be considered on appeal, where the brief does not point out the part of the record containing such evidence, and where no marginal notes are made upon the bill of exceptions as required by the rules of the Supreme Court.</p>

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

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

<p>Supreme Court. — Jurisdiction.—If the validity of an ordinance of a city is called in question by the judgment of the lower court, the jurisdiction of an appeal therefrom is in the Supreme Court.</p> <p>Municipal Corporation. — Power to Regulate Streets can not be Used to Destroy Valid Contracts with City. — The power of a city to regulate and control the use of its streets does not give such city the additional right to prohibit, annul, or destroy rights arising out of a valid contract.</p> <p>Same. — Legislative Contract. — Franchise to lay Gas Mains in Street.— Subsequent Impairment of Contract. — Power granted by a city to a gas company to lay, maintain, and repair gas pipes in its streets is a legislative contract, investing such company with the right of property in the franchise thus granted, which the city, unless the right is reserved, can not take away or impair without the company’s consent by any subsequent act. Such a contract is as binding and enforceable as that of a private corporation or person.</p> <p>■Same. — Limit of Power to Regulate Streets. — The exclusive power of a city to regulate and control the use of its streets is not restricted to that of transit alone, but also extends to the laying of gas and water pipes, and to the promotion of the public health and convenience.</p> <p>Same. — Repeal of Right to lay Mains in Street, New Method of Improv. ing Streets. — Subsequent Restriction of Right to lay or repair Ma s.— The grant of a right by a city to a gas company to lay and repair mains in its streets can not be subsequently taken away from such company on the ground that new and other methods of improving streets had been introduced and adopted by the city after such grant had been made, and especially is this true where the original grant bound such company to speedily repair such portions of the street as it opened for the purpose of laying and repairing such mains. Nor can such city, by a subsequent ordinance, require such company to first obtain permission of it to lay a main. in or upon a street or to repair its mains, when it had that right, without first obtaining such permission, under its original grant or franchise.</p> <p>Same.- — Grant of Franchise not Compulsory. — Conditions Accepted become a Contract. — Police Power. — There is no compulsion on the part of a city to grant to any gas company a privilege to use the streets; and if it grant a franchise it has the right to prescribe and impose terms and conditions, which become, when accepted and complied with, a binding contract. By such grant the city does not part with or bargain away its rights under the police power to protect the public health, the public morals, and the public safety.</p> <p>Same. — Construction of Penal Ordinances. — Exceptions. — Penal ordinances are not always construed literally, and courts will make the necessary exceptions.</p>

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

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

<p>Pleading. — Sufficiency of Complaint. — Improper Exhibit can not Aid Complaint. — In an action to vacate a judgment rendered by a justice of the peace, and to enjoin its collection, the certified transcript of the judgment and the proceedings before the justice, if filed with the complaint as an exhibit, do not thereby become a part of the record, and can not be considered in determining the sufficiency of the complaint.</p> <p>Same. — Judgment and Proceedings, in Suit to Vacate Same, Need not be Made Exhibit to Complaint. — In an action to vacate a judgment and enjoin its collection, a transcript of the judgment and proceedings need not be made an exhibit to the complaint.</p> <p>Judgment. — Erroneous but not Void. — Can not be Enjoined. — For Greater Amount than Demanded. — Where the court has jurisdiction of the person and the subject-matter, the fact that the judgment rendered was for a greater amount than was alleged by the affidavit in the attachment proceedings to be due, does not make the judgment void, and it can not be enjoined.</p> <p>Jubisdiction. — Of Person. — Of Subject-Matter. — That the court had jurisdiction both of the person and the subject-matter, see opinion.</p>

<p>Evidence. — Moral Character. — How Shown. — Moral character can be shown only by proof of general reputation, and not by proof of particular acts of immorality.</p> <p>Same. — Cross-Examination. — Direct or Bedirect Examination. —Moral Character. — General Deputation. — On cross-examination, great liberty is allowed in developing, illustrating, or contradicting whatever is brought out on direct examination; but on direct or redirect examination, one’s general reputation only, as to his general moral character, can be given.</p> <p>Same. — Admitting Proof of Particular Acts of Immorality. — Error not Harmless. — Where character evidence is pretty evenly divided, the appellate tribunal can not say that error in admitting proof of particular acts of immorality, on redirect examination, was harmless.</p>

<p>Criminal Law.— Warehouse Act.— Violation of. — Statutes Construed. —The act of the General Assembly of 1879, relating to warehouse-men, was not supplemental to the act of 1875, relating to public warehousemen, but each is a separate and distinct law within itself, and persons within the purview of the act of 1875 are not included in provisions of the act of 1879, relating to other than public warehousemen.</p>

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

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

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

<p>Husband and "Wife. — Action for Support, Statutory. — Sufficiency of Complaint. — An action by a wife against her husband for support and to secure an order for the sale of his real estate is purely statutory, and can not be maintained at. common law. There must be made in the complaint a reasonably fair attempt to bring the case within the terms and conditions of the statute.</p> <p>Same. — Complaint, Circumstances and Mode of Life of Husband and Wife Omitted. — Amount Necessary for Her Support. — If the complaint does not contain a statement of the circumstances and mode of life of the husband and wife, and the amount necessary for her support, it is demurrable.</p> <p>Same. — Construction of Statute. — The statute giving to a wife the right of action against her husband for support is remedial, and is entitled to a liberal construction with a view to advance the remedy.</p> <p>Bill of Exceptions.— When Necessary. — It is only where all the essential facts necessary to show the ground upon which a ruling of the trial court was made appear upon the face of the legal record, that no bill of exceptions is required to present such ruling for review on appeal.</p> <p>Pbactice. — Motion to Make More Specific, Bill of Exceptions. — -A motion to make a pleading more specific must be made a part of the record by a bill of exceptions in order to present the trial court’s ruling thereon on appeal; and so likewise must all collateral motions, to form a part of the record.</p>

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

<p>Demurrer. — To Answer. — Sufficiency of . — When Presents no Question. —A demurrer of the following tenor, to an answer: “It does not state facts sufficient to make a good answer to the complaint,” is not sufficient to present any question upon the answer. The demurrer should state that the answer does not state facts sufficient to constitute a cause of dofense. (Section 349, R. S. 1894.)</p>

<p>Supreme Court Practice. — Appeal from Decision not Excepted to. — No Question Presented. — Where it appears that no exception was taken to the decision from which the appeal is taken, no question is presented on appeal.</p>

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

<p>Real Estate. — Decedent's Estate. — Vendor’s Lien. — The widow and heirs of a deceased vendee of land have no rights as against the vendor’s lien for unpaid purchase-money.</p> <p>Same. — Vendor’s Lien. — Action in Bern. — Sufficiency of Complaint. — An action to enforce a vendor’s lien is a proceeding in rem where the action is prosecuted by the heirs of the vendor, after the death of the vendee and after the final settlement of his estate. That the complaint in such action is sufficient, see opinion.</p> <p>Same. — Decedent’s Estate. — Liens Continue Against. — Liens continue against the land of a decedent, unless discharged by decree or payment, and may be enforced after the final settlement of the estate.</p>

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

<p>Appeal. — Final Judgment Defined. — Befusal to Malte Petitioner a Party to a Suit. — A final judgment or order from which an appeal can be taken, within the meaning of the civil code, is such a judgment or order as makes a final disposition of the case. A refusal to allow a person petitioning to be made a party to a pending suit is a final judgment from which an appeal lies.</p> <p>Same. — Marion Superior Court. — Questions for General Term. — New Issues. — The general term of the Marion Superior Court can pass upon only those matters which were determined at the special term, and no new issue of either law or fact can be presented at the general term that was not passed upon at the special term.</p> <p>Receives. — Bepresents Both Creditors and Stockholders. — Trustee.— Title. — Bights of Beceiver. — A receiver of a corporation represents both the creditors of the corporation and the stockholders, and is regarded as a trustee for such creditors and shareholders, but for the purpose of determining the nature and extent of his title, he represents only the corporate existence itself, and not its creditors or shareholders, being vested by law with the estate of the corporation and deriving his own title under and through it. For the purposes of litigation, he takes only the rights of the corporation, such as could be asserted in its own name, and upon that basis only can he litigate for the benefit of either shareholders or creditors, except where acts have been done in fraud of the rights of such creditors, but which are valid as against the corporation itself, in which instance he holds adversely to the corporation.</p> <p>Same.— Usurping Power of Beceiver. — Bemoval.—-A creditor of a corporation for which a receiver has been appointed can not usurp the powers of such receiver by petitioning the court to take such steps as will amount to the appointing of another receiver. The proper course is to ask that the receiver already appointed he removed and another person appointed in his place.</p> <p>Same. — Creditor May Ask for Instructions for Beceiver. — Appeal.—Any creditor, after establishing his claim by an intervening petition in the suit in which the receiver was appointed, acquires a sufficient standing in court to ask for orders and directions on the receiver in furtherance of the creditor’s interest, and if such receiver disobey such instructions, the creditor may ask for his removal by the court appointing him, and if the court refuse to take such action as will secure and protect all concerned, an appeal may be taken from such refusal.</p>

<p>Parent and Child. — Action by Parent for causing Death of Child — Law of Another State. — Presumption.—In an action by a father for causing the death of his child in another State, the presumption is that the common law on that subject prevailed in such other State, and his right to recover will be determined by that law.</p> <p>Same. — Bight of Action at Common Law. — A civil action does not lie at common law for causing the death of a human being.</p> <p>Same. — Action for Loss of Service. — Basis of Action. — A parent may recover, at common law, from a wrongdoer, damages for depriving him of the services of his child, upon the same principle that the master recovers for loss of service of his servant.</p> <p>Same. — Loss of Service. — Death of Child. — Instantaneous Death. — Medical Service. — Nursing.—When the act of the wrongdoer causes a child’s death, its parent may recover, at common law, the value of the child’s services from the time of the injury until its death, and may also recover any incidental damages he may have suffered, such as medical attendance and care and nursing up to that time. When death is instantaneous, or practically so, no redress at common law is possible.</p> <p>Same. — Death by Wrongful Act. — Funeral and Burial Expenses. — Common Law. — Where the death of a child is caused by the wrongful act of the defendant, its parent, at common law, can not recover the cost of its funeral and burial expenses; but the rulé is different when the action is brought under the provisions of our civil code, giving a right of action to a parent against the person wrongfully causing its death.</p>

<p>Practice. — Motion to Strike Out Pleading, Bill of Exceptions. — A motion to strike out an answer or other pleading is not a part of the record unless made so by a hill of exceptions.</p> <p>Municipal Corporations. — Collateral Attack of Resolution of Council. —-Where the right and power of a common council of a city to pass-a resolution depends upon the existence of antecedent facts, the decision and recitation of the council that such facts do exist is conclusive ; and such resolution can not be attacked collaterally, in an action to enforce it, by showing that the recitations of the council in the resolution relative to the existence of such facts were false.</p> <p>Same. — Willful Violation of Ordinance, Inability to Comply With its Terms. — An ordinance which makes it a penal offense for a gas company to “willfully” refuse to lay gas pipes in a street when ordered by the common council is not violated by such company’s refusal to lay such pipe, when such refusal is made, in good faith, upon the ground that it is not physically and financially able to do so.</p>

<p>Estoppel. — Married Woman. — Purchase of Peal Éstate in Husband's Name With Wife's Money. — Credit Civen on Paith of Husband's Ownership. — Where the wife permits the title to land, purchased with her money, to remain in the name of her husband unquestioned, and permits him to procure credit on the faith of that title, and to thereby improve her property, she having knowledge of such facts, she is estopped to assert title in the land against those who had no notice or knowledge of any such claim or interest on her part, and who have acquired an interest (mechanic’s lien) in the land on the faith of the husband’s ownership.</p>

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

<p>Railroad. — Negligence.—Liability for Acts of Servants. — Proper Instructions. — An instruction to the jury, in an action against a railroad company for negligence, that they should inquire whether the injuries resulting in death “were produced by the negligence of the defendant, its agents, servants or employes,” does not amount to a statement requiring the jury to say or find whether the injuries were caused “by the negligence of the defendant or by its agents or servants or employes.”</p> <p>Same. — Defective Public Crossing. — Negligent Management of Train.— Combination of the Two Conditions to Produce Injury. — If the plaintiff be injured by reason of the negligent construction and maintenence of a public highway crossing by the defendant railroad, taken in connection with the negligent running and management of its trains at such crossing, then there may be a recovery, the plaintiff being without fault, although neither the defective crossing nor the negligent running and management of the train, taken by itself, would have brought about the same or a like result.</p> <p>Same. — Defective Sighway Crossing Constructed by Former Owner of Railroad.- — Maintenance of Old and Defective Crossing. — The fact that the former owners of a railroad constructed adefective crossing does not authorize or justify the succeeding owners to maintain and use it in such defective condition, and the fact that the crossing was constructed many years before the time of the injury occasioned by its defective construction, can not lessen the liability of the railroad company, but, on the contrary, increases such liability.</p> <p>Same.' — -Traveler Approaching Crossing. — Degree of Care.- — Reciprocal Duties of Company and Traveler. — A traveler approaching, on a public highway, a railroad crossing, must use such care to avoid injury as men of common prudence and intelligence would ordinarily use under like circumstanc.es. The amount of care required depends upon the risk of danger. The rights and duties of railroad companies and travelers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other. Each must use ordinary care in proportion to the danger.</p> <p>Same. — Sighway Crossings, Repairing. — Restoration of Sighway to Full Width. — A railway company crossing a highway must restore it to its original condition as nearly as possible, after its railroad is constructed across it; and thereafter keep such crossing in good condition. It must restore the whole of the road, however wide; it is not enough for it to put in order the part usually traveled.</p> <p>Same. — Running Train at Dangerous Crossing. — A railroad company must run its trains over a crossing difficult of passage and hazardous with greater caution, to prevent injuries to travelers.</p> <p>Negligence. — Susband and Wife Riding in Wagon. — Injury at Railroad Crossing. — Imputing Susband’s Negligence to Wife- — A wife riding in a conveyance driven and controlled by her husband and negligently injured at a highway crossing by the locomotive of the defendant, funning on its railroad, if she herself is free from fault, is not prevented from recovering damages, although her husband be guilty of negligence. His negligence can not be imputed to her.</p> <p>Instructions. — Construing . — Meaning of Words Used in. — Words in an instruction to a jury must be taken in their plain and usual meaning. Verbal niceties and refined grammatical distinctions are not to be resorted to if the meaning of the language used is plain to a common intent.</p> <p>Same. — Injury of Traveler at Highway Grossing Bailroad. — See opinion for instructions approved.</p> <p>Practice. — Evidence.—Motion to Strike Out Question or Answer. — Failure to Object. — If no objection be made to a question (or answer), a motion to strike it out comes too late, even if the evidence be ir- . relevant or otherwise improper. .</p>

<p>Tax Title. — Steps Necessary to Perfect. — Burden of Proof . — The person who asserts title to land through a tax sale and deed has the burden to show that every step required by law to be taken, from the listing of the land for taxation to the delivery of the deed, has been regularly taken.</p> <p>Same. — Liability of Heir of Mortgaged Land for Taxes. — An heir of land whose ancestor has mortgaged land must protect the mortgagee against the taxes assessed on such land prior to the ancestor’s death, to the extent of his inheritance from such ancestor.</p> <p>Special Finding. — Indefinite.— Conclusion of Law. — Where the special finding affords no means of passing upon the court’s conclusion of of law, the office of special finding has failed, and the case on appeal will be reversed.</p>

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

<p>Recoed. — Clerk’s Certificate, When Insufficient. — Bill of Exceptions.— Beporter’s Longhand Manuscript. — Where a clerk’s certificate shows that the “transcript contains complete copies of all the papers and entries in said cause, and, also, the original longhand manuscript of the evidence made by the reporter,” the bill of exceptions is not shown to he in the record. The certificate of the clerk should show'the filing of the bill of exceptions, and also of the longhand manuscript of the evidence, and that the same is embodied in the hill of exceptions.</p> <p>Real Estate. — Deed.—Quantity, Boundary Lines, Monuments. — Precedence of. — In a deed of conveyance of land, quantity will give way to boundary lines, and boundary lines will give way to fixed and visible monuments.</p>

<p>Practice. — Demurrer to Motion. — Motion to Strike Out Motion. — The practice of demurring to a motion, or of filing a motion to strike out a motion, is a practice of doubtful propriety and is wholly without warrant in our system of jurisprudence.</p> <p>Circuit Court. — Province of in Appeal Prom Board of Commissioners.— Discretion. — In an appeal from a board of county commissioners, the circuit court does not sit as a court of errors, but it must try the case for itself and render final judgment, after which it may remand the case to the board of commissioners with directions to enforce its judgment, or it may retain jurisdiction of the cause and hear and determine the whole case and execute its orders made therein.</p> <p>Drainage. — Matters in Discretion of Viewers. — Not Meviewdbleby Courts. —The question as to whether the proposed ditch is more comprehensive or whether it embraces and affects more land than is necessary in order to accomplish the drainage of the lands of the petitioners in the cheapest and best manner, is a question exclusively for the viewers, and their discretion upon that question is not subject to review by the courts.</p> <p>Same. — Plea in Abatement. — That the plea states no legal reason for the abatement of the drainage proceeding, see opinion.</p>

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

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

<p>Divobce. — Besidence, Allegations as to. — Sufficiency of. — In an action for divorce, allegations as to residence, of tbe following tenor, are sufficient: “That plaintiff is now, and has for more than two years last past been, a bona fide resident of the State of Indiana, and for more than six months last past a bona fide resident of the county of Allen.”</p> <p>Same. — Infamous Grime, When Sufficiently Apparent Without Being Alleged. — Where the complaint in such action alleged that the defendant “was convicted of the crime of rape upon a little girl, daughter of plaintiff,” the infamy of such crime is sufficiently apparent without being alleged.</p> <p>Same. — Complaint, Sufficiency of. — The complaint in such action is sufficient if it allege one ground for divorce.</p> <p>Same. — Condonation.—That the evidence does not show condonation on the part of the plaintiff, see opinion.</p>

<p>Beal Estate. — Adverse Possession — Tenants in Common. — Buie Stated1 —A conveyance by one cotenant, purporting to include the entire land and estate, where possession and claim of title are taken and continued for the period of limitation, is regarded as constituting an ouster of the other tenants, and as creating a bar to recovery by them. Such possession, however, does not effect an ouster of the other cotenants, unless the possession, asserted as adverse, has been taken and continued with the intent to oust the other tenants.</p> <p>Same. — Adverse Possession.- — -Intention.-—Sufficiency of Beply. — Where a cross-complaint asserts title in the land in controversy, as tenants in common with the plaintiff, and the plaintiff answers setting up the defense of adverse possession, it is error to sustain a demurrer to a reply setting up the circumstance of the execution of promissory notes by the plaintiff and previously by her grantors to protect, preserve, and continue the interests of the tenants out of actual possession; for such circumstance is sufficient to overcome the prima facie case stated in the answer.</p>

<p>Taxes. — Credits of Nonresident. — Promissory Notes in Evidence of Loans to Citizens of this State. — Credits in favor of a nonresident, which are debits against citizens of this State, such credits resulting from loans evidenced by promissory notes held by such nonresident in another State, and secured by mortgages on real estate in this State, are not within the jurisdiction of this State, nor subject to taxation here.</p> <p>Same. — Property Not Within Jurisdiction of State. — Attempted Assessment Void.- — -Collateral Attack. — The property not being within the jurisdiction of this State, the county board of review had no power to assess it, and the board’s act in that regard being void, it was subject to collateral attack.</p>

<p>Judicial Sale. — Assignment by Husband for Benefit of Creditors. — Wife’s Interest in Land Sold,. — If a married man make an assignment of his real estate for the benefit of his creditors, his wife not joining therein, under the voluntary assignment law, and the land thus assigned is sold by his assignee, such assignee’s deed will operate to pass the title to only two-thirds of such real estate, and the remaining third will vest in the wife of such assignor.</p> <p>Assignment fob Benefit of Cbeditoks. — Sale of Beal Estate. — Title, When Passes. — Title to real estate sold by an assignee under our voluntary assignment law does not pass until the sale is approved and confirmed by the court.</p> <p>Judgment. — Lien, Extent of. — Outstanding Equities. — A judgment is a lien only on the title of the judgment defendant, and is subject to all outstanding equities.</p> <p>Real Estate. — Merger of Claims in Equitable Title. — Merger in Legal Title. — A person may have several claims upon a tract of land and they will all exist without merger, because it may take them all to make a complete equitable title, but when he is invested with the legal title, if there be no reason for keeping them alive, they are deemed merged in the greater title.</p> <p>Same. — Merger, Mortgagor Acquiring Title Less Than Mortgage Title.— If a person have a mortgage lien upon an entire tract of land and acquires a title to such land less extensive and comprehensive than such mortgage title, there can be no merger.</p> <p>Same. — Merger.—Legal and Equitable Estate Not Commensurate. — A legal estate will not absorb an equitable one unless the two estates are coextensive or commensurate.</p> <p>Same. — Merger.—Intent.—Presumption.—Merger will not take place if. it be contrary to the intention of the party in interest. If such intention has not been expressed, it will be sought for and ascertained in all the circumstances of the transaction. If it appear from them to be for the benefit of the person acquiring both interests that merger should not take place, and the equitable or lesser estate be kept alive, then his intention that such a result should follow will be presumed, and equity will carry it into execution by preventing a merger. If, from all the circumstances, a merger would be disadvantageous to him, then his intention that it should not result will be presumed.</p>

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

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

<p>Action. — Where Brought. — Information.—Beal Property. — A proceeding on an information in the nature of a quo warranto, filed by the prosecuting attorney, is not affected by section 308, E. S. 1894, relating to actions affecting real property.</p> <p>Pleading. — Complaint.—Information.—Quo Warranto. — Corporation.— In an action by information in the nature of a quo warranto, against persons acting within this State as a corporation without being legally incorporated, the complaint sufficiently shows them to be acting as such within the State, which avers “that the defendants, without having been incorporated, are, and have been, since the 6th day of December, 1892, usurping the franchise of being a corporation under and by the name of the Brazil Electric Street Eailway Company, and by that name of pleading, and being impleaded, answered and being answered in the Clay Circuit Court of Indiana, contracting and being contracted with, and of attempting to acquire, hold, and use certain streets in the city of Brazil, Clay county, Indiana, for the purpose of constructing, maintaining and operating a street railway therein and thereover.”</p> <p>Practice. — Pleadings and Papers Stricken Out. — How Made Part of Record. — Pleadings and other papers stricken out can only become or be made a part of the record by bill of exceptions.</p> <p>Same. — Motion for Judgment. — General Finding. — A general finding, or what amounts to the same, can not form the basis for a motion for judgment in favor of either party.</p> <p>Same. — Motion in Arrest of Judgment.— When Unavailing. — A motion in arrest of judgment is unavailing unless made before the rendition of the judgment.</p> <p>Bill oe Exceptions. — Time of Filing. — When Presents no Question.— Record. — Where time is given in which to file a bill of exceptions, - and it is not filed within such time, it does not become a part of the record, and presents no question on appeal.</p> <p>Supreme Court Practice. — Argument.—Brief.—It is no argument to make a naked assertion that counsel think the ruling in question was wrong.</p> <p>Same.— When Special Finding Will be Regarded as a General One. — • When No Question as to Conclusions of Law is Presented. — •'Where neither the special finding of facts nor the conclusions of law were signed by the trial judge, and were not embodied in a bill of exceptions, nor made apart of the record by order of the court, it can only be regarded as a general finding, and no question can be presented to the appellate tribunal on a conclusion of law stated.</p>

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

<p>Supreme Court. — Jurisdiction, Limited to Errors of Law. — Errors of Fact, Trial Court Corrects. — The jurisdiction of the Supreme Court, on an appeal, is limited to errors of law only, and it has no jurisdiction to pass upon errors of fact. The correction of errors of fact into which a jury may fall belongs exclusively to the trial court. The Supreme Court can not retry questions of facts.</p> <p>Same. — No Evidence to Support Verdict, Error of Law, Beview. — If there be<no evidence to support the verdict or finding, or if there be no evidence to support any fact essential to the support of the verdict or finding, such verdict or finding is an error of law which may he reviewed or corrected on appeal.</p> <p>New Trial. — Verdict Against Preponderance of Evidence.— Duty of Court. — Beview in Supreme Court. — If the jury find against the clear preponderance of the evidence, ev.en in a case of conflict, that constitutes an error of fact, and not of law; and it is the duty of the trial court to correct such error by granting a new trial on the ground that the verdict is not sustained by sufficient evidence. In such a case-the Supreme Court has no power to review such acts.</p> <p>Same. — When Trial Court Should Grant. — Power of Supreme Court.— If the trial court make a mistake of law against a party, which is materially prejudicial or harmful to his rights, it is the duty of the trial court to grant him a new trial, and if it refuse to do so the Supreme Court can, for the error of law, reverse the case and order a new trial, for in such an instance he has not had one fair trial allowed him by the law.</p> <p>Witness.— Weight of Testimony, Duty of Jury in Considering.— It is the duty of the jurors, in determining the weight to be given to the testimony of a witness, to consider his interest or lack of interest in the case, Ms manner on the witness stand, the probability or improbability of his testimony, with all the circumstances in evidence which may aid them in weighing his testimony.</p> <p>Evidence. — Court Decides what Admissible. — Jury Must Consider all Admitted. — Weight.—The court decides as a matter of law what is proper to be considered by the jury on the admission of each item of evidence before'them, and the jurors can not decline to consider it, even in a criminal case. The court can not tell them how much weight they ought to assign to the evidence, nor to any part of it, hut it is not error for the court to tell them that they can not lawfully escape the duty of considering all of it.</p> <p>Practice. — Instructions, Waiver of Bight to Complain of as Erroneous Instructions. — If, upon a party’s request, an instruction is given that ■has been substantially given by the court in another instruction, he can not complain of the instruction that was given by the court on its own motion, even though the latter be erroneous.</p> <p>Same.— Qualifications of Juror, How Presented on Appeal. — If a juror be disqualified to sit on a jury, the question of his disqualification can be presented on appeal only by a bill of exceptions. It can not be presented by recitals in the motion for a new trial.</p> <p>Same. — Objection to Testimony. — Offer to Prove Certain Fact, How Question Saved for on Appeal. — An objection sustained to a mere offer to prove a certain fact by a witness then on the witness stand, although an exception be taken to the ruling of the court, presents no question for review on appeal when no question is asked such witness, or objection taken and sustained, and an exception taken to the ruling of the court. '</p> <p>Same. — When Evidence Admissible. — When evidence offered tends to prove a fact in issue, however slight that tendency may be, it is admissible, and it is the duty of tlie.court to admit it.</p> <p>Criminal Law. — Homicide.—Self-Defense.—Both Parties in the Wrong. —Where both the defendant and the deceased are at fault, neither can justify the taking of life without retreating. A defendant who takes another’s life must himself be without fault, or he can not go acquit upon the ground of self-defense.</p>

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

<p>Descent. — Descendants of Half Blood, Brothers and Sisters. — Descendants of half blood brothers and sisters inherit equally with those of the whole blood; or descendants of kindred of the half blood inherit equally with kindred of the whole blood. (K. S. 1881, section 2472.)</p> <p>Same. — Regulation by State Laws. — The law of descent is a matter which each State must regulate for itself.</p> <p>Same. — Brother or Sister, Meaning. — Half Blood. — The word “brother” or “sister,” as used in our statute of descent, usually means a brother or sister of the half blood as well as one of the whole blood.</p> <p>Statute. — Construction.—Earlier Statutes.— Use of Same Words. — Legislative Intent. — In the enacting of statutes, the Legislature is presumed to have acted with reference to the construction given to former statutes, couched in substantially the same language, and that it has used the words in that sense.</p>

<p>Appeal. — Jurisdiction.—Action for Belief from Judgment. — A proceeding to be relieved from a judgment falls within the jurisdiction to which the qriginal action belongs, and the appeal from such proceeding follows the jurisdiction of such original action.</p>

<p>Partnership. — Preference of Creditors by Surviving Partner. — Conveyance in Trust. — A surviving partner may prefer firm creditors, in the absence of a statute forbidding it, and may transfer the firm assets to a third person in trust for the benefit of such preferred creditors.</p> <p>Same. — Surviving Partner. — Preference of Creditors. — Petition for Beceiver, When Insufficient. — Where a surviving partner has made a preference of partnership creditors, and has conveyed the partnership assets in trust for such creditors, a petition for the appointment of a receiver for such assets, which discloses such a state of facts, is insufficient on demurrer; for if a receiver were appointed, there would be nothing to receive, and such appointment would be an objectless and useless ceremony.</p>

<p>Mortgage. — Description of Debt Secured. — A mortgage, to be valid, must in some way describe and identify the indebtedness it is intended to secure. Literal accuracy is not required, but the description of the debt must be correct so far as it goes, and full enough to direct attention to the sources of correct information in regard to it, and be such as not to mislead or deceive as to _ the nature or amount of it, by the language used.</p> <p>Same. — Renewal of Notes. — Note Owen for Debt Not Secured by Mortgage. — A note given in renewal of another note not described in the mortgage can not be considered as secured by such mortgage; nor is a note given for an indebtedness not secured by a mortgage.</p> <p>Same. — Amount of Recovery on Foreclosure, When Amount Not Specified in Mortgage. — Where the amount of the indebtedness is not specified in the mortgage, the mortgagee, on a foreclosure, is entitled to recover only so much as he shows affirmatively is due.</p>

<p>Will. — Correcting Mistakes in. — A mistake in a will can not be corrected by the courts, if the mistake be not apparent on the face of the will, when applied to the subject-matter of the devise.</p> <p>Same. — Parol Evidence to Correct Mistake in. — Parol evidence is not admissible to show the intention of the testator in contradiction of the intention expressed in the will, but it is admissible to show the situation and condition of the testator’s property devised by his will.</p> <p>Same. — Mistake Corrected by Construction. — Naming Wrong Section in Which Land Devised Lay. — If the mistake be shown by the words of the will, when applied to the subject-matter upon which, as its language discloses, it was intended to operate, such mistake may be obviated by construction. Thus where a testator bequeathed one-half of all the lands of which he might die possessed, adding “my land being in the north half of the northeast quarter of section 35,” and it was in fact in section 36, it was held that the will could be corrected by construction, and that the devise was valid.</p> <p>Practice. — Special Verdict or Finding Showing Defective Answer Not Proven. — Error Cured. — Error of law arising in holding a defective answer sufficient is rendered harmless by a special verdict or finding showing that such answer is not proven.</p>

<p>Pbactice. — Special Finding or Verdict Curing Error in Buling on Demurrers. — Errors in overruling demurrers to pleadings, if there be a special finding or special verdict, may be cured by a proper statement or declaration of the law upon the facts found, but errors in ■ sustaining demurrers can not thus be cured.</p> <p>.Same. — Special Findings Outside Issues. — If a fact is embraced in the special finding which is not embraced in the pleadings, it can not be considered in rendering judgment.</p> <p>Evidence. — Parol to Vary Written Contract. — Parol testimony can not be received to change or vary, take from or add to, a written contract in the absence of fraud or mistake.</p> <p>Lease. — Forfeiture for Failure to Operate TJnderMining Lease. — Inability to Operate Under Lease. — A lease of land for twenty years for mining purposes, providing that if the enterprise should be abandoned for twelve months it should cease and become null and void, the lessor receiving a certain part of the net profits arising from operating under the lease, is forfeited by a failure to commence such mining operations within twelve months after the term of the lease began, although no time is specified when the work shall begin, an inability to proceed with the work is no defense.</p> <p>Quieting Title.— Complaint, What May be Proven Under. — Lease, Forfeiture. — Under an ordinary complaint to quiet title, alleging in general terms that the plaintiS is the owner in fee simple of the land described, and that the defendant claims an unfounded interest in such land, accompanied by a prayer to quiet title, the plaintiS may show that the defendant is the grantee of a lease which has been forfeited by reason of his failure to operate thereunder.</p> <p>Same. — New Trial as of Bight. — Cancellation of Lease. — A new trial as a matter of right may be granted under the statute, even though the action is brought to cancel a lease which is a cloud on the title to the land described in the complaint.</p>

<p>Change of Venue. — Liability of County for Costs in a Criminal Case.— Judgment Arrested, JSfew[Indictment Found. — Costs of Second Trial.— The county from which a change of venue is taken in a criminal case is liable for all the costs made in the county to which the cause for trial was sent, and is also liable for all the costs occasioned by reason of the judgment of conviction having been arrested, a new indictment found and a second trial had, upon the election of the accused, in the county to which the case was sent.</p> <p>Same. — Allowance of Court not Binding on County. — Presumptions as to Allowance Made by Civil Court. — The allowance of the trial court do not conclusively determine the amount the county shall pay nor the persons to whom it is liable, and in an action to compel the payment of the amount allowed, the county may controvert both the amount allowed and the plaintiff’s right to recover; but the amounts allowed will be presumed to be correct both as to the amounts and the persons to whom they were allowed.</p> <p>Same. — Filing Claim Before Board of County Commissioners. — The county claiming a reimbursement for money expended in a cause where a change of venue has been taken to it, must file its claim with the auditor of the county from which the change was taken, to be by him laid before his board of county commissioners.</p> <p>Same.— Change of Venue, Costs. — Mandate to Compel Payment. — Until a claim for reimbursement of' costs has been presented to the board of county commissioners, from which county the change was taken, and allowed, the auditor of the county can not be compelled by mandate to issue a warrant for the amount of such claims.</p> <p>Mandamus. — Peremptory Writ Must Conform to Alternative Writ.— Relief Relator Entitled to. — A relator must prove himself entitled substantially to every claim, and to all redress which he seeks in his writ. If he fail to establish any substantial part of his claim his application will be denied. The peremptory writ must conform strictly to the alternative writ, except that the words containing the order to show cause why the writ should not be obeyed, and these words should be omitted. State, ex rel. v. Miller, And., 107 Ind. 39, overruled in part.</p>

<p>Paktition. — Can Only Be Sad by Joint Tenants or Tenants in Common. —Case Stated. — Owners of Distinct Farts of Building. — Where a partition sale is sought of a building on the basis that the defendant owns the south rooms of the third story, with the right to ingress and egress, and the plaintiff owns the remainder of said building, and that the plaintiff wishes to terminate its use of the building (a school house) on account of its deteriorated and dangerous condition and its incapacity for school purposes, partition or partition sale can not be had where the complaint does not disclose what the respective interests held by the parties are, as partition can only be granted where the parties hold as joint tenants or -as tenants in common.</p> <p>Same.— Oomplaint, Sufficiency of. — That the complaint does not state facts sufficient to make a case in partition, see opinion.</p>

<p>Decedent’s Estate. — Binding Effect of Order Made on Current Account. —Heirs or Legatees. — An order, upon a current settlement, of an estate, to the extent it determines any question of heirship or the right of any one to the money as heir or legatee, is not binding-upon the heirs or legatees, and they may have it set aside.</p> <p>Same. — Correcting Mistakes in Prior Orders and Reports. — Estoppel of Administrator to Procure Correction of Mistake. — An administrator or executor is required to take such steps as may be necessary to correct all mistakes and errors in any former proceedings in the estate; and the court has full power to make all necessary corrections so-long as the estate remains open. An administrator can not, by any act of his, in making a distribution or procuring the approval of his report deprive a legatee of his right under the will, nor estop himself or his successor from having the same corrected.</p>

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

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

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

<p>Criminal Law. — Affidavit and Information. — Arrest of Judgment. — Aiding Prisoner to Escape. — An affidavit and information charging defendant with a violation of the provisions of section 2029, E. S. 1881 (section 2116, E. S. 1894), making it a criminal offense to aid or accomplish the escape of a prisoner, etc., is sufficient on motion in arrest of judgment, although the manner in which defendant aided and accomplished the escape of the prisoner is not stated. Same. — Arrest of Judgment. — Defects and Uncertainties. — For mere defects or uncertainties in criminal pleading, a motion in arrest of judgment will not be sustained, although such defects or uncertainties might be fatal on motion to quash.</p> <p>Bill op Exceptions.— No Time Allowed for Piling. — Presentation to Judge and Signed After Term. — Not in Beaord. — A bill of exceptions signed by the trial judge after the expiration of the term of court at which judgment was rendered, where no time was given in which to file such bill, can not be made a part of the record.</p>

<p>Trust. — Trustees.—Church Cemetery. — Incorporation—Appointment of Trustees. — Acquiescence.—Quieting Title. — Injunction.—Accounting.— Where real estate was purchased by a church, the conveyance being made to three named persons as “managers and trustees in trust” for the church, for cemetery purposes, and two years later an act of incorporation was procured by the common consent of the grantor, grantees, and the church authorities, enlarging the powers of the original grantees and providing that they might provide, by rule, for the selection of their successors, in pursuance of which they enacted a by-law authorizing the board of trustees of the church to fill all vacancies that might occur in the cemetery board, which was done, and there-was acquiescence by the church authorities for more than fifty years, a suit by the church against the cemetery, trustees to quiet title to the cemetery, to restrain the trustees from interfering therewith, and for the appointment of new trustees and to compel an accounting to them will not lie, although, in a proper action alleging their trusteeship, the defendants might be required to give an account of their proceedings.</p>

<p>Mortgage. — Foreclosure.—Complaint by Heirs. — Necessary Allegations.</p> <p>—A complaint by heirs to foreclose a mortgage executed to the ancestor, which fails to allege that no debts are owing by the aneestor’s estate, and that no'letters of administration were granted, is bad on demurrer.</p> <p>Pleading. — Complaint by Several Persons Must Be Good as to All.— Where an action is brought in the names of several persdns the complaint must show a cause of action in favor of all, or it will be bad on demurrer for want of facts.</p> <p>Same. — Complaint upon Written Instruments. — Answer Contradicting Terms of. — A paragraph of answer to a complaint to foreclose a mortgage which seeks to contradict the plain terms and unequivocal words of the mortgage is bad on demurrer.</p> <p>Evidence. — Written Instrument. — Contradiction by Parol. — Parol evidence is not admissible to annul or substantially vary the terms of a written instrument, except on the ground of fraud or mistake.</p> <p>Parties. — Power of Court to Strike Out Names of. — Failure of Clerk to Make Minutes of. — The court, in its discretion and for the furtherance of justice, may direct the name of any party to be added or struck out, and, if a proper judgment is rendered, the mere failure of the clerk to enter a formal minute of the action is not material.</p> <p>Giet. — Causa Mortis. — Essentials of. — It is essential to a gift causa mortis that it be made in expectation or contemplation of the death of the donor.</p> <p>Same. — Bevocation by Subsequent Will.- — A subsequent will, bequeathing to another what has already been given as a causa mortis, will not revoke the gift.</p> <p>Pamily Settlement. — -Conveyance.—Mortgage for Benefit of Grantor's Children. — Vesting of Title.- — Bevocationby Will. — Trust.—Where,in the nature of a family settlement, a parent conveys to one child certain real estate, and the grantee agrees to pay to each of the other children, at the parent’s death, a certain sum, representing his interest, and executes notes 'and a mortgage securing them to carry out the agreement, a trust is thereby created in the grantee, and the title and control of the notes passes to and vests in the children, without power of revocation by will of the ancestor.</p> <p>Same. — Mortgage.—Becording.—Acceptance by Beneficiaries. — Acceptance by Infants. — The recording of the mortgage by the parent constituted a delivery to the beneficaries, and it will be presumed, that the adults accepted the provisions made for their benefit, and the law puts in an acceptance for the minors.</p>

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

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

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

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

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

<p>Fees and Salaries. — Act of 1891. — Omission to Provide Compensation for the Treasurer of One County. — Effect of. — Constitutional Law. — • Local Laws. — Laws Not of Uniform Operation Throughout the State.— An act of March 9,1891 (Acts 1891, p. 424), attempting to create a system of fees and salaries for county offices and officers, including treasurers, but omitting to provide any compensation, either by way of fees or salary, for the treasurer of one county, is void in so far as it relates to the office1 of county treasurer, as being in contravention of the provisions of sections 22 and 23 of article 4 of the constitution, inhibiting local laws and requiring fee and salary laws to be general and “of uniform operation throughout the State.”</p> <p>Same. — Attempted Amendment of Void Law. — The act of February 25, 1893, attempting to amend the void act of March 9,1891, without incorporating and carrying the latter act forward, is likewise void.</p> <p>Constitutional Laws. — Validity of Act. — Besort Can Not Be Nad to Engrossed Bill. — Enrolled Bill Conclusive. — In passing upon the validity of an act of the Legislature, the enrolled bill, authenticated as required by the constitution, is conclusive as to the proper enactment, and resort can not be had to the engrossed bill.</p> <p>Same. — Act Void in Part.— When Entire Act Fails. — County Treasurer. —Payment of Fees into “Treasurer’s Fund.” — That part of the fee and salary act of March 9,1891, which relates to county treasurers being unconstitutional in its principal feature, the system as to such officers fails in its entirety, including the requirement to pay the fees collected into the “treasurer’s fund.”</p> <p>Same. —Treasurer’s Compensation. — Estoppel.—It seems that a county treasurer who.elects to keep the fees heretofore collected under'the act of 1891, as compensation for his services, is estopped to after-wards claim the payment of a salary.</p>

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

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

<p>Deed. — Taking Effect After Death of Grantor. — Gomeyance of Present Interest. — Postponement of Enjoyment. — Testamentary Disposition.— An instrument, executed and recorded as a deed, which “conveys and warrants” described real estate, and then provides that “the above obligation to be of none effect until after the death” of the grantor, and then to be in full force, conveys a present interest in the real estate, but postpones the enjoyment, and is not void as an attempted testamentary disposition.</p> <p>Construction. — Ambiguous Instrument. — Acts of Parties. — In construing an ambiguous instrument, the construction placed upon it by the acts of the parties will be considered.</p>

<p>Fobmeb Adjudication. — Complaint, Sufficiency of. — Quieting Title.— A paragraph of complaint, in an action to quiet title, does not disclose a former adjudication, in a partition proceeding, as to the property in question, where it does not appear that plaintiffs were parties to such former proceeding nor that title was there in issue.</p> <p>Assignment of Eeeobs. — Not Available to all who Join in It. — An assignment of error, to avail anything, must present an error which is available to all who join in it.</p>

<p>Instructions to Jury. — Instructions Refused. — Evidence not in Record. —Presumption.—Unless the evidence is in the record, it must be presumed that instructions refused were properly refused, even though they announce correct propositions of law, for the reasons that they were not applicable to the evidence.</p> <p>Same. — Giving or Refusing. — Exception to Ruling. — Error can not be predicated on the action of the court in giving or refusing to give instructions, unless such action is excepted to in some recognized mode by the party complaining.</p> <p>Bill or Exceptions. — Formal Commencement. — A bill of exceptions must have a formal commencement as well as a conclusion.</p> <p>Same.— Transcripts Should Show Filing of Bill. — -If the transcript does not show that the bill of exceptions was filed in the clerk’s office, it is not a part of the record.</p>

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

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

<p>Divobce. — Finding and Decree in Favor of Both Parties. — Arrest of Judgment. — In an action for divorce, in which there was a cross-petition also filed, a finding for the plaintiff on his complaint and for the defendant on her cross-complaint, and decreeing and granting a divorce to both parties, is insufficient and unwarranted, and the judgment should have been arrested on motion.</p> <p>Same. — There Must Be an Injured and a Guilty Party. — Not Granted Except in Legal Manner. — Before a divorce can be granted, there must be found an injured party and a guilty party; and divorce can not be granted except in the manner provided by law.</p> <p>Same. — Insufficiency of Complaint and Cross-Petition. — Finding in Favor of Each of the Parties. — Judgment.—Where neither the complaint nor the cross-petition in a divorce proceeding states facts sufficient to authorize a finding and judgment for the complaining party, a finding in favor of each of the parties can not be made the foundation of any judgment, as there is no one againstwhom it can operate.</p> <p>Judgment. — Motion in Arrest. — As to faults in the finding or verdict, the judgment may be arrested when the court can not discover therefrom for which party judgment ought to be rendered.</p> <p>Same. — Motion in Arrest. — When Should Be Overruled. — Consideration of Finding. — Motion in arrest can never exclude consideration of the finding, and it is only when the defects of the complaint or cross-complaint are shown to be cured by the finding that the motion in arrest should be overruled.</p>

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

<p>Fraudulent Conveyance. — When May Be Set Aside. — Motive.—Consideration. — If a deed is made and accepted for the fraudulent purpose of cheating, hindering, or delaying creditors, it may be overthrown, no matter what may have been the consideration paid therefor, or how pure the motive that induced it.</p> <p>Same. — When May Be Set Aside as to Subsequent and Existing Creditors. —A deed may be set aside as fraudulent as to existing and subsequent creditors, where the grantor, on account of his peculiar condition, or the business in which he is about to engage, or in anticipation that he will or may incur debts which he may not wish to pay, or be compelled to pay, conveys his property, or causes it tobe conveyed, for the purpose of preventing it from becoming subject to the payment of his debts, and the person receiving the conveyance has knowledge of, or participates in, the purpose for which it was made.</p> <p>Same. — Presumption of Fraud. — Amount of Debt. — Of Property. — Presumption of fraud does not depend on the amount of the debt, or the extent of the property, or the circumstances of the party.</p> <p>Same. — Susband and Wife. — Chattel Mortgage. — Consideration.—Gift. —Where a husband executed a chattel mortgage to his wife to secure a loan made to him by her, and the finding of the court shows that most of the money thus loaned was money which he had let her have for housekeeping purposes and which she kept and secreted without his knowledge, the transaction was a gift, pure and simple, and the mortgage was fraudulent as to creditors.</p> <p>Same. — Burden of Proof. — Good Faith. — Consideration.—In such case, the burden is upon the wife to establish the good faith of the purchase, and it must be shown by clear and satisfactory evidence that it was for a valuable consideration paid by her out of her separate estate, or by some other person for her.</p>

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

<p>Jurisdiction. — Change of Venue from County by Pro Tempore Judge Appointed by Pro Tempore Judge.— When Jnvalid. — Reversal.—New Trial. — Circuit Court. — Where objection is made to the competency of a pro tempore judge, and such pro tempore judge appoints another pro tempore judge, to which objection is promptly made, and the second pro tempore judge grants a change of venue from the county, and an appeal is taken from the judgment of the court to which the case was sent on change of venue, and the case is reversed on appeal and remanded with order for further proceedings, the appointment of the pro tempore judge by a pro tempore judge being erroneous and promptly objected to, all acts done in the case on and after the change of venue from the first pro tempore judge were nullified by the reversal in the Supreme Court, and the only authority that should be exercised by the court of the county to which the change of venue was taken was to return the case, after being reversed and remanded, to the court of the county of original jurisdiction, which had at no time been divested of jurisdiction by the attempted change of venue.</p> <p>Practice. — Motion.—Presents no Question on Appeal Unless Made a Part of the Record — A motion to separate causes of action and to reject paragraphs of complaint for misjoinder of causes and of parties defendant, which was overruled, presents no question on appeal when it is not made a part of the record by bill of exceptions or otherwise.</p> <p>Same. — Motion to Separate Causes of Action. — Demurrer.—Where two causes of action are improperly united, the error should be reached by motion to separate, and not by demurrer.</p> <p>Same. — Refusing to Submit Porm, of Verdict. — Issues.—Where the relief entitled to by the plaintiff, under the issues, was the right of ownership and the possession of the whole land in controversy, there was no error in refusing to submit to the jury a form of general verdict finding for the plaintiff as to a certain right of way over the land in controversy.</p> <p>Judgment. — Reversal.—Supreme Court Practice. — A judgment will not be reversed for misjoinder of either causes of action or of parties.</p> <p>Demurrer. — Causes for. — There is no such reason for demurrer as misjoinder of parties.</p> <p>Assignment oe Errors. — Joint Assignment. — Instructions.—An assignment of error alleging that the court erred in giving to the jury certain instructions, assigning them jointly, to be available, must show that all of such instructions are erroneous.</p> <p>Kecobd. — Interrogatories to Jury, and Answers. — Sow Made a Part of JRecord. — Motion for Judgment Non Obstante Veredicto.- — -Bill of Exceptions. — Answers to interrogatories, as well as the general verdict itself, are a part of the record without being included in a hill of exceptions, and a motion for judgment upon the answers, notwithstanding the verdict, presents a question which may he determined by an inspection of the record, without a bill of exceptions.</p> <p>Landlord and Tenant.— When Such Belation does not Exist.- — For facts insufficient to establish the relation of landlord and tenant, see opinion.</p>

<p>Governor. — Power to Employ Counsel. — assisting Legislation. — Neither the Governor nor any other officer of the State has authority to employ an attorney to render services to prevent the enactment of laws or of any specified law.</p> <p>Court of Claims.' — Legislative Adjustment. — Where the Legislature assumes jurisdiction of a claim against the State and adjusts it, the court of claims has no jurisdiction whatever over the matter nor to make an allowance.</p> <p>Officers. — Statutory Powers. — Persons Dealing With. — Notice.—All persons dealing with officers exercising statutory powers, and whose authority is limited by statute, are charged with notice of the scope of such officers’ authority.</p>

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

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

<p>Res Adjudicata. — Essentials to Conclude Party. — Suit in Same Might.— Before the rule of former adjudication can be invoked, it must appear that the thing demanded in the present suit is the same as that demanded in 'the former suit; that the second demand is founded upon the same cause of action; that it is between the same parties (or their privies), and found for one of them against the other in the same quality. The party sought to be concluded must not only be the same person, but he must also be suing in the same right.</p> <p>Fraudulent Conveyance. — Void only as to Creditors. — A fraudulent conveyance is void only as to creditors of the grantor, and as to them only to the extent in which it may be necessary to deal with the conveyed estate for the satisfaction of their claims. To every other purpose it is good.</p> <p>Election of Remedies. — Sale on Execution. — Fraudulent Conveyance.— If a creditor elect to consider a sale of Ms debtor’s land, on an execution he held against him, void, and brings suit to set aside a conveyance of such land as fraudulent, obtains a judgment and under it accepts payment in full of Ms claim, he will be bound by Ms election, and can not claim title under such sale on execution.</p>

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

<p>Criminal Law. — Banks and Banking. — •Insolvency.—Receiving Deposit. —Indictment.—Motion to Quash. — An indictment founded upon the acf 0f March 9, 1891, Acts 1891, p. 395, entitled “An act concerning bank officers, brokers, etc., receiving deposits after insolvency, repealing all laws in conflict herewith,” charging that the defendants “were partners doing a banking business at said county, and, as such, received a deposit of §25 from one William Heagy, at a time when they were insolvent, and knew of their insolvent condition,” is sufficient to withstand a motion to quash.</p> <p>Same. — Constitutional Law. — Banks and Banking. — Title of Act. — The above entitled act is not unconstitutional in so far as it relates to private bankers for the reason that such provision is not embraced within the title of the act. The use of the words “bank officers” in the title of the act was sufficient indication of the legislative intent to embrace in its provisions not only officers of incorporated banks, but all persons officiating in a banking establishment or place doing ,a banking business.</p> <p>Judicial Notice. — Banks and Banking. — Courts will take judicial notice of the manner in which banking business is conducted.</p> <p>Statute. — Title of Act. — “Mtc.”—The abbreviation, “etc.,” in the title of an act adds nothing to its scope and effect, and serves no purpose.</p>

<p>Bill of Exceptions. — Time of Filing.— When not in Becord. — A bill of' exceptions filed after the time allowed by the court, where the record does not show that the presentation to the judge was within the time allowed, is not in the record.</p> <p>Same. — Date of Presentation.— Where Made. — The statute requires that the date of presentation shall be stated in the bill of exceptions, not in the margin or on the back of the bill.</p>

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

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

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

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

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

<p>Slander. — Answer Avoiding Slanderous Sense of the Words.— When Insufficient.— Complete Defense. — An answer to a complaint charging slander by imputing a crime, which alleges that if the words were spoken as alleged defendant did- not intend thereby to charge that plaintiff had committed a crime, and they were not understood to be spoken in such sense by those to whom they were addressed, is insufficient, where the complaint avers that the words were spoken in the presence and hearing of divers other persons than those to whom they were addressed. Such facts can only be pleaded as a complete defense, and if not sufficient as such, the answer is bad on demurrer.</p> <p>Same. — Overruling Demurrer to Answer.— When Prejudicial Error. — The overruling of the demurrer to such answer will be deemed prejudicial error, even where the same defense could have been set up under the general denial, unless the record affirmatively shows that no harm resulted from such ruling.</p> <p>Same. — Evidence.—Sense of Words as Used and Understood. — In such case it was proper for the defendant to prove by competent evidence, that before the words were spoken, he claimed that plaintiff had' wronged him out of an amount of money in their partnership business, and that the parties who heard the words spoken knew that he so claimed, and that the words were spoken with reference to the same and were not intended to charge plaintiff with a crime, and'were so understood by those who heard them.</p>

<p>Master and Servant. — Negligence.—Knowledge and Want of Knowledge of Defects. — Now Pleaded. — In an action by a servant against the master for injuries sustained by reason of the master’s breach of duty owing him, allegations of knowledge of defects by the master and want of knowledge thereof on plaintiff's part, may be made in general terms, and is held to include, not only actual, but constructive knowledge.</p> <p>Same. — Sufficient Allegations of Knowledge of Defect. — Bailroad.—In such case, allegations in the complaint of the absence of ballast in the roadbed, of broken ties, and of ties so rotten as not to hold the spikes driven into them, are conditions which, if existing from the original construction, must have been known, and, if arising from use, afforded undoubted opportunity for discovery.</p> <p>Same. — Presumption of Knowledge, — Judicial Notice. — Bailroad.—The court can not presume, in the face of the allegation of want of - knowledge by the employe (a conductor), that he had been so long employed in running over the defective track as to become familiar with it; nor can the court know that a conductor has a reasonable opportunity of seeing that ties are broken, or that they have decayed, or that ballast has not been sufficiently placed or is displaced. Same. — Negligence.—Unnecessary Allegation. — Where the damages sued for are the result of neglected duties of the master, it is not necessary to negative the contribution of negligence by’a fellow-servant. Supreme Court Practice. — Errors Suggested, Without Citation to Becord, Without Argument or Citation of Authority. — Errors suggested in a general way, without argument and without citation of authorities, and without citation to the record, present no question for consideration.</p>

<p>Real Estate. — Contract of Sale and Pwchase. — Construction.—In a written agreement for the sale and conveyance of land, of which the vendor had a sheriffs certificate of purchase, was the following clause: “In case there is a redemption of said land I [the vendor] am not to be under any obligation to make a deed to said premises, and I am to refund to the purchaser said $300 [amount paid on purchase price].”</p> <p>Held, that such provision was simply intended to provide for an emergency in case he, the vendor, found himself unable to convey because unable to procure a sheriff’s deed.</p> <p>Same. — Contract of Sale and Pun-chase. — Specific Performance. — Defense. An attempted redemption, which was set aside as void in an action by the vendor, constituted no defense in an action by the vendor for specific performance.</p>

<p>Will. — Executory Trust. — Devise of Use and Benefit for Life, and then to Heirs of Devisee. — Devisee Dying Childless. — Second Husband Inheriting as Her “Heir.” — A testator bequeathed a certain portion of his real and personal property, “in equal proportions,” to his sons and daughters, providing that “the amount to V. shall be for her use and benefit during her lifetime, then to her heirs and their assigns.” Other portions of the will created an executory trust, giving the executors power to sell such real estate, and to purchase other lands with which to fill the provisions of the will. The executors conveyed land to V., under the executory trust and pursuant to a decree of court, “for her use and benefit during her lifetime, and then to her heirs and their assigns in manner and formas prescribed by” the will, direct reference being made, in the deed of conveyance, to the will. After the conveyance V.’s husband died, and she remarried. Her second husband survived her, but she left surviving her no child, nor descendants of a child, nor neither father nor mother. Thereafter her second husband died, leaving several children as his only heirs at law.</p> <p>Held,, that such-second husband, under the will, was the only “heir” of V., and that his children inherited the estate from him to the exclusion of the brothers and sisters of V.</p>

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

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

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

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