Volume 141 — Indiana Reports

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

<p>New Trial.— Billings on Pleadings Not a Cause for. — Rulings upon demurrers and motions addressed to the pleadings and in making up the issues can not be assigned as a cause for a new trial.</p> <p>Practice. — Hypothetical Question. — Bight of Party to Have Answer on Pacts Claimed to Have Been Shown. — A party producing an expert witness has a right to his opinion on the facts which he claims to be the facts of the case, if there be evidence tending to establish such claim; and the court can not reject the evidence because he may think such facts are not sufficiently established.</p> <p>Same. — Appeal, Pointing Out Objections. — Proceedings in Lower Court. —Counsel on appeal must point out the objectionable proceedings of the lower court; and that objection must appear to have been made to such proceedings in the lower court.</p> <p>Evidence.— Construction of Witness’s Answer. — Presumption.—If a witness’s answer be susceptible of one or more constructions, it will be presumed that the jury gave it the construction which supports their verdict.</p> <p>Negligence. — If there be several charges of negligence in the complaint, either of which is sufficient to 'authorize a recovery, it is not necessary to prove all of them.</p> <p>Same. — III Health of Plaintiff Before Injury.- — Plaintiff Disobeying His Physician’s Instructions. — The fact that plaintiff disobeyed his physician’s instructions, contributing to his diseased condition, does not deprive him of his right to recover damages for the original injury.</p> <p>Same. — Master and Servant. — -Notice of Defective Appliance. — "Where it is alleged that the master constructed the instrument which caused the injury by reason of the defectiveness, it is not necessary to allege that he had notice of such defect.</p>

<p>Justice oe Peace. — Witness, Power to Require to Give a Recognizance for His Appearance. — A justice of the peace has no jurisdiction to make an order requiring a witness to give a recognizance for his appearance except (1) where a continuance of a criminal case is granted; (2) where a change of venue is granted; (3) and where the offense charged is a felony, and he recognizes the accused to appear at the next term of the criminal or circuit court of the county. He has no power to require a witness, when subpoenaed to appear at a day in the future, to give a recognizance for his appearance on the day set for trial.</p> <p>Same. — Continuance, Witness Giving a Recognizance for Appearance, When Must. — A continuance of a criminal cause which will authorize a justice of the peace to require a witness to give a recognizance for his appearance means any necessary postponement or delay of the trial made after the issue of the warrant; but it is not necessary that the accused be arrested before such a recognizance can be taken.</p> <p>Same. — Jurisdiction, Presumption. — A justice of the peace holds a court of special and limited jurisdiction, and nothing will be held to be within its jurisdiction except that which is expressly so shown.</p> <p>Same. — Inferior Courts, Presumption as to Jurisdiction. — Parol Evidence to Show Jurisdiction — If the resord of an inferior court, by virtue of whose order or judgment the petitioner is restrained, does not show on its face facts necessary to give the court jurisdiction, they will be presumed not to have existed, but such presumption may be rebutted and the jurisdictional facts established by extrinsic evidence.</p> <p>Habeas Cokpus. — Returns, Controverting. — Exceptions.—The petitioner may except to the sufficiency of or controvert a return, or any part of it, or allege any new matter in evidence. Its sufficiency can only be tested by an exception thereto.</p> <p>Same. — Return Insufficient. — Evidence not Necessary. — If the return be insufficient the person restrained may be released without any further hearing or evidence.'</p>

<p>Criminal Law. — Self-Defense.—Instructions.—Relief.—Where the defense is self-defense, an instruction that “if a person assaulted, being himself without fault, reasonably apprehends death or great bodily harm unless he kills his assailant, the killing is excusable, and if you believe the defendant was assaulted by deceased in such a manner as to cause him to believe, and he did believe, that he was in imminent danger of losing his life or suffering great bodily harm at the hands of deceased unless he killed him, and while so believing he killed the deceased, he is entitled to an acquittal,” is not erroneous.</p> <p>Same. — Failure to Use Phrase “Beyond Reasonable Dotibt” in Instruction. —It is no objection to an instruction defining what must be proven in order to find the accused guilty of the offense charged, that it used the phrase “if you believe” instead of “if you believe beyond a reasonable doubt,” if the court has in other instructions fully defined the rule of reasonable doubt, and the individual responsibility of each juror.</p> <p>Same.— Use of Deadly Weapon. — Inferring Design to Kill. — It is not error to instruct the jury that “if an act be perpetrated with a deadly weapon, so used as to be likely to produce death, the purpose to kill may be inferred from the act.”</p> <p>Same. — Self-Defense.—Instructions.—Defendant Must be Without Fault.— An instruction asked stating the law of self-defense should be refused if it fails to use the qualifying phrase “if the defendant was without fault,” or one of the same meaning.</p> <p>Same. — Self-Defense.—Question Calling for Defendant’s Belief. — Assuming in Questions Accused’s Basis of Belief. — On a charge of homicide, where self-defense is urged, it is proper to ask the accused when on the witness stand what his belief was, at the time he killed the deceased, concerning whether or not he was in danger of receiving great bodily harm; but it is not proper to assume in such questions a state of facts upon which he is supposed to have founded his belief.</p> <p>Instructions. — Correct Instructions Misleading Jury. — Befusal. — In. vading Province of Jury. — It is not proper to give the jury an instruction, although correct, that will mislead them, nor one stating propositions which it is the exclusive province of the jury to determine.</p> <p>Same. — Construing Together as a Whole. — All the instructions given must be construed together in determining whether or not they state the law.</p>

<p>Mortgage. — Two Mortgages Held by Same Person. — Foreclosure and Purchase by Mortgagee. — Surplus, who Entitled to. — A party held two mortgages of different dates on the same land, given by the same person, and foreclosed them on the same day in the same court, neither decree containing any reference to the other. He caused the land to be sold on the decree foreclosing the junior mortgage, purchased it himself, paid the costs and receipted in full for the amount of the decree. A few days later he caused the same land to be sold on the decree foreclosing the senior mortgage, bought in the land, but the amount of his bid exceeded the amount due him on the decree. The mortgagor claimed the surplus.</p> <p>Held, that the mortgagee was entitled to the surplus in an amount equal to the amount of the decree on the junior mortgage.</p> <p>Same. — Decree Distributing Surplus. — Statute.—There is no statute in this State requiring the decree to declare the order of distribution of any surplus; nor is there any statute prescribing the method or practice in enforcing distribution and in determining the interests of lienholders therein.</p>

<p>■Cbiminal Law. — Joint Prosecution for Larceny and for Deceiving Stolen Goods. — There is no error in prosecuting jointly under different counts of the indictment, both those who stole the property and him who received it, knowing it to have been stolen.</p> <p>Same. — Deceiving Stolen Goods.— When Jury May Draw the Inference of Knowledge that the Property was Stolen. — For facts and circumstances sufficient to warrant the jury in inferring that the defendant knew that the property was stolen, see opinion.</p> <p>Assignment of Eeeoes. — Instructions.—Joint Assignment. — A joint assignment that the court erred in giving certain instructions is unavailing unless all of such instructions are erroneous.</p>

<p>Assignment on Errors. — On Buling Not Excepted to, and Waived. — Sripreme Court Practice. — Where a demurrer was sustained to the original complaint, and, without excepting to such ruling, the plaintiff filed an amended complaint, to which a demurrer was sustained and exception reserved, an assignment of error on.appeal "that the court erred in sustaining the demurrer to the appellant’s complaint,” is upon the ruling to which no exception was taken and which was waived by the filing of the amended complaint, and thus presents no question.</p> <p>Demurrer.' — Joint.—When Insufficient. — A. joint demurrer to two paragraphs of a pleading can avail nothing unless both paragraphs are insufficient.</p> <p>Pleading. — Complaint.—Personal Injury. — No Breach of Duty Shown. —City.—That the complaint in an action against a city for personal injuries sustained by falling from private premises over a bank made by grading a street is insufficient and shows no breach of duty on the part of the city, see opinion.</p>

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

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

<p>Real Estate. — Might of Grantee of Purchaser to be Subrogated to Mights of Lien-holders, Paid as Part of the Purchase-Price or Subsequently in Good Faith. — Equitable Melief. — J., a married man, purchased real estate of L., subject to certain incumbrances, which he assumed to pay as a part of the purchase-money; and to indemnify L. against such incumbrances, J. executed to L. a mortgage on the real estate, in which his wife did not join. Soon afterwards, and without paying such incumbrances, J. sold the land to H., and agreed to convey the same to him by warranty deed, H. having no knowledge that J. was a married man, but believing him to be single, and having no knowledge that the land was incumbered in any way; but on H. discovering such incumbrances, J. procured satisfaction to be entered of record of all incumbrances the payment of which was secured by JVs mortgage to L., except two mortgages and a judgment, and it was arranged, J. assenting thereto, that H., in order to obtain a clear title to the property, should obtain sheriff’s deeds thereto under the mortgages, in addition to the conveyance to be made by J., H. paying said mortgages and judgments and paying to J. only the balance of the price he had agreed to pay therefor. J. executed to H. a warranty deed for the land, in which his wife did not join, which deed did not contain any assumption clause by H. of any liens or incumbrances. Sheriff’s deeds were afterwards obtained by H., as arranged, and he paid the mortgages and judgments, which were entered satisfied of record, and he paid the remainder of the purchase-price to J., all of which was done by H. without knowledge that J. was a married man.</p> <p>Held, that in an action for the wife’s one-third .interest, A., a remote grantee of H., is entitled to be subrogated to the mortgage executed by J. to L., so far as it secured the mortgages and the judgment paid by H., with interest, less rents exclusive of improvements.</p> <p>Held, also, that equity will treat the incumbrances, if valid liens, as assigned to H. and not as satisfied, and H. could enforce the same against the property.</p>

<p>Contract. — Of Release. — Consideration, When May Be Varied by Parol. —Personal Injury. — Damages.—Railroad.—In the following contract: “Know all men by these presents, that' I, for and in consideration of the sum of thirty-one dollars and fifty cents, to me paid by the Chicago and Eastern Illinois Eailroad Company, the receipt whereof is hereby acknowledged, do hereby release and forever discharge * * * [the said] railroad company from any and all liability for * * * [setting forth the claim for damages for personal injury] ; and I do hereby agree that this release shall operate as a perpetual bar to any suit at law or otherwise which I or my heirs or * * * personal representatives may or can sustain by reason of the claim aforesaid” — the consideration expressed is not contractual, but is merely a recital of the amount of the consideration, and such consideration may be varied, regardless of fraud, by parol evidence, where want of consideration is replied. Pleading. — Beply.—Want of Consideration. — That a reply setting up want oí consideration is sufficient, see opinion.</p>

<p>Pleading. — Overruling Demurrer to Paragraph of Answer. — Harmless Error. — Where a paragraph of answer amounts to but a denial of a corresponding allegation of the complaint, it is harmless error to overrule a demurrer to it, where the same facts are provable under the general denial, which is pleaded.</p> <p>Evidence. — Expert Testimony. — Bridge.—Personal Injury. — In an action for injuries sustained by reason of a defective bridge, experienced bridge builders who had made an examination of the bridge immediately after the accident, may state whether, in their opinion, if the bridge so made had been kept in repair it would have safely borne the load placed upon it, which would have tended to show its condition at the time of the accident.</p> <p>Demurrer to Evidence. — Inferences.—A party demurring to evidence admits every inference and conclusion that may rightfully and reasonably be drawn therefrom.</p> <p>Bridge.— County Bridge. — A bridge built by a township trustee over a creek which had been straightened and used also for a ditch for drainage is a bridge which the county is required to keep in repair. Same. — Repair of. — Notice that Materials of Which it is Constructed Will Decay. — Those whose duty it is to keep bridges in repair must take notice of the liability of wood and other materials of which they are composed to decay and wear out.</p> <p>Same. — Presumption as to Use of. — Traction Engine. -A bridge must be held to have been built in anticipation that traction engines will be taken over it, where such engines were in use in the neighborhood for many years previous to its construction.</p>

<p>Former Adjudication. — Judgment of Board of Commissioners Unappealed from, — Action in Circuit Court. — At a time when no court could have jurisdiction of a claim against a county, except on appeal from the decision of the board of commissioners, an answer to an action on such a claim in the circuit court, that previous (giving the date) to the commencement of this action, plaintiff presented and filed with the county auditor of said county its claim against defendant for $17,886.05; that the same was duly presented to the board of commissioners; that the claim was considered by the commissioners, and they rendered their decision and entered of' record their judgment disallowing the same, and taxed the costs to appellant, from which decision and judgment no appeal was ever ever taken, and the same remains in full force and effect; and that the same was rendered on the same and identical claim and cause of action sued on in the complaint in this action, — constitutes a good answer in bar of the action, on the ground of former adjudication.</p>

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

<p>Principal and Agent. — Liability of Principal for Willful Act of Agent. —A corporation is liable for the acts of its agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was willful, and was not directly authorized.</p> <p>Corporation. — Liability for Servant’s Wrongful Act. — A corporation entrusting a general duty to its agent is responsible to an injured person for damages flowing from the agent’s wrongful act done in the course of his general authority, although in doing the particular act such agent may have failed in his duty to his principal and disobeyed its instructions.</p> <p>Pleading. — Theory of Complaint, Which Theory Prevails. — A complaint must be construed upon the theory which is most apparent and clearly outlined by the facts stated in it.</p> <p>Bailroad. — Surgeon, Company not Obliged to Purnish. — Amputation oj Arm Without Servant’s Consent, Liability of Company. — A railroad company is under no general legal obligation to provide surgical aid for its injured servants; and if it does so gratuitously, and tho surgeon amputates a limb of the injured servant, against his consent and express command, the company willánot be liable in dam* ages to the servant for the amputation.</p> <p>Same. — Duty to Servant Voluntarily Assumed.- — Liability of Company.— Selection of Physician,. — Degree of Care in Making Selection.- — Where a railroad company voluntarily assumes to employ a physician for its servants, and employs a competent physician, it will not be liable for such physician’s negligence or tortious acts in the treatment of its servants by him. So when a corporation voluntarily assumes to perform certain acts for its servants, it is only bound to exercise reasonable care and diligence in making the selection of a person to perform them, and it is not required to select a person of the highest skill and longest experience in the performance of such acts.</p>

<p>Railroad. — Collision with Traveler at Crossing. — Presumption of Negligence. — When a person crossing a railroad track is injured by collision with a train, the fault is prima facie his, and he must affirmatively show that his fault or negligence did not contribute to the injury, before he is entitled to recover for such injury.</p> <p>Same. — Duty of Person Approaching Track to Look. — Question for Court. —When a person approaches a railroad crossing on a level with the track, it is his duty to proceed with caution, whether on foot or in > a vehicle, and he must exercise ordinary care under the circumstances in so doing. The question of care at railway crossings as affecting the traveler, is, as a rule, a question for the court.</p> <p>Same.— Traveler at Grossing — Looking for Train — Presumption that Se ivas Negligent. — In attempting to cross a railroad track, a traveler must listen for signals, read signs put up as warnings, and look attentively both ways for approaching trains, if the surroundings are such as to permit of that precaution. If by looking he could have seen an approaching train in time to have avoided the injury, it will be presumed in case he is injured by a collision with a train, that he did not look, or, if he did look, that he did not heed what, he saw.</p> <p>Same. — Flagman Absent from Grossing — Failure to Look for Approaching Train. — A traveler at a railway crossing is not excused from looking and listening for a train by reason of the fact that he knew a flagman was accustomed to be at the crossing and give warning of approaching trains, and at the time of the injury, not seeing the flagman, he presumed there was no danger from an approaching train, and in acting upon that presumption he attempted to cross and was injured.</p> <p>Negligence. — Statute of Another State on Presumption of Negligence.— Extraterritorial Force. — The statute of another state concerning the presumption of negligence pertains to the remedy and has no extraterritorial force.</p> <p>Special Vekdict. — Negligence—Finding of Ultimate Fact — Two or More Inferences to be Drawn from Facts — Jury Drawing. — Only where the facts found by the jury are such that two or more inferences may be reasonably drawn from them under the law that the finding by the jury of one of such inferences will be regarded by the court. In such a case the ultimate fact must be stated by the jury in favor of the party seeking a recovery, or judgment will be rendered thereon against him. If the facts found are such that the court can adjudge as a matter of law that the injured party was or was not guilty of contributory negligence, then the finding of such ultimate fact, whatever it may be, will be disregarded by the court.</p>

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

<p>Practice. — Misconduct of Counsel.— Objections, Ruling of Court Necessary. — Question for Supreme Court. — Unless the record discloses that the court, at the time the misconduct of counsel in arguing the cause is said to have occurred, was called upon by the complaining party to rule upon the objections being made by him, no question is reserved for the Supreme Court.</p> <p>Same. — Affidavits for New Trial. — When not Part of Bill of Exceptions. —Affidavits filed in support of a new trial can not be made a part of the record by the trial judge, in the bill of exceptions, referring to them “as heretofore set out in the record,” even though the clerk copy them into the transcript.</p> <p>Criminal Law. — Charge of Murder, Conviction of an Assault and Battery. — On a charge of murder the defendant can not be convicted of a mere assault and battery or an assault.</p> <p>Instructions . — Not Applicable to Case, When Harmful.— What Record must Show. — Instructions should be relevant to the issue and applicable to the evidence; and a violation of this rule is reversible error if it appears that the action of the court tended to injure or harm the the complaining party in his substantial rights; and in order to reverse the case, it must appear of record that the error was harmful or tended to injure the party aggrieved.</p> <p>Same. — Right of Court to dive as Applicable to a Theory of Defense Disclaimed by Defendant. — If there be any facts or circumstance in the case, although quite meager, to which instructions might, upon any view, be pertinent (if they contain correct statements of the law), it is not error for the court to give them, although given to the jury upon the theory that they are favorable to the theory of the defense, but which theory the defendant at the time disclaimed.</p> <p>Same.— Theory of Case. — Presumption in Favor of Court.— Theory of Case Urged in Argument before Jury, Presumption.- — If instructions are given by the court, although very slightly applicable to the evidence, a presumption of their applicability to the theory of the defense will be presumed, although the defendant disclaim, on appeal, the theory to which they are applicable; for it will be presumed that in the argument of the cause before the jury, defendant’s counsel assumed that theory as a defense to which they are applicable.</p> <p>Same. — Immaterial Error. — The party complaining of an instruction must affirmatively show by the record that he was injured by it.</p>

<p>Partition Fence. — Mandate to Compel Trustee to Bebuild and Bepair, When Will Not Issue. — Complaint.—A township trustee can not be compelled, by mandate, to rebuild and repair a partition fence, where it is not averred that be (the trustee) bad examined it and declared it to be insufficient, but it is simply averred “that be [the trustee] failed to act in the matter, or take any steps in repairing or rebuilding said fence.”</p> <p>Same. — Mandate Against Trustee. — Necessary Allegations. — To make the complaint and alternative writ sufficient, it should have been averred that the trustee bad examined the fence and declared the same insufficient, for until that is done the trustee is under no obligation to repair or rebuild.</p> <p>Supreme Court Practice. — Questioning Judgment. — Exceptions.— Where no objection is made to the rendition of a judgment, and no question with reference to the same presented to the trial court (or ruled upon), it will not be considered an appeal.</p>

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

<p>Evidence. — Sufficiency of to Sustain Verdict. — Judgment.—Beversal.— The Supreme Court will not reverse a case upon the weight of the evidence, or merely for the reason that there is a conflict, or that all persons might not draw the same inference from the facts proven, where there is evidence in the record sustaining every material allegation of the indictment.</p> <p>Misconduct oe ¡Counsel. — Argument to Jury. — Prosecuting Attorney.— Where the argument of a prosecuting attorney complained of as misconduct was in response to argument of counsel for defendant, and no part of the argument of defendant’s attorney is in the record, the court must presume that it was of such a nature as fully justified the court in overruling the objection made to the statements made by the prosecuting attorney.</p> <p>Criminal Law. — Indictment.—Petit Larceny.- — Instruction, Charge of Grand Larceny. — Prejudicial Brror. — Where an indictment charges petit larceny, an instruction informing the jury that the indictment charged defendant with the offense of grand larceny and gave as a part of his charge section 1933, R. S. 1881, defining the offense of grand larceny, and directed the jury that if they found the appellant guilty as charged in the indictment they should assess his punishment at imprisonment in the state prison for not more than fourteen nor less than one year, etc., and the jury did fix his punishment at imprisonment in the state prison for one year, etc., (the court not giving any instruction as to petit larceny or the punishment therefor), is erroneous, as the jury had the right, under the indictment, to imprison the defendant in the county jail instead of the state prison, and the court can not say that the instruction did not harm the defendant.</p>

<p>Taxes. — State Board of Tax Commissioners. — Original Jurisdiction.— Extent of Authority to Order Addition. — Injunction.—The State Board of Tax Commissioners has no original jurisdiction to revise individual tax lists other than railroad property and the equalization of assessments of real estate; and not having the power themselves, they can not order an addition to be made by the county auditor* and taxes arising from such addition are illegal and void, and may be enjoined.</p> <p>Same. — Lists Required of Banking Corporations. — Statute Construed.— Section 59 of the tax law of 1891 (section 8469, R. S. 1894), does not apply to banking corporations, but the lists required of such corporations are prescribed by sections 60 and 61 of such act.</p>

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

<p>Contract. — Restraint of Trade. — Husband and Wife. — Consideration.— Suretyship. — L. sold to G. a steam laundry and a dye-house and the appurtenances thereunto belonging, in the city of Evansville, Indiana, and L. and his wife, as parties of the first part, entered into a written agreement with G., as party of the second part which agreement contained the following covenant: “As a part of the consideration of this sale, the said * * [L. and L., his wife] severally agree and covenant to and with the said * * [G.] that they * * will not, nor will either of them, engage in the laundry business, or in the business of dyeing and cleaning goods, at any place within the corporate limits of the city of Evansville, for the period of ten years from this date.”</p> <p>Held, that the wife was a principal in such covenant, and not surety or guarantor that the husband would keep his own personal covenant.</p> <p>Held, also, that there was sufficient consideration to support the contract or undertaking of the wife, although she held no interest in the property sold, and received none of the consideration therefor,, all of which was paid to the husband.</p> <p>Held, also, that the wife had full power to enter into such contract.</p>

<p>Execution. — Based Upon Mere Finding. — Injunction.—An execution based upon a mere finding may be enjoined.</p> <p>Same. — Action to Enjoin. — Complaint.—In a complaint to enjoin such execution, it need not be alleged that plaintiff does not owe the debt sued on; for an execution does not issue upon a debt due, but upon a judgment rendered.</p>

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

<p>New Teial. — Newly-Discovered Evidence, When not Granted on Account of. — Affidavits, Sufficiency of. — -A new trial will not be granted on account of newly-discovered evidence where the affidavit in support of the motion is wholly devoid of facts, except mere conclusions, showing due diligence; nor where the facts presented in the affidavit do not show the evidence to be material, or that the same is true or believed to be true; nor that knowledge of the evidence had been acquired since the trial; nor where it appears that the newly-discovered evidence is merely cumulative; nor where it does not appear that the evidence in question would or might change the result.</p>

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

<p>Jurisdiction.— Waiver of Notice, What Does Not Amount to. — Appearance. — The presence in court of one who is not served with process can not be regarded as waiver of the notice required by law, without some step or action on his part signifying a willingness that the. question tendered by the complaint may be submitted to, and determined by, the court. There must be some formal entry, or plea, or motion, or official act to constitute an appearance.</p> <p>Taxes. — County Board of Review. — -Waiver of Statutory Notice, What Does Not Amount to. — Jurisdiction.—Where a bank cashier was called before the county tax board of review, not for the purpose of acquiring jurisdiction over the bank, but for the purpose of testifying as a witness in relation to the affairs of the bank; and it appears that the cashier did not submit to the jurisdiction of the board, or voluntarily acquiesce in the assumed right of the board to raise the valuation of the bank’s lists, such presence before the board did not amount to a waiver of the notice required by statute. Appearance. — What Does Not Amount to. — With no knowledge of the pendency of proceedings against him, the presence of a defendant in open court, and his responses to inquiries by the court, do not constitute an appearance.</p>

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

<p>Real Estate. — Buie in Shelley’s Case in Force. — A Buie of Law, not of Construction. — Extending Buie to Doubtful Case. — The rule in Shelley’s case is the law in this State. It is a rule of law and not of construction. If the language used in the instrument brings the case within the rule, the fact that it was the intention of the grantor or devisor that the rule should not operate is of no importance. If a grant or devise does not come fairly within the rule, this court will not extend its operation.</p> <p>Same. — Buie in Shelley’s Case Stated. — In any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs, a fee simple.</p> <p>Same. — Estate Tail Abolished. — Effect.—In this State, by statute, estates tail are abolished, and what would, by the common law, be adjudged a fee tail is now a fee simple.</p> <p>Same. — A conveyance of land to A and B, his wife, “during their natural lives, and at their death to the heirs of their body,” accompanied by a clause declaring, “hereby conveying a life interest in said land, or so long as they occupy the same, to A and B, his wife; upon the death of both of said parties, or upon their removal from said premises, the heirs of their body shall be entitled to possession of said premises,” vests in A and B an estate in fee simple as tenants by entireties, B becoming, on the death of A, the sole and absolute owner, and her grantee takes the entire estate to the exclusion of her heirs and of the heirs of A.</p> <p>Ejectment. — Defense, Pleading, Evidence. — Special Answer. — In an action of ejectment all defenses, both legal and equitable, may be given under the general denial; and no available error is committed in sustaining a demurrer to a special answer.</p> <p>Estoppel. — Sale of Land. — Ejectment.—Befunding Purchase-money. — If the owner sells land, receiving the purchase-price, and afterwards seeks to set aside the sale and recover possession of the land, he must tender back the money received before bringing the suit; and this rule applies both to adults and infants.</p>

<p>Descent. — Husband Inheriting from Wife. — No Children. — A husband surviving his wife, where she leaves neither father, mother, child, nor other descendants surviving her, inherits all her real and personal property, and he may take one-third of such property, although her will provide otherwise.</p> <p>Same. — Election to Take Under Will. — Inconsistent Claim. —A husband, where his wife makes a will, can not elect to claim his right as surviving husband by claiming one third of her property absolutely under the statute of descent, and then claim a life interest in the remainder under her will.</p> <p>Will. — Election to Take Under. — Conveyance by Deed. — A deed by a widower conveying land containing a recital that it is executed pursuant to a will of his deceased wife giving the land to him, is an election on his part to take under the will, and is a waiver of his right to claim the land under the law.</p> <p>Same. — Devise to Heirs in Accordance with Laws of Descent.- — Devise Over. —A devise over to the testator’s blood relatives in the same proportion as the property devised would have descended under the law, if the will had not been made, is valid.</p> <p>Same. — Devise to Husband by Wife. — Election to Take Under Will. — Devise Over. — Power Given Husband to Sell. — Bight of Heirs of Wife and Husband to Lands Conveyed. — A devise to a husband by wife of an interest in her property during his life, “with full power and authority to sell and convey by deed in fee simple all or any part” of the real estate devised, “if the same shall be deemed by him necessary to his support and maintenance,” and also providing that if he did not so dispose of such real estate during his life “that the same shall descend to” the testator’s “blood relatives in proportion as the same would descendió them if the will had not been made,” gives such husband power to sell and convey title to such land, and if he do not so convey it, then it goes to the blood relatives|of the testator to the exclusion of the heirs of the husband.</p> <p>Special Finding. — Evidentiary and Inferential Fact One and the Same Thing. — Evidence recited in a special finding or verdict must be disregarded, but where an evidentiary fact and an inferential fact are one and the same thing, a recital of the evidentiary fact is sufficient.</p>

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

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

<p>Partition. — By Tenants in Common in Bemainder Limited on Life Bsitate. — Mot Maintainable. — Tenants in common of an estate in remainder limited upon a life estate can not maintain an action for partition during the existence of the life estate.</p>

<p>Partnership. — Extension and Benewal. — When Might of Action Passes Along with the Benewal. — Bight of Beaeiver to Bring Suit on. — Where articles of copartnership, under the name and style of the Indiana Banking Company, provided, among other things, that the partnership should continue for five years (from 1875 to 1880), with a proviso that the partnership might be extended after such time, “as may be deemed best for the interests of the owners of the said banking company”; and, in accordance with such proviso, it was extended, in 1880, for two years, with all its rights, credits and assets of every description, including stock and all choses in action, without dissolution or withdrawal of capital or assets of any kind; and, at the end of the period of extension (1882), the term of copartnership was made to continue for three years, the widow and administratrix of one of the deceased partners (according to the articles of agreement) having taken his place in the copartnership in 1881, during the first period of extension, and during the same period one of the surviving partners wishing to retire from the firm transferred (according to the articles of agreement) all his rights and interest therein to the remaining partners, who continued the business uninterrupted and without dissolution, — a right of action which accrued to the company in 1878 passed along with the renewals of the company, and, upon the appointment of a receiver for the new firm, all the rights of the company at once passed to him, in trust for the partners and their creditors, including the authority to bring suit on such cause of action.</p>

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

<p>Taxes. — Foreclosure of Liens by State and Sale. — Certificate of Purchase Assigned to Owner. — Land Liable for Bemainder Due. — Where the lien of the State for taxes is foreclosed, the land sold for less than the amount of the decree of foreclosure, and the certificate of purchase assigned by the purchaser to the owner of the land, suchland, in the hands of such owner, is liable for the remainder due on the decree.</p> <p>Same. — Bights of Purchase Under Decree Foreclosing Tax Lien. — A purchaser at a sale under a decree procured by the State foreclosing the lien of the State for taxes takes such land freed from the tax-lien for which it was sold, although the proceeds arising from the sale are not sufficient to satisfy the amount of the taxes due.</p> <p>Same. — Effect of Foreclosure of Lien of State for Taxes. — The foreclosure of its lien for taxes, by the State, does not merge such lien in the judgment.</p> <p>Same. — Extent of Lien of State for Taxes. — Payment.—The lien of the State for taxes is perpetual for all taxes due from the owner of property, and all property owned by him in the county is liable for all taxes chargeable to him. Nothing short of payment can relieve such property from the lien.</p>

<p>Specific Performance. — Mutual Covenants. — Contract Must be Enforceable Against Both Parties. — A contract having mutual covenants to be performed by both parties can not be enforced by one party against the other, if the covenants to be performed by the former are so indefinite that a court of equity can not enforce them against him.</p> <p>Same. — Sufficiency of Answer. — In determining the sufficiency of an answer to a complaint for specific performance of a contract, it will be held sufficient if it presents such a state of facts as would render it inequitable to grant the relief prayed. If it shows that the plaintiff secured the contract by any sharp or unscrupulous practice; by overreaching, by not disclosing important facts, by trickery, by taking undue advantage of his position, or by any other means which are not conscientious, it will be sufficient.</p> <p>Same. — Contract to Convey, Inability to do so, Defense. — A contract to convey a certain tract of land to which the defendant has no title will not be enforced, on the ground that the defendant has no ability to comply with his contract.</p> <p>Same. — What Contract Enforceable. — Power of Court to Enforce. — Must not be Oppressive or Unfair. — In order to give a court jurisdiction to-enforce the specific performance of a contract, it is necessary that it be complete and certain, as well as fair, just, and equal in all its-parts, and that it be founded upon a valuable consideration. It must be capable of being specifically enforced, and be of a nature that the court can decree its complete performance against both parties without adding to its terms. It must appear that the plaintiff has no adequate remedy at law, and that a refusal to perform the contract would be a fraud upon him. The circumstances must be such that, when the court is called upon to act, its enforcement would not be hard or oppressive on the defendant.</p> <p>Same. — Plaintiff to Perform in the Future. — Succession of Acts Requiring Protracted Supervision. — When the consideration on the part of the plaintiff is the doing of something in the future, the performance of which the court can not compel, or when, by its terms, the contract stipulates for a succession of acts, the performance of which can not be consummated by one transaction, but will be continuous and require protracted supervision, specific performance will be refused. Same. — Duties of Plaintiff Uncertain. — Contract on Plaintiff's Part not Specifically Stated. — -If the contract on the part of the plaintiff is not stated with clearness, and the part he is to perform is not clearly stated or ascertainable with completeness, it will not be enforced.</p>

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

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

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

<p>Divobce. — Vacation Order. — Maintenance, etc. — Bill of Exceptions, Time for Filing. — Quaere, Where an exception is taken to an allowance, in a divorce proceeding, by the judge in vacation, has the judge power to grant time in the future when a bill of exceptions can be filed?</p> <p>Same. — Bight of Wife to Maintenance and Means to Make Defense. — Discretion. — In such case, where the affidavits and proofs as to the right of the wife to maintenance from her husband pending the suit, and for means with which to make her defense, show that the only property she had was a promissory note of doubtful value, and a house and lot of the value of from $600 to $1,200, and subject to a tax lien, the court was justified in making the wife an allowance, it being a matter largely in the discretion of the trial court; and the abuse of discretion must be very clear before the Supreme Court will interfere with its exercise.</p>

<p>Appellate Covet. — Jurisdiction.—Matters Incidental. — Where the Appellate Court has exclusive jurisdiction of the main cause, that will carry with it into that court all matters merely incidental to the main cause.</p> <p>Same. — Jurisdiction.—Action and Judgment. — Attorney’s Lien. — Incidental Matter. — A prayer for the continuance of an attorney’s lien, in an action on a judgment, is merely incidental to such action.</p>

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

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

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

<p>Partition. — Title.—Plaintiffs Not Parties in Interest. — That the evidence does not show title in plaintiff, in an action for partition, see opinion.</p> <p>Same. — Answer, Sufficiency of to Show Title in Defendant to Whole of Land. — That a paragraph of answer setting up title in defendant to the whole of the land in question, in an action for partition, is sufficient, see opinion.</p>

<p>Statute of Limitations. — Demurrer to Complaint. — When can not be Sustained. — Unless the complaint affirmatively shows that the plaintiff does not come within any of the exceptions of the statute of limitations, a demurrer to it can not be sustained on the ground that suit on the cause of action described therein was not brought within the time the statute requires it to be brought in order to enforce it.</p> <p>Same. — Presumption When Statute Begins Running. — Date of Maturity not Stated in Complaint. — Note.—When, in an action on a promissory note, the date of maturity is not stated in the complaint, but it is alleged that it is due, the presumption is that the note was payable on demand.</p> <p>Same. — Laches not Attributable During Period of Limitations. — Delay as Evidence of Payment. — In a suit to foreclose a mortgage, laches can not be attributed to the mortgagee during the period the statute of limitations had to run; but the court or jury may consider long delay, in urging a claim, as a circumstance tending to raise a presumption of payment.</p> <p>Promissory Note. — Suit on When Lost — Endorsement to Plaintiff After Maturity. — Bond of Indemnity. — Where the payee endorses a note after its maturity, to the plaintiff, who loses it, such plaintiff need not tender a bond of indemnity to the maker in order to maintain his suit against him for its collection.</p> <p>Same. — Loss of Note. — Setting Out Copy. — The allegation in a complaint that the note sued on has been lost is a sufficient excuse for not filing a copy with the pleading.</p> <p>Merger.— When Will Not Take Effect. — Merger will not take place if it will cause an injury to the interest of the parties to the transaction ; but if this prevention of merger will work an injury or wrong, or aid in effecting a fraud, equity will not interpose for the prevention of the merger. Any extraordinary circumstance, which indicates that the prevention of the merger would, have such an evil effect, can be established as a defense against the interference of equity.</p> <p>Mortgage. — Merger.—Keeping Lien of Alive. — Whenever it will sub-serve the ends of justice to keep a mortgage lien alive, it will be so kept alive unless the person holding the lien intended to merge it in the fee simple.</p> <p>Same. — Purchase by Mortgagor. — Assumption of Junior Liens — A mortgagor, by purchasing the fee simple or equity of redemption at a foreclosure sale, does not thereby assume the payment of all liens junior to that upon which he relies.</p> <p>Same. — Uncertainty.— When Does Not Pender Mortgage Void. — Uncertainty in a mortgage will not render it void, if, upon proper allegations and proof, the court can render certain by decree that which is uncertain.</p> <p>Same. — Uncertain Description. — Rendering Certain. — Uncertainty in the description of the land intended to be mortgaged will not render the mortgage void, nor defeat a foreclosure, if, by proper allegation in the complaint, accompanied by evidence, the court can ascertain and describe with certainty in its decree the land to be sold for a satisfaction of the mortgage. ‘</p> <p>Same. — Decree of Foreclosure too Uncertain. — Sheriff Not Required to Search Records of County. — A decree of foreclosure which requires the sheriff to search the records of the recorder’s office of the county # in order to ascertain a" description of the land to be sold by him is too uncertain and can not be enforced.</p> <p>Same. — Uncertainty of Description.— What Must be Alleged to Enforce Against Purchasers of Equity of Redemption. — Where the description of the land mortgaged is so uncertain that it can not be inserted in the decree of foreclosure, and a more particular description should be alleged and proved before a decree can be entered, a complaint seeking a foreclosure against a purchaser of the equity of redemption who has not assumed the payment of the debt secured by the mortgage will be bad, on demurrer, for want of facts, unless a description of such a certainty is inserted in the complaint as will be sufficient for the decree.</p>

<p>Receiver. — Continuance of Business. — Power to Borrow Money. — Lien, on Assets. — Where a receiver is appointed for a partnership, the court has the right to direct the receiver to continue the business, to borrow money for that purpose, and to make the amount borrowed a first lien on the property belonging to the trust estate in his hands.</p> <p>Same. — Borrowing Additional Sums. — An order to borrow a certain sum of money, and making the amount a first lien on the assets, does not preclude the court from making subsequent similar orders to borrow additional sums, and making them prior liens.</p> <p>Same. — Liens for Money Borrowed by Receiver. — Prior Mortgage Liens, Release. — Borrowing Additional Sums. — An order authorizing a receiver to make certain claims that were liens on the assets before a receiver was appointed “preferred claims upon said claimants releasing their mortgages to secure the same,” and making such claims “preferred claims next to those who may loan the receiver money to carry on the business and to manufacture the materials onhand;” and authorizing him to borrow a certain sum for that purpose, making it a “prior claim for the articles manufactured and the notes received for the sale thereof,” does not preclude the court, after the release of such mortgages, from making subsequent orders for the borrowing of additional sums and making such sums liens prior to the liens of such mortgages.</p> <p>Same. — Parol Evidence to Interpret Order to Borrow Money and Fixing Priority of Liens. — Parol evidence is not admissible to show what were the parties’ understanding or agreement before the order to borrow money was entered; nor to add to or take away the effect of the language used in such order.</p> <p>Written Instrument. — Construction When not Contradictory and Meaning Plain and Apparent. — In the construction of a contract, statute, judgment or order of court, the first thing to ascertain is the natural signification of the words employed, in the order of the grammatical arrangement in which the framer of the writing has placed them; and if thus regarded they embody a definite meaning, which involves no absurdity and no contradiction between the different parts of the writing, then that meaning is the only one which can be adopted, and there is no room for construction.</p>

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

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

<p>Criminal Law. — Arrest of Judgment. — Defective Verdict. — A defective verdict is not, alone, a sufficient reason for arrest of judgment. The verdict may be looked to in connection with the indictment or information to determine the sufficiency of the latter in passing upon the motion in arrest.</p> <p>Same. — Sufficiency of Indictment on Motion in Arrest. — Assault and Battery with Intent to Kill. — That the indictment for assault and battery with intent to kill is sufficient on motion in arrest of judgment, see opinion.</p> <p>Same. — Statutory Ki'ounds for Arrest of Judgment. — The only statutory grounds for arrest of judgment in criminal cases relate to the jurisdiction of the court and the sufficiency of the indictment or information to state a public offense.</p>

<p>Railroad. — Consolidated Company. — Liability for Judgment in Condemnation Proceedings Against Betiring Company. — Where a railroad company, duly organized as a corporation according to law, condemns land for a right of way, for which damages are awarded in condemnation proceeding, and, subsequently to such proceedings, such railroad corporation was duly consolidated with another railroad company, it being provided in the instrument of conveyance that the grantee, the consolidated company, take the property subject to the just debts of the grantor, the retiring company, the judgment rendered in the condemnation proceeding is binding upon the consolidated company, or grantee.</p>

<p>■Conveyance. — Failure of Title When no Defense. — In the absence of covenants of warranty or for title or proof of fraud, a failure of title is no defense to an action for the purchase-money of real estate.</p> <p>Same.— Contract. — Defense, Inadequacy or Want of Consideration. — ■ Where a party voluntarily and without fraud or deception enters into a contract and receives all he contracted for, he can not be relieved on the ground of inadequacy or want of consideration.</p> <p>'Same. — Quitclaim Deed. — Cancellation of Note. — No Interest to Convey.— A note given in consideration of a quitclaim deed to land in which the grantor claimed no interest (the deed being sought in aid of a loan being negotiated by the grantee), can not be canceled on the ground that it is subsequently discovered that the grantor had no interest to convey.</p>

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

<p>Special Finding. — Legal Conclusion.— Ultimate Fact. — Intention.— Revocation of Will. — In an action to set aside the probate of a will on the ground that the will had been revoked, a special finding that there was no intention to substitute a subsequent grant to the legatee for the full devise, is not a legal conclusion, but is the statement of a fact, the nonexistence of an intention.</p> <p>Same. — Intention.—An Ultimate Fact. — The presence or absence of intention, a mental state, is impossible of statement except as an ultimate fact, unless the jury violate the rule that the evidence should not be stated in the special verdict.</p> <p>Same. — Failure to Find Fact Fssential to Recovery. — The failure to find a fact essential to a recovery by plaintiff, is equivalent to a finding that such fact does not exist.</p> <p>Will. — Revocation, Manner of. — A declaration of an intention, by a testator, never thereafter carried into effect, to make certain conveyances and then destroy the will, is not sufficient to constitute a revocation. See sections 2729, 2736, K. S. 1894, for manner of revoking a will.</p>

<p>Taxes. — County Assessor, Power of to Add Omitted Property to Duplicate. — Retrospective Act. — Act of 1881, of 1891. — The tax law of 1891 (sections 8531, 8560, 8600, R. S. 1894) confers upon county assessors the power to add to the tax duplicate property omitted by taxpayers during the years the act of 1881 was in force.</p> <p>Same.— Omitted Property. — Right to Tax. — Remedy.—Act of 1881, of 1891. — The right of the State to taxes on omitted property prior to the act of 1891 is not created by such act, but arises under the act of 1881. The tax law of 1891 simply granted to the State a remedy, or provided certain means as a procedure to enforce a right which existed in its favor under the statute of 1881, viz., that of recovering taxes to which it was entitled by the act of 1881.</p> <p>Same. — On Omitted Property. — Suit to Enjoin Collection. —Essential Averments. — If the county assessor has exercised his power to add omitted property in accordance with the provisions of the statute of 1891, it would be necessary for a party who assails his action in a suit to enjoin the collection of such taxes, in order to recover, to establish that the property added to the duplicate by the county assessor had been in fact listed and returned by the tax lister for the years in controversy, and that the taxes thereon have been paid or tendered before the commencement of the present action.</p> <p>Same. — Injunction. —Durden of Proof. — In such action the burden of proof is upon the plaintiff to establish the material averments of his complaint.</p> <p>Same. — County Assessor. — Injunctive Relief Against Acts of. — Essential Facts. — Where one assails the act or proceedings of a county assessor had in pursuance of the act of 1891, by an action seeking injunctive relief, he must, in order to succeed, establish that either the act or proceedings of such officer were void for failure to comply with some material provision of the statute which operated to prejudice the taxpayer complaining, or that the property, money or means in question subject to taxation had been duly listed and returned therefor.</p> <p>Same. — Omitted Property of Decedent. — Injunctive Belief by Administrator. — An administrator, resisting the action of the county assessor in listing omitted property of his decedent, stands in the shoes of his decedent, and the onus is cast upon him to show that the claim asserted by the assessor is groundless.</p> <p>Same. — Evidence.— Tax Lists. — In such case the tax lists of the decedent could not be introduced and considered as evidence establishing the disputed fact that the amount of “money on loan,” as therein mentioned, was all that the lister was liable or required under the law to return for taxation, but were only competent to be considered for the purpose of showing that “money on loan,” to the amount therein stated, had been listed and returned for that year. Harmless Error. — Sustaining Demurrer to Paragraph of Answer. — The sustaining of a demurrer to a paragraph of answer, if error, is harmless where the same facts are provable under the general denial, which is pleaded.</p> <p>Supreme Court Practice. — Sufficiency of Evidence. — Judgment Contrary to Law. — The Supreme Court will not determine the preponderance of the evidence, but when, upon examination of the evidence in the record, the question arises: Is it sufficient, upon all material points involved, to sustain the judgment, or, under the evidence, is the judgment contrary to law? then, and in that event, this court will, on appeal, adjudicate these questions.</p>

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

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

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

<p>Life Insurance. — Admission of Cause of Action and Bight of Becovery, But Amount Disputed. — Where, in an action on an insurance policy the insurer “admitted the validity of the plaintiff’s demand, except as to the amount plaintiff was entitled to recover,” and “admitted its liability to plaintiff, except as to the amount plaintiff was entitled to receive,” all questions as to the insurable interest of plaintiff were expressly waived, and were no longer in issue.</p> <p>Same. — Admission, Effect of.— Waiver.- — Such admission having been received and acted upon, it became a fixed fact in the case as much as if it had formed a part of the answers, and can not be withdrawn or limited in its operation, and must stand as a waiver of such questions for all purposes.</p> <p>Same.- — Burden of Proof. — That Plaintiff is not Entitled toBeeover Maximum Amount of Policy. — Pacts Peculiarly Within Defendant’s Knowledge.- — Where the only issue in an'action on an insurance policy is the amount of recovery, the policy calling for §4,000, unless eighty per cent, of the assessment for its payment should not equal such sum, the membership, the amount of assessment, the losses participating in such amount, the extent of lapses, were matters peculiarly within the knowledge of the insurance company, and, upon the issue presented, the burden of proving that the allotment to the policy was less than the maximum thereof, rested upon the insurance company, the defendant.</p> <p>Same. — Prima Facie Gase. — The plaintiff made a prima facie case authorizing a recovery of the amount of the policy by showing the issuance of the policy or certificate, performance of its conditions by the claimant and the insured, and a failure of performance on the part of the insurer.</p> <p>Same. — Finding as to Amount of Recovery. — Indefiniteness.—Law and Fact. — Where the jury found that the amount of recovery should vary according to three contingencies, viz., §312, §312 and interest from a date stated, or §4,000, as the law should require under the facts found, the finding was not so indefinite as to vitiate it. Under the facts found, it became a question of law as to which of the three sums should constitute the recovery.</p> <p>Same. — Special Finding, Insufficiency. — Burden of Proof. — A finding that there was §41,190.96 in the pool from which to pay 158 claims, in amounts not found, is not sufficient to discharge the burden resting upon the insurance company to show that the plaintiff was not entitled to recover the amount of the policy.</p>

<p>Parties. — Drainage Proceeding. — Persons Interested in Subject-Matter.— Statute Construed. — Section 273, R. S. 1894, providing that when a person not a party to an action but having an interest in the subject thereof may be made a party, applies to all parties to any controversy in the nature of a civil action, and, consequently, applies to a drainage proceeding.</p> <p>Drainage. — Parties in Interest. — Lands of Persons not Parties Affected., —May be Made Parties. — Pxtent to Which Lands of Such Parties are Affected, How Determined. — Where a person is made a party defendant in a drainage proceeding on the ground that his lands will be affected by the drain, the question of the extent to which such-new lands will be affected is referred to the commissioners, and all proceedings are had with reference thereto the same as upon original petition.</p> <p>Same. — Judgment of Petitioners as to Lands Affected not Conclusive.— The judgment of the original petitioners, as to the lands affected, is-not conclusive, for such theory would deny a hearing to one affected and not made a party, and would afford opportunity for imposition by the petitioners.</p> <p>Same. — Sights of Persons Made Parties After Piling of Petition.— Semonstrance. — Persons made parties after the filing of the petition and before action thereon by the commissioners, become 'parties to the petition, and possess just as much rights either separately or in connection with others, as any party to the petition possesses, and may join in remonstrance.</p> <p>Same. — Parties.— Township a Necessary Party. — Since a township is made liable for assessment of benefits, the township is a necessary party as a landowner, and is permitted to oppose the levy of assessments against it.</p>

<p>Record. — Cleric’s Certificate. — Bill of Exceptions. — Beporter’s Long> hand Manuscript. — Evidence not in Becord. — Appeal.—Where it appears from the clerk’s certificate that “the original longhand manuscript of the case” was filed in his office and was incorporated into “a bill of exceptions,” it not appearing what that bill of exceptions was, and it appearing that no bill of exceptions in the case was ever filed except bill of exceptions showing the filing of motions to modify the decree, the evidence is not properly in the record, and questions depending on the evidence for solution can not be decided.</p>

<p>Redemption. — From Sale of Beal Estate. — Complaint Insufficient. — Indefiniteness. — Offer to Redeem. — Where, in a complaint or bill to redeem, it does not appear whether the sale sought to be redeemed from was on a lien senior to that of the plaintiff, or that plaintiff before the filing of his bill, made an offer of the amount necessary to redeem, that amount having been fixed and ascertained before the bill was filed, which was not stated in the bill, the complaint is too uncertain, and is insufficient on demurrer for want of facts.</p> <p>Same . — Complaint.—Offer to Redeem. — Tender.—The amount necessary to redeem not having been stated in the bill, the bringing into court and tendering a specific sum in redemption is not sufficient. It should be made to appear that the amount tendered is the amount necessary to redeem.</p> <p>Same. — Sight of Redemption.— When Exists. — A person can only redeem when he has an interest to protect, and where, without redemption, he would be a loser.</p> <p>Same. — Senior Lienholder Gan Not Redeem. — A prior or senior lien-holder has no right to redeem from a sale on a junior lien, because it would not protect any interest he has.</p>

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

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

<p>Municipal Corporation. — City of Indianapolis. — Power to Adopt Civil Service Buies. — Examining Board. — The city charter of the city of Indianapolis authorizes the adoption of rules and regulations and the creation of a board of examiners as a means of ascertaining the comparative fitness of applicants for office, position, and promotion, and of selecting, appointing and promoting those found to be best fitted, except in the department of public safety, without regard to political opinions or services.</p> <p>Same. — Political Policy or Wisdom of Granting Such Power Not a Question for the Court. — The question relative to the political policy or wisdom of the Legislature in granting such power, or as to the propriety or necessity of the “mayor’s cabinet” in carrying the same into effect by adopting civil service rules, is of no concern to the court, and a matter over which it has no control.</p> <p>Same. — Charter.—Rules of Construction. — The charter or statute by which a municipal corporation is created or governed is its organic law, and the rules applicable to the interpretation of constitutions may be used in the construction thereof.</p> <p>Same. — Implied Powers. — Statute.—If a statute grants a right or imposes a duty, it also confers, by implication, every particular power necessary for the exercise of the one or the performance of the other.</p> <p>Same . — Governmental Agency. — Civil Service. — Bisaretio n. —Noninterference by Court. — It was clearly the legislative intent that the governing body, composed of the heads of the several departments, vested with the right or power in question, should be clothed with a reasonable discretion as to the medium, agency, or means to be employed to give effect to the provisions of the law, and that discretion will not be interfered with or called in question by the courts, except where the power is exceeded or fraud imputed or shown, or in case there is a manifest invasion of private rights.</p> <p>Same. — Civil Service Agency. — Statute Construed. — The creating of a board of examiners, which is but a medium or agency by which the comparative fitness of applicants for position or promotion might be ascertained, was not an attempt to establish an independent executive or administrative department in violation of the prohibition in section 48 of the statute (8819, R. S. 1894).</p>

<p>Ckiminai/ Law. — Bills of Exceptions. — When not Properly in Becord.— Where a judgment in a criminal case was entered September 22, and bills of exceptions were not filed until April 5th thereafter (a motion for a new trial having been made during the term and overruled February 10th, and sixty days given in which to file bills of exceptions), the bills of exceptions are not properly in the record.</p>

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

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

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

<p>New Trial. — As of Bight. — Damages for Appropriation of Land for Bight of Way. — Bailroad.—In an action by a land-owner for damages for land appropriated for right of way, that being the only issue, a new trial as of right is not demandable.</p> <p>Railroad. — New Company Succeeding to Bights of Old. — Liability for Burdens of Old Company. — A new railroad company, which succeeds to the rights and privileges of the old company, can not divest itself of the burdens of the old company, among which are damages for appropriation of land for right of way.</p>

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

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

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

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

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

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

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

<p>Supreme Court Practice. — Rehearing.—Erroneous Decision. — Correct Result. — Where a correct result was reached through an erroneous but harmless decision on original hearing, a rehearing will not be granted.</p> <p>Same. — Rehearing.—Judgment Sustained by Evidence. — If the evidence fully sustains the judgment upon every material point, and a rehearing would necessarily result in the judgment being affirmed, a rehearing will be denied.</p>

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

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

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

<p>Foemee Adjudication. — Beal Estate. — Title. — Leasehold Interest.— Ejectment. — In an action to quiet title and in ejectment the defendant answered by general denial and by cross-complaint in which he asserted a leasehold interest, and asked that his title thereto be quieted. The action resulted in a judgment that the plaintiff was the owner of the fee; that the cross-complainant owned a leasehold estate in the land in controversy, and that he was entitled to the immediate possession thereof, and that plaintiff unlawfully held the possession, and awarding damages.</p> <p>Held, that such proceedings do not amount to a former adjudication of the question of possession so as to bar an ejectment suit by the tenant of the leasehold estate, the question of possession not having been determined in the former action.</p> <p>Same. — Ejectment.—Damages.—Mesne Profits. — The question of possession not having been adjudicated in the former action, it follows that damages for unlawful possession could not have been included, and damages should be allowed in a subsequent action for possession for the full amount of mesne profits.</p>

<p>Divokce. — Suit Money. — Alimony.—Abuse of Discretion. — Where in a suit for divorce, by the wife, the evidence showed the |husband to be the owner of property worth from $2,200 to $3,750, and that the wife had no property or means, that a reasonable fee for the wife’s attorney was $100, the awarding of only $25 for “suit money” and $100 for alimony was not the exercise of a proper discretion by the trial judge, and was error.</p> <p>Same. — Allowance.—Discretion.—Supreme Court Practice. — The question as to what amount shall be decreed in any particular case is a matter of judicial discretion within the province of the trial court, and depends upon the facts and circumstances of each particular case, and the Supreme Court will only interfere when it is apparent that this discretion has been abused.</p>

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

<p>Real Estate. — Sale.—Specific Performance. — Pesolution of Common Council of a City Directing Mayor to Purchase. — A resolution by a common council of a city directing the mayor to purchase certain real estate, upon terms stated, the offer to sell being by parol, can not be held to constitute a purchase, and the owner can not enforce specific performance. The resolution simply directs a purchase by the mayor.</p> <p>Same. — Oral Acceptance of Terms of Pesolution. — An oral acceptance of the terms of the resolution of the common council did not create an enforceable obligation.</p> <p>Same. — Resolution of Common Council Directing Mayor to Purchase.— Contract. — No Mutuality.— Void. — Such proceeding, if intended as a contract of purchase, would, be void for want of mutuality.</p> <p>Same. — Reformation of Resolution. — City Council. — The resolution of the common council not having the qualities of a contract, it can not be reformed so as to give it the quality and force of a contract.</p> <p>Same.— Contracts Required to he in Writing. — Contracts required to be in writing must be wholly in writing before they can be enforced.</p>

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

<p>Constitutional Law. — Board to Appoint Prison Directors. — Act of 1895. — The act of March 7th, 1895, constituting the Governor, Auditor of State, Treasurer of State, Secretary of State and Attorney-General’, a board for the selection of prison directors is not unconstitutional.</p> <p>Same. — Construction.—Article 15, Section 1. — “Manner.”—The word “manner,” as used in article 15, section 1, of the State constitution, , means the person or functionary to make the appointment.</p> <p>Same. — Board to Appoint Prison Directors. — Associating Executive with Administrative Officers. — Not only is there no expressed inhibition against the association of the Governor with administrative State officers, in the discharge of any duty not involving powers and privileges delegated by the constitution to either alone, or to some other department of the government, but such association is proper and within the spirit of the provisions of the constitution: article 3, section 1; article 5, section 15; article 5, section 16.</p>

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

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

<p>Trust. — Guardian Purchasing Land with Ward’s Money. — Resulting or Constructive. — Where a guardian purchases land with money belonging to his ward, and takes the title thereto in his own name, a resulting or constructive trust is thereby created in favor of the ward.</p> <p>Same. — Ward Must Show Purchase to Save Been With Sis Funds. — If the ward seek to establish such trust, he must clearly and distinctively show that the purchase of the real estate in controversy was made in whole or in part with the trust funds.</p>

<p>Supreme Court Practice. — Ruling on Demurrer. — Evidence.—Harmless Error. — As a general rule, the appellate tribunal can not look to the evidence to determine whether of not a ruling on demurrer was harmless.</p> <p>Statute oe Limitations. — Sale of Real Estate by Administrator. — Five Years Statute. — The five years statute of limitation applies to actions to recover real estate sold by an administrator. See section 294, R. S. 1894.</p> <p>Decedent’s Estate. — Sale of Land by Administrator to Himself Through Third Party. — Voidable.—Estoppel.—A sale of real estate by an administrator to himself, through a third party, is voidable at the election of the cestui que trust, but if the cestui que trust receive the proceeds of the sale, or any part thereof, with full knowledge of all the facts, he thereby confirms and ratifies the sale, and can not afterwards avoid it.</p>

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

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

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

<p>Municipal Cobpoeation. — Sewer Assessment. — Enforcement.— Complaint. — Presumption.—In actions to enforce sewer assessment liens it will he presumed that the appraisers discharged the duties enjoined upon them by statute, and assessed benefits to each and all lots and parts of lots benefited by the proposed work.</p> <p>Same. — Sewer.—Act of 1867. — Notice.—Constitutional Law. — The act of the Legislature of 1867 (3392 et seq., R. S. 1881), relating to the construction of sewers, is not void for failure to provide for notice to the property-owner affected or assessed for benefits.</p>

<p>Referee. — Trial by. — Trials by referees are conducted in the same manner as trials by the court.</p> <p>Same. — Special Finding. — If the report of a referee is special, with conclusions of law, it stands as a special finding in the trial court.</p> <p>Same. — Conclusions of Law, How Taken Advantage of. — Practice.— Conclusions of law must be taken advantage of by exceptions thereto, taken either before the referee or in the trial court.</p> <p>Supreme Court Practice. — Assignment of Errors.- — -Motion to Tax Costs. — An assignment of error that the court erred in overruling a motion to tax all costs against defendant, for the reason that there was a finding in favor of plaintiff on all the issues in the case, is unavailing where there is nothing to show the grounds on which the court acted in overruling the motion.</p>

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

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

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

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

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

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

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