Volume 145 — Indiana Reports

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

<p>New Trial. — Complaint.—Newly Discovered Evidence. — In an action to obtain a new trial, on the ground of newly discovered evidence, all the facts essential to the validity of the complaint must be set out in the body of the complaint. The pleadings and evidence in the original case, though referred to and made a pa¿rt of the complaint, cannot be considered.</p> <p>Same. — Complaint.—Newly Discovered Evidence. — Due Diligence.— A complaint in an action for a new trial, on the ground of newly discovered evidence, must state the facts constituting the diligence used to obtain the evidence before the trial. The mere statement that inquiries were made, is not sufficient.</p> <p>Same.- Complaint.- — Newly Discovered Evidence. — In an action for a new trial, by reason of newly discovered evidence, where a deposition of a witness introduced in the original cause has been lost, an allegation in the complaint that such deposition is lost, with a substantial statement of the evidence, is sufficient; but such averments must be established by proper evidence at the trial of the issues joined on the complaint for a new trial.</p>

<p>Intoxicating Liquors. — Application for License a Judicial Proceeding. — The proceeding, under the act of 1875 for a license to sell intoxicating liquors, is a judicial proceeding.</p> <p>Same. — Application for License. — Burd,en of Proof. — A petitioner for a license to sell intoxicating liquors, has the burden cast upon him to prove that he is not in the habit of becoming intoxicated, and is otherwise, under the law, a fit person to be intrusted with a license to sell such liquors.</p> <p>Same. — Remonstrance Against Application for License.■ — Signing by Attorney. — Statute Construed.— Under section 7378, Burns’ R. S. 1894 (section 5314, R. S. 1881), authorizing any voter of the township, wherein an applicant for a license desires to retail intoxicating liquors, to remonstrate in writing against the granting of the license, on the ground of immorality or other unfitness of such applicant, the right of such voter or voters may be exercised through the agency of a duly authorized attorney; and a motion to strike out a remonstrance, because signed by such attorney, was properly overruled.</p> <p>Attorney at Law. — Appearance.—Prima facie Evidence. — The appearance of an attorney at law for remonstrators, against an application for license to sell intoxicating liquors, is prima facie evidence of his authority to so appear.</p>

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

<p>Dedication. — Park.—Municipal Corporation.- — An irrevocable dedication of land is effected by designating certain land on a map filed in the county recorder’s office as a “park,” and by selling lots with reference to the map.</p> <p>Same. — Parol Evidence. — Where a dedication of a tract of land is express, evidenced by a recorded plat, the intent, as expressed by such plat, cannot be contradicted by parol evidence.</p> <p>Same. — Irrevocable After Private Rights have Accrued. — A dedication of land to public use is not revocable after private rights have accrued by reason thereof.</p> <p>Same. — Municipal Corporation Trustee for Public. — Change of Trustees.- — Where there has been laid out and filed a plat of land as an addition to a city, upon which plat a portion of the land is designated as a park, and there has been a sale of lots in reference to the plat, the dedication of the “park” thus effected is to the public, and may be asserted by a town subsequently incorporated, which annexes such addition to its corporate limits, for a change of trustees does not defeat the dedication.</p> <p>Estoppel. — Dedication.— Unauthorized Taxation. — Municipal Corporation. — A municipal corporation is not estopped to assert a dedication of land, by the unauthorized taxation thereof to the original owner, after dedication.</p>

<p>PnEAnma. — Complaint.—Sufficiency Of. — Breach of Contract. — A complaint alleging tfiat plaintiff and defendant had been partners in business; that defendant for a certain consideration offered to surrender his interest in the firm to plaintiff, and not to engage in the business in the town so long as plaintiff continued in the business in said town; and for these considerations consummated the trade and fully complied with the agreement, sufficiently alleges a contract on defendant’s part not to engage in such business.</p> <p>Contract. — Restraint of Trade. — Indefiniteness Of. —A contract not to engage in a certain business within a prescribed territory “so long as plaintiff remained in said business in said city,” is not invalid because the restraint is indefinite as to time.</p> <p>Same. — Restraint of Trade. — Statute of Frauds. — An agreement not to engage in a rival business in a certain locality, so long as the other party remains in such business, is not within the statute of frauds.</p> <p>Same. — Restraint of Trade. — Construction Of. — In the sale by one partner of his interest in the partnership business to the other partner, an agreement on the part of the former not to engage in a rival business in the locality, so long as the other remains in such business, as part of the consideration of the sale, is not invalid as unreasonable.</p> <p>Same. — Restraint of Trade. — Injunction Restraining Breach Of.— When one has made a valid contract with another that he will not engage in a certain business or occupation, and it is shown by the other party to the contract that the same is being violated to his injury, he is entitled to an injunction restraining the offend- • ing party, notwithstanding the offending party was at the time solvent.</p> <p>Practice. — Harmless Error. — Special Finding. — The erroneous overruling of a demurrer to a paragraph of the complaint is harmless, where the special finding follows and sustains the allegation of another paragraph, which is sufficient.</p> <p>Special Findings. — Signature of Judge. — Sufficiency of Signing.— The signature of the judge following the conclusions of law, is a sufficient signing of a special finding of facts, which precedes the conclusion of law.</p>

<p>Instructions. — When Presumed to be Properly in Record.— Certificate of Cleric. — An objection to the consideration, by the Supreme Court, of instructions given and refused, for the reason that the instructions contained in the record are the original instructions as given by the court, is not tenable, where it does not appear certainly that the instructions are not transcripts of the originals, and where the clerk certifies that they are.</p> <p>Same. — Larceny.-—Circumstantial Evidence.— The defendant, in a criminal case, is entitled to an instruction upon reqxxest, that in order to convict on circumstantial evidence, the circumstances must be so strong as to exclude every other reasonable hypothesis, except that of the defendant’s guilt, if such instruction is applicable to the evidence in the case.</p> <p>Larceny. — Partnership Property. — Indictment.—Variance.—Statute Construed. — Proof that stolen goods belonged to a partnership is not a fatal variance from the averment in an indictment for lai’ceny that they belonged to a member thereof, in view of the statute, section 1822, Burns’ R. S. 1894 (section 1753, R. S. 1881).</p>

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

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

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

<p>Husband and "Wife. — Inchoate Interest of Wife in Husband’s Real Estate. — Dower.—Effect of Divorce. — Statutes Construed. — Where a wife has been divorced from her husband, on account of his misconduct, she is not entitled, on the death of the husband, to any interest in his real estate, under sections 2640, 2652, and 2660, Bums’ R. S. 1894 (sections 2483, 2491, and 2499, R. S. 1881;, conveyed by him during such marriage, and in the conveyance of which she did not join.</p> <p>Same. — Divorce.—Effect of on Property Rights. — Alimony.—A judgment of divorce settles all questions of the divorced wife to a provision by way of alimony, and such decree settles all questions concerning property rights, growing out of the marital relation.</p> <p>Same.— Divorce. — Effect of on Property Rights, Where Divorce is Granted for the Misconduct of the Husband. — Statutes Construed.— Section 1055, Bums’ R. S. 1894 (section 1043, R. S. 1881), providing that, “a divorce granted for the misconduct of the husband shall entitle the wife to the same rights, so far as her real estate is concerned, that she would have been entitled to by his death,” has reference to her separate real estate, and does not apply to her husband’s real estate.</p>

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

<p>Constitutional Law. — Amendment of Constitution Repeals Inconsistent Legislative Acts. — Repeal by Implication. — A constitutional amendment inconsistent with previous legislative enactments operates to repeal such enactments, p. 75.</p> <p>Same. — Unconstitutional Apportionment Act. — Repealing Clause.— Where it appears from the repealing clause of an apportionment apt, that it was only intended to repeal the former apportionment ■upon the supposition that the new one was to take the place of the former, the former act will not thereby be repealed, if the new act is unconstitutional, p. 76.</p> <p>Same. — Apportionment Act. — Public Policy. — Where there is but one act apportioning the State for legislative purposes that has not been repealed, an action will not lie to invoke the powers of the court to declare it unconstitutional, p. 87. Monks, J., dissenting.</p>

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

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

<p>Drainage. — Cleaning and Repairing Ditch. — Notice of Allotment.— County Surveyor. —In an action to enjoin the county treasurer from collecting the expenses of cleaning out and repairing an allotment of a public ditch, it will be presumed that the county surveyor gave the proper notices of allotments, as required by section 5084, Burns’ R. S. 1894.</p> <p>Same. — Cleaning and Repairing Ditch. — Allotment.—Collateral Attach. — The order of allotment of a public ditch, by the county surveyor, for the purpose of cleaning and repairing, made upon proper notice, is not subject to collateral attack, on the ground that a majority of the persons assessed did not petition for a reapportionment, as an appeal to the circuit or superior court is the exclusive remedy.</p> <p>Pleading.— Complaint.— Injunction.— Damages.— Township Trustee. — In an action to enjoin a county treasurer from collecting the expense of cleaning out and repairing an allotment of a public ditch, an allegation in the complaint that the plaintiff cleaned the allotment to the depth originally established, for the year for which it is claimed the township trustee cleaned the same, does not negative the legal right of the latter to clean the ditch for that year, in the absence of an allegation that plaintiff’s work was to the acceptance of the trustee, as the trustee may determine that an allotment has not been properly cleaned out and repaired, and his decision made in good faith is final.</p> <p>Drainage.— Cleaning and Repairing Ditch.— Void Allotment.— Township Trustee.- — A landowner is liable for the expense incurred by a township trustee in cleaning the portion of a public ditch allotted to him by the county surveyor, to the extent that such allotment includes the original allotment for construction, even though the surveyor’s allotment is void.</p> <p>Judgment.— Injunction. — Drainage.— Township Trustee.— Former Adjudication. — A judgment in favor of a township trustee, in an action by an allottee of a public ditch, to enjoin the trustee from cutting the channel in his allotment deeper than required by the original plans and specifications, in which the trustee answered by alleging that the allottee had pretended to clean out his allotment, bui; had failed to clean to the depth required by the original plans and specifications; and that as such trustee he had refused to accept the work done by him, and that he proceeded to clean the same out to the original depth and width, is conclusive as to the right of the trustee to clean the allotment, in a subsequent action to enjoin the county treasurer from collecting the expense of cleaning out the same.</p>

<p>Will. — Devise.—Common Law Rule Modified by Statute. — The common law rule that a devise of real estate generally and without words indicating the character of the estate devised carries but a life estate, is modified by section 2737, Burns’ R. S. 1894 (section 2567, R. S. 1881).</p> <p>Same. — Intention of Testator. — Partial Intestacy. — Construction.— A testator will not be presumed to have intended partial intestacy, unless the language of the will compels such construction.</p> <p>Same. — Devisee Charged with Payment of Money — Construction.— A devisee charged with the payment of money in respect to the estate given him, takes a fee-simple, if there is no limitation over, and the character of the estate devised is not described.</p> <p>Same. — Devise.—Construction.—By separate items, a testatrix devised to each of her four children a described tract of land, employing in each instance the words: “My express will is that after my death my beloved son [or daughter] shall have and own, in his own name,” the land described. Following the item so devising, to one child, were the words, “And after her demise said lots shall rest in her children’s name.” and by a separate item, another child was charged with the payment to his two brothers and sister several sums of money aggregating §1,300; Held, that each of the devisees took estates in fee-simple.</p>

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

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

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

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

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

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

<p>Judgment. — Definition of Final Judgment. — A final judgment is one which determines the rights of the parties in the suit, or a distinct and definite branch of it, and reserves no further question or direction for future determination.</p> <p>Same. — Entry.—Appealable Judgment. — An entry by the court, in a civil action, that it found defendant guilty of contempt of court and “ now assesses a fine of $100.00 against the defendant, reserving the right to remit all or any part of said fine at any time before the final disposition of this cause.!’ is not a final and appealable judgment.</p>

<p>Criminal Law. — Perjury.—Affidavit and Information. — Repugnancy. —When on affidavit and information a person is prosecuted for perjury, the affidavit charging the perjury to have been at the trial of a cause on the 26th of September, 1893, and the information alleges that the cause, at the trial of which the perjury was committed, was pending in the circuit court on the 26th of September, 1889, and that the perjury was committed on the 26th of September, 1893, a motion to quash, on the ground of repugnancy between the affidavit and information, and on the ground of repugnancy in the allegations of the information, is properly overruled.</p> <p>Judge. — Appointment of Special Judge.— Only a regular judge may appoint a special judge in his place.</p> <p>Same. — Appointment of Special Judge. — Attorney.—When a regular judge for any reason is disqualified from sitting in any cause, he is authorized under section 1839, Bums’ R. S. 1894, to appoint any competent disinterested attorney of this State as special judge, if in his opinion another regular judge cannot be readily obtained.</p> <p>Change op Venue. — Perjury.—Discretion of Court. — Where, in a prosecution for perjury, the defendant applies for a change of venue from the county, under section 1840, Bums’ R. S. 1894, whether it shall be granted or not, is a matter that rests in the sound discretion of the court; and the exercise of that discretion will not be reviewed unless it has been clearly abused.</p> <p>Appeal and Error. — Bill of Exceptions. — Longhand Manuscript.— Evidence. — The act of March 7, 1873 (Acts 1873, Reg. Sess., 191), requiring that the longhand manuscript of evidence to be used on appeal shall be filed with the clerk before it is incorporated into the bill of exceptions, is still in force.</p> <p>Query. — Whether or not the act of March 10, 1875 (Acts 1875, 137), is constitutional.</p>

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

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

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

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

<p>Taxation. — Assessment of Property Within a Municipal Corporation to Build and Repair Gravel Roads. — Statute Construed. — Under section 6868, Burns’ R. S. 1894 (section 5104, R. S. 1881), the whole county is a taxing district for the purpose of raising money to build and keep in repair free gravel roads or turnpikes, and property within a municipal corporation in such county is not exempt from taxation for such purposes, although the gravel roads or turnpikes are situated wholly without the limits of such corporation.</p> <p>Free Gravel Roads. — Taxation of City Property for the Repair Of. —Statute Construed. — The act of March 6, 1891, amending section 61, of an act approved March 14, 1867, declaring that no property within the city shall be taxed for the purpose of repairing any road or bridge without the limits of the city, does not affect the power given by the act of March, 1879, to tax all property within a county for the repair of free gravel roads or turnpikes, such amendatory act has reference only to the exemption of city property from the ordinary road tax.</p> <p>Same.- — Taxation of City Property for the Repair Of. — Validity of Statute. — Whether or not property within a city is benefited by the repair of free gravel roads and should be taxed in common with other property of the county for that purpose, is a question for the legislature and not for the courts. ></p>

<p>Appeals. — Bill of Exceptions.- — Documentary Evidence How Made Part Of. — Where a written instrument does not constitute a part of the record without a bill of exceptions or order of court, such instrument should be inserted at its proper place in the bill of exceptions or it will not be a part of the record.</p> <p>Same. — Rill of Exceptions. — Receipts.—Bills of exception are not mere abstracts of evidence, but are required to present the full evidence, and the clerk has no authority to substitute abstracts of receipts introduced in evidence, but must copy such receipts in full ¡ as introduced.</p>

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

<p>Appeal and Error. — Harmless Error. — Record.—A reversal cannot be had for an error in overruling a demurrer to a paragraph of complaint when it is shown by the record that the finding is not based upon such paragraph.</p> <p>Same. — Longhand Manuscript of Evidence. — Bill of Exceptions. — The original longhand manuscript, to be incorporated in the bill of exceptions, must be filed with the clerk of the court before so incorporated.</p> <p>Same. — Examination of Party Under the Statute. — Witness.—Where the examination of a party defendant had been taken by the plaintiff under the statute, and it was agreed in open court, at the close of plaintiff’s evidence, that if the plaintiff would consent to defendants reading said examination as a deposition, the defendants would not examine such witness, and such examination was read, it was not error to refuse to allow the examination of such witness.</p> <p>New Trial. — Excessive Damages.' — Tort.— Excessive damages is a cause for a new trial in cases of tort only.</p> <p>Appeal and Error. — Failure of Counsel to Argue. — Error Waived.— Where counsel for appellant fail to argue an error assigned it will be considered waived.</p>

<p>Appeal and Error. — Exceptions to Ruling of Trial Court. — Where no exception was taken to the action of the trial court, no question in relation thereto can be presented on appeal.</p> <p>Same. — Special Finding. — Motion to Modify. — New Trial. — Practice. —Where a special finding omits material facts, the remedy is by motion for new trial and not by motion to modify.</p> <p>Same. — Time Alloived for Filing Bill of Exceptions. — New Trial.— Where at the time of entry of judgment the court allows 90 days in which to file bill of exceptions, and within the term a motion for a new trial is made, the exceptions upon which such motion is predicated, is carried forward to the time of the ruling on such motion.</p> <p>Chattel Mortgage. — Sale of Mortgaged Property. — -Where a chattel mortgage is executed covering a stock of goods, furniture and fixtures, without the privilege of selling, an action cannot be maintained to declare the mortgage satisfied, on the ground that the mortgagor had remained in possession and sold goods, the net proceeds of which exceeded the amount of the mortgage, where it is not shown that the goods were the goods mortgaged.</p> <p>Appeal. — Evidence.—The question of weighing evidence and passing upon the conflict thereof is for the trial court.</p>

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

<p>Criminal Procedure. — Affidavit and Information. — Sufficiency of Under Motion in Arrest of Judgment. — An affidavit and information for an assault with intent to commit the crime of larceny, which does not allege that defendant attempted to perpetrate a violent injury, or that he had the ability to commit the injury is sufficient to withstand a motion in arrest of judgment.</p>

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

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

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

<p>Wills. — Construction.—Contingent Devise. — Where a testator gives all his “effects” in terms denoting an intention that the beneficiary shall have an absolute estate therein, a provision that if such testator die without issue the estate shall be divided as therein directed, will be construed to state a contingency to happen during the testator’s life.</p>

<p>Appeal and Error. — Evidence.-—The admission of evidence, which was not objectionable for the reasons urged against it, will not be ground for reversal, even though the reasons urged for its admission may be erroneous.</p> <p>Pleading. — Common Count. — Recovery. — Evidence. — Contract. — Plaintiff may plead the common count and recover, notwithstanding the evidence discloses a special contract.</p> <p>Evidence — Admissibility of in an Action for Quantum Meruit. — In an action on the quantum meruit in a suit for value of services in effecting a sale of electrical machinery it was not error to permit the plaintiff to testify that defendant’s president stated to him that the company paid from ten to fifteen per cent, commission for that hind of work.</p> <p>Same. — Expert Witness. — Qualification Of. — Practice.— Discretion of Court. — The question as to the qualification of a witness to testify as an expert is for the trial court, in the exercise of a sound discretion, and that when there is some evidence of such qualification and the trial court has not abused that discretion, this court will not review the action.</p> <p>Same. — Opinion Evidence. — Expert Testimony.- — Non-experts, who are shown to be familiar with the extent and character of the particular services rendered, may properly give their opinion of the value of that service.</p> <p>Instruction to Jury. — Agent’s Commission. — In an action on the quantum meruit for commission in the sale of goods an instruction that if the jury should find from a preponderance of the evidence in favor of the plaintiff they should assess such reasonable compensation as they should determine from a preponderance of the evidence he should receive for the services performed, is not erroneous where the evidence showed that the sale was made to another and different party than as alleged in the complaint.</p> <p>Same. — Credibility of Witnesses. — It is not error to instruct a jury that in determining the credibility of witnesses the jurors may take into account their experience and relations among men.</p>

<p>Appeal. — Record.—Bill of Exceptions. — Authentication.—A bill of exceptions is not properly authenticated where a record entry preceding it states that it was signed by the judge on the 12th day of January, one immediately following it states that on such day the bill was presented to the judge for his examination with a prayer that it be signed by him, and a third entry shows that the longhand manuscript was incorporated and the bill signed by the judge nine days later, while the clerk’s certificate shows that the manuscript was filed on the 12th day of January, but does not state when the bill was filed.</p> <p>Practice. — Depositions Taken During Progress of the Trial. — Statute Construed. — Under sections 426 and 427, Bums’ R. S. 1894 (sections 422 and 423, R. S. 1881), the court may during the progress of the trial upon proper affidavits permit a party to take and use on such trial, the deposition of an attorney at law who resides in another state and is in ill-health and unable to attend court.</p> <p>Misconduct oe Counsel. — Comments on Instructions to Jury. — When Not Reversible Error. — Disparaging references made by plaintiff’s attorney to instructions prepared by defendant, and given by the court, will not amount to reversible error where such references did not amount to comments upon the law of the instructions.</p>

<p>Appeal. — When Co-parties Must be Joined. — In order to confer jurisdiction upon the Supreme Court, of an appeal by one of the two defendants against a judgment ordering a writ of assistance to issue against both, the other defendant must be joined as g, co-appellant, ■unless it is a term time appeal under Act of 1895, p. 179.</p> <p>Same. — Separate Causes Not Appealable In One Record. — Separate causes by the same plaintiff against different defendants, involving the same questions, but between which there is no necessary connection, cannot be included in the same appeal when there has been no consolidation in the trial court; although by agreement the evidence taken in one cause was considered in the other, and the special findings of facts and conclusions of law in both cases embodied in one instrument.</p>

<p>Vendor and Purchaser. — Purchase-money.— Vendor’s Lien.— Enforcement of by One Not a Grantor. — Contract.—The holder of a contract for the purchase of real estate, capable of specific performance, who has it directly conveyed to a third person, may enforce a vendor’s lien for unpaid purchase-money, due him from the grantee, although at the time of such conveyance nothing had been paid on the contract to the vendor.</p> <p>"Vendor’s Lien. — Bight of, Not Lost by Assignment of Note— The right to enforce a vendor’s lien against the maker of a note is not waived and lost by the assignment of such note.</p>

<p>Appeal. — All Parties to Judgment Must be Made Parties to Appeal. — All parties to a judgment must be made parties in tbe assignment of errors on an appeal therefrom, or the appeal ■will be dismissed.</p>

<p>Officers. — Vacancy in Office of City Treasurer. — Tenure of Appointee. — City Council. — Statutes Construed.- — “Where, under section 3488, Bums’ R. S. 1894 (section 3050, R. S. 1881), a person is elected by a city council to fill a vacancy in the office of city treasurer, caused by the death of the regularly elected incumbent, he is, under section 7583, Burns’ R. S. 1894 (section 5567, R. S. 1881), entitled to the office for the entire unexpired term for which his predecessor was elected.</p>

<p>Costs. — Judgment For. — One recovering a judgment for costs is entitled to recover only the costs for which he is liable.</p> <p>Same. — Improper Taxation Of. — Judgment For. — Collateral Attack. —A judgment for costs by a court, having jurisdiction, is not void on the ground that it is excessive, or that items entering into it should have been omitted; and, therefore, is not subject to collateral attack.</p> <p>Mandamus. — Trial by Jury. — An issue of fact, in mandamus proceedings, must be tried by jury if demanded by either party.</p>

<p>Officers. — Township Trustee. — Failure to File Bond within Time Required by Law. — Statute Construed. — A township trustee, elected at the general election in November, 1891, whose term of office might have begun at any time within ten days after his election, does not forfeit the office by failing to file his bond and oath of office within ten days after his election as required by section 7513, Bums’ R. 8.1891, (5537, R. S. 1881).</p> <p>Same. — Township Trustee. — Failure to Qualify. — Compensation.—A township trustee who, through-his own mistake and that of others as to the time when his term of office rightfully began, failed to qualify until after such time, is entitled to compensation only from the time he lawfully qualified and was rightfully entitled to the office.</p>

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

<p>Partnership. — Action for Dissolution. — Sale of Mortgaged Property Under Foreclosure. — A foreclosure sale of all the property of a partnership effects its dissolution; and an action cannot thereafter be maintained for dissolution.</p> <p>Receiver.— Partnership Property. — Sale on Foreclosure. — Where partnership property is sold on foreclosure, to the mortgagee, on an agreement that, upon sale of the property by such mortgagee, the residue above the mortgage debt should belong to the partners, and afterward the mortgagee sells the property to one of the partners, a receiver cannot be appointed, even though the partner who buys the property should realize thereon more than the amount of the mortgage debt.</p>

<p>Municipal Corporations. — Refunding Bonds. — Statute Construed. —Under act of March 3, 1877, authorizing the funding of city indebtedness, funding bonds which have passed into the hands of innocent and good-faith purchasers, are not subject to defense by the city, and, as a bona fide indebtedness, are subject to be refunded.</p> <p>Same. — Constitutional Amendment. — Municipal Indebtedness. — The constitutional amendment of March 14, 1881 (section 220, Burns’ R. S, 1894), limiting the amount of indebtedness to be incurred by municipalities to two per cent, of the taxable property, does not render invalid prior indebtedness exceeding that limit, nor deny the right of a city so indebted to refund such debt by the issue of new bonds.</p> <p>Same. — Courthouse.—County Seat Removal. — Injunction.— Money borrowed by a city to defray the expense of litigation, involving the removal of a county seat, and the cost of a lot and the building of a courthouse and jail for a county, is unauthorized ; and bonds issued to secure the money so borrowed have not such validity in the hands of any holder as to preclude a citizen and taxpayer from the right of injunction to prevent the refunding of such bonds.</p>

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

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

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

<p>Officer. — :County Treasurer. — Loaning County Funds. — A county treasurer, who loans the county funds, in violation of section 2019, Bums’ R. S. 1894 (section 1942, R. S. 1881), cannot maintain an action for the recovery of the same ; although the county itself might maintain such action.</p> <p>Public Policy. — Officer.—Loaning Public Funds. — Where public funds are loaned by an officer, in violation of the statute, an action to recover the same cannot be maintained on the ground of public policy, when it does not appear, from the pleadings, that other interests than those of the parties to the contract are concerned.</p> <p>Rehearing. — Attorneys’ Fees Part of Judgment. — Where, pending the decision of the Supreme Court, the appellee assigns his judgment in the lower court, retaining an interest to the extent of his attorneys’ fees, his petition for a rehearing will not be dismissed.</p>

<p>Pleading and Practice. — Set-off and Counter-claim. — Demurrer.— The informality of a demurrer, which was sustained below, cannot be first asserted on appeal for the purpose of upholding answers in set-off and counter-claim, which are, in fact, insufficient.</p> <p>Corporation. — Salary of Vice-President. — A vice-president of a banking corporation is not entitled to any compensation, for performing the ordinary duties of his office in the absence of a governing statute, by law, regulation, or contract, providing therefor.</p> <p>Same. — Breach of Contract. — Amount of Recovery. — The breach of a contract by a bank to loan a party money at a specified rate of interest, does not entitle him to the difference between the interest on the amount borrowed at a stipulated rate, and that which he actually paid, unless he was unable to obtain money at the former rate from any other source.</p> <p>Same. — Assignment of Contract. — The assignment of the interest of one of the parties in a preliminary contract between some of the incorporators of a bank, whereby they were to hold certain offices in the corporation at specified salaries, does not pass the claim of the assignor against the hank for the salary voted to him by the bank.</p> <p>Same. — Counter-claim.— Slander Cannot' be Made the Subject of, Against a Promissory Note.- — Slander, upon the credit of maker, cannot he made the subject of a counter-claim in an action upon a promissory note for borrowed money. 1‘</p>

<p>Liquor License. — Remonstrance— Statute Construed. — A remonstrance against granting a liquor license under section 9, Act of 1895 (Acts of 1895, p. 248), directed against “ John W. Thompson or any applicant,” is against John W. Thompson ; the words “ or any applicant ” may he rejected as surplusage.</p>

<p>Liquor License. — -Christian Name.— Remonstrance. — Name of Remonstrator. — Statute Construed. — A remonstrator under section 9, Act of 1895 (Acts of 1895, p. 248), may employ initials to indicate his Christian name in subscribing a remonstrance against the granting of a liquor license, provided he write his surname in full.</p>

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

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

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

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

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

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

<p>Parent and Child.- — Custody of Minor Child. — Welfare of Child.— Ordinarily the parent is entitled to the custody of his minor child; but where the welfare of the child is retarded by the custody of the parent, an exception to the ordinary rule exists.</p> <p>Same. — Parent’s Oral Agreement as to Custody of Child.-A.-a. oral agreement, express or implied, made by a parent, that another should have the custody of his child during infancy, will not preclude the parent reclaiming such child.</p> <p>Habeas Corpus.- — Parent and Child. — Custody of Child. — At the death of a child’s mother, and pursuant to a request of such mother prior to her death, a child six years of age was taken by its .grandparent and boarded and cared for until the child was thirteen years of age; such grandparent having given the child every care and comfort necessary to its welfare and was willing and anxious to continue so to do. The father of the child, who remained a widower, had little property, and was a traveling man with an income of $50.00 per month. The father took the child from its home with its grandparent and placed it with a relative who was kindly disposed to the child, but was not able financially to furnish the care and comforts provided by the grandparent; the child at the time being in delicate health. The grandparent instituted habeas corpus proceedings and was by the trial court awarded the child. Meld, That the trial court had committed no error.</p> <p>Appeal and Error. — Assignment of Error. — An assignment that the court erred in overruling appellant’s motions to modify judgment, where there were numerous motions to modify the judgment, severally filed and severally overruled, does not present an available . error.</p>

<p>Service by Publication. — Newspaper of General Circulation. — Statute Construed. — A daily newspaper devoted to the general dissemination of legal news and containing other matter of general interest to the public, and having a large general circulation, is “a newspaper of general circulation,” within the meaning of sections 320, 1299, Burns’ R. S. 1894 (sections 316, 1279, R. S. 1881).</p>

<p>Statutory Construction. — A Statute May he Unconstitutional in Part, and Valid as to Residue. — A statute may be unconstitutional in part and valid as to the residue, and if the unconstitutional portions can be stricken out, and still leave an operative statute, the unconstitutional portions must be regarded as eliminated and the remainder be enforced.</p> <p>Cities. — Annexation of Territory. — Corporate Boundaries. — Statute Construed. — Indianapolis Charter. — Sections 37 and 38, Act of 1891 (Acts of 1891, p. 137; sections 3808, 3809, Burns’ R. S. 1894), providing for the annexation of territory by the common council, and granting the right of appeal to the resident freeholders only, is not a grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, do not equally belong to all citizens, and not in conflict with section 23, of article 1, of the State Constitution, nor with the clause in the fourteenth amendment to the Constitution of the United States, which provides, that: “nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”</p>

<p>Delinquent Taxes. — Deduction of from County Order. — Delinquent taxes against the payee of a county order may be deducted by the county treasurer from an order presented for payment where such order, issued and accepted by the payee, contained the provision that the same was allowed subject to all delinquent taxes owing by payee.</p>

<p>Erom the Allen Superior Court.</p>

<p>County Commissioners.— Court.— Term. — Session.—Statutes Construed. — Terms of commissioners’ court, as are provided by section 7821, Burns’ R. S. 1894 (section 5736, R. S 1881), imply periods of prescribed duration; while a special “session” of such court as provided by sections 5917, 7822, Bums’ R. S. 1894, implies a period of such duration as might be found necessary to the accomplishment of the objects in view.</p> <p>Same. — Special Session. — Appointment of Township Trustee. — At the special August session of the board of county commissioners for the purpose of receiving the reports of township trustees as provided by section 5917, R. S. 1894, such board has no authority to fill a vacancy in the office of township trustee.</p>

<p>Indictment. — Sufficiency Of. — Embezzlement of County Funds by Deputy County Treasurer. — An indictment against a deputy county treasurer, charging him with embezzlement of county funds, is not bad, for the reason that the indictment charged that the money so embezzled was the property of the county.</p> <p>Same. — Statute of Limitations. — Statute Construed. — Embezzlement, —Answer.—An indictment against a deputy county treasurer, for embezzlement of county funds, returned in November, 1893, when such deputy served as such officer from August 18, 1891, to August 18, 1893, is not bad for failure to state the time at which the crime was committed, under section 1825, Burns’ R. S. 1894 (section 1756, R. S. 1881); for the reason that time is not of the essence of the offense.</p>

<p>Appellate Procedure. — Pleading.—Complaint.—A complaint in an action to set aside a conveyance as fraudulent which proceeds in one paragraph upon the theory that no consideration was paid by the grantee, and in another on the ground that grantee united with grantor in an attempt to defraud the creditors of the latter and accepted the deed with knowledge of the fraud, is held sufficient when first attacked by an assignment of error on appeal.</p> <p>Bill of Exceptions. — Statute Construed. — Leave given by the court upon overruling a motion for a new trial to prepare a bill of exceptions can not extend back and take up rulings made in the formation of the issues under section 638 Burns’ R. S. 1894 (626 R. S. 1881), but applies to and includes only such rulings or decisions of the court made during the trial, and which are authorized to be assigned as reasons for a new trial, and which are so assigned in the motion.</p> <p>Practice. — Motion to Modify Judgment. — A motion to modify a judgment which is made prior to the rendition of such judgment is properly overruled.</p> <p>Same. — Bill of Exceptions. — Appeal.—An alleged error in overruling a motion to modify a judgment will not be considered on appeal where same is not presented by bill of exceptions.</p> <p>Fraudulent Conveyance. — Design of Parties. — Where the grantor and grantee unite in a fraudulent design to defraud the creditors of the former, the conveyance under the law will not be protected, although a full consideration was paid by the grantee.</p> <p>Same. — Evidence. —In an action to set aside a conveyance as fraudulent a wide range of evidence is permissible in order that the fraud of the particular transaction may be exposed; and it was not error to permit plaintiff to introduce in evidence an alleged fraudulent mortgage executed by defendant to his mother simultaneously with the deed of conveyance to secure a debt represented by a mortgage, but which had been fully satisfied of record for more than ten years prior thereto, and which from the time of the execution until the date of release, a period of more than two years, had never been listed for taxation by mortgagee.</p> <p>Attachment. — Fraudulent Conveyance. — Burden of Proof . — In order to maintain an attachment on the ground of the debtor’s fraudulent disposition of property, it is not incumbent upon plaintiff to prove that defendant did not have after such conveyance, sufficient other property subject to execution to pay his debts.</p>

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

<p>Mechanic’s Lien. — Who May Mold Lien. — When Lien Lost — The mechanic’s lien law was enacted for the benefit of contractors, mechanics, laborers, and materialmen and when payment is made to such persons by the proprietor himself or by any one else on his order, the right to a lien under the statute becomes at once extinguished.</p> <p>Same. — Mortgage.—Priority.—Under section 3850, Burns’ R. S. 1894 (section 2931, R. S. 1881), a mortgage not recorded until several months after its execution and after rights to mechanic’s liens had been created against the property so mortgaged, is inferior to such liens although notice of them was not filed until after the mortgage was recorded.</p> <p>Same. — Mortgage.—Priority.—Where one acquires a mortgage lien on property with knowledge of the uses and purposes to which such property was applied by its owner, and with notice that under the statute the mortgaged property was liable to be subjected to after acquired liens for labor and material, or, in case of failing circumstances of mortgagor, to claims which would be preferred debts, whether notice of liens should be filed or not, such statutory provisions enter into and form a part of the mortgage, and the mortgage lien is subject to such statutory liens as may thereafter attach to the property.</p> <p>Same. — Notice.—When not Necessary. — Statute Construed. — Under section 7255 Burns’ R. S. 1894, when the debtor is in failing circumstances the filing of notice of a mechanic’s lien is dispensed with, and all claims become preferred debts as fully as if they had been made liens by notice duly filed.</p>

<p>Negligence. — Proximate Cause of Injury.-^Where a railroad company negligently obstructed a public street of a city with a train of cars, thereby preventing travel across such street for an unreasonable length of time, such obstruction was not the proximate cause of an injury received by a pedestrian who, without negligence in passing around such obstruction, caught her foot on a stone, lying across the gutter between the street and sidewalk, and was injured.</p>

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

<p>Appeal. — Practice.—Assignment of Error. — An assignment of error, based upon the overruling of a motion for judgment on the special finding, presents no question for decision in this court, when no motion was made in the trial court for judgment in favor of appellant.</p> <p>Same. — New Trial. — Assignment of Error. — When the causes in an assignment of error for overruling a motion for a new trial depend upon evidence, which has not been made a part of the record, no question is presented to this court for decision.</p> <p>Vendor and Purchaser. — Failure of Title. — Rescission of Sale.— Damages. — Where a vendor negotiated the sale of a body of land, which had been subdivided into five tracts, and conveyed to different parties, including vendor, and such owners executed separate deeds of conveyance for the several tracts of land, the consideration for the several conveyance was paid and secured by payment by grantee of a school fund mortgage on the whole tract, and by paying to each of the grantors a certain sum of money, and by the execution of notes of grantee to the grantors severally, in a suit for the collection of the notes executed to said vendor for the balance of purchase money of his separate tract of land, a cross-action to set aside said several conveyances and rescind said purchase so made, and for damages against vendor, will not lie because of the partial failure of title of one of the said several grantors, where such vendor made no representations as to the title to the lands so conveyed, and intended no fraud upon grantee in connection with the transaction.</p>

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

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

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

<p>Dismissal of Action. — Affidavits. —Where a motion to dismiss a cause of action is sustained by the trial court, and the affidavits in support of such motion and the counter affidavits were conflicting, under the long and well settled rule, this court can not weigh the evidence and determine where the preponderance is, but must affirm the judgment of the trial court.</p> <p>Same. — Discretion of Court. — The determination of motions to dismiss an action for want of prosecution is largely within the discretion of the trial court, whose action will not be reviewed by this court unless a clear case of abuse of discretion is shown.</p>

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

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

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

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

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

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

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

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