Volume 21 — Indiana Reports

<p>Provost Marshal — Arrest.—A deputy Provost Marshal, directed by his superior military officer to arrest and send to headquarters all persons engaged in stealing, concealing, or preventing the delivery of any Government property, or aaay property to which the United States have any just claim, in any county of this State, can not, upon his ownmotion, and without proper legal process unr der the laws of Indiana, arrest and imprison any citizen upon suspicion that he has committed some crime; and any person so arrested and confined, may be discharged therefrom by the judge of any Court of competent jurisdiction, under the writ of habeas corpus.</p>

<p>APPEAL from the Marion Common Pleas.</p>

<p>Pleading — Railroads.—In an action for forcibly entering upon land, and digging the soil, excavating pits, making embankments, &c., an answer that the defendants entered as the servants of a specified railroad company, which had legally appropriated the injured property as the line of her road, &c., would justify the entry and bar the suit.</p>

<p>Contract — Payment—Pleading.—A recovered a judgment against a county, and a few days thereafter the county auditor issued county orders to pay the judgment, and delivered them to A, who received them in payment and satisfaction of the judgment. The judgment was afterwards reviewed and reversed, and a new trial ordered. A then pleaded the facts aforesaid as equivalent to a voluntary payment and discharge of the judgment by the county, and as a bar to a re-trial.</p> <p>Meld, that the auditor had no power to contract that said orders should be received in payment and satisfaction of said judgment, and that their delivery as aforesaid did not amount to payment, and constituted no bar to the re-trial of the cause.</p> <p>Practice. — When a cause is appealed to this Court for error in sustaining a demurrer to the complaint, and the error is confessed here, and the judgment reversed and the cause remanded, and the demurrer is then overruled by the Court below, it is not error for the latter Court to refuse to permit another demurrer to be filed to the same complaint.</p>

<p>Seduction — Pleading.—In an action by tbe father against the seducer of his daughter, to recover damages, the basis of his recovery must be the loss of her service, his injured feelings, &c., and in such action, a former recovery by the daughter, in an action in her own name against her seducer, can not be pleaded in mitigation.</p> <p>Instructions to Jury. — In such action, where both the daughter and her alleged seducer testify and directly contradict each other, and there is testimony tending to sustain the daughter, it is error, as tending to mislead the jury, for the Court to instruct the latter, that “as to the main fact of sexual intercourse, the daughter affirms it and the defendant denies it, and if the two seem equally to claim your credence, you can not, in such case, find for the plaintiff, because, as to that fact, which is radical in the case, there is no preponderance for the plaintiff.”</p> <p>Evidence or Character. — Mere contradiction among witnesses examined in Court supplies no ground for admitting evidence of general character.</p> <p>Pleading. — A pleading based upon the proceedings and judgment of a Court will be demurrable., unless it be accompanied by a transcript of the record.</p>

<p>APPEAL from the Posey Circuit Court.</p>

<p>APPEAL from the Morgan Common Pleas.</p>

<p>APPEAL from the Marion Circuit Court.</p>

<p>APPEAL from the Jay Common Pleas.</p>

<p>APPEAL from the Lake Circuit Court.</p>

<p>APPEAL from the Vanderbugh Circuit Court.</p>

<p>APPEAL from the Miami Circuit Court.</p>

<p>APPEAL from the Hendricks Circuit Court.</p>

<p>APPEAL from the Bartholomew Circuit Court.</p>

<p>Statutes Construed — Mechanic’s Lien. — Under sections 647 and 648 of the code, on the subject of mechanic’s liens, no lien can be acquired upon specific articles furnished for a building, as distinct from-the building, but only upon the building in which they are placed, or on the land whereon they are placed, or both.</p>

<p>Railroads — Liability—Exemption.—Where a person traveling on a railroad receives from the company a free pass, upon which is indorsed a statement that, “ it is agreed that the person accepting this ticket assumes all risk of personal injury and 'loss or damage to property whilst using the same on the trains of the company,” such indorsement or agreement does not cast upon such person any risks arising from the gross negligence of the servants of vthe railroad company in running the train; and it would seem that such agreement does not cast upon such person any risks arising from any negligence of the servants of the railroad company in running the trains.</p>

<p>Practice — Bill op Exceptions. — In a bill of exceptions, the words, “the foregoing was all the evidence given in the case,” are not sufficient, under rule 30 of this Court, to exclude the presumption of other evidence.</p> <p>Common Carriers, Delivery to. — The mere fact that goods were delivered to and received by the deck hands of a steamboat is not sufficient to charge the owners as common carriers, unless it be shown that such persons were authorized to receive freight, or that the same was delivered to them in pursuance of some special contract or usage; and, in a given case, otherwise fully established, it will not be sufficient to remove the necessity for such proof for the Court or jury to find that the manner of the reception of the freight by the deck hands was such that the officers, whose duty it was to receive goods for transportation, must, if they had exercised reasonable attention, care and diligence, have known that the freight was in the boat, and have received it.</p>

<p>APPEAL from the Bartholomew Circuit Court.</p>

<p>Pleading. — An answer setting up, in bar of a whole cause of action, a matter which .constitutes a bar to only a part of it, is bad. For forms of answers and replies in such case, see the opinion at length.</p> <p>Discontinuance — Waiver.—An appearance, after a discontinuance, waives it; and the taking of final judgment for the unanswered part of a cause of action, at any time during the term, will prevent a discontinuance, if such judgment be taken before the entry of judgment of discontinuance.</p>

<p>Case Doubted. — The ease of Cromwell v. Wilkinson, 18 Ind. 365, as to- effect of remission by the plaintiff of a part of the damages recovered, is left open for reconsideration.</p> <p>Practice in the Supreme Court. — Where the hill of exceptions states the order of events in the trial of a cause differently from the j ournal entry on the record of the Court, the former must govern, so far as the record in this Court is concerned.</p> <p>Slander. — Where the persons who hear a charge of larceny, complained of as slanderous, know the transaction referred to in the charge, know that that particular transaction is the one referred to as the ground of the charge, and know that that transaction was not larceny, no action for slander can be maintained; but, if the hearers understood the defendant to repeat the charge, without reference to the transaction as understood by them, and upon what he might assume to know beyond their knowledge, then the words might constitute a slanderous charge.</p>

<p>APPEAL from the Floyd Circuit Court.</p>

<p>APPEAL from the Vigo Circuit Court.</p>

<p>Payment or Taxes. — The payment of taxes in an illegal and. void currency is a nullity, and the tax collector might, notwithstanding such payment, proceed to collect them as in other eases.</p> <p>Same — Action.—But the tax collector does not, by reason of a void payment to him of taxes on his duplicate, acquire any personal right of action against the person making such payment, for the recovery of the amount of taxes so attempted to be paid.</p> <p>Same. — A tax collector, in order to avail himself of the remedy given him by section 193, 1 R. S. 1852, p. 145, must proceed within the time limited in said section.</p>

<p>Pleading — Practice.—The decision herein relates to the sufficiency of certain pleadings, and can not be briefly stated.</p>

<p>Action against County Treasurer. — An action against an ex-treasurer of a county and his sureties, on, his official bond, should be prosecuted in the name of the State, on the relation of the auditor of the county, and not on the relation of the acting treasurer, and, if such action be instituted on the relation of the latter officer, it will be irregular, and can not be deemed to be amended in this Court.</p>

<p>Criminal Law and Practice. — A criminal prosecution upon indictment will be held erroneous where the record fails to show that the indictment was duly returned by the grand jury in open Court.</p>

<p>APPEAL from tbe Elkhart Circuit Court.</p>

<p>Banks — Cashier—Power or. — The cashier of a bank is generally, by virtue of his office, entrusted with the notes, securities, and other funds of the bank, and is held out to the world, by the bank, as its general agent in the negotiation, management and disposal of them, and, prima facie, he must be deemed to have authority to transfer and indorse negotiable securities, held by the bank, for its use; and the purchaser thereof, in good faith, from the cashier, without notice of any special limitation of his power to transfer and indorse such paper, will acquire perfect title thereto, and the indorsement thereof, as cashier, will bind the bank.</p> <p>Special Finding — Practice.—Where a judgment is rendered on a special finding of facts, and there is any evidence tending to establish the existence of the facts necessary to uphold the judgment in point of law, and there is nothing indicating any other error, mistake, or wrong, except mere error of opinion on evidence, the Supreme Court will not disturb the finding.</p>

<p>New Trial — Practice.—Under the code, a new trial after the term • can only be granted for a cause for which a new trial might have been granted during the term, had the cause then been known, and tbe same facts must be made to appear before tbe Court, to determine tbe exercise of its discretion in tbe one case as in tbe other.</p> <p>Same. — Where an application for a.new trial is made after tbe term, based upon newly discovered evidence, there must be brought to tbe knowledge of tbe Court, by affidavits or otherwise, the issues in tbe cause, tbe evidence adduced upon tbe former trial, and tbe newly discovered evidence, in order that tbe Court may correctly determine its duty in tbe premises.</p> <p>Same. — Tbe application for a new trial must be made by a complaint, which should show, on its face, a cause for a new trial, to tbe end that, if it should be demurred to, and-thereby admitted, tbe Court could finally act upon it.</p>

<p>Pleading — Pendency oe Another Action. — Under the third subsection of section 50 of the.Code, (2 G. & H. p. 79,) where the pendency of another action for the same cause between the same parties is pleaded in abatement, it is not necessary to recite the complaint in the former suit, or to aver that such action is still pending, because it is sufficient, to abate the second action, to show that the first action was pending at the time the second action was commenced.</p> <p>Pleading — Seduction.—In an action by the female seduced against her seducer, to recover damages, it may be shown that the seduction was accomplished under a promise of marriage, and the facts and circumstances generally, which constituted the means of its accomplishment, may be alleged and proved.</p> <p>Same — Infancy.—In such action, the answer, by the defendant, that at the time of the commission of the act, &c., he was an infant, under the age of twenty-one years, &c., constitutes no bar to the action, and is demurrable.</p>

<p>Statutes Construed — Execution.—Section 527 of the code, (2 G. & H. p. 264,) must be so construed as to require that the time during which a party to a judgment may be restrained from proceeding to collect it, by agreement of the parties entered of record, shall be certain and fixed, and not uncertain or determinable by future events. Public policy requires that the public records should afford definite and certain information as to the incumbrances upon real estate.</p>

<p>Principal and Surety — Notice.—On May 3, 1861, A, as principal, and B and C, as sureties, executed a joint promissory note to D, who indorsed it to E, who, on August 22, 1861, recovered judgment on it by default against B and C, process having been returned not found as to A. On December 6, 1861, B and C, in writing, notified E to sue A on the note. E failed to do so, but sued out his execution against B and C, who thereupon filed their complaint to enjoin the collection of the judgment of them.</p> <p>Held, 1. That, tbe note being joint, and therefore merged in the judgment aforesaid, it is doubtful whether an action could be maintained thereon against A, after judgment had been taken against B and O.</p> <p>2. But, that, at all events, E, having, before receiving the notice, sued all the makers of the note, and recovered judgment against all on whom he could get service of process, could not be required to bring another suit before he could avail himself of that judgment, unless some equitable ground is specially shown entitling ' . them to such relief.</p>

<p>Practice. — Where an action abates as to one of the defendants by his death, and his personal representative is substituted as a defendant, and appears to the action, no process against him is necessary.</p>

<p>APPEAL from tbe Putnam Common Pleas.</p>

<p>APPEAL from the Posey Circuit Court.</p>

<p>Married Women, Property op. — Section 5 (1 G. & H. p. 374,) includes lands which the wife may acquire by purchase, as well as in other modes.</p> <p>Same. — Personal property acquired by a married woman, with the profits of her real estate, does not become the property of her husband by being left in his possession and use, and a sale of it on execution, for the payment of his debts, would not divest her title, or convey any title to the purchaser.</p>

<p>Discontinuance — Special Judg^. — When, under the provisions of sections 207 and 208 of the code, (2 (1. & H. p. 154,) a judge, other than the regular judge of the Court, is called in by the regular judge, to try causes which he is incompetent to try, and such other judge fails to appear at the time designated for the trial of such causes, they are not thereby discontinued, but should be passed to, and continued upon, the general docket, of the causes pending in said Court.</p>

<p>Bonds op Executors and Administrators,' — The bond given by an administrator, upon his appointment, (under section 19, 2 G. & H. p. 489,) is designed alone to secure the faithful administration of the personal property of his intestate, and the proceeds of the sale of such real estate as shall be sold in pursuance of the terms of a will, and such bond can cover only breaches of that trust.</p> <p>Bond on sale op Beal Estate bt Same. — But if, in the course of the settlement of an estate, it becomes necessary to sell other real estate,' and an additional bond is then given, (under section 82, 2 Gr. & IT. p. 510,) the latter bond is designed only to secure the faithful discharge of the new duties thus imposed upon him, and) the bond so given can only cover the neglect of duty in the. administration of the proceeds of such real estate.</p>

<p>Witness — Statutes Construed. — Where a part of the estate of an intestate is the promissory note of A, and the whole estate is appraised at less'than 300 dollars, and is therefore under the provisions of the Decedent’s Estates’ Act, delivered to his widow, and • she sues A on said note, who pleads defences going to the merits, A is not rendered an incompetent witness in his own behalf by the terms of the last proviso of section 3, of the act of Marchll, 1861, (2 Gr. & H. p. 168).</p>

<p>Will. — On January 23, 1860, A sold .to B a tract of land for 800 dollars, of which 200 dollars were paid at the date of sale, and the balance was agreed to be paid in annual installments of 100 dollars each, and was to be secured by notes, and a mortgage on the land. A executed a deed to B for the land, and delivered it to a third person, as an escrow, to be given to B on his execution and delivery of the notes and mortgage. On May 29, 1860, A died, and by his will, executed the day before his death, he devised to his wife, (7, and to his daughter, D, a certain town lot, being all the real estate he then owned, except such interest as he then had in the land sold as aforesaid. He also devised to his wife, G, the proceeds of all debts due him, after the payment of his debts, and to E and F all other lands which he then owned. On January 8. 1861, administration, with the will annexed, was granted to G, on the estate of A, and the notes and mortgage aforesaid were then executed and delivered by B to such administrator. E and F claim the notes, under the will.</p> <p>Held, That E and F take nothing under the provisions of the will, because, by the sale of said land as aforesaid, the estate of the vendor therein was converted into a money fund, which went to the personal representative, and the residue, after the payment of debts, would belong to G, the widow, under the will.</p>

<p>Jurisdiction — -Replevin.—Actions of replevin may be instituted before any justice of the peace in the county, without reference to the fact that the defendant may reside in a different township from that in which the justice resides.</p>

<p>APPEAL from the Putnam Circuit Court.</p>

<p>Witness — Statutes Construed. — Where a mortgagor dies and the mortgagee sues the heirs and administrator of the mortgagor to foreclose the mortgage, and defences are interposed by the heirs, the mortgagee, under the provisions of the last proviso of the third section of the act of March 11, 1861, (2 G-. & H. p. 168,) is a competent witness in his own behalf.</p> <p>.Mortgage — Foreclosure.— Where suit is instituted against the’ heirs and administrator of a deceased mortgagor to foreclose a mortgage, no judgment can be rendered against such administrator for the balance of the debt not satisfied by the sale of the mortgaged premises.</p> <p>Usury. — Usury may exist where there is no loan of money; or where a money debt is created and forborne; or where the original contract by which a debt is created is for the purchase and sale of land, it may be usury for the vendor to demand and receive more than legal interest for the forbearance of such debt.</p>

<p>Estate Mortgaged — Sold in Parts at dieeerent times. — Where the mortgagor sells portions of the land at different times, the several parcels will be liable under the mortgage in the inverse order of such sales.</p> <p>Voluntary Conveyance. — A voluntary conveyance is good against a subsequent grantee with notice, and especially where the voluntary grantee has conveyed to a bona fide purchaser.</p> <p>Consideration — Pre-Existing Debt. — A pre-existing debt is a valuable consideration to support a conveyance.</p> <p>Practice in Supreme Court. — It is too late to object, for the first time, to the form of demurrers, in this Court. Objections should first be made below.</p> <p>Practice — Waiver.—Where a party amends, after a demurrer to his pleading has been sustained, he waives all error in the action of* the Court upon the demurrer.</p> <p>Practice — Demurrer.—The objection of a former action pending, can not be raised upon a demurrer, assigning for cause want of sufficient facts, but is itself a distinct cause of demurrer, and such objection can not be made, for the first time, in this Court.</p> <p>Practice. — Where the parties to an action, in the progress of a cause, agree in writing, that the Court shall propound special interrogatories to the jury, to be answered by them, touching certain facts, and such interrogatories are propounded, without objection, and the jury retire, and the parties then further agree that the jury may return their verdict to the Clerk, in the absence of the Court and counsel, and, if their verdict should be defective, they may “ be recalled, and required to make a complete finding to said interrogatories,” it is too late to object to the interrogatories.</p> <p>Practice — Amendment.—It is too late, after verdict, to materially amend the pleadings in a cause.</p> <p>Practice — New Trials. — A Court is not bound to grant a new trial, although both parties desire it.</p>

<p>APPEAL from the Clay Circuit Court.</p>

<p>APPEAL from the Ripley Circuit Court.</p>

<p>“Excusable Neglect.” — As an example of what will not constitute “excusable neglect,” on an application to set aside, a default,under § 99 of the code, the reader is referred to the opinion herein at length.</p>

<p>APPEAL from the Knox Circuit Court.</p>

<p>APPEAL from the Bartholomew Common Pleas.</p>

<p>Practice — New Trial. — Where a party asks for a new trial on the ground of newly discovered evidence, he must set forth in his bill of exceptions the testimony which was submitted below, so as to enable the Court to determine whether the result would be changed by the new testimony, or whether the testimony would be merely cumulative.</p>

<p>APPEAL from the Tippecanoe Circuit Court.</p>

<p>The ruling herein relates chiefly to the sufficiency of evidence, and the reader is referred thereto at length.</p>

<p>New Trial under Art. xxix. — Where A made a mortgage to secure a loan of money from the Trust Funds, and, after several transfers of the mortgaged property, the auditor, to collect the mortgage debt, advertised and sold the property in the name of the mortgagor, and B became the purchaser on a credit of a few days, and, before the purchaser money was paid, the owner of the fee at the time of the sale offered to pay the debt and interest, which was refused by the auditor, and the owner then sued to enjoin the execution of a deed to B and to set aside the sale, and had judgment ■upon the trial, and B then demanded a new trial as of right, under article xxix of the Code, (2 G. & H. 281) which was refused by the Court.</p> <p>Meld, that the new trial should have been granted.</p>

<p>APPEAL from the Morgan Circuit Court.</p>

<p>APPEAL from the Grant Circuit Court.</p>

<p>Executors and Administrators — Widow.—A executed a mortgage on his land to B, in which his wife joined, to secure the payment of a debt. A died since the taking effect of the code of 1852, his wife him surviving, and said debt remaining unpaid. G became administrator of his estate, and there came into his hands, as such, assets sufficient to pay the expenses of administration, the expenses of the intestate’s last illness, and funeral expenses, and said mortgage debt. But he failed to pay the mortgage debt, and suffered the mortgage to be foreclosed, and the property to be sold to pay said debt, and applied said assets to the payment of other debts not liens on the real estat-e.</p> <p>Held, 1. That it was the duty of the administrator to pay said mortgage debt out of said assets, and tbat bis neglect to do so constituted a breach of bis official bond.</p> <p>2. Tbat tbe widow of A bad a right to have said assets applied in payment of said debt before tbe payment of general debts, and was damaged by tbe failure of tbe administrator so to apply it, and for such damage, she bad a right of action against him and bis sureties on bis official bond.</p> <p>3. That, so far as a widow takes by descent from her husband, under the provisions of chapter 46, 1 G. & H. 291, she takes also as bis heir, and, therefore, she may, under see. 162, 2 G. & H. 529, maintain an action against an executor or administrator on bis bond.</p>

<p>APPEAL from the Hamilton Common Pleas.</p>

<p>APPEAL from the Wayne Circuit Court.</p>

<p>“Bank Bills” — “Bank Notes.” — The terms, “bank bills” and “bank notes,” are synonymous in their popular sense, and, under §§ 58 and 59, 2 Gr. & H. 403, they must be held to be identical in their legal signification.</p> <p>Criminal Law and Practice. — An indictment which describes the property stolen as “ three bank bills of the description and denomination following, viz: one five dollar bank bill on the Hartford Bank of Connecticut, of the value of five dollars,” &c., is sufficient as to the description of the property.</p>

<p>Pleading. — When a pleading is founded on a written instrument, the original or a copy must he filed with it.</p>

<p>APPEAL from the Johnson Common Pleas.</p>

<p>Depositions. — A deposition may be good in part and bad in part.</p> <p>Deposition — Witness.—Where the deposition of a witness is taken in a cause, and it is agreed by the parties that the deposition shall be read upon the trial, at all events, without reference to the presence or absence of the witness at the time of the trial, it is not error ' to admit the deposition in evidence, although the deponent had already been called and examined and cross-examined orally in the cause.</p> <p>Presumption. — Where there is nothing- in the record inconsistent with such presumption, this Court will presume in favor of the action of the lower Court.</p> <p>Rule 30. — The words, “which is all the evidence given to the jury in this case,” at the conclusion of a bill of exceptions, are not a compliance with Rule 30.</p> <p>Practice. — Where several instructions are given to the jury, a party, asking a new trial on the ground of alleged error in the instructions, must point out with reasonable certainty and particularity the error complained of.</p>

<p>APPEAL from the Putnam Common Pleas.</p>

<p>APPEAL from the Wayne Circuit Court.</p>

<p>APPEAL from the Tippecanoe Circuit Court.</p>

<p>Contract — Damages.-—In an action upon a building contract, for -extra work, the measure of damages is the price agreed upon, or, if there was no such agreement, then the reasonable value of the work, unless the extra work were done under the original contract, when the rule might be different.</p>

<p>APPEAL from tlie Wayne Circuit Court.</p>

<p>Criminal Law and Practice. — For a sufficient form for an information for malicious trespass, see the opinion.</p>

<p>Guardian and Ward — Bond.-—The additional bond given by a guardian, in an application to sell the real estate of his ward, under § 18, 2 G. & H. 571, is not discharged by the fact that,' on reporting the sale of the real estate, he produced the proceeds of the sale in Court and then withdrew them by order of the Court.</p> <p>Same. — Such a bond is not merely subsidiary to the original bond given by the guardian, but is an independent undertaking, and can only be discharged by the actual payment of the moneys arising from the sale of the real estate, according to law, to the ward, or other person entitled to receive the same, and suit may be instituted upon such bond whenever it is broken, without first resorting to the original bond.</p> <p>Same.- — -The guardian, and not the judge or clerk of the Court, is the proper custodian of the moneys arising from the' sale of the ward’s real estate.</p> <p>The cases of Salyer v. The State, 5 Ind. 202, and Salyers v. Ross, 15 id. 130, are distinguished from the present.</p>

<p>Practice — Dismissal.—Under §§ 363 and 365, of the code, 2 GL & H. 216, a plaintiff may, at any time before tbe jury retire, or the finding of the Court is announced, dismiss his action, without prejudice ; and a defendant, who has pleaded a set-off, must, as to that, be regarded as a plaintiff, and may, therefore, in like manner, dismiss as to his set-off.</p>

<p>APPEAL from the Wayne Common Pleas.</p>

<p>Railroads — Pleading.—A complaint against a railroad company for stock killed by the machinery of the company, -will be bad, even after verdict, if it fail to aver negligence, or that the road was not fenced.</p>

<p>Execution — Clerk.—Where, in the entry of a judgment, by agreement of the parties, it is ordered by the Court that an execution shall issue thereon, but shall not be levied of the defendant’s property for a specific period, except in a certain event, it does not thereby become the duty of the Clerk to issue such execution without directions so to do from the plaintiff, his agent or attorney.</p>

<p>Construction or Evidence. — The decision herein turns wholly upon the construction of the evidence. See opinion at length.</p>

<p>New Trial — Surprise.—Under the law allowing parties to testify, where the plaintiff simply swears to the truth of his complaint, it is doubtful whether the defendant can in any ease have a new trial on the ground alone that he was surprised by such testimony of the plaintiff.</p> <p>New Trial. — Newly Discovered Evidence. — A new trial will not he granted on the ground of newly discovered evidence, where such evidence is merely cumulative, or where it might not change the result on another trial.</p> <p>Practice. — An application for a new trial shall he verified.</p>

<p>The act of March 17, 1861, (see acts 1861, p. 49,) is construed to require the party, to whom a change of venue is granted, to perfect the same within the time therein limited, and to pay all costs of such change, if perfected, and to pay all costs up to the time when it should have been perfected, if it is not; but, in any event, such change must be perfected within a reasonable time after the order, or the right thereto will be deemed to have been waived, and the cause will remain upon the docket as if no change had been granted.</p>

<p>Limitations. — Where infant wards, soon after the appointment of their guardians, remove from this State, and continue to reside abroad, the statute of limitations does not run against them until they return. 2 G. & H. 161, § 216. _</p>

<p>Criminal Law and Practice. — As to what will constitute a sufficient affidavit for surety of the peace, see the opinion.</p>

<p>Correction oe Contract — Practice.—Under the provisions of § 71, 2 G. & H. 98, a mistake in a promissory note, in the amount for which the same is given, may be reformed, and judgment rendered for the amount due upon the note as reformed, in one and the same action</p>

<p>APPEAL from the Porter Common Pleas.</p>

<p>APPEAL from the 'Marion Common Pleas.</p>

<p>Pleading.- — An answer which goes to a whole cause of action, but only recites facts which constitute a bar to a part thereof, is bad.</p>

<p>APPEAL from the Marion Common Pleas.</p>

<p>APPEAL from tbe Steuben Circuit Court.</p>

<p>APPEAL from tbe Vanderburgh Circuit Court.</p>

<p>Depositions. — Depositions can not be taken during tbe term of tbe Court in which the cause is pending without the agreement of the parties, and, if taken without such agreement, they may be suppressed.</p> <p>Same. — Where a notice to take depositions recites that Ihe taking ' will be commenced on a certain day, and continued from day to day thereafter until completed, an adjournment for a longer time will be unauthorized, and will subject the depositions so taken to suppression, unless the opposite party appear and waive such objection.</p>

<p>Practice. — Where the general verdict is not materially inconsistent with the special findings of the jury, and the latter are responsive to the interrogatories, the Court should render judgment upon the verdict.</p>

<p>APPEAL from the Tippecanoe Circuit Court.</p>

<p>Practice. — An objection to the form of a judgment in replevin, in order to be available here, must have been first brought to the attention of the Court below in the proper manner.</p>

<p>Estoppel. — Representations, by tbe payer of a note, that it is valid, and he has no defence against it, made to a.purchaser of such note after he has become the owner thereof, do not operate as an estoppel against the payer, nor can such representations, repeated by the purchaser thereof to any person to whom he may sell the same, have such effect in favor of such second purchaser.</p>

<p>Practice — Waiver.—Error alleged to have been committed in sustaining a demurrer to a pleading is waived by amending the pleading.</p> <p>Rule 30. — Unless a bill of exceptions contain the words, “this was all the evidence given in the cause,” the presumption that there was other evidence will not be excluded.</p>

In February, 1859, Hiram, Willson died, testate, and his son, Byron F. Willson, and his brother, Asbury C. Willson, soon after became executors of his will. The testator, in his lifetime, was a lumber merchant, and, at his death, was the owner of a large quantity of lumber, then situated, in part, in the city of 'New Albany, Indiana, and in part in the town of Columbia, near the city of Cincinnati, Ohio.

<p>APPEAL from the Miami Common Pleas.</p>

<p>APPEAL from the Jefferson Circuit Court.</p>

<p>APPEAL from the Hendricks Common Pleas.</p>

<p>Rule 30. — Unless a bill of exceptions contain the words, “this was all the evidence given in the cause,” it will not exclude the presumption of other evidence.</p>

<p>APPEAL from the Morgan Circuit Court.</p>

<p>Criminal Law and Practice. — The record on appeal, in a criminal case, tried on indictment, must show that the grand jury was regularly empannelled, and the indictment duly returned by them in open Court.</p>

<p>Contract. — Where a contract is made for the delivery of a certain number of a particular lot of hogs, it can not be discharged by the delivery of the like number of any other hogs, although of equal quality and weight, unless performance, in this respect, is waived by the parties.</p>

<p>Terms oe Courts. — Where the term of a Circuit Court begins on the 20th day of October, and may continue two weeks, if the business requires it, but in fact continues only one week, and the term of the Common Pleas Court, for the same county, begins on the 27th day of October, and is in fact begun on that day, it can not be objected to the validity of the latter term that it was holden during the term of the Circuit Court.</p> <p>Practice in Supreme Court. — Where an affidavit for a continuance is filed, but the record on appeal fails to show that any motion, based thereon, was made, or that the Court took any action in reference thereto, the alleged error in refusing a continuance will not be considered in this Court.</p> <p>Same. — Where error is alleged to have been committed in the admission of testimony, it will not be available in this Court, unless the ground of objection was stated to the Court below.</p>

<p>APPEAL from the Delaware Circuit Court.</p>

<p>APPEAL from the Dekalb Common Pleas.</p>

<p>APPEAL from the Bartholomew Common Pleas.</p>

<p>Criminal Law and Practice. — In a criminal prosecution on appeal, where the clerk returns to a certiorari that the papers are lost and copies of the indictment or information can not be given, the judgment below will be reversed by this Court.</p>

<p>APPEAL from the Marion Circuit Court.</p>

<p>APPEAL from the Greene Circuit Court.</p>

<p>Married Women — Criminal Law and Practice.— The wearing apparel of a married woman, furnished by her husband as' a marital duty, remains his personal property during his life, and he can sell it or give it away during that period, but she may retain such as she may have at his death as her paraphernalia; and an indictment, for the stealing of such apparel, during the husband’s life, charging it to be the property of the wife, can not be sustained.</p>

<p>APPEAL from the Hamilton Common Pleas.</p>

<p>Contract — Parol Evidence. — A is embarrassed. B, his son, is •willing to aid him in the adjustment of his indebtedness. He has some claims upon the Government for supplies furnished, but they are not yet finally adjusted and allowed. One of them was for 1,165 dollars. B therefore constituted C his agent, to aid in the settlement ■ of his father’s liabilities, and transfers to him said claims, and instructs him, that, if such of his father’s creditors, as he shall designate, will surrender their claims in lieu thereof, and wait the payment of the Government claims, he will allow them principal and interest to date. What designation of creditors was made, does not appear. Many claims against A were filed with G, to be adjusted in the manner proposed by B. E, who filed the first three claims, received from G a receipt, in which they are fully described, and in which, after describing them, he adds, “ to be paid out of the proceeds of an account of E and G for 1,165 dollars, for goods furnished the Government for the use of the Oregon volunteers in the Jakina Indian war, when collected by the undersigned, who holds a power of attorney for that purpose.” Signed by G, in his individual name, and not as agentf The Government claims, left with (7, were not sufficient to pay all the liabilities of A, to the extent proposed- by B. G collected on the claim for 1,165 dollars, the sum of 776 dollars and 67 cents, in gold. A then assigned said receipt to G, who sued G upon the same, and demanded judgment for the said 776 dollars and 67 cents, and recovered.</p> <p>Eeld, 1. That said receipt is assignable in equity, so as to enable the assignee to maintain an action upon it in his own name.</p> <p>2. That it would be error, in the action upon said receipt, to allow G to aver or prove, that, notwithstanding his agreement stated in said receipt, the understanding between him and said assignor, at the date of said receipt, was, that said payment should be made pro rata, with all the claims filed against A, out of the aggregate amount, which should be collected on all said Government claims by G, as agent of B. Said receipt contains a contract which can not be altered by parol testimony, and creates a personal liability against C, for the amount collected on said claim for 1,165 dollars.</p>

<p>APPEAL from the Grant Circuit Court.</p>

<p>Practice in Supreme Court. — Where there is evidence which tends to sustain the finding of the Court below, this Court will not reverse the judgment of that Court for alleged error in refusing a new trial on account of insufficiency of the evidence.</p>

<p>APPEAL from the Marion Circuit Court.</p>

<p>Trespass — Jurisdiction.—The wrongful taking or detention of personal property is a trespass, in the general sense of the word, and, under § 15 of the justice’s act, an action for such trespass, in the form of an action of replevin, may be brought, either in the township where the defendant resides, or where the trespass was committed, and process served throughout the county.</p>

<p>APPEAL from the Clinton Circuit Court.</p>

<p>Attorney — Contract.—The purchase by au attorney from his client, pending litigation, of the subject matter of the litigation, is absolutely void.</p> <p>Champerty. — The purchase of land, pending a suit concerning it, is champerty, and the purchase is void, if made with a knowledge of the suit, and not in consummation of a previous bargain.</p>

<p>APPEAL from the Marion Common Pleas.</p>

<p>APPEAL from the Morgan Circuit Court.</p>

<p>APPEAL from the Franklin Common Pleas.</p>

<p>APPEAL from the Marion Circuit Court.</p>

<p>Criminal Law and Practice — Evidence.—In a criminal trial upon indictment, after the State has introduced her testimony, and the defendant has introduced his, but has not attempted to impeach the -witnesses produced by the State, it would be error to allow the State to introduce testimony as to the general moral character, or standing for integrity, of her witnesses. . The character of a witness is presumed to be good until impeached.</p>

<p>Married Women. — The income or proceeds arising from the separate real estate of a married woman can only be subjected to the payment of her debts, contracted during coverture, by a proceeding in equity for that particular purpose, and not by an ordinary common law action and judgment against her.</p>

<p>Criminal Law and Practice. — An information for a felony must show that the felony, on a charge of which the defendant is alleged to be in custody, is the same felony for which the information is filed.</p>

<p>APPEAL from the Warren Common Pleas.</p>

<p>APPEAL from the Marion Common Pleas.</p>

<p>'City or Madison — -Taxation.—Under the charter of the city of Madison, pork, owned by non-residents of the city, which had been brought to said city by them, to be slaughtered, cured and stored •there, subject to their order, will be liable to municipal taxation whilst it remains in said city, and it will be the duty of the person, in whose possession it is, to furnish a list thereof for taxation in his name.</p> <p>Same. — Under the provisions of said charter, where a person is called upon by the assessor to furnish such list, and he prepares and delivers it to the officer, but the officer, whose duty it is to swear him thereto, neglects to do so, such oath will be thereby waived, and the officer will have no right himself to make such list, on the ground that such person had either neglected or refused so to do, nor, in any such case, would the common council of said city have any authority to order that additional property be placed upon said list; but such list, when deemed imperfect or dishonest, should be corrected in the mode prescribed in section 10 of the amendments to said charter.</p> <p>Taxation of Personalty. — Personal property, which exists in a substantial and corporal form, such as cured pork, &c., must have an actual situs, and is taxable wherever that situs is; but it seems that personal property of an intangible character, which exists in rights of action, such as debts, bank stocks, &e., has no situs, other than the domicil of the owner, and is therefore only taxable at the place of his residence.</p> <p>Taxation — Construction.-—-The jirovisions of a municipal charter, in reference to the mode of assessing and collecting taxes, must be substantially pursued, or the tax will be invalid, and can not be legally collected.</p>

<p>Mechanic's Lien — Pleading.—In an action to enforce a mechanic’s lien, a complaint against husband and wife, which sets out a note given by the former, and a sufficient notice of intention to hold a lien upon the house and lots as his property, and avers that he holds the property by an unrecorded title bond, fraudulently taken in the name o-f his wife, but paid for by him, and occupied by both, and that she stood by and encouraged the building of the house, &c., is not bad on demurrer.</p> <p>Pleading. — Where a written instrument, which constitutes the cause of action, is filed with, and made a part of, the first paragraph of the complaint, and, in the second paragraph thereof, it is alleged to be filed with the latter, and is referred to as already on file with the former, the latter will be sufficient.</p> <p>Practice. — A motion for a new trial below, or an assignment of error in this Court, on the ground that “the Court erred in all the instructions it gave, and in refusing instructions asked for by the appellant,” is insufficient for not pointing out, with reasonable certainty, the particular instructions 'in which the Court is supposed to have erred.</p> <p>New Trial — Surprise.—When the plaintiff, in an action, testifying in his own behalf, sustains the averments in his own complaint, where he had full knowledge of the facts, the defendant can not obtain a new trial on the ground that he was surprised by such testimony.</p> <p>Notice oe Lien. — As to the requisites of the notice of lien generally, and especially where the title to the property is held by a married ' woman, by an unrecorded conveyance, the reader is referred to the opinion at length.</p>

<p>APPEAL from the Whitley Circuit Court.</p>

<p>Jurisdiction- — -Recognizance.—A person, who has been indicted for felony and arrested in one county, but, by reason of the insufficiency of the jail thereof, is confined in the jail of an adjoining county, may apply, by petition for writ of habeas corpus, to the judge of the Court of Common Pleas of the latter county, to be there admitted to bail, and such judge may legally grant such writ, and direct the prisoner to be admitted to bail, in the penalty prescribed by the Court of the county where the indictment was found, and, if the prisoner execute such recognizance with surety, conditioned for his appearance at the next term of the proper Court, and the same be approved by the sheriff of the county in which he is so confined, such recognizance will be valid,'although the day of the month on which said Court will meet may be incorrectly recited in such recognizance.</p>

<p>APPEAL from the Floyd Common Pleas.</p>

<p>APPEAL from the Marion Common Pleas.</p>

<p>Pleading. — In an action upon a note, the complaint, to be sufficient, should contain an averment that the note remains unpaid.</p> <p>Practice.' — -In such an action, where the complaint avers that the note was made to an unmarried women, who afterwards married, and then ^ith her husbaind indorsed the note to another person, who indorsed it to the plaintiff, and the complaint is not denied under oath, it is not necessary, on- the trial, for the plaintiff to prove said marriage and indorsement as alleged,</p>

<p>APPEAL from the Decatur Circuit Court.</p>

<p>APPEAL from tbe Marion Common Pleas.</p>

<p>APPEAL from the Franklin Circuit Court.</p>

<p>Husband and Wire — Married Women. — In 1843, A contracted with. B, the wife of G, and D, the daughter of G, for the sale to them of certain land, for 1,000 dollars, one-half whereof was paid at the date of contract, and a title bond executed by A for the conveyance of the land to D, and B and D executed their promissory note to A, at twelve months, for the other half of the purchase money, which was paid at maturity, and then said bond was canceled, and, under another arrangement, A conveyed said land to JE, a son-in-law of B and G. The first payment on the land was made in part by the transfer of a note to A, which B held in her own right, G having nothing to do wilh the transfer, and all of the residue of the purchase money was paid by B, with her own money, received from the estate of her grandfather. Said money was received by her after her marriage with G,\ but never came into his possession, and was never claimed by him by virtue of his marital rights, or otherwise. Said money did not come to her with any limitation to her separate use. B and G and their family together occupied and used said land. Action to subject said land to payment of O’s debts.</p> <p>Held, that tbe money with which said land was purchased never became the property of G, the husband, and that the land therefore could not be subjected to the payment of G’s debts.</p> <p>Held, also, that, prior to the laws of this State enlarging the rights of married women, the personal property of the wife, which came to her after the marriage, did not become the property of the husband, ipso facto, but only when it had been actually reduced to possession by him, by such acts as evinced an intention to divest his wife’s right or title, and make it absolutely his own.</p> <p>This case is distinguished from Miller v. Blackburn, 14 Ind. 62.</p>

<p>APPEAL from the Miami Circuit Court.</p>

<p>Mortgage Sale ry State — Contract.—Where the Auditor and Treasurer of State, on a Saline Fund mortgage, on which the mortgagor, and the persons holding under him, have failed to pay the interest, offer the mortgaged property for sale, for the collection of a larger sum than the amount actually due upon the mortgage debt, at the date of the sale, and no person offers to purchase the property at the excessive price demanded, and the same is therefore purchased by the State, at such excessive price, the sale so made to the State will be void, by reason of such excess, and a subsequent sale thereof, by the State to another person, will also be void, becanse the State, by her purchase, having acquired no title, can transmit none.</p> <p>Onus Probandi.- — -A person who seeks the interposition of the Courts to avoid a sale of lands, except, perhaps, in the case of tax sales, assumes the onus of showing that he is entitled to the relief asked.</p> <p>Evidence. — In such case, copies from the books of the Auditor of State, duly certified, would be legal evidence to show the condition of the account for principal and interest against the mortgagor.</p> <p>Rules oe Circuit Courts. — A rule of the Circuit Court, which requires parties desiring a change of venue to make their applications therefor at least one day before the day on which the cause is set for trial, is within the power of the Court to regulate the transaction of the business therein, and valid.</p>

<p>Husband and Wife — Torts or Wire. — The husband is liable for the torts and frauds of his wife, committed during coverture. If committed in his company, or by his order, he is alone liable. If not, they are jointly liable, and the wife must be joined in the suit with the husband.</p> <p>Same — Evidence.—If husband and wife are jointly prosecuted in a civil action for the tort of the wife, in the alleged burning by her of a mill, it is competent for the plaintiff to prove that, within a short period before, and just preceding the burning, the wife was heard to threaten that, “she would burn it; that she would put a torch to it; that it should not stand much longer; that the old rattle trap should be burned up,” &e.</p>

<p>APPEAL from the Monroe Common Pleas.</p>

<p>APPEAL from the Marion Circuit Court.</p>

<p>Treasurer’s Fees — Statutes Construed. — The Treasurer of a County is entitled to five per cent, as commissions, only on the amount lie may collect on the delinquent list, to be furnished Mm by the Auditor, after his March settlement with the Auditor, and before he receives the duplicate for the next year.</p> <p>Same. — For the amount of taxes collected on his duplicate, as well delinquent as current, after he receives said duplicate, and before he makes his March settlement, his compensation is regulated by the Act of June 4, 1861. Acts special session, 1861, p. 41.</p>

<p>Criminal Law and Practice. — For the requisite averments in an indictment for assault and battery with intent to commit a felony, see the opinion at length.</p> <p>Same. — In an information for an assault and battery, it should be averred that the offence was committed in an unlawful manner.</p>

<p>Attorneys — Practice.—Attorneys can not withdraw their appearance in a cause without the permission of the Court, and, if it is withdrawn, and the record on appeal is silent as to the ground of withdrawal, this Court will presume it was done upon satisfactory evidence .presented to the inferior Court.</p> <p>Waiver — Practice.—In an action in attachment against husband and wife, the latter being insane and over twenty-one years of age, á personal appearance by the husband, and an appearance by the wife with her husband, and also by her general guardian, waives the necessity of publication, and such facts, appearing in the record on appeal, will obviate the necessity for any evidence of publication in the record.</p> <p>Guardian — Committee..—A'general guardian of an insane person, under our statutes, is substantially the committee of such person, and is the proper party to appear for her without any special order of the Court.</p> <p>Practice in Supreme Court. — Where an appearance is entered in the inferior Court, and is never withdrawn, and an appeal is taken to this Court, and the judgment below is reversed and the cause remanded, and, after proceedings there, another appeal is taken to this Court, this Court will judicially know what attorneys have appeared in the cause.</p>

<p>APPEAL from the Clark Common Pleas.</p>

<p>APPEAL from the Vanderburgh Circuit Court.</p>

<p>Costs — Practice—Presumption.—In an action to recover damages for a nuisance in erecting a mill dam, and to abate the same, where the plaintiff alleged in his complaint that he was the owner in fee and in possession of the land, proof of possession alone would entitle him to recover damages, and, where, in such action, he recovered judgment for 1 dollar damages and the like amount of costs, and failed to obtain an order for the abatement of the nuisance, or show himself entitled thereto, this Court will presume in favor, of the correctness of the judgment below, and that the title to the premises did not come in question.</p>

<p>Parties — Foreclosure.—The mortgagor is not a necessary party in an action to foreclose a mortgage, where he had sold the equity of redemption before the commencement of the foreclosure suit.</p> <p>Same. — But, if the mortgagee desired to recover a personal judgment against the mortgagor for any deficiency after the sale of the mortgaged property, then he would be a necessary party.</p> <p>Pleading. — A complaint in foreclosure is good, which avers, against the owner of the equity of redemption, that the mortgagor is indebted to the plaintiff by note in- a specified sum, which is due and unpaid, and that the mortgagor -and his wife executed a mortgage to secure it, and that the mortgage was not recorded, and that the defendant purchased the equity of redemption with actual notice of the mortgage, the mortgage and notes being made parts of the complaint.</p> <p>Practice. — It is not error to strike out a paragraph of an answer which renders necessary no other proof than was already mad& necessary by the previous filing of the general denial.</p>

<p>Criminal Law and Practice. — For a sufficient form of information, for obstructing the execution of criminal process, see the opinion.</p>

<p>APPEAL from the Hendricks Circuit Court.</p>

<p>Trust Mortgage — Construction oe Oontract. — The decision herein relates entirely to the construction of a contract, relating to real estate, and can not be briefly stated. See the opinion at length.</p>

<p>APPEAL from the Miami Circuit Court.</p>

<p>APPEAL from tbe Jefferson Circuit Court.</p>

<p>Practice — Amendments.—The nisi jprius Courts may, in the exercise of a reasonable discretion, permit amended answers to be filed, after previous answers have been withdrawn.</p> <p>Practice. — Where several paragraphs of an answer are substantially the same in legal effect, they may all but one be stricken out on motion; or, if they all amount to the general denial, where the latter is not pleaded in form, they may all but one be stricken out on motion, and, if the general denial be so pleaded, they may all be stricken out in like manner.</p> <p>Practice — Demurrer.—But the only defects in pleadings, which can be obviated by demurrer, are those indicated in section 50 of the code; and demurrers filed for causes or defects not therein indicated, should be overruled.</p> <p>Pleading — Estoppel.— Qucere, whether an answer, averring facts which the party, by reason of something in the record, is estopped to plead, may not contain facts sufficient to bar the action, if the plaintiff joins issue thereon, without taking advantage of the estoppel.</p> <p>Contract — Consideration.—Where an instrument is executed as a contract, between private parties, acknowledging the receipt of the consideration, whether it be money, or specific articles, or a promise or undertaking to be executed by one party, it may be shown, in bar of a suit on such instrument, that the consideration was not received; and no recitals in such instrument will estop the party interested to plead the want or failure of consideration.</p> <p>Practice — Right to Open and Close. — Where the plaintiff is required to introduce any evidence to establish his right to a judgment, or to show how much it should be beyond a mere nominal amount, he is entitled to open and close.</p> <p>Same. — Where the defendant pleads by way of confession and avoidance, or in such other manner as to admit the plaintiff’s cause of action, or, in open Court, before entering, upon the trial, he admits the plaintiff’s cause of action, and thus obviates the necessity of any proof on his part, the defendant will be entitled to open and close.,</p> <p>Impeachment op Witness. — Evidence designed to impeach the general character of a witness should relate to the time when he testified, and his character at the place where he then resided, and amongst those who ¡knew it there.</p> <p>Examination op Witness. — The cross-examination of a witness should be confined to his examination in chief.</p> <p>Practice. — Objections to evidence, to instructions, to findings, general or special, or to special rulings or decisions of the Court, should be specific, and designate, with reasonable certainty,' the grounds of the objections.</p> <p>Mortgage — Bond—Agreement.—Several interesting questions of construction are settled herein. See the opinion.</p>

<p>Title to Oppice — Appointment.—Where the title to an office is derived solely from Executive appointment, the commission of the Executive is the only legal evidence of such title.</p> <p>Same — Election.—But, where the title to an office is derived from popular election, the commission of the Executive is not absolutely neceesary to establish the right to exercise the duties of sueh office.</p> <p>Vacation op Oppioe. — An office may be vacated by abandonment, or resigned by parol, and the existence of a vacancy in either ease will depend upon all the facts and circumstances attending the same.</p> <p>County Auditor — Duties op. — A county auditor is required, both by the constitution and laws of Indiana, not only to be a resident of, but actually to reside in, the county, and keep his office in the auditor’s office to be provided by the county, and personally discharge, or superintend the discharge of, the duties imposed upon him by law.</p> <p>Vacation or OuRicp. — Any voluntary act of such officer, which permanently disables him to perform the duties of his office, such as enlistment in the military service of the United States in the war for the suppression of the present rebellion, will amount to a constructive resignation of his office by abandonment.</p> <p>Constitutional Law. — Semble, that the act of May 11, 1861, (Acts Spec. Sess. 1861, p. 40,) so far as it undertakes to empower county auditors to enter the military service of the United States, and discharge the duties of their civil offices by deputies alone, is unconstitutional.</p>