Volume 22 — Indiana Reports

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

<p>APPEAL from the Vanderburgh Common- Pleas.</p>

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

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

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

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

<p>New Trial—Divorce.—A sued for and obtained a divorce from his wife, B, for reasons alleged, and held by the Court to be sufficient, and asked that certain property might be set off to her, which the Court consented to and did order. • Afterwards, at the same term at which the divorce was granted, and the order made, he moved the Court for a new trial, for other reasons of which he was not cognizant when the decree and order were made, and which would have enabled him, if known and disclosed, to have obtained the divorce without letting her have the property.</p> <p>Held, that, under the circumstances of the ease, the motion for a new trial was correctly overruled.</p>

<p>Cases Adhered to.— Wooley v. Wooley, 12 Ind. 663, and McQuigv. McQuig, 13 id. 294.</p>

<p>of&emdash;Onus Probandi.&emdash;The possession of a deed is prima facie evidence that it has been legally delivered, and the onus of proving the contrary devolves on the person who seeks to set it aside.</p> <p>Same—What Constitutes a Delivery.—To constitute a delivery of a deed there must he an intention to part with the control over it as its owner.</p> <p>Same—Escrow.—Where a deed is delivered to a third person to hold for the parties, until the happening of a given event, it is called an escrow, and a delivery, by such person, to the grantee named in the deed, before the happening of the event, vests no title in him, and he can convey none. '</p> <p>Special Agent—Dower.—A party who deals with one who is a spe- . cial agent to perform a particular act, is bound to ascertain his power, and the act of such agent beyond his power, does not bind his principal.</p> <p>Estoppel—Bona pide Purchasers.—A man may be estopped by his acts from asserting title to land which he has not conveyed, as against a bona fide purchaser of such land, but for facts sufficient to constitute such estoppel, see opinion.</p> <p>Delivery—Title.—Where a party delivers a deed, or property to another, with intent to convey to him, the title passes, even though the intention was raised by fraud or false pretences, but such title is voidable on account of the fraud, &c., though if such title is conveyed to a bona fide purchaser before avoidance, it becomes in him a complete and absolute title.. But where no title passes, the pre- - tended purchaser can have none to convey, and there being no estoppel intervening, the original owner may reclaim.</p> <p>Es.crow.—Eor a statement when, and the eases in which the question of the delivery of an instrument in writing as an escrow, or otherwise, arises, see the latter part of the opinion in this case.</p>

<p>Replevin Bail—Retainer.—A replevin bail for the stay of execution, who has paid a part of the judgment, and afterwards at a sale of the property of his principal, by the sheriff, on an execution issued thereon, becomes the purchaser thereof, for a sum greater than the balance due, has the right, against junior creditors in whose favor executions are, at the time, in the hands of such sheriif, to retain the overplus to an amount sufficient to satisfy the sum paid by him as such bail.</p>

<p>Demand—Widow.—A demand, by a widow, on the administrator of her deceased husband, for the 300 dollars worth of personal property .allowed her by statute, 2 G-. & H. 295, § 21, if made in these words: “Squire, I have concluded to take my 300 dollars in property,” is sufficient.</p> <p>Same—Refusal.—"Where an administrator refuses to deliver such property, on request, it is not necessary for the widow to make a specific selection of the articles she desires to take.</p> <p>Statutes Construed.—There is no conflict between § 21, 1 G-. & H. 295, and § 43, 2 id. 495. The former gives to the widow the right to 300 dollars worth of the personal property of her deceased husband, at any time before the sale thereof, and if she does not take the same, then, to 300 dollars, out of the proceeds ', of such sale, but does not specially provide that she may receive the same before the return of the inventory, nor point out the duty of the administrator in that behalf; and the latter provides that she shall be entitled to select, and take it before the return of the inventory, and defines the duty of the administrator in that respect. Instructions to Jury.—A party has no right to complain of an instruction given the jury, which works no injury.</p>

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

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

<p>Deed—Ratification—Adverse Possession.—Suit for the recovery of land. The land was granted to A by a treaty between the United States and the Pottowattomie tribe of Indians, made October the 16th, 1826. U. S. Stat. at Large, pp. 295, 299. The grant, Art. 6, was in these words: “The United States agree to grant to each of the persons named in the schedule hereunto annexed, the quantity of land therein stipulated to be granted: but the land so granted shall never be conveyed, by either of the said persons, or their heirs, without the consent of the President of the United States.” A, on the 13th day of June, 1836, without the consent or approval of the President, executed' and delivered to B a deed conveying to him the land in dispute; but the deed thus made was afterwards, on the 14th day of December, 1846, approved by James K. Polls, the then President of the United States: When the land was thus conveyed by A to B, there was no adverse possesion, but in 1843 G went into possession of the land, and at the time of the approval of the deed, by the President, held it adversely.</p> <p>Held, that the deed from A to B could not, without the consent of the President, operate as a conveyance, but that his consent to its execution might be given before or after its execution.</p> <p>Held, also, that the act of the President, in hjs approval of the deed, related back and gave it validity from the time of its execution, so as to protect B against the claim, by adverse possession, of ¿7, which arose in the interim between the date of the deed and the date of its confirmation by the President.</p>

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

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

<p>Pleading—Complaint—Demurrer.—Where a pleading is founded on a written instrument, the original or a copy must he filed with JO' s: j it; and if the original or a copy is not so filed; the defect may be reached by a demurrer.</p> <p>Practice.—In order that the Court may know that a written instrument is filed with the pleading, as constituting the foundation of the particular action, it must be identified by reference to it, and making it an exhibit in that pleading.</p> <p>Same.—A failure to deny, under oath, the execution of an instrument that does not show an apparent execution on its face, is not an admission of its execution.</p> <p>Same—Special Finding.—A special finding must be in writing so . that an exception maybe taken; and it must be filed with the clerk, so that he can enter it, and the exception to it, of record. And as evidence of its genuineness to an appellate Court, it should be signed by the judge, or incorporated in a bill of exceptions signed by him.</p> <p>Action.—A policy of insurance, which has not been executed, will not support an action; but if there was a valid agreement to insure and to issue a policy, an action may be brought upon such agreement.</p> <p>Policy of Insurance—Execution of.—It was necessary to a complete execution of the policy of insurance, in this case, that it should be signed by the President and Secretary, and countersigned by the agent.</p> <p>Marine Policy—Covenant in.—Where, in a policy of insurance on a vessel, there is a stipulation “ that the master and crew, so soon as practicable after the disaster and the property is secured or recovered, shall repair to the nearest convenient notary, and there make a protest setting forth the cause of said disaster as near as practicable, and the extent of the damage,” such stipulation is a binding condition, upon the insured, and must be performed to entitle him to recover.</p> <p>Same—Excuse for Non-Performance.—Neither the want of knowledge of the master and crew that the vessel was insured, nor the casual remark of the agent of the insurance company, before the 'policy was issued, that if the owner insured he would send him, the master, word, which he failed to do, will excuse the performance of such stipulaíion.</p> <p>Same-—-Waiver oe Performance.—The simple direction of such agent, to one of the crew, to go before an officer and make a protest, &c., is not a waiver of the legal right of the company to a legal protest in the case.</p> <p>Practice in Súfreme Court—Certiorari.—A certiorari where the alleged defect does not appear upon the face of the record, and the application alleging it is not verified, will not be granted; nor, as a general rule, after a cause has been decided.</p>

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

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

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

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

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

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

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

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

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

<p>Statutes Construed—Costs.—Action by A against B for trespass in entering upon lands, and cutting and removing timber. B answered by, 1. A denial. 2. That be was tbe owner, &c., of the lands described in tbe complaint. A replied by a denial; and accompanied bis reply with an affidavit that title to land was in issue, and a motion that the case be transferred to the Cirouit Court. The motion was granted. The case was tried in the latter Court, and a judgment, on verdict, rendered in favor of A. B made a motion to tax all the costs which had accrued in the Common Pleas, except the costs of the summons and its service, against A. This motion was overruled, except' as to the costs occasioned by the transfer. B appealed, and insisted that his motion should have been sustained.</p> <p>B.eld, that section 11, 2 Gr. & H. p. 22, should be construed to give the Circuit Court some latitude of discretion in each case that may arise under the clause thereof wherein the word “may” occurs; and that, so far as appeared from the record, there was no abuse of a sound discretion, in the judgment as to costs, given by that Court.</p>

<p>Landlord and Tenant—Eoreeiture oe Leasehold..—The failure of a tenant to pay rent will not work a forfeiture of his estate, unless it is so expressed in the lease or agreement.</p> <p>Same—Statutes Construed.—The words “all general tenancies,’' in section 2, 2 Gr. & H. p. 359, mean such tenancies only as are not fixed and made certain in point of duration, by the agreement of the parties.</p> <p>Same.—Semble, that the words “ or for a shorter period,” in the same section, embrace a tenancy uncertain as to duration, but one which appears to have been intended by the parties, as less than a year.</p> <p>Estates eor Years.—Estates for years embrace such as are for a single year, or for a period still less, if definite and ascertained, as a term for a fixed number of weeks or months, as well as for any definite number of years, however great.</p>

<p>County Treasurer—Duty oe—Breach oe His Bond.—Under sections 2, 3, and 13, 2 G-. & H. p. 640, and sections 123, 125, and 127, 1 G-. & H. p. 68, it is the duty of a county treasurer to pay over the funds in his hands according to law, which may be upon orders drawn upon him by the auditor,- or to his successor in office, and a failure to make such payment constitutes a breach of his bond, conditioned for the faithful performance of his duties.</p> <p>Public Officer—Liability of for Moneys.—A public officer who is required to give bond for the proper payment of money that may come into his hands, as such officer, is not a mere bailee of the money, exonerated by the exercise of ordinary care and diligence, but his liability is fixed by his bond, and the fact that the money was stolen from him without his fault, does not release him. from his obligation to make such payment.</p> <p>County Treasurer—Board oe Commissioners have no Power OVER, TO DIRECT WHERE EUNDS OE STATE AND COUNTY SHALL be keet.—A county treasurer is. an officer who acts on his own responsibility, and independently of the Board of Commissioners of the county, so far as the keeping of the funds of the State and county is concerned. He is the proper custodian of the funds, and the Board of Commissioners have no legal authority to direct him where, or in what manner, the funds shall be kept.</p> <p>Hanna, J., dissenting.</p>

<p>Attachment—Practice.—Where, an issue is formed on an affidavit for attachment, it should be tried by the Court, or jury, with the issues in the cause in which the attachment is issued.</p> <p>Same—Waiver.—But if the issue in the cause ia first tried, and there is no objection interposed by the defendant, to the subsequent trial of the issue on the affidavit for attachment, he will be deemed to have waived the right which he had to insist upon a trial of the whole controversy at once.</p> <p>Fraudulent Intent—Mortgage.—Whether a mortgage is given with a fraudulent intent is, under the statute, §' 21, 1 Gr. & H. p. 353, a question of fact for the jury to determine.</p>

<p>Statutes Construed—Judgment oe Foreclosure Repleviable.— Where, in a judgment of foreclosure, the amount due is found by the Court, and the mortgaged property ordered to be sold to satisfy the same., such judgment is repleviable under section 420, 2 Gr. & H. p. 233, although judgment is not given for the recovery of the money.</p> <p>Same—Eeeect oe Recognizance oe Bail—Action.—By section 427, id., the recognizance of bail given in such case, operates as a judgment confessed, in favor of the judgment plaintiff, and against the replevin bail, for the sum of money found due hy the Court; and the undertaking or recognizance of bail will support an action against such bail, for any balance due, after the property ordered to be sold is exhausted.</p>

<p>Practice in Supreme Court.—Errors assigned in this Court, and simply copied into the brief of the party making the assignment, without argument or authority in support of them, will not he considered by this Court.</p>

<p>Action.—The owner of personal property which has been stolen, can, in this State, maintain a civil action for its value, before the criminal prosecution for larceny has been determined.</p>

<p>Limitations—Trusts.—Mere lapse of time constitutes no bar to a bill to-enforee a subsisting trust, and time begins to run against a trust only from the date of its open disavowal.</p> <p>Same.—Even unjustifiable delay and gross inattention on the part of some of the cestui que trust furnish no bar to relief against persons conversant with the trust.</p> <p>Limitations—Statutes Construed.—Section 220, 2 G-. & H. p. 163, relates to causes of action originally arising upon promises or contracts, and not to continuing trusts, and especially those arising by operation of law.</p>

<p>Exemption oe Property—Statutes Construed.—Section 3, 2 G-. & H. p. 370, does not operate as an absolute exemption of 300 dollars’ worth of property in favor of tbe debtor, without any acts on his part, but only relates to such real estate as had been duly exempted under .the other provisions of the exemption law, before the execution of the sale or mortgage of the same by the husband without the consent of his wife.</p>

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

<p>Mortgage—Widow’s Estate in Lands oe Husband.—Prior to May 6, 1853, A executed a mortgage upon certain real estate to A, his wife not joining, to secure the payment of certain sums of money then due from A to A, and of all sums which might thereafter become due. A died in 1858, leaving a widow. One-third of the mortgaged land was afterwards set off to the widow. A then foreclosed his mortgage and had a decree for the sale of the other two-thirds to pay the indebtedness which existed at the date of the mortgage, and which accrued after May 6, 1853, and it was sold and the proceeds were- only sufficient to pay that part of the debt which existed at the date of the mortgage. A claims a right to subject the widow’s third to the payment of the subsequent indebtedness, on the ground, that her dower estate in the land was abolished by the legislature, and her contingent fee therein never attached by reason of the mortgage.</p> <p>Meld, that, under the circumstances, A had no claim under the mortgage upon the third set off to the widow.</p>

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

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

<p>Pleading.—Want of consideration and failure of consideration are not identical in their nature, and may be separately pleaded in answer to the same action.</p> <p>Pleading.—An answer setting up a matter by way of counter-claim as a bar to the whole cause of action,which is sufficient only to bar a part of it, is bad.</p> <p>Contract—Parol Evidence to Vary.—Where a note is executed by A to B, which is absolute and unconditional upon its face, and it is agreed between them at the time, by parol, that the note shall not be paid unless a certain other noté, then transferred by B to A, could be set off by A against C, the payor of the latter, -whom A owed at the time, and A fail to secure the set- off against G, and B sue A on his note, such parol contract can not be pleaded to show a failure of the consideration of the note of A, and such cotemporaneous parol agreement would not be admissible in evidence to contradict or vary the terms of the note.</p>

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

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

<p>Pleading—Set oee.—As to the requisites of an answer by way of set off, under section 58, 2 6. & H. 89, see the opinion herein.</p>

<p>Slander.—To say of a physician that, “in my opinion the hitters that A fixed for B were the cause of his death,” is not actionable per se, and such words do not, in their usual sense, import a charge of murder.</p> <p>Same.—But the words, pleaded with a, proper colloquium, that “the bitters that Dr. Diver gavé to John Smith caused his death; there was poison enough in them to kill ten men,” are actionable per se, because they imply a charge of gross misconduct and complete unfitness of the physician to be employed in his profession. Where words spoken of a professional man only impute ignorance or want of skill in a particular case, they.are actionable only where they cause special damage.</p>

<p>Paupers—County Poor.—It is not the intention of the poor laws of this State to require that all persons needing temporary relief shall be removed to the eounty asylum before receiving' i't.</p> <p>Same—Statutes Construed.—-It is the obvious general purpose of the poor laws of this State to make the mode of giving relief to paupers a county system and not a township system, and to make the township trustees subordinate to the eounty commissioners. Same.—If a claim for services rendered to the poor of a county or township be disallowed by the county board, in whole or in part, the claimant may appeal, or, at his option, bring an actiou against the county.</p>

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

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

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

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

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

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

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

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

<p>Pleading—Representations.—An answer to an action upon a note is sufficient, which alleges that the note was given in payment for the last installment on a stock of goods purchased of the plaintiff, which was represented to him at the date of purchase to be worth 3,500 dollars, and that it would invoice that amount or more; that the defendants were ignorant of the amount and value of the stock, and requested an invoice before purchasing; hut the plaintiff said •he had not time to make it, hut assured them that he knew the goods would amount to more than 3,500 dollars; that the defendants purchased on this representation; but that it was false, and known to be so by the plaintiff when he made it; and that the goods, in fact, invoiced and amounted to but 1,500 dollars.</p>

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

<p>Contracts.—The price for work done in part under special contract, and in part under parol modification of such contract, should be controlled by the special contract so far as it is done in pursuance of it.</p> <p>Practice—Waiver.—Error in the progress of a trial, which is not made the basis of a motion for a new trial, is waived, and section 347 of the code, 2 G. & H. p. 210, does not dispense with the necessity for the motion for a new trial on the ground of the supposed error.</p>

<p>Practice in Supreme Court.—Where there is some evidence to sustain the verdict of a jury, although the preponderance may appear to he against it, this Court will not reverse the judgment rendered upon it.</p> <p>Practice—Surprise.—Mere surprise at the result of a trial can not entitle the party so surprised to a new trial.</p>

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

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

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

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

<p>Contract—Trust Deed—Mortgage.—1. A deed of trust, executed by a railroad company to a trustee, to secure the payment of certain bonds, and giving certain powers to tile trustee touching the operation of the road, in the granting clause of which the following words are used, “ the road, railways, bridges, locomotives, engines, cars, depots, right of way and land, with all buildings, shops, tools, and machinery then in use, owned by -them, or which they might thereafter acquire, with the superstructure, rails, and other materials used thereon,” must be construed to embrace wood provided for the use of the road from time to time.</p> <p>2. But such deed of trust is, in legal effect, only a mortgage, and the company have a right to redeem, and that right is a leviable interest, which may be sold on execution..</p> <p>3. And a sheriff, having a valid execution against such a railroad, company, has a right to levy upon and sell its interest in the property of the company, and can not be enjoined from doing so, but the purchaser at such sale would not be entitled to the possession of the property sold until he had complied with the conditions of the mortgage.</p>

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

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

<p>Liquor License—Appeal—Statutes Construed.—Where a license to sell liquor is refused by the county board, and the applicant, under the provisions of the act of March 11, 1861, appeals to the Circuit Court or Court of Common Pleas, the decision of such Court is final, and no appeal lies therefrom to the Supreme Court.</p>

<p>Practice—Injunction.—If illegal taxes are assessed and threatened to be collected, the appropriate remedy to restrain their collection is by injunction.</p> <p>Taxation—Municipal Law.—Cities, organized under the general law of' the State, are authorized to levy an ad valorem tax on all property within the cities respectively, and subject to State and county taxation.</p> <p>Taxation—Railroads.—A railroad company should be taxed, under the law as it now stands, for its “road’r as an entirety,, including all property in any way used by it in running or operating the road. But the real estate owned by a railroad company, or held by it in trust, and not used in running or operating the róad, should be taxed in the same manner as the real estate of p'rivate individuals.</p>

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

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

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

<p>APPEAL from the Delav:are Common Pleas.</p>

<p>Constitutional Law.—The provision of the internal revenue act of July 4, 1864, requiring writs in State Courts to be stamped is not within the sphere of the legislative powers of the Federal Government, and is inoperative.</p> <p>Same—Habeas Corpus.—Section 8 of Art. 1, of the Constitution of the United States contains a delegation to Congress of power to suspend the writ of habeas corpus.</p>

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

<p>Mortgages—Foreclosure by State—Statutes Construed.—The summary foreclosure of school fund mortgages, which were executed to the State prior to 1852, and the sale of the mortgaged property, should be conducted according to the law in force at the time the contract was made.</p> <p>Statutory Construction.—Statutes must be construed prospectively, unless they clearly import a different intention on the part of the legislature.</p> <p>Power oe Congress over Contracts between Citizens oe a State.—As to the power of Congress to enact- laws impairing the obligation of contracts between the citizens of a State, see the Opinion at length.</p>

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

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

<p>Attachment—Practice—Waiver.—Where the defendant appears in attachment suits the regularity of the attachment proceedings must he tried in such suits; and if the defendant, having appeared, makes no objection by motion or answer, their regularity will be deemed admitted, and all objections waived.</p> <p>Attachment—Practice.—Objections to the regularity of attachment proceedings can not be first raised in collateral suits.</p> <p>Same—Justices’ Courts.—The practice in attachment proceedings is the same in justices’ as in the superior Courts.</p> <p>Undertaking in Attachment.—As to what undertaking in attachment proceedings will operate to release the attached property and authorize a personal judgment, see the opinion at length.</p> <p>Attachment—Replevin—Affidavit.—In either of these forms of action, the affidavit may contain the requisites both of a complaint and affidavit, so as to dispense with any separate complaint.</p> <p>Pleading.—In an action upon an undertaking in attachment, it is necessary to set out the undertaking and show that a case arose in ' which it was properly taken, but the proceedings in attachment need not be fully set out 0/ made part of the complaint. They are not the foundation of the action.</p>

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

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

<p>Widow—Descent — Statutes Construed — Specific Performance,*—Where a widow, as the heir of he-r husband, becomes the owner in fee., of real estate, under the.provisions of sections 17 and 18 of the act regulating descents, whilst she remains his widow, she has the legal right to alienate such real estate, and such alienation,will convey a perfect and absolute title, and if she sell by title bond, and put the purchaser in possession, and then marry again, she may, after such marriage, be compelled to specifically perform such contract by conveying the legal estate.</p>

<p>Promissory Rotes—Due Diligence.—Where the mater of a note dies before its maturity, and the note is then duly filed as a claim against his estate, and then his administrator resigns and no other is appointed, due diligence requires that the claimant on the note, in order to retain the liability of the assignor, should apply for the appointment of another administrator, or institute an action against the heirs .of the estate and procure an order subjecting the property inherited by them to the payment of the note.</p>

<p>Contract—Rescission of.—Where A sells and conveys land to B, and the deed, before it is duly recorded, is lost, and A then sells and conveys the same land to G, who has full notice of the former sale and conveyance to B, the title in B is no way impaired, and the conveyance to G, under the circumstances, is a nullity, and gives no right to B to rescind or recover back the purchase money paid to A.</p>

<p>Criminal Law and Practice.—Where the facts, which are necessary to give the Court of Common Pleas jurisdiction to try a felony, appear upon the information, it is not necessary that they should also appear upon the order book or in the judgment of the Court.</p>

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

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

<p>Criminal Law and Practice—Abatement.—A defendant is not allowed, in criminal cases, to plead in abatement that another indictment is pending against him For the same offense.</p> <p>Same.—inhere a person is not under prosecution for an offence, but is still indicted therefor, he may plead in abatement of the indictment the disqualification of any of the grand jurors who found it. Same.—Pleas in abatement in criminal cases should- neither he uncertain, ambiguous nor repugnant.</p> <p>Same.—No issue can be made by plea in abatement in criminal cases upon the fact whether grand jurors by whom an indictment was found were reputable or not.</p>

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

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

<p>APPEAL from the Rush Circuit Court.'</p>

<p>Pleading—New Trial.—Where a new trial is prayed for on the ground of causes discovered after the term at which the verdict or judgment was rendered, the .complaint should clearly show that such causes were discovered after such term, or it will be bad on demurrer.</p>

<p>Pleading—New Trial.—Where an application for a new trial is made after the term, based upon newly discovered evidence, there must be brought to the knowledge of the Court, by affidavits or otherwise, the issues in the cause, the evidence adduced upon the former trial, and the newly discovered evidence, in order that the Court may correctly determine its duty in the premises.</p>

<p>Administrator de son tort.—Mere acts of kindness and charity, touching the property of a deceased person, such as taking care of it, feeding stock, providing for children, &e., will not constitute the person'who does them an administrator de son tort.</p> <p>Costs.—In an action against a person as administrator de son tort, if the plaintiff recover 5 dollars or more in damages, he will be entitled to judgment for costs generally.</p>

<p>Oqjistable’s Sales.—Where the record of a constable’s sale is silent as to whether due notice was given of the sale or not, the Court will presume that the constable did his duty.</p> <p>Same.—Execution on Justice’s Judgment.—Where a constable levies upon property to satisfy an execution from a justice’s Court, and advertises it for sale, but fails to sell, and returns the writ, with his proceedings indorsed thereon, -and the justice issues another execution, and fails to append to it a copy of the .return made to the first, his failure so to do will not render the second execution void, but only voidable, and it might be set aside on motion before the justice, but if no such motion was made, all acts done under it will be valid.</p>

<p>Mutual Insurance Comeant—Premium Rotes—Contracts.—It is competent for a Mutual Fire Insurance Company, organized under the laws of this State, to provide in its articles of association, or by its by-laws, that all premium notes shall be paid in installments as ordered by the directors, after notice, and that if not so paid, the entire notes shall become due and collectable.</p>

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

<p>Jurisdiction—Habeas Corpus—Clerk.—The act of January 3, 1852, (2 G. & H. 304,) giving jurisdiction to the Clerk of the Circuit Courts to issue writs of habeas corpus, and to hear and determine them, is, by the subsequent legislation on the subject of habeas corpus, repealed, and such clerks have now no such power.</p> <p>Habeas Corpus—Petition eor.—Where a guardian desires, by the aid of a writ of habeas corpus, to obtain the custody of his ward, he must make his letters of guardianship a part of his petition for the writ.</p>

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

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

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

<p>Guardian and Ward.—The requirement in the statute that, before any one shall be appointed guardian, he shall file a statement of the ward’s estate, is directory only, and failure to file such statement would not of itself render an appointment void.</p> <p>Removal of Guardian.—Where a guardian is appointed by the Clerk in vacation, the Court, at its next term, without notice, may remove him and appoint another; but a guardian appointed by the Court in term, or by the Clerk in vacation and afterwards approved by the Court, can not be removed by the Court without notice.</p>

<p>Principal and Surety.—Any material alteration of a contract, without the consent of the surety,, will discharge him. The liability of a surety can not be extended beyond the terms of his contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract.</p> <p>Zimmerman v. Judah, 13 Ind. 286, is approved and followed. Construction op Contracts.—As to where several contracts, made at the same time, in relation to the same subject matter, and based upon the same consideration, will be construed as one contract, see opinion at length.</p>

<p>The decision herein rests alone upon the sufficiency of evidence to sustain a finding, and no point of interest generally is ruled by the Court.</p>

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

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

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

<p>Mortgage—What Costitutes.—Where A borrows of B a sum of money, and gives his note therefor, and at the same time executes a deed conveying certain real estate, to B, reciting in the deed a consideration just equal to the note, and, at the samo time B executes a bond to A, conditioned that, upon the payment by A of said note, he would reconvey said real estate to him, the facts, taken together, ' constitute prima facie a mortgage of the real estate by A to B.</p> <p>Practice—Amendment.—An amendment of a complaint by leave of the Court, pending a trial, if the amendment added nothing to the material averments of the complaint, could not be a fatal error, nor, in such case, could the failure to re-swear the jury after such amendment.</p> <p>Practice—Judgment upon Answers oe Jury to Interrogatories.—Where specific interrogatories are propounded to a jury to be answered by them unconditionally, and they seem to be so framed as to cover what appears to be the substance of the whole ease, and they are fully answered by the jury, but the jury make no general verdict, the Court may well render judgment in accordance with such answers, because the course of the parties in the premises would fairly indicate an intention -or consent to waive a general verdict.</p> <p>Contract—Action—MoRTGAGE.-v-Where A borrows money of B, and executes his note to B, and by deed conveys certain land to him, and takes-from B a bond to re-c'onvey the land on payment of the note, such transaction amounts prima facie to a mortgage, and if B, said bond not being recorded, sells and conveys said land to G, without notice of the nature of said transaction, for a sum much larger than the sum borrowed, A will be entitled to recover of B the difference between said sums.</p> <p>Yendors and Purchasers—Notice—Possession of real estate is only constructive notice to all the world of the rights of the party in possession; but it is held that the continued possession by the grantor of land after the making "5f his deed, will not be notice of a defeasance held by him which is not recorded.</p>

<p>Execution—Injunction.—A recovered a judgment against two persons. The property of one has passed by purchase, under a junior lien, to another person, and the property of the other to another person by purchase. A seeks to enforce payment of the judgment by levy and sale of the property of the former, who seeks to enjoin the sale thereof until the property of the latter shall have been exhausted.</p> <p>Held, that such sale ought not to be enjoined, because the principle of equity, authorizing the marshaling of securities in certain eases, does not apply in such a case.</p>

<p>Trust—Forfeiture—Injunction.—Where a lot is conveyed to trustees of a religious society, for the use of such society, according to the discipline, &c., and the society erect a church building thereon, and the trustees lease the basement thereof, which was made for a prayer room, to a teacher of a common day school, with leave to him to change the internal arrangements of the room to adapt it to his business, such trustees may be enjoined, on the application of members of the society, from such leasing.</p>

<p>Pleading.—A mortgagee, where the mortgaged property lias been sold at' sheriff’s sale, upon a judgment fraudulently procured in favor of another person, may institute his action to set aside the sheriff’s sale, without, at the same time, suing for the foreclosure of his mortgage, and his mortgage', or a copy of it, need not, in such case, be filed with the complaint.</p>

<p>Voluntary Assignment—Claims Against Assignee.—The proceedings for tlie collection of claims against the estates of decedents, and of claims against the estates of voluntary assignors are so similar, that, wherever the rules' touching the former are applicable, they should govern in relation to the latter, and the formation of issues on such claims, either of law or fact.</p>

<p>Sheriff’s Liability for Printer’s Pees.—A sheriff is not personally liable for printer’s fees for advertising, simply because he officially' hands the advertisement to the printer, in the absence of special contract. The printer’s fees may he collected as part of the costs in the case. And as the fee hill in the code does not fix the amount of expense the sheriff may incur for advertising, the Court may do so, under the provisions in 1 G. & H. p. 338.</p>

<p>Pleading!—Set Oee.—A claim arising out of tort can not be set off against a demand arising out of contract.</p>

<p>Practice—Exceptions.—Where exceptions are taken, during a trial, which must be gotten upon the -record by bill of exceptions, such bill must be filed during the term, unless leave be given to file it afterwards, and then it must be filed within the time given, or, if afterwards, by the consent of the adverse party.</p> <p>Exceptions Available Without Bill oe Exceptions.—The reader is referred to the opinion at length, for a statement of some exceptions which will be available if properly noted on the record, without bill of exceptions.</p>

<p>New Trials.—In civil causes, only two new trials can be granted to the same party in the same cause, upon any grounds whatever.</p>

<p>Statutes Construed—Railroads—Assessments.—Section 697, 2 G-. & ET.' 314, makes the complaint and return, as to the defendant, in an application for the assessment of damages against a railroad company, a cause of action, and authorizes him to raise issues of law upon them by the ordinary modes used in Courts of this State, which, being disposed of, may be followed by issues of fact, to be formed and tried according to the usual practice in civil eases.</p> <p>Practice.—It is not error to refuse a motion, or prayer of a party, to have a part of the issues in a pause tried at one time, by-a jury, and the others, at another time, by the Court.</p> <p>Practice.—Where there is a difference between the journal entry of the clerk, and the recitals in the hill of exceptions, the latter must control.</p>

<p>Statutes Construed—Constitutional Law.—Temperance Law - Section 14, 1 G. & H. 617, is not embraced by the title of the temperance act, nor properly connected with the subject matter of it, and is therefore unconstitutional and void.</p>

<p>Statutes Construed—Temperance Law.—Under the temperance law of 1859, 1 G. & H. 617, there is no penalty against a person, licensed according to the act, for selling on Sunday.</p> <p>Same—'Overruled Cases.—The cases of Thomasson v. The State, 15 Ind. 449; Sohn y. The State, 18 Ind. 389, and The State v. Thomasson, 19 Ind. 99, are overruled, so far as the decisions therein are inconsistent with the decisions in Hingle v. The State and Lauer v. The State, infra.</p>

<p>Contract—Lease of Water Power.—Where successive leases of water power on the Wabash and Erie Canal are executed by the trustees thereof to different persons, and the water in the canal proves insufficient to supply the requisite amount to all the lessees, but is sufficient to supply some of them, the lessees should be supplied in the order in which the leases are executed.</p> <p>Evidence.—The best existing evidence of a fact must be produced to prove it; and therefore parol evidence of the contents of a record is not admissible ; but,-where the record or document is not a part of the fact to he proved, hut is merely a collateral or subsequent memorial of the fact, parol evidence of such fact may he given.</p>

<p>Lease—Chattel Mortgage—Estoppel.—A and B executed a lease to C, of certain land for seven years, at an agreed rent, upon which G agreed to erect certain buildings and to carry on certain business, which buildings C should own and be entitled to remove at the end of the term, and, to secure the payment of the rent, said buildings were declared in the lease to be mortgaged to A and B. The latter signed and acknowledged said lease, on May 29, 1857, and G did so on July 9, 1857, at which time said buildings had been erected on said premises, and on July 10,1857, it was recorded in the mortgage record of the county. A was subscribing witness to the execution of the lease by 0, and, by an arrangement subsequently made between him and G, he became the prospective owner of the improvements to be erected by 0 on the land.</p> <p>Meld, 1. That A was estopped by his own acts to deny the ownership of said lease and improvements by G, or his right to incumber them by liens, and all persons claiming under, or through A, were bound by that estoppel, as to- liens created as above, unless they can show fraud or want of consideration.</p> <p>2. That A and B, to the extent to which they had the first lien on ,. said improvements, under the terms of said lease, could enforce it '.•■-by' foreclosure, against A, and those claiming under or through ’him, saidjeása, as to said lien, being equivalent to a mortgage.</p> <p>3. ThaUsáíd lease in its character of mortgage, was not void for - ifinbertainty, this property mortgaged being on the premises of the mortgagees, and to that extent in their possession and identified, and said mortgage being recorded.</p> <p>4. Thaf 'fbreclosure is the proper remedy for the enforcement of a chattel mortgage.</p>

<p>Champerty—Contracts.—Where A, by power of attorney, constitutes B, a lawyer, his agent to secure and collect his interest in an estate, and, as a part of the same transaction, Ragrees to prosecute the claim for A for one-half of whatever of said estate he might so obtain, it being apparent that litigation in Court was contemplated for the recovery of said claim, such contract is champertous and void.</p> <p>Principal and Agent.—As a general rule, in all cases where a person is, either actually or constructively, an agent for another, al'l profits a.nd advantages made by him in the business of the agency, beyond his ordinary compensation, will belong to his principal.</p> <p>Illegal Contract—Rescission.—A party to an illegal executory contract may rescind or repudiate it, and an executed contract subT sequently made, inconsistent with it, will amount to a rescission or repudiation of it.</p>

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

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

<p>Statutes Construed—Forfeiture of Eoad Charter—Constitutional Law.—The title of the act of March 5, 1859, 1 G-. & H. 491, is sufficient to embrace a section authorizing the forfeiture of a charter as to a part of a road.</p> <p>Same.—Said act authorizes the forfeiture of less than the whole of the portion of any road which may be within any one county.</p>

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

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