Volume 23 — Indiana Reports

<p>Measure of Damages.—On a breach of contract for the sale and delivery of personal property, the measure of damages is generally the difference - between the contract price and the price at the time and place fixed for delivery.</p> <p>Same—Stocks.—One exception to this rule is where stocks are the subject-matter of sale.</p> <p>Same—Prepayment.—In a suit instituted with reasonable diligence, on a breach of contract for the sale and delivery of new corn, which had been paid for in advance, the measure of damages is the highest price of corn at any time between the contract time of delivery, and the rendition of the verdict.</p>

<p>Negotiable Note.—A negotiable note at common law is one payable to order or bearer; and such note as to defenses may have a bona fide holder, who has honestly received it for a consideration, ignorant of any vice in its original execution, and against whom such vice can not be set up as a defense on the note.</p> <p>Same—In Indiana.—In Indiana all notes negotiable at common law, and many others, are negotiable so far as to be transferable, and suable by the holders; yet they have not the other qualities of a negotiable note at common law, and, as to defenses, can not have a bona fide holder, unless they are drawn payable at a bank in the state.</p> <p>Same—Estoppel.—Notwithstanding the maker of a note, not payable at bank, could not be prevented by the law-merchant from setting up defenses against a bona fide holder of it, he might, by his own acts, if of such a character and so performed as to induce another to pursue and jus-</p> <p>■ tify him, as á man of ordinary prudence, in pursuing a given course of conduct, estop himself to deny the existence of the facts, on the belief of which, induced as above, such a course of conduct was adopted.</p> <p>Usuitx.—Since 1853 usury does not subject to penalties or forfeitures.</p> <p>Same.—If usurious interest is taken out in advance, it makes a case of a want of consideration, in a note covering the amount to the extent of such interest.</p> <p>Same.—If usurious interest is paid on a note after execution, it amounts to a payment of so much on the principal of the note; and if the amount thus paid exceeds the principal, it may be recovered back.</p> <p>Same.—A promise made in a note to pay usurious interest in future, is a promise, to that extent, without consideration.</p> <p>Note—Sale of.-—Maker of a note, not governed by the law-merchant, can not sell the same for a sum less than that expressed on its face, so as to preclude himself from setting up want of consideration to the extent of the discount, except possibly in case of estoppel, where sale was by agent.</p> <p>Same.—A, borrowed of B $400, and gave his note for $500, with interest, payable to bearer, and told B he would give a mortgage to any holder of the note. On the same or the following day B offered to sell the note to G¡ who lived in the same town. O agreed to buy it if a mortgage was executed to secure it. B procured a mortgage from A to G to secure the note. There was no communication between A and O; C did not inquire about the consideration of the note, and no one spoke to him about it.</p> <p>Held, that A was not estopped by the mortgage from pleading failure of consideration as to $100 of the note against O. '</p>

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

<p>Cause of Action.—This suit was brought upon the following complaint, viz:</p> <p> ltThe Toledo and Wabash Railway Company </p> <p> To Emanuel F. Lurch, Lr. </p> <p>“1861, November. To one cow, killed by your locomotive, within Clinton township, Cass county, Indiana, §50."</p> <p>Meld, to be no cause of action.</p>

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

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

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

<p>Tender.—A tender made upon, any condition prejudicial to tlie party to whom it is made, if not accepted, is no tender.</p> <p>Same.—If a conditional tender be made and accepted, it becomes a matter of contract, and may be binding.</p> <p>Contracts.—It is a general rule, that propositions, when accepted, are to hare the force and effect which the party accepting knew the party making them intended they should have.</p> <p>Note Payable in Gold.—A made his note payable to B in gold. Before suit, A tendered treasury notes to be accepted, if at all, as gold, and kept up the tender after suit brought, till it was accepted by B. ■</p> <p>Held, that it operated on acceptance as payment in full from date of original tender.</p> <p>Tkeasuby Notes—Constitutionality.—As to the constitutionality of legal-tender paper, see Thayer v. Hedges, 22 Xnd. 282. (See, also, same case, post.</p>

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

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

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

<p>Tax Title.—A party claiming under a tax title must show a substantial compliance with every provision of the law by which the sale was brought about.</p> <p>Same.—Each and every step, from the listing of the land for taxation to the consummation of the title by delivery of a deed to the purchaser, is a separate and independent fact, the existence of which is necessary to support the title.</p> <p>Same—Eeseot or Deed.—The provision of the statute, 2 G. & IT. sec. 168, page 108, which makes a tax deed conclusive evidence of the facts therein recited, except the fact that the taxes had not been duly paid, is in derogation of common law, and must be strictly construed.</p>

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

<p>Practice.—A motion for new trial on tlie ground that “ the court erred m giving, over defendants’ objections and exceptions, the charges to the jury,” and that “ the court erred in refusing to give charges moved by the defendants,” is bad for failing to point out the specific errors relied on.</p> <p>Same.—But see decision overruling petition for rehearing in this case.</p> <p>Evidence—Statements oe Deceased Witness.—All the facts stated on a distinct subject by a deceased witness, may be proved without giving in detail all his testimony. It is sufficient to prove the substance of the statements of a deceased ■witness without giving the precise words sworn to by him.</p>

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

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

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

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

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

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

<p>Continuance.—Where the defendant applied for a continuance which was-refused at the time of the application, but granted during the term, the error, if any, in first refusing it, was cured.</p> <p>Pleading—Proof.—When the complaint was in the general language of ¿he common count, and the hill of particulars was in the same general language, thus: “A to D, 1Or. To fourteen years, seven months’ service, work, and labor, ending on December 25, 1860, of the value of $3,000it was held that evidence was admissible of the character in which the services were rendered, viz: as foreman and general manager, and of their value thus rendered, which value could be deduced from all the circumstances, including success or failure to make money by them, as one.</p> <p>Child—Services of.—Where a child continues with the parent after being of age, the presumption is, no wages are to be paid, but a contract to pay a reasonable compensation may be inferred from circumstances tending to rebut the presumption.</p> <p>Widow—Competency of.—A widow is a competent witness to give general testimony, it not being for or against her husband, in a cause brought by her husband’s administrator.</p>

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

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

<p>Growing Crops—Vendor and Vendee.—As a general rule between vendor and vendee, tbe growing -crop is a part of tbe realty, and passes by conveyance to tbe latter.</p> <p>S AHih—Verb An Reservation.—Where a sale of real estate precedes the execution of the deed, a verbal reservation of any thing that would legally pass by the deed will be presumed to be merged in the deed.</p> <p>Same.—Where the deed is executed at the time of the sale, such reservation will be considered in the light of an exception or defeasance; and, being repugnant to the legal effect of the deed, will be held as void.</p> <p>Deed—Merger.—By the execution of the deed, the preliminary contract in writing is executed, and any inconsistencies between its original terms and those of the deed are to be explained and settled by the latter solely, into which the former is mdrged.</p> <p>Replevin—Burden op Proof.—In an action of replevin to recover wheat, where the answer sets up, in substance, property in defendants, the burden of proof is upon plaintiff.</p>

<p>Injunction—Execution mom Supreme Court.—When execution is issued upon an erroneous judgment of the Supreme Court, the remedy of the aggrieved party is by motion in the Supreme Court to set aside the judgment and execution; and it is error in such case for the Common Pleas Court to grant a perpetual injunction.</p>

<p>Court or Common Pleas—Jurisdiction.—Where the Court of Common Pleas takes jurisdiction on the ground that the person charged with crime is in custody, it must appear by the information that he is in custody on a charge of the same offense for which it is filed.</p> <p>Information—Construction of.—When there is an ambiguity or uncertainty in an information, it should be taken most strongly against the state.</p> <p>Criminal Code—Pleading.—The old rules of criminal pleading not inconsistent with the code, and so far as they may operate in aid thereof, are continued in force.</p>

<p>Agency.—When an agent or factor acts for a merchant resident in a foreign country, the ordinary presumption is that credit is given to the agent, and he is personally liable for contracts made by him for his employer, notwithstanding he discloses at the time the character in which he acts. me.—This presumption is liable to be rebutted either by proof that credit was given to both principal and agent, or to the principal only, or that the usage of trade does not extend to the particular case.</p> <p>Same.—But this rule is not applicable when the principal is domiciled in another state of the Union.</p> <p>Same—Bubden or Pkooe.—When the defendant sets up the character in which he made the contract, as that he was agent of another, the burden of proving it rests upon him.</p>

<p>Practice—Summons.—Porter brought suit against three parties to foreclose a mortgage. Afterward process was issued against Jones who was not named in the record. Subsequently he was made party by amended complaint. Jones appeared specially, and moved to quash the writ because it issued before any complaint was filed against him.</p> <p>Meld, that the motion should have been sustained.</p>

<p>Malicious Prosecution—Probable Cause.—Probable cause is that apparent state of facts found to exist, upon reasonable inquiry, such as the given ease rendered convenient and proper, which would induce a reasonably intelligent and prudent man to believe the accused had committed the crime charged, or in a civil case, that a cause of action existed.</p>

<p>Negligence—Pboximate Cause.—Plaintiff lent his gun to four boys, the defendants. The gun was loaded. The boys returned the gun loaded with a dangerous charge, and told him they had not discharged it, for the mischievous purpose of having plaintiff kicked when he might shoot it off. Plaintiff suspected the boys of falsehood; tried to see them, but did not; examined the gun for himself; found from six to eight inches of load in it; then discharged it voluntarily, holding it around the corner of the house to shield himself, and was wounded.</p> <p>Held, that the conduct of the boys was not the proximate cause of the injury.</p>

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

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

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

<p>Specific Peefokjiance.—In an exchange of lands of equal value, when no money is to be paid, and possession is taken pursuant to the exchange, a delay of ten years is, per se, no bar to a suit for specific performance to compel execution of deeds.</p> <p>Title to Real Estate.—Title to real estate, originating in prescription, may be proved by parol.</p>

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

<p>Administbation—Maebied Women.—Section 10, 2 G. & H. 486, and section 2, 2 G. & H. 484, taken together, forbid the granting of letters without the husband’s consent to a married woman.</p> <p>Same.—Sections 22 and 28, 2 G. & H. 491-493, make the marriage of & femesole administratrix or executrix the cause of removal, unless her husband files his written consent to her continuing as such.</p> <p>Same.—The consent, when given, does not make the husband co-administrator. The office remains entire in the wife, and she may sue without joining him.</p>

<p>Railroad Companies—Employees.—A brakeman on a train, and one whose duty and business it is to attend a switch, are engaged in the same-'gener|Él ■ undertaking, and the company is not liable to one for an ípju^yjvbáused by the negligence of the other. ) J-,/'</p> <p>Same.—The complaint stated, in substance, that A was bt&keinan on-f& freight-train- of defendant, and was killed by the cars being tlirpwn.Off the track by the breaking of a switch-pin, which the company a^d1 ’its ser.y-ants, knowing it was insecure, had carelessly left out of repaik^for-twelve days previous. There was no switch-tender, and the whole cakis^gf thg^ switch, and every thing pertaining to its security, was under the control of the section-boss and his hands, who had nothing to do with running the trains.</p> <p>neld, that in the absence of an averment that the company was negligent in employing an incompetent section-boss, the complaint did not sufficiently state a case of negligence against the company.</p>

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

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

<p>Prior Equities.—In 1832, A settled on a tract of land as a pre-emptioner, and made improvements as required by tie pre-emption law. He and those claiming under him have ever since been in possession. In October, 1832, after A had settled on the land and made improvements, the United States made a treaty with the Pottawatomie Indians, in which she agreed to select and convey some one, but no particular section to the chief of the tribe, after it had been surveyed. In 1885, the' administration determined that the Indian reservations must be located on lands not claimed by pre-emptioners. In 1836, the location was made for the chief, embracing the land claimed by A, and on which he resided. In 1839, the administration set aside the location so far as it embraced the tract in question, and in 1813 issued a patent to A upon his making proof of his claim.</p> <p>Held, that A has a prior equity, and a right to the legal title.</p>

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

<p>Title to Real Estate.—In. 1839 A mortgaged a tract of land to secure debts. In 1844 judgment was rendered against him, and tbe land sold on execution issued tbereon. The sheriff made a deed to the purchaser in 1847, and the purchaser conveyed to B the same day, who took possession. In 1846, the mortgage made in 1839 was foreclosed, the land sold, and A and another became purchasers. In 1858 the purchasers conveyed to A, in pursuance of a verbal agreement between him and the mortgagee, by which he was, upon payment of decree and costs, to have conveyance of the land. A sued B to reoover the land.</p> <p>Held, that if A relied upon any irregularity in the sale under execution, he was barred by the statute of limitations.</p> <p>Held, also, that any right of action A may have had for the land was destroyed by the foreclosure of the mortgage.</p> <p>Held, also, that the'- parol agreement between A and the mortgagee did not affect the rights of the parties.</p>

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

<p>Raileoad Companies—Liability foe. Stock Killed.—Where an action was brought before a justice upon a complaint for “ one cow, killed by your locomotive, in Clinton township, Cass county, Indiana,” it was held inadmissible to prove that the road of the company was not fenced.</p>

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

<p>Jurisdiction.—The question of jurisdiction over the subject matter may be raised by motion in arrest of judgment, or for such defect the court may arrest the judgment without motion, and it would be the duty of the Supreme Court on appeal to reverse the judgment on such objection.</p> <p>Temperance Law.—Section 14, 1 G. & H. 617, of the temperance law of 1859, is constitutional, overruling Lauer v. The State, 22 Ind. 461, and reaffirming the ruling on this point in Thompson v. The State, 15 Ind. 449, p. 112.</p> <p>Same—Indictment.—An indictment charging that A “ did unlawfully sell one pint of intoxicating liquor,” etc., but which did not charge that the quantity of liquor sold was less than a quart, was held good; overruling Slruekman v. The State, 21 Ind. 160, p. 113.</p>

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

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

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

<p>Usury.—An answer in bar of a recovery upon a note is bad on demurrer, where the facts averred show that only a part of the consideration of the note is usurious.</p> <p>Independent Contracts.—Although a part of the illegal interest was reserved upon independent transactions, still, if they were all merged in one indebtedness at the time, and the note was given for a portion of the general debt, the. defendant can set up the usurious consideration in- . eluded in this indebtedness, and is entitled to an abatement of the usury in the same ratio as the illegal interest bore to the legal principal and interest in the total indebtedness.</p>

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

<p>Injunction—Affidavit.—An application for injunction will not be granted unless the complaint is verified by affidavit.</p> <p>Possession—Injury.—The writ will not be issued to prevent the grantee’s taking possession of real estate under a deed of conveyance alleged to have been fraudulently obtained, when the grantee is responsible, the rental value of the land affording in law full compensation for the loss of possession; nor in such a case will the writ be issued to prevent the cutting of timber upon the averment that it will materially diminish the value of the premises.</p> <p>Proof.—In a suit for rescission, asking an interlocutory order of injunction, when the answer denies every material averment of the complaint, and is verified by affidavit, the court should not grant the prayer for injunction without additional proof of the facts stated in the complaint.</p>

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

<p>Sale op Spirituous Liquors—Indictment.—An indictment charging the sale of “ one pint of intoxicating liquor,” without the averment in terms that it was less than a quart, is good. Page 129.</p> <p>Criminal Pleadings—Certainty.—The statute requires no greater degree of certainty in criminal than in civil pleadings. Page 129.</p> <p>Imprisonment por Debt.—The 22d section of the 1st article of the constitution, providing that “ there shall he no imprisonment for debt except in case of fraud,” applies only to debts within the proper and legal meaning of that term. Page 130.</p> <p>Same—Costs in Criminal Prosecution.—Neither the fine or costs adjudged against the defendant because of his criminal act are within the meaning of the constitutional provision forbidding imprisonment for debt. Page 181.</p> <p>Costs—Commitment.—In a prosecution for retailing intoxicating liquors without license, the judgment that the defendant stand committed till the fine and costs are paid or replevied is not incorrect. Thompson v. The State, 16 Ind. 516, overruled. Page 132.</p>

<p>Retailing—Information.—Information, charging that defendant on, etc., sold “three gills .of intoxicating liquor, the same being of less quantity than a quart,” etc., is good.</p> <p>Costs—Commitment.—There was no error in ordering the defendant to be committed to prison till the fine and costs were paid or replevied.</p>

<p>Negligence—Complaint.—In a suit against a railroad company for causing the death of the intestate by carelessly and negligently running over him with a locomotive, the general averment that “ the defendant, by her agents and servants, did carelessly and negligently run over,” etc., is sufficient, without stating the particular acts constituting such negligence.</p> <p>Same.—The complaint in such case must show by averment that the deceased did not, by his own fault or negligence, contribute to his death; and the averment that “ he was at the time lawfully on the track of said railroad,” etc., is not sufficient.</p> <p>Death caused by Wrongful Act of Another—Complaint.—The right to sue in such cases, under sec. 784, 2 G. & H. 330, is given to the personal representative of the deceased; but the action is prosecuted for the benefit of the widow and children, or next of kin, and the names of these persons, and their relationship to the deceased, should be stated in the complaint.</p>

<p>Common Pleas—Jurisdiction.—The jurisdiction of the Court of Common ' Pleas, in criminal prosecutions, is only co-extensive with the limits of the county, and it can issue no process to any other county, unless by some special statutory provision.</p> <p>Imprisonment.—Any one charged with a criminal offense, and before conviction, may, under sec. 11,1 O. & H. 411, on the order of the judge, where there is no sufficient prison in any county, be removed to the jail of a county other than that in which he stands charged. But when imprisonment in a county jail is the punishment for crime, he can not be so removed.</p> <p>Construction—Statutes.—It is the duty of the court to construe the words of a statute in their plain and ordinary sense, unless such construction would lead to absurdity.</p>

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

<p>Indictment.—No indictment sliall be quashed for any surplusage or repugnant allegation, when tbore is sufficient matter alleged to indicate the crime and the person charged, or when the offense is charged with such a degree of certainty that the court may pronounce judgment on a conviction according to the right of the case.</p> <p>Crimes—Definition' of.—The act of May 81,1852, (1 G. &H. 416,) providing “that crimes and misdemeanors shall he defined, and the punishment therefor fixed, by the statutes of this state,” so far as it is in conflict with the act of June 10, 1852, (2 G. & H. 434,) defining felonies and prescribing punishment therefor, is repealed by the latter act.</p> <p>Indictment.—Where an indictment charges an assault with intent to commit murder in the first degree, under the statute, (2 G. & H. 406,) the defendant may be found guilty of an assault with intent to commit murder in the second degree.</p> <p>Indictment—Return of.-—-Where it appears from the transcript that a grand jury was sworn and impannelcd, of which Israel Miller was appointed foreman, that afterward the same grand jury returned into court several bills signed by their foreman as “true bills,” and when the statement of the clerk shows that the indictment which follows is one of these, and then the indictment is set forth indorsed “a true bill. Israel Miller, foreman.”</p> <p>Held, that it sufficiently appeared from the record that this indictment was • returned into court by the grand jury. Adams v. The Stale, 11 Ind. 304; and Springer v. The Slate, 19 Ind. 180, overruled.</p>

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

<p>APPEAL from the Floyd Circuit Coui’t.</p>

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

<p>Practice.—-In cases originating before a justice of the peace, all matters of defense, except the statute of limitations, set-off, and matters in abaté- • ment, may be given in evidence without a written answer. Page 165.</p> <p>Cosirlaint—Arrest or Judgment.—If the complaint does not state facts sufficient to constitute a cause of action, no valid judgment can be rendered on it, and objection is well taken by motion in arrest of judgment.</p> <p>Practice—Statute or Frauds.—Where the contract sued on is void under the statute of frauds, the objection can be taken at the trial. Page 165.</p> <p>Statute or Frauds.—Suit upon the following contract, viz:</p> <p>“December 7, 1859.</p> <p>“ I have this day sold to J. T. McMillen forty-one head of fat hogs, to be delivered at Kokomo on the 13th day of December, for' $345, or the privilege of weighing at $4.75 gross. (Signed) Bichmond Terrell.” It appeared in evidence that Lowe was the agent of McMillen to purchase hogs; as such he contracted for the hogs, drew up the instrument sued on, and Terrell signed it and delivered it to him. Some time after the contract he put McMillen'$ name to it, but the parties, not being present, concluded it was wrong, and marked it off.</p> <p>Meld, that there was no valid signing of the contract by McMillm. Page 167. Signature.—The law does not prescribe the particular place where the obligor’s name must be placed; but wherever placed, it must be done with the intention of executing the instrument as the obligation of the party so signing it.</p> <p>Same.—If the signature is placed at the close, the inference is that it was so placed as the final execution of the instrument. This inference • does not necessarily arise where the name is found at the commencement or in tjjie body. Page 167.</p>

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

<p>Pbinted Bbjees.—All causes pending in the Supreme Court, if not submitted within one year from the date of filing, except when interlocutory orders may excuse the delay, will be dismissed upon the call of the docket, unless submitted on printed briefs. This rule is not in conflict with the act of MarchZ, 1855.</p>

<p>Reasonable Doubt.—A reasonable doubt exists when the evidence is not sufficient to satisfy the judgment of the truth of a proposition with such certainty that a prudent man would feel safe in acting upon it in his own important affairs.</p>

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

<p>Insurance—Condition.—Where, by one of the conditions of a policy of insurance, it is provided “that, in case of any sale, transfer, or change of title of any property insured by this company, or of any undivided interest therein, such insurance shall be void and cease,” a sale, and transfer by one partner to one of his co-partners of his interest in the partnership property, without the consent of the company, and before the loss occurs, avoids the policy of insurance; nor is it material that such sale and transfer were made without the assent of another partner.</p>

<p>Suit to Subject to Sale Contract for the Purchase of Land—Parties.— In a suit to subject to sale a contract for the sale and purchase of land, held as collateral security for the payment of promissory notes, the owner of the legal title to the land is not a necessary party defendant.</p> <p>Same—Judgment.—The judgment in such cases need not find the value of the land, nor ascertain what proportion of the purchase money has been paid, nor the extent of the equitable interest in the land.</p> <p>Same—Demurrer.—In such case, the general denial being in, it is not error to sustain a demurrer to a paragraph of the answer, alleging that the defendant was not a maker, but merely an indorser of the notes, and did1 not assign the contract for the sale of the land to the plaintiff either by delivery or indorsement.</p>

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

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

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

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

<p>Paeties.—Where one party brings a suit, under section 19 of the code, for the benefit of many having a common interest, but too numerous to be brought before the court, it is sufficient if they are described with as much certainty as the nature of the controversy will admit, and not necessary that they should be designated as an association or class.</p> <p>Demueeee—Geneeal Denial.—A. party can not complain that a demurrer was sustained to a paragraph of his answer which amounted only to a general denial, when he had the benefit of the general denial on the trial.</p> <p>Evidence.—The rule that you can not vary by verbal testimony a written contract, does not apply to a written offer to make a gift.</p> <p>Same.—Where a party signed a written agreement, which was put in evidence, to pay the trustees of the West Union Baptist Church $10, for the purpose of erecting a meeting-house on ground now owned by them, it was held error afterward to permit him to testify that when he subscribed he understood it to be a free church.</p>

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

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

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

<p>Evidence.—It is the peculiar province of the jury to determine questions of value, and when there is conflict in the testimony, the Supreme Court will not disturb their finding.</p>

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

<p>Written Instruments—Copies op.—In a suit by a surety against his principal for money paid, as such, on a judgment against them, the judgment is not the foundation of the action, and it is neither necessary nor proper to file a transcript of it with the complaint.</p> <p>Practice.—Under the code, relief can be had against a fraudulent judgment, confessed for the purpose of defeating an honest creditor, in the same suit in which judgment is sought for the debt itself.</p> <p>Sureties.—The statutory provisions, sections 674-677 of the code, 2 G. & H. 308, furnish an easy and convenient remedy for sureties, but the remedy existing at common law is not thereby taken away.</p>

<p>Abatement.—After demurrer had been filed by the defendant and sustained, and final judgment rendered, and appeal taken, and cause certified back to the lower court, it was too late to file a plea in abatement, going only to the jurisdiction of the court over the person of the defendant. Page 224.</p> <p>Statute of Frauds.—The statute of frauds applies only to contracts which, by the express stipulations of the parties, are not to be performed in a year, and not to those which may or may not upon a contingency be performed within a year. Page 227.</p> <p>Waiver.—A contract to forbear suit upon a cash subscription to the capital stock of a railway company till the completion of the road is waived by a subsequent agreement, made matter of record, to confess judgment, waiving valuation and appraisement laws, and for a stay of execution for eighteen months. , Page 227.</p> <p>Contract to Forbear Suit.—A contract to forbear suit may perhaps be set up as a defense to an action, and, after judgment, its collection may be enjoined till the time covered by the agreement to forbear expires. Page 227.</p> <p>Same—Measüke oe Damages.—The measure of damages, on a breach of a contract to forbear suit, can not be more than the amount forborne, with interest and costs. Page 22-8.</p> <p>Same.—The damages arising from a forced sale are too remote on a breach of contract of forbearance. Page 228.</p>

<p>Recognizance.—Complaint on a forfeited recognizance. Breach, failure of principal to appear according to the terms. Answer, by surety, that' after forfeiture, and before commencement of suit, principal had enlisted as a volunteer in the army, and surety could not surrender him.</p> <p>Mield, that this is no defense.</p>

<p>/Slander.—Complaint for slander. Pleas in denial and justification. Verdict as follows: “We, the jury, find for the defendant, on the grounds that we do not believe froin the evidence that the words were spoken slanderously and maliciously. We further do not believe the plaintiff guilty of theft, or feloniously abstracting wheat or flour'from his customers.”</p> <p>Held, that proof, under the issues, of the fact that the words wei’e either explained at the time they were spoken, so as to destroy the legal presumption of malice, or that they were spoken and understood as a jest, or that they were used in a privileged communication, would have sustained the finding of the jury, and that such proof could have been made under the general denial.</p> <p>Held, also, that, as the evidence is not in the record, the court will presume such proof to have been made.</p>

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

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

<p>New Trial—Statute Construed.—The Statute, 2 G. & H. 214, which declares that “not more than two new trials shall be granted to the same party in the same cause,” simply means that where three juries have concurred in finding the matters actually in litigation against a party, the courts shall not disturb the verdict on his application. Page 275.</p> <p>Same.—A new trial resulting from the action of the Supreme Court, as a consequence of its decision that the issues which had been previously tried were not such as fairly to determine the rights of the parties, and were so defective as to leave the real cause actually undetermined, is not “a new</p> <p>. trial in the cause,” within the meaning of the statute. Page 275.</p> <p>Demurrer to Reply—Practice in the Supreme Court.—The Supreme Court can not reverse a cause on account of error in overruling a demurrer to a reply, unless the reply tenders an immaterial issue. Page 275.</p> <p>Change op Venue—Jurisdiction.—Where the venue is changed by the agreement of parties, the agreement entered of record in the court from which the change is made, gives jurisdiction of the persons of the parties to the court to which the venue is taken. Page 275.</p> <p>Pleading—Redundant Matter.—It is the duty of the court below to strike out all redundant matter in the pleadings; hut the Supreme Court will not reverse a case because the pleading contains redundant matter. Page 276.</p> <p>Same—Argumentative Denial.—It was assigned for error (hat the court below overruled a motion to strike out a paragraph of the reply, on the ground that it was merely an argumentative denial.</p> <p>Held, that the objection goes merely to the form of the pleading, and does not affect the substantial rights of the parties, and can not therefore be heard in this court. Page 276.</p> <p>Pleading.—Suit by the Trustees of the Vincennes University against Judah to to recover the value of certain bonds of the stale of Indiana, which it was alleged he had in his hands as the agent and attorney of the University, and which he refused to deliver on demand, but had sold and converted to his own use. Answer, among other things, that the University was indebted to him for professional services in a suit against the state, by which the bonds were obtained, under a special contract evidenced on the part •of the University by a resolution of its board of trustees, made and entered on its records February 8, 1853, to the effect that for such services he be allowed one-fourth of the net proceeds of the suit, etc., and that of the said bonds he retained $16,625, being the one-fourth part as specified in the resolution. To this part of the answer the University replies, that at the date of the resolution Judah was secretary of the board of trustees, and falsely entered the resolution on the records of the board of trustees; that the resolution actually adopted provided that for all his legal services and outlays he should be allowed one-fourth, etc.</p> <p>Held, that this reply was simply a denial of so much of the answer as alleges the adoption of the resolution, or, in other words, the making of the contract-.</p> <p>Held, also, that neither argumentativeness nor surplusage justifies a demurrer under our system of pleading. Page 277</p> <p>Attoknevs—Duties op.-—An attorney, in contracting with his client, must act with the most scrupulous good faith and honesty, and put the client on equal terms with himself. Page 278.</p> <p>Same.—The third paragraph of the reply avers that appellant, by representations which he knew to be false, as to the amount which would be recovered in the suit, and by threatening to withhold and destroy valuable and important documents relating to the suit in which he was acting as attorney, induced the passage of the resolution of February, 1853.</p> <p>Held, that the reply avers a state of facts which will, if true, prevent an attorney from taking any thing by the contract embraced in the resolution, and is good upon demurrer. Page 278.</p> <p>Pleading.—-Appellant, in his answer, claimed $4,500 for his services and expenses necessarily incurred in procuring the passage of an act of the legislature, and that such expenditures were authorized by a resolution of the board of trustees. Reply, that the expenditures and services were unlawful and corrupt, and were used and squandered to corrupt and bribe the legislature, without the consent or knowledge of said trustees; that they were unnecessary and useless, and the act was honestly passed, etc.</p> <p>Held, that the reply is an argumentative denial of the allegation in the answer that the expenditures were made in good faith, and were necessary to accomplish the objects sought by the University, and is good upon demurrer. Page 279.</p> <p>Complaint.—The test of what is material in the complaint will be furnished by the response to the question, What, under the general denial, must the plaintiff prove to secure a verdict in his favor? Page 281.</p> <p>Practice—The Bight to Open and Close.—The common law rule, that the plaintiff has a right to begin whenever he has any thing to prove, either as to the facts necessary to obtain a verdict or as to the amount of damages, is changed by the code. Page 283.</p> <p>Same.—The party upon whom rests the burden of the issues has, under the code, the right to open and close the case. Page 284.</p> <p>Same—Burden op the Issues.—The party having the burden of the issues is the party who, if no proof is offered, will he cast in the suit. Page 284.</p> <p>Supreme Court—Questions in the Becord.—The reasons relied upon for a new trial are not questions in the record, in the meaning of the constitutional provision requiring the Supreme Court to state in writing each question arising in the record, and the decision of the court thereon, but are arguments upon the question, to he considered so far as may he necessary to decide it. Page 285.</p>

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

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

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

<p>Stolen Property.—A bought, a stolen horse at public auction, kept him for several months, and sold him in good faith, without any knowledge that the horse had been stolen, or any notice of plaintiffs claim.</p> <p>Held, that he was responsible to the owner of the horse for its value. Page 313.</p> <p>Same.—The English doctrine, that the owner of the stolen property must pi’osecute the felon to conviction before he can have a civil action to recover his goods, never had any application in this country, and in England is now confined to cases in which the felon is a necessary party. Page 313.</p> <p>'Conversion.—There must be an act done to convert one thing into another,1 and a converting into money by sale has always been held to be within the definition. Page 315.</p> <p>Same—Demand.—Where there has been an actual conversion no demand is necessary. A demand and refusal are evidence of a conversion, but not the only evidence. Page 315.</p> <p>Pleadings before Justices of the Peace.—Before a justice of the peace, the form of pleading is not material to the rights of the parties Page 316.</p> <p>Appeals from Justices—Costs.—On appeal from a justice of the peace, taken by the plaintiff, where the judgment is not increased ?5 or upward, the appellant must pay the costs of the appeal. Page 316.</p> <p>Same—Statute Construed.—The matter embraced in section 70, 2 G. & H.. 599, is properly embraced in the subject of the act, and the section is constitutional. Kuhns y. Krammis, 20 Ind. 490, overruled. Page 316.</p> <p>Constitutional Construction.'—Section 19, article 4, of the constitution only requires the subject of an act, and not the matters properly connected therewith, to be expressed in the title. Page 317.</p>

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

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

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

<p>Replevin Bone—Demukbee.—Suit upon a replevin bond. The complaint averred that A sued out a writ against B and 0 for the recovery of the personal property of B, at the time in the possession of 0; that the bond in the replevin suit was made payable to B and C; that the suit was dismissed, and judgment rendered against A in favor of the defendants for costs, and the property ordered to be returned to B. Demurrer to the complaint overruled.</p> <p>Held, that the fact that the property was ordered to be returned to B does not show that 0 had no interest in the suit on the replevin bond, and the demurrer was correctly overruled. Page 328.</p> <p>DEMtmn.EE.—Where the only cause of demurrer assigned is, that the complaint does not state facts sufficient to constitute a cause of action, no question can be raised under it as to defect of parties, or the want of capacity on the part of the plaintiffs to sue. Page 329.</p> <p>Replevin Bond—Defense.—In a suit on a replevin bond, for a failure to return the property as stipulated, the defendant answered, in one paragraph, that after the property had been delivered to him by the officer, on the same day one of the plaintiffs violently and forcibly took it out of his possession, and deprived him of the possession thereof, wherefore he could not make return thereof. Demurrer to the paragraph sustained.</p> <p>Held, that the facts stated would not bar the action, but would perhaps be sufficient to bar a recovery for the value of the property, or go in mitigation of damages to that extent.</p> <p>Held, also, that the facts alleged could be given in evidence under the general denial, which was also pleaded, and hence appellant sustained no injury by the action of the court in sustaining the demurrer. Page 329.</p> <p>Damages.—The complaint and affidavit in ihe replevin suit described the lumber thus: “20,000 feet of black-walnut lumber, loaded on four ears at the Huntsville depot.” The evidence shows that the defendant in the replevin suit claimed all the lumber in the four oars; that it was all black-walnut lumber, and had all been loaded on the cars under the contract of sale by defendant to plaintiff. The suit was for four ear-loads of lumber, which were estimated in the affidavit to contain 20,000 feet. The replevin suit seems to have been used as a means of obtaining possession of the lumber without paying for it according to the contract; and when that end was obtained, the suit was dismissed, leaving the defendant in that suit to his remedy on the bond to recover the value of the lumber. The lumber was thus procured in 1857; the suit on the bond was tried in 1862.</p> <p>Held, that in the suit on the bond tbe jury were fully justified in finding theie wore 24,000 feet of lumber. 1</p> <p>Held, also, that, under the circumstances, it may reasonably be presumed that, by way of damages, the jury ad'ded to the value of the lumber, as shown by the evidence, interest for the delay of payment, which would fully cover the amount of damages assessed by the jury. Page 330.</p>

<p>Corporations—Mode op Taxation.—There are, under our constitution and laws, two recognized modes of taxing the capital stock of corporations. One is by an assessment against the corporation itself by name for the whole amount of its capital stock, which assessment the corporation pays and charges up to the stockholders, or deducts from the profits of the corporation, diminishing its dividends. The other is where the stockholders are separately and severally listed by the assessor for the amount of their capital stock. The latter is the mode to be adopted, in all cases, where the statute does not otherwise provide. Page 335.</p> <p>Same.—The actual value of such stock must, in all cases, be the criterion of taxation. Page 336.</p> <p>Capital Stock.—A tax assessed on the capital stock of a corporation, is a tax on the property of which such capital is composed. Page 336.</p> <p>Same—Bonds oe the United States.-—The capital of a bank, consisting of “ the bonds of the United States, issued and sold by the government of the United States, to raise and borrow money to carry on the now existing war,’ etc., is not subject to taxation under the laws of a state. Page 336.</p>

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

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

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

<p>Promissory Note—Indorser—Action Where Commenced.—Suit was brought in Wayne county against the makers and indorsers of a promissory note, payable in bank. Answer by the makers to the jurisdiction of the court, “ that ever since the date of the note all the makers thereof were citizens of and had resided in Rush county, and had never resided in Wayne county, and that the payee of the note indorsed the same to the plaintiff after its maturity and protest, and only for the purpose of having suit brought upon it in Wayne county,” etc. Demurrer to the answer sustained.</p> <p>Held, that the ruling of the court in sustaining the demurrer was right.</p> <p>Held, also, that if the indorsee demanded payment of the note within a a reasonable time after the indorsement was made, and gave notice to his indorser of the non-payment, or if the indorser waived such demand and notice, then the latter would be immediately liable, and might be sued jointly with the makers, and the suit ia either case might be brought in the county where the indorser resided.</p>

<p>Record.—After an appearance, the judgment being rendered for want of an answer, the process by which the defendant was brought into court forms no part of the record. Page 352.</p> <p>Proceedings for Review.—The party for whom an attorney has appeared without authority can not obtain relief in proceedings for review. Page 352.</p> <p>Appearance by Attorney without Authority—Remedy.—It may be on a proper application, showing that a judgment had been rendered for the want of an answer, on an appearance by an attorney without authority and without notice to defendant, the court would allow an issue to be formed, and the merits of the case tried; but the court, in order to protect the defendant from the act of the attorney, and at the same time to save the plaintiff harmless, will let the judgment stand, but stay all proceedings, and let the defendant in to plead, if he has any defense. Page 352.</p>

<p>Cobpobate Boses—Negotiability.—Bonds issued under section 22 of the plank-road act, (1 G. & IT. 479,) made payable to bearer, are negotiable.</p>

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

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

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

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

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

<p>Improvemext op Streets—Damages.—Under the statute, a city has full power to repair streets and construct drains and sewers. If it does this with proper care and skill, and without malice, it is not liable for conseuential injury.</p>

<p>APPEAL from Tippecanoe Common Pleas.</p>

<p>Notice—Time.—Notice to appear before a court of conciliation on “ Tuesday fie 18th of May,” did not require tie defendant to appear on tie 19th of May, which was Tuesday.</p>

<p>Practice—Misjoinder.—A plaintiff may unite in one complaint two or more causes of action, unless sucli union amounts to a misjoinder, in which case a demurrer for that cause is the proper mode of raising the objection. Page 390.</p> <p>Divorce—Petition.—It is not necessary that a petition for divorce by a wife should contain the averment that for two years previous to the filing thereof she had maintained a good reputation for chastity and virtue. Sec. 16, 2 G-. & H. 352, prescribes a rule of evidence, not of pleading. Page 390.</p> <p>Evidence—Deed from Husband to Wife.—A deed from the husband directly to the wife, was admitted in evidence, over the objection of the defendant, that it was void.</p> <p>Held, that although the deed was void in law, yet it was competent for a court of equity to inquire into the circumstances under which it was executed for the purpose of giving it validity, and for this purpose it was proper to give it in evidence. Page 391.</p>

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

<p>Practice.—An account against William Boyl was filed and docketed as a claim against the estate of William Boyl, deceased; the administrator of deceased was made adversary party on the record, and as such appeared and answered to the merits.</p> <p>Held, that if there was any defect in the complaint as to form, in not being against the estate or the administrator, it was cured by the answer.</p> <p>Practice.—Judgment, that the plaintiff recover the amount found by the jury “ of and from the assets of the estate of William Boyl, deceased,” is in effect an “ order of allowance,” under sec. 66, 2 G. & H. 503.</p>

<p>Practice.—The original complaint is superseded by the amended complaint, and the latter must contain copies of the writings sued on.</p> <p>Same—Demurrer.—Demurrer to the answer reaches back to the complaint, but a defect of parties can not be reached in that way; that objection can only be made by demurrer to the complaint.</p>

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

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

<p>Usages oe Tkade.—Local customs may exist and be confined to a particular locality, by which the trade of such place, and the rights and duties of persons engaged therein, may be controlled. Page 402,</p> <p>Same.—To render such a custom valid, to control a general principle, it should be well defined, in general use at the place by those engaged in the business to which it is applicable, and of such standing as to raise a reasonable presumption that it was known to those making shipments to such place; it should be uniform, and so well settled that persons in the trade must be considered as contracting with reference to it. Page 403.</p> <p>Same—Pleading.—Where a usage is set up in conflict with general principles, the averments should bring the case clearly within the rule. Page 403.</p> <p>Same.—A local custom authorizing the local factor in his own discretion, without the assent or knowledge of his principal, to ship goods consigned to him, for sale in his own market, to a factor of his own choosing, unknown to the principal, in a different and distant market, is unreasonable.</p> <p>Same.—A custom of commission merchants in Indianapolis to forward to New York, for sale, flour of a grade unsuitable for sale in the markets of Indianapolis, is void for uncertainty. Page 407.</p> <p>Instructions.—The instructions should be relevant to the issues in the case and pertinent to the evidence given to the jury. Page 409.</p> <p>Agency—Katieication.—When a principal is fully informed of the acts of his agent, it is his duty, within a reasonable time, to either affirm or dis-affirm, and if he fails to do so, affirmance may be inferred from his silence Page 413.</p>

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

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

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

<p>Complaint—Verdict.—Complaint upon a note demanding judgment for $500 ; trial and verdict for $505.99; motion for a new trial because the verdict was more than was claimed in the complaint. Motion overruled, and j udgment on the verdict.</p> <p>Held, that the substantial rights of the parties were not affected by the matter in question. Page 430.</p> <p>Practice—Statutes Construed.—Sections 99, 10Í, 380, and 580 of the code were intended to silence, in the Supreme Court, every objection which did not go to the merits of the controversy, and render unavailing every merely technical point which formerly could have been urged here. Page 431.</p> <p>Adverse Possession.—A conveyance of land at the time held adversely by another, is void as against the person holding adverse possession. Page 483.</p> <p>Same—Execution Dependant.—The possession of the execution defendant shall not be deemed adverse to the purchaser from the sheriff, and the purchaser’s conveyance is valid to transmit to his vendee whatever estate was acquired by the purchase. Page 433.</p> <p>Verdict—Evidence.—A case must be very clear to justify the Supreme Court in disturbing the verdict on the ground that it is contradictory to the evidence. Page 433.</p>

<p>Tax Title.—The statute provides that the conveyance hy the auditor of land sold for taxes shall he conclusive evidence that the sale was regular, according to the provisions of the statute. But the steps necessary to vest the power of sale in the collector must, it seems, he proven aliunde the deed of conveyance.</p>

<p>Railroad Company—Service.—Suit against the railroad company, before a justice of the peace, for killing stock. The summons was served, ten days before the return day, on a conductor. On the return day the defendant specially appeared, and brought to the knowledge of the justice, by affidavit, the fact that the principal office of the railroad company was not in this state, and thereupon moved to set aside the process and service as insufficient, and dismiss the cause. This motion was overruled; and, on motion of the plaintiff, the justice continued the cause, and fixed a time for trial twenty-eight days thereafter. Defendant made default at the trial, appealed to the Circuit Court, and renewed his motion, which was again overruled. *</p> <p>Held, that this question was decided against appellant in the case of the Michigan and Southern, etc. Railroad Company v. Shannon, 13 Ind. 171, and reaffirmed in the case of the Ohio and Mississippi Railroad Company v. Quier, 16 Ind. 440, to which rulings the court adheres.</p> <p>Meld, also, that the continuance of the cause was sufficient notice to the defendant.</p>

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

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

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

<p>Replevin.—The levy of an execution gives to the officer, while the execution remains in his hands, such a special property in the goods levied upon as will enable him to maintain replevin for them, or defend the possession thereof against one not the owner.</p>

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

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

<p>Appeal—Final Judgment.—An affidavit was filed against A, as garnishee in proceedings in attachment, which, in addition to the other requirements of the statute, stated that plaintiff feared he would abscond before judgment, etc. The required bond was filed; an order of arrest was issued, upon which A was arrested and gave special bail. The court, on motion, set aside the order of arrest, discharged A therefrom, and from his recognizance of special bail, and adjudged that he “recover his costs and charges in this behalf laid out and expended.”</p> <p>Held, that the judgment for costs was not the final judgment terminating the cause, from which an appeal would lie.</p>

<p>Instructions.—It is no objection to instructions given by the court that they entirely withdraw from the jury questions raised by the pleadings, but wholly unsupported by the evidence.</p>

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

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

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

<p>Practice—Continuance.—It is the duty of a party taking an appeal from a ' justice to see that a proper transcript is filed, and the fact that a perfect transcript was not filed ten days before the first day of the term, will not entitle the party taking the appeal to a continuance.</p> <p>Same—Costs.—The costs resulting from a continuance granted on account of the absence of a witness, should be taxed to the party to whom the continuance is granted.</p> <p>Practice in the Supreme Court.—An alleged error in the trial of a cause by a jury of eleven men, if not assigned ás á reason for new trial in the court below, will be deemed to be waived in the Supreme Court.</p>

<p>Contract.—A ,and B entered into a written contract, by which A sold to J3 a tract of land, and B agreed to resell the land to A at any time before January 1, 1858, for $500, or to pay A whatever sum above $500 “ the land would fetch, between this date (March 11, 1857) and January 1, 1858, with one reasonable payment.”</p> <p>Hold, that an instruction of the lower court, interpreting the contract as meaning that, unless $500 cash was realized before January 1, 1858, A " would be entitled to nothing under its provisions, was erroneous.</p> <p>Witness.—The court, on motion of the defendant’s counsel, stopped the plaintiff while testifying as to matters alleged in his reply, and proper to be given in evidence. No reason appears in the record for the action of the court.</p> <p>Held, that it was erroneous.</p>

<p>New Tbiad—Newdy-discovebed Evidence.—Where the record does not contain the evidence given on the trial, the Supreme Court will not hold the refusal of a new trial on account of newly-discovered evidence to be error; for it can not be known how far such newly-discovered evidence may be merely cumulative.</p> <p>Same.—The statute requires more than the mere affidavit of the party in an application for new trial because of newly-discovered evidence.</p>

<p>Costs.—In all civil cases, the party recovering judgment shall recover costs, except in those cases where a different provision is made hy statute. Page 475.</p> <p>Evidence.—The declarations of a party to a suit, made when the other party is not present, are not competent evidence in his own behalf. Page 476.</p> <p>Same—Intention.—Intention can only be shown by circumstances from which it may be inferred. It is not competent for a party to testify as to his own intention during a transaction, to show that a conveyance is not a mortgage, but a deed. Page 476.</p> <p>Landlord and Tenant—Estoppel.—The law requires that while the tenant holds by permission of the landlord, he shall not question flie title of the latter; but after surrendering.the possession, he is at full liberty to assert the truth. Page 476.</p> <p>Complaint.—The complaint alleges that the conveyance was given to secure a loan of money, payable in a year; that a part of the sum secured was usurious interest; that after, the debt became due, the defendant claimed absolute ownership of the land, and denied the plaintiff’s right to redeem.</p> <p>Held, that these allegations are sufficient to warrant plaintiff in going into court to quiet his title. Page 477.</p> <p>New Trial.—The statute, sections 601-602, 2 G. & H. 283, does not require a motion for new trial in an action to recover the possession of real property to be in writing, and yet it would probably be better to require all such motions to be in writing. Page 477.</p> <p>Same—Action to Quiet Title.—In actions to quiet title, the rules prescribed for actions to recover the possession of real property shall be observed so far as they are applicable; and one of these rules is, that .a party shall have a new trial, without showing cause, upon his application, and upon the payment of all costs, and the damages, if the court shall so direct. Page 477.</p> <p>Same—Costs.—The statute, 2 G. & H. 283, sec. 601, which gives the right to a new trial in actions to recover the possession of real property without showing cause, does so upon the inflexible condition of the payment of all costs, and the Circuit Court has no discretionary power to dispense with this condition without the consent of the adverse party. Page 478.</p> <p>Same.—The statute contemplates that the payment of the costs on a motion for new trial, under sec. 601, 2 G. & H. 283, shall be final, and the court has no power to order that the party against whom the suit is finally determined shall be liable for tile amount. Page 479.</p>

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

<p>Complaint—YYkitten Instrument.—In a suit for the purchase money on a written contract for the sale of land, where the complaint avers performance of the contract on the plaintiff’s part, and the tender of a deed, the action is not founded upon the deed, and a copy thereof need not he filed with the complaint.</p> <p>Boundaries—Monuments.—The rule is well settled that in ascertaining boundaries, visible monuments, such as stones, trees, stakes, and the like, are held to control other designations not obvious to the senses. Page 486.</p> <p>Time—Rule at Law.—A suit at law, under the old practice, could not be maintained for the recovery of. an installment of purchase money, upon the payment of which the deed was to be made, if the deed had not been tendered on the day tho installment became due. Page 486.</p> <p>Practice under the Code.—The code substitutes one form of action for those previously existing at law, and for the bill in equity, but no change is made in the rights of parties, and the same essential facts to obtain relief must be alleged and proved now as before. Page 487.</p> <p>Time—Specific Performance—Rule in Equity.—In suits for specific performance in equity, time is regarded as waived, when the conduct of the defendant is such as to justify the inference that he has acquiesced in the delay; and his continued possession, under the contract of purchase, and refusal to surrender the possession to the vendor, have always been held sufficient to show this acquiescence. Page 488.</p> <p>Specific Performance—Complaint.—In a suit for the purchase money, on a written contract for the sale of lands, an averment in the complaint “ that the defendant has taken possession, under the contract, of the land sold, and still holds the same, and refuses to surrender it to plaintiff,” is sufficient to entitle plaintiff to relief in equity. Page 488.</p> <p>Same—Answer.—Where the answer in such suit avers that defendant has always been, and still is, ready and willing to pay according to the contract, upon the presentation of a sufficient deed, but denies that such deed was tendered conditionally, when the purchase money became due, according to the contract, instead of being an answer to the complaint, it fortifies and supports it. Page 488.</p> <p>Contract—Lease.—Where the contract of sale stipulated that the defendant “is to have the benefit of the West house to live in, and to be charged no rent while he was working for the mill,” it was not necessary that the deed tendered in pursuance of the contract should contain a clause embracing such stipulation. The written contract was itself a sufficient lease of the house. Page 489.</p>

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

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

<p>Pleabing.—Matters in mitigation only, except in actions, for libel and slander, can not be specially pleaded, or set up by way of answer, but may be given in evidence under the general denial. Pago. 502.</p> <p>Replevin Bonbs—Mitigation op Damages.—Where there was a final trial, in a replevin suit, and a judgment against the defendant for the return of the property, he can not, in a suit upon the replevin bond, for a failure to return the same, avoid a recovery of its value, by showing that it was the property of a stranger. Page 504.</p> <p>Evibence.—In a suit upon a replevin bond, where the answer was a general denial, the plaintiff should give in evidence the undertaking sued on to entitle him to recovery. Page 504.</p> <p>Bill op Exceptions.—The undertaking sued on is not copied into the bill of exceptions, but it is copied into that part of the record containing the complaint, and the bill of exceptions contains the statement, “The plaintiff, to sustain the issue on his part, introduced in evidence the writing and judgment mentioned in the complaint,” and no other writing than, the undertaking sued on is mentioned in the complaint.</p> <p>Held, that as a copy of the undertaking is set out in the record with the complaint, a reference to it in the bill of exceptions is sufficient, and dispenses with the necessity of again copying it into the record.</p> <p>E'eld, also, that the bill of exceptions is defendants’, and is presumed to have been prepared by them, or by their attorney; it admits the writing was given in evidence, and if it was necessary that it should be copied into the bill of exceptions, it was the duty of the draftsman to do it, and the defendants can not be heard to complain of the neglect. Page 505.</p>

<p>Distribution—Widow—Practice.—Suit for the conversion of a promissory note. The second paragraph of the complaint avers that the note was the property of the husband of plaintiff, who died leaving property worth less than §300; that the plaintiff had filed her petition in the Court of Common Pleas alleging that fact; that appraisers had been appointed, etc., who had returned an inventory and appraisement of such property, including the note, amounting to §289; and that the proceedings upon her petition were yet pending; that the note was obtained by the defendant wrongfully, etc.</p> <p>JSeld, that the order of the Court of Common Pleas, ordering the delivery of the property to her, was necessary to give her title thereto.</p> <p>Held, also, that the suit was brought prematurely, and a demurrer to the paragraph should have been sustained.</p>

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

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

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

<p>Contract—Condition.—A sued B upon a note for iglOO, payable “on condition that B shall be accepted as a substitute for A, who has been drafted to serve in the United States army for nine months, subjecting himself to all the duties and obligations required of A.” The defendant answered that plaintiff was not accepted as a substitute as set forth and required by the conditions of said note, nor did he offer himself as such substitute, but refused to do so, and fraudulently procured one 0 to be presented and accepted as a substitute for B, and that 0 immediately thereafter deserted from said service, without serving one-tenth part of said term of nine months, etc., and that B fraudulently aided and advised said O to desert. Held, that the contract sued on in this case is one of substitution merely, and the condition was complied with by the act of being mustered into tho service</p>

<p>Practice.—An appeal from an order of a board of commissioners to the Circuit Court is properly dismissed when no papers are on file.</p>

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

<p>Bra. oe Exchange—Waivek.—A bill of exchange contained the following waiver: “Notice, demand, protest, and due diligence waived on account of the war and insurrection.”</p> <p>Held, that the waiver is absolute, and the fact that the reasons, on account of which the waiver is given, are stated;' is immaterial.</p> <p>Held, also, that the liability of the indorsers was fixed by the dishonor of the bill, and after waiver of notice they can not complain of delay.</p> <p>Held, also, that no consideration is required for a waiver of notice.</p>

<p>Surveys—Monuments.—It is a rule, subject to few exceptions, that the monuments of a survey control the distances. Page 527.</p> <p>Streets—User.—Where a street has been dedicated to public use by recording the plat, if there is uncertainty as to its boundaries, in the first instance, the subsequent user by the public for a long period of years would of itself mature into a right. Page 527.</p> <p>Cities—Annexation.—-Where several pieces of platted territory do not all adjoin a city, but adjoin one another, and.one of them adjoins a city, they may all be annexed at the same time, under sec. 50, 1 G. & II. 630. Page 528.</p> <p>Cities—Lots.—Subdivisions marked on the plat with the view to impress upon them the character of urban as contradistinguished from rural use, are to be regarded as “lots” in the meaning of the statute. Page 528.</p>

<p>Bond of Indemnity.—Suit upon a bond in the penal sum of $3,000, with the following condition : “ Whereas A and B have this day dissolved partnership, and A has purchased all the interest of B in the said business, and is to collect all the outstanding claims in favor of said firm, and pay all debts of every kind against said firm; now, therefore, if A, or his representatives, shall pay all of said demands against the said firm of A and B, and save said B and his sureties and indorsers on account of said firm harmless, then this obligation is to be void, else to remain in ■full force.” Held:</p> <p>1. Time of Payment.—Where no time of payment is provided for, the law requires payment to be made immediately, or as soon as the debts become due. Page 530.</p> <p>2. Measure of Damages.—When the instrument deviates the least from a simple contract to indemnify against damage, even where indemnity is the sole object of the contract, and where, in consequence of the primary liability of other persons, actual loss may be sustained, the measure of damages is actual compensation for probable loss. Page 530.</p> <p>3. Same—B could have recovered against A the entire unpaid partnership debts existing at the date of the execution of the bond. Page 530.</p> <p>4. Pasties—The creditors of the firm are entitled to the benefit of the covenant between A and B. Page 531.</p>

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

<p>Railroad Companies—Injury to Animals.—Where animals are -killed by the train of another corporation, running in its own name and in its own behalf, and under its control, over a part of the track of the defendant, the owner of the road, under a contract for that purpose between the two corporations, the company owning the road is liable under the statute.</p> <p>Jurisdiction.—In local actions, where the court -was competent to entertain the questions involved, objection to the jurisdiction will -be deemed waiv.ed unless taken by demurrer or answer.</p>

<p>Bastabdy—Evidence.—Where proceedings in cases of bastardy are instituted against the administrator of the estate of the putative father, the mother is a competent witness.</p>

<p>Pleading—Written Instruments.—Where a pleading is founded on a written instrument, and the original or a copy is not filed, the defect may he reached by demurrer.</p> <p>Same—Former Adjudication.—An answer setting up a former adjudication must he accompanied hy a complete record of all the pleadings and proceedings of the case in which it is founded.</p>

<p>PeA-CWCe.—A party who takes an appeal from a justice of tie peace, and submits to a trial of tbe case on tbe merits in tbe Circuit Court, can not, in tbe Supreme Court, rely on any errors that may have been committed in tbe trial before tbe justice.</p>

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

<p>APP.EAL from the Fayette Common Pleas.</p>

<p>APPEAL from the Warren Circuit Court</p>

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

<p>Guardian—Bond.—It is the duty of 'the Court of Common Pleas to require a guardian to execute an additional bond, if the first bond given by him was in a sum too small to cover the assets in his hands, or to remove him. Page 553.</p> <p>Same.—The guardian, having voluntarily executed such additional bond, can not be discharged from its obligations, because he was not compelled to execute it by the order of the court. Page 653.</p> <p>Bond—Execution oi\-—Where the name of the surety was not in the body of the bond, Ms signature thereto was sufficient.</p> <p>Judgment against Guardian.—In a suit against a guardian on his bond, the court in its judgment added ten per cent, damages on the amount found against the guardian, and ordered the judgment to be collected without relief from valuation laws.</p> <p>ffeld, that this was right. Page 554.</p>

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

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

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

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

<p>Devise.—Hunter died, leaving a widow, a daughter, and an adopted son. He devised the land to the son on the following conditions: 1. That he should live with the widow, and be obedient and kind to her, until ho was twenty years of age. 2. That the expenses of his education, from the time he should become eighteen till he reached the age of twenty years, should be defrayed without expense to the widow, or out of the land devised to him. 3. Should he die childless, the land should belong to the daughter or her heirs. The control of the land was given to the widow till the son should reach the age of twenty years. The land was sold by the son’s guardian, in due form of law, to defray his maintenance and education, he being at the time about sixteen years old. The son died childless in October, 1861.</p> <p>Held, that during his lifetime, the son held a fee-simple conditional in the land, and dying childless there was a failure of the condition, and by the will the estate went to the heirs of the daughter by executory devise.</p> <p>Held, also, that the charge upon the estate for the maintenance and support of the son, was simply a lien on the land, to be enforced by the executor, in order to raise funds for the specific purpose, or in case of his neglect, by a proper suit on behalf of the beneficiary. But to any such suit the heirs of the daughter must have been parties, or their title would not have been effected thereby.</p>

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

<p>Pdeading—Judgment.—Where a pleading is founded on a judgment of a justice of the peace, a copy of the judgment must be filed therewith.</p> <p>Evidence.—Where a paper, purporting to be the record of a judgment before a justice of the peace, but not signed by the justice, was offered in evidence, it was properly excluded. Sec. 58, 2 G. & If. 592, requires judgments of justices of the peace to he entered and signed.</p>

<p>Comedaint—Indemnity.—The complaint avers that McMahan was the owner of five-tenths of a steamboat, her engines, tackle, and apparel; that Stewart was the owner of two-tenths of the same; that the value of the boat was $560,000, and her indebtedness amounted to $40,000; that Mc-Mahan sold his five-tenths to Stewart, subject to the indebtedness of the boat, and that Stewart gave to McMahan his four acceptances of $51,250 each therefor, and agreed to save him harmless from all payments and expenses on account of the indebtedness of the said boat; that Stewart had failed to indemnify him, etc. The bill of sale reads: “I, John McMahan, do hereby sell and convey to George W. Stewart five-tenths of the steamer New Tíñele Sam, as she now is, subject to the present indebtedness of said boat,” etc. Demurrer to the complaint sustained by the court below.</p> <p>Held,, that the action of the court below in sustaining the demurrer, was erroneous.</p> <p>Held, also, that when the payment of a certain amount 'of liens is a part of the consideration of the sale of property, the right of the vendor, who has been compelled to pay the same, to his personal action for that amount, can not be denied.</p> <p>Evidence—Consideration.—Verbal evidence is admissible to show the true consideration of a "written instrument.</p>

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

<p>Sheriee’s Sale.—Gross inadequacy of consideration, with any departure from duty on the part of the sheriff, which may prove injurious to the rights of the execution defendant, in the sale of property, will authorize the court to set aside the sale. Page 602.</p> <p>Same.—AVhere the execution defendant paid the principal and interest of the decree, and requested the plaintiff to notify the sheriff that the costs would he paid when called for, and the sheriff was so notified, and ordered, by the execution plaintiff to proceed no further with the sale, and the sheriff sold the mortgaged premises, worth $7,000, to the attorney of the execution plaintiff for the costs, ($16,) and no person was present on the part of the execution defendant at the sale; and where the thirty-two feet of ground sold was part of the ground on which was standing a three-story brick hotel, sixty-two feet' front, and the ground sold terminated in the midst of the rooms in each story, and the property could have been divided in other ways without such injury:</p> <p>Held, that where a sale is made for costs simply, and the officer aots for his own benefit, the court will scan his conduct with severe scrutiny, and afford prompt relief from official injustice or oppression.</p> <p>Held, also, that when the purchaser is the attorney of the execution plaintiff, he is not entitled to the consideration which, in a case of less hardship, might bo accorded to a purchaser without notice of all the facts.</p> <p>Held, also, that it was the duty of the sheriff to have informed himself of the condition of the property he was about to sell to realize his costs; and it was an abuse of official discretion to sell the property so as to divide the rooms through every story of the building, when the debt could have been made without such injury.</p>

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

<p>Guardian’s Bond.—On a bond given by a guardian under the statute of 1843, he and his sureties are liable for all the personal estate or moneys of - the ward that may have come into the guardians hands, except such as may have been received from the sale of the ward’s real estate, made on the application or petition ctf the guardian. Page 609.</p> <p>Same—Statute Construed.—The 13th section of the act touching the relation of guardian and ward, malees seo. 163, 2 G. & H. 531, applicable to suits on bonds of guardians, and under it, in such suits, ten per cent, damages should be added to the amount found to be retained by the guardian. Page 611.</p> <p>Same—Statute Construed.—The act of 1858, 2 G. & H. 220, providing that judgments for money collected or held in a fiduciary character shall be ' collected without benefit of valuation or appraisement laws, is applicable to bonds executed before as well as after its passage. Page 611.</p>

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

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

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

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