Volume 24 — Indiana Reports

<p>APPEAL from the Huntington Common Pipas.</p>

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

<p>Usury — Proving Foreign Statute. — Suit upon promissory notes reserving interest at the rate of ten per cent. Answer that the notes were made and delivered in the State of New York, and not in the state of Michigan, where they bore date; that by the laws of New York seven per cent, interest only could be taken or reserved, and if a greater rate of interest should be reserved, such note was void. Two sections of the law of New York were set out, the first fixing the legal rate of interest at seven per cent., and the second providing that when a greater rate “than as above described" was reserved, the contract should be void. On the trial of the cause, the second section only of the law of New York was given in evidence, and judgment was given for the principal of the notes and interest at the rate of six per cent.</p> <p>Held, that as the section of the law of New York given in evidence, did not show what the legal rate of interest in that state was, the judgment of the court was not erroneous.</p>

<p>Mortgagee — Purchaser in Good Faith. — The mortgagee who takes a mortgage in good faith to secure a pre-existing debt, is entitled to be regarded as a purchaser for a valuable consideration, and to be protected as such. Page 20.</p> <p>Junior Mortgage. — A holder of a junior mortgage is not bound to pay off a prior incumbrance, unless he expressly agrees to do so.</p>

<p>Cgvexant eoh Rent. — A covenant for the payment of rent, whether it be made by the grantee of lands in fee, reserving rent to the grantor, or by a lessee for a term, belongs to that classiof covenants which are annexed to, and run with, the land. Page 25.</p> <p>Same. — The land itself is the principal debtor, and the covenant to pay rent is the incident. It follows the land upon which it is chargeable into the hands of the assignee, and the lessor has his election either to sue the lessee on his covenant., or to follow the land in the hands of his assignee. This rule is not changed by the statute of this state regulating the relation of landlords and tenants, (2 O. & II., sec. 17, p. 360.) Pago 25.</p> <p>Same. — The administrator of a deceased tenant cannot, by selling and assigning the lease, relieve himself from the obligation to pay rent accruing subsequent to the death of his intestate.</p> <p>Mistake op Law. — A mistake, purely of law, is no ground of relief in equity, but it may be accompanied by such circumstances as will entitle the party to relief. Page 28.</p>

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

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

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

<p>New Trial. — Cumulative Evidence. — Under our statute, a party to an action may testify in his own behalf, but he is not bound to resort to his own evidence, and may have a continuance for an absent disinterested witness to material facts, known to himself; but if he becomes a witness for himself, he stands as all other witnesses, except as to his credibility, and is not entitled to a new trial for newly discovered cumulative evidence of facts testified to by Mm on the trial.</p>

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

<p>Demurrer to Part op Paragraph. — Under our present practice, a demurrer will not lie to a part of a paragraph, of a pleading, but, regarding each separate breach assigned in a complaint on an administrator’s bond, taken in connection with the introductory averments, as a separate paragraph, containing a distinct cause of action, a demurrer may be properly filed to each breach.</p> <p>Executor’s Bond — Liability op Surety. — The surety on the original bond of an executor is not liable for the misappropriation of money received from the sale of real estate, unless such sale was directed by the will.</p>

<p>Deaft — Substitute.—Suit upon a note and to foreclose a mortgage. Answer, that tlie defendant liaving been drafted to serve in tbe army for nine months, agreed with the plaintiff to pay Mm §300 if lie would go as Ms substitute, and serve the United States as a soldier for nine months, and executed to him the note sued on for a part of said sum; that the plaintiff, after remaining in camp a few weeks, deserted and fled to parts unknown.</p> <p>Held, that a demurrer to the answer was correctly overruled.</p> <p>Held, also, that though the defendant was released from the effect of the draft by the acceptance of the plaintiff as his substitute, he was also interested that the plaintiff should serve the country as a soldier, as he had agreed, and was entitled to defend on failure of this part of the consideration.</p>

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

<p>Parties. — Witnesses.—The exception to the law allowing parties to testify in their own behalf, which excludes such testimony “in all suits where an executor, or administrator, or guardian is a party,” &c., (2 G. & II. 163, note,) does not apply to an action against the heirs of a decedent to recover real estate or declare a trust, though one of the defendants is an infant, and answers by guardian ad litem.</p> <p>Resulting Trust. — When an estate is purchased in the name of one, with money belonging to and paid by another, a trust results in favor of the party to whom the money belonged, and this trust, thus implied by law, cannot be defeated by the fact that it was orally declared and acknowledged by the parties.</p> <p>Same. — The statute of trusts and powers, (1 G. & II. sec. 6, 8, p. 651,) expressly admits a trust where a conveyance of land is made to one, the consideration being paid by another, if by agreement, without any fraudulent intent, the party to whom the conveyance was made was to hold the land in trust.</p>

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

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

<p>On the 3d of March, 1800, A filed a transcript of a record in the Supreme Court, and procured a supersedeas; about a year afterward the court affirmed the judgment, with damages. Some two years later, the judgment remaining uncollected, a transcript of the same record was again filed, and another supersedeas obtained. Plea to the assignment of errors, the former judgment of this court.</p> <p>Held, that the proper judgment is a dismissal of the appeal, at the appellants’ costs, but that damages, as on the affirmance of a cause, cannot be awarded.</p>

<p>The statute prohibiting sales of liquor to minors was not intended to make the vender liable criminally, in cases where, upon the exercise of every reasonable caution, he should yet be imposed upon as to the age of the buyer, and should sell to him in perfect good faith.</p>

<p>Adverse Possession. — To constitute an adverse possession of lands, so as' to bar a recovery, or to avoid a deed subsequently executed by the true-owner, the party setting up the possession must, in making his entry' upon the land, act in good faith, and in the belief that he has title thereto, and his possession must bo under color and claim of title, exclusive of' any other right.</p> <p>Transfer of Interest Pendente Lite — Practice.—Pending a suit for the-recovery of real estate, in which the plaintiff claimed to be the owner of' an undivided interest only, he purchased and took a conveyance of the-remaining interests, and filed an amended complaint, alleging the entire-title to be in him. On the trial, objection was made to the introduction in-evidence of the deed executed to the plaintiff pending the suit, but no-particular objection was pointed out.</p> <p>Held, that under such circumstances no advantage can be taken in the Supreme Court of the action of the court below in admitting the deed. in. evidence.</p>

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

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

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

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

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

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

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

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

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

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

<p>Sale oe Liquor to Minors — Evidence.—In a prosecution for selling intoxicating liquor to a minor, tile defendant asked the prosecuting witness to whom the liquor was alleged to have been sold, whether he had not voted at the general elections for two years past.</p> <p>Held, that the evidence sought by the question was proper: 1st. To impeach the statement of the witness that he was a minor; and, 2d, as tending to show that defendant sold the liquor in the bona fide belief that the party was of age.</p>

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

<p>Army Regulations. — The army regulations are, by the act of Congress of' August 23, 1842, made the law of the land. Page 118.</p> <p>Contract Against Good • Morals — Infancy.—A and B entered into a-partnership with C, who was an assistant quartermaster of the United. States, by which they were to furnish forage for the use of the army, which was to be purchased of the firm, and inspected and received by C, as-such quartermaster. At a settlement of the business, the profits of each partner being ¡£1300, B, in whose hands they were, paid over to C the share of A to be delivered to him by C. Suit by A, alleging a conversion of the-money by C.</p> <p>Held, that, as the contract was in contravention of good morals, and based on the corruption of a public officer, the court cannot lend its aid to enforce it, but must leave the parties as it found them.</p> <p>Held, also, that the corruption of the transaction still tainted the fund in the hands of C, though the partnership business had been closed, and A’s action to recover it cannot be sustained.</p> <p>Held, also, that a plea of infancy by C was good, as the bailment was of money generally, and not of specific bills or coins, and the failure to pay over was only a non-feasance.</p>

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

<p>Rescission. — A sold to B a shop for $250, receiving $100 of the price in hand, the residue to be paid on a certain day. B failed to pay the balance of the price, and A sold the shop to another person. Suit by B to recover the $100 paid.</p> <p>Held, that the second sale by A was a rescission of the sale to B, and having rescinded, A could retain no benefit derived from the contract, and was liable to refund the money paid by B.</p> <p>Held, also, that if A suffered any damage by B’s failure to complete his contract, he might have set up such loss as a counter-claim to the action.</p>

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

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

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

<p>Verdict. — The verdict of a jury, when returned into court, and filed by the clerk, becomes a paper pertaining to the cause, and a part of the record, without being copied into the order book. .</p> <p>Lost Verdict. — A lost verdict, like any other paper forming a part of the record, may be supplied by a proved copy.</p> <p>Dismissal after Retirement of Jury. — The plaintiff has no right to dismiss his case, to the prejudice of the defendant, at any time after the jury retires to consider of their verdict.</p>

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

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

<p>Attorney General. — The Attorney General, alone, is authorized by law to prosecute and defend criminal or state prosecutions in the Supreme Court. Page 144.</p> <p>Bill op Exceptions in -Criminal Cases. — In criminal prosecutions, the bill of exceptions must be made out and presented to the judge at the time of the trial, or within such time as the court may allow, during the term. Page 144.</p> <p>Same. — The legal presumption is that the judge signed the bill of exceptions when presented, and that it was filed by the cleric when signed. Inbiotment. — An indictment becomes a part of the record when filed, without any further action of the court.</p> <p>Granb Jury. — The consultations of the grand jury are, by law, secret, and it is not competent to inquire into the amount of evidence on which they acted.</p> <p>Same — Instructions To. — It is the duty of the court to instruct the grand jury, but a failure to do so does not affect the validity of their presentments.</p>

<p>Practice — Amicus Curias. — On the filing of the report of the viewers before the commissioners, in a proceeding for the location of a highway, A appeared as a friend of the court, and asked to file the dismissal of one of the petitioners; and to show by affidavit that another of the petitioners was not a resident of the county.</p> <p>Held, that as A was not a party to the record he had no right to be heard in the case at that time. Page 147.</p> <p>Roads — Petitions for. — Jurisdiction of Board. — On the trial, in the circuit court, of an application for the location of a highway, the defendant filed the affidavit of one of the petitioners that he was not a resident of the county at the time of signing, &c., and moved the court to dismiss the cause, on the ground that twelve resident freeholders of the county had not signed the petition.</p> <p>Held, that as the objection did not appear on the face of the petition, it should have been presented by plea in abatement, and not by motion; and even if raised by plea it would have been too late, under sec. 54, 2 G. &H. 81. Page 148.</p> <p>Held, also, that before a county board can take jurisdiction of an application for the location of a highway, it must appear, 1st, that notice of the application has been given; 2d, that twelve freeholders of the county have signed the petition; and 3d, that six of the petitioners are of the immediate neighborhood of the road. Page 149.</p> <p>Held, also, that any one interested may appear and contest any of these jurisdictional facts, but the finding and judgment of the board upon these points, when entered of record, is conclusive in such case. Page 150.</p> <p>Held, also, that the dismissal of the petition, by one of the twelve petitioners, will not oust the jurisdiction after it has once attached. Page 151.</p>

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

<p>Pleading — Former Recovery. — A judgment on a demurrer to a good answer, in favor of the party pleading it, is a bar to a subsequent suit for the same cause of action. Page 158.</p> <p>Same. — That new matter is introduced in the second suit does not prevent the former recovery from operating as a bar, to the extent of the points involved in the former case. Page 159.</p>

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

<p>Railroads. — Fences.—Suit against the railroad company for killing stock. The complaint alleged that the fence along the road took fire, and the servants of the company, to extinguish the fire, threw down a gap in the fence, which was negligently left open, &c.</p> <p>Held, that the circumstances alleged were equivalent to an averment that the railroad fence was not properly maintained.</p> <p>Held, also, that if the road was securely fenced, and the fence was accidentally destroyed by fire, and was rebuilt within a reasonable time afterward, the company was not liable for the injury.</p> <p>Held, also, that the court correctly refused to instruct the jury, “that the fact that hands of the company working in the gravel pit had notice of the defect in the fence, would not hind the company, hut that such notice must have come to some person or agent connected with keeping up the fence, or to some agent of the company.”</p>

<p>Deed — Recoed of. — A executed to B a deed for certain real estate, which was not put on record for more than a year. After the making of the deed, but before it was recorded, C recovered a judgment against A, upon which D became replevin bail, neither of them having any knowledge of the unrecorded deed, and D having entered himself as bail on the judgment in the belief that the land belonged to A. Suit by C and D to subject the land, alleging the insolvency of A.</p> <p>Reid, that C acquired by his judgment no lien on the land, because A had then no interest in the land to which the judgment could attach, and the failure of B to put his deed on record could give to C no interest in, or lien on, the land.</p> <p>Reid, also, that D could occupy no better position than the judgment plaintiff, and if the deed was valid against him, it was also valid against the replevin bail.</p> <p>Reid, also, that construing secs. 11 and 16 of the act concerning real property, 1G. & H. 259, 260, together, they must be held to mean that a deed not recorded within ninety days is void only as to a person who has, without notice, in good faith, and for a valuable consideration, acquired a legal interest in the land.</p>

<p>In the year 1856, tlie city council of tlio city of Terre Haute passed a resolution extending the city limits, by annexing thereto certain contiguous territory. Suit by the owners of the lots so annexed to enjoin the collection of taxes assessed by the city.</p> <p>Held, that any defect in the proceedings of the council was cured by sec. 83 of the act of March 9, 1857, for the incorporation of cities, 1 G. & n. 239.</p>

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

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

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

<p>Condition — Waives or.. — Where money is stipulated to be paid upon a condition expressed, and, subsequently, a promissory note is given for the amount, payable without condition, the condition must, in the absence of fraud, be regarded as waived.</p> <p>Insteuctions. — Instructions based on a hypothetical case, where there is no evidence tending to make the case supposed, are out of place, and ought not to be given, as they are only calculated to mislead the jury.</p> <p>Peomissoey Note. — Veebal Condition. — A verbal condition cannot be annexed to a promissory note, or other written contract. A verbal contract may constitute the consideration of a written contract, but a note for a given amount cannot be trammeled with a verbal condition, which shall make it obligatory for a less sum.</p>

<p>Administeatob. — Liability fob Loss by Fire. — An administrator must be hold to adopt such precautions against the loss of property by fire, as prudent men are, under similar circumstances, accustomed to exercise.</p> <p>Same. — Rents of Read Estate. — Ordinarily, an administrator is not chargeable with the rents of real estate accrued during his administration.</p> <p>Executob. — Right to Possession of Real Estate. — Real estate, unless otherwise disposed of, goes to the heirs, and not to the executor, and a mere power given to the executor to sell real estate, does not give him a right to the possession thereof. To entitle him to such possession, the land, or its usufruct, must be expressly given to him by the will.</p>

<p>Satisfaction of Mutuad Ciaims, not in Judgment. — Suit by A against B and C, upon a promissory note made by B. The complaint alleged that B, being insolvent, had, for the purpose of defrauding his creditors, . assigned all of his notes and accounts to C, and among them a note made by A to him. Prayer for judgment against B, and that the assignment to C might be declared fraudulent, and the amount of plaintiff’s indebtedness to B be allowed as a set-off on the note sued on. On the trial, it appeared that C was the attorney of B, and that the assignment of the note against A was in trust to collect the same, and apply the proceeds pro rata upon the domestic debts of B. None of the creditors had been consulted, and but one of them assented to the arrangement.</p> <p>Held, that though the note against A, assigned by B to C, must be regarded as belonging in equity to B, yet A was not entitled, before both claims had passed into judgment, to obtain satisfaction of his debt to B, by applying it upon the claim sued upon, without proof of B’s insolvency.</p> <p>Held, also, that the rule in equity is, that such relief will not bo granted, where the claims are wholly disconnected, unless there are some special circumstances, such as the insolvency or non-residence of the defendant.</p>

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

<p>St andes. — Miiior sensus. — The doctrine that, in actions of slander, the words spoken are to be construed in mitiori sensu, has been exploded, and the rule now is, that such words are to be understood according to their plain and natural import, and according to the ideas they are calculated to convey to those to whom they are addressed.</p> <p>Same. — In a complaint for slander, the words charged were, “they have killed my son, and are trying to cheat me out of my land,” the death of the son being averred, and the words being charged to have been spoken of and concerning the plaintiff.</p> <p>Held, that the words were actionable.</p>

<p>Raixeoam. — Fences.—Railroad companies are required by statute to fence their roads, and, construing this law as a police regulation, for tho safety of the public, the fact that a railroad runs along side of a public highway would seem to require peculiar care on the part of the company in complying with the law.</p>

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

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

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

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

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

<p>Replevin. — Suit on Bond. — Where the right of property has been tried in an action of replevin, it becomes ns adjudicata, and cannot, nor can any other issue tried and determined in such suit, be again put in issue in an action on the replevin bond.</p> <p>ABSTRACT.</p> <p>This is a suit brought by the plaintiff’ below on a ■replevin bond. The appellant, defendant below, filed his . answer, setting up, among other things, that the Stantons, the execution defendants, and from whom he purchased the property replevied, had other property subject to exeeu•tion in their possession, to the amount of $3000, none . of which had been sold at the time the said execution came ■into the hands of Reynolds, the sheriff’; and that Reynolds, with a full knowledge of all these facts, and with a full knowledge iof the sale of the property, levied upon and took from appellant said property; that since the levy was made, the said sheriff Reynolds permitted the said Stanton to take out of this state all of said property, and that said Stantons are now insolvent, and appellant is without remedy, caused by the negligence of said sheriff Reynolds. To this answer, the plaintiffs below demurred, the demurrer was sustained, and appellant excepted, and this ruling presents the only question in the case. Appellant insists 'that this answer showed a state of facts which entitled him to the relief demanded.</p>

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

<p>Justice. — Jurisdiction.—In an action before a justice of the peace, the footing of the account filed as the basis of the action was $200, but a correct addition of the items charged was a fraction of a dollar more.</p> <p>Held, that the footing, or sum stated on the account, must be taken to be the amount for which judgment was demanded, and, hence, the justice had jurisdiction.</p> <p>Judge Pro Tempore. — Where a person other than the regular judge has tried a cause below, and no objection was made on the trial to his authority, and the record is silent upon the subject, such objection cannot be raised for the first time in the Supreme Court.</p>

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

<p>Sinking Fund Sales — Taxes.—Where lands mortgaged to the Sinking Fund are offered for sale for the non-payment of the mortgage debt, and are bid in for the State, and subsequently sold, the purchaser is entitled to take the lands freed from all assessments and taxes made or levied between the date of the mortgage and the date of his deed from the State.</p> <p>But where the lands are not bid in for the State, but are taken by a purchaser at the first offer, they remain subject to such assessments and taxes.</p> <p>ABSTRACT.</p> <p>The transcript discloses that on the 6th day of May, 1864, the appellee filed in the clerk’s office of the Court of Common Pleas of Tipton county, her complaint, on the relation of Christopher C. Bowlin, averring and alleging that on the 8th day of May, 1858, one Sylvester Turpin mortgaged to the Sinking Fund the parcels of land in the complaint particularly described, containing some ninety-nine acres, and that, on the 18th day of February, 1864, said lands were sold by the Sinking Fund to one T. W. Phillips, and a deed made to Phillips therefor; that prior thereto, on the 5th day of February, 1862, said lands were sold by the auditor of Tipton county, and bid in by the relator, for the amount due for state and local taxes for the years 1858, 1859, 1860 and 1861, all- of said taxes being levied and collected during the time said lands were under mortgage to the Sinking Fund, and being, as is averred, illegally assessed and collected. The complaint further avers a demand by the relator, on the appellant, to issue his warrant on the treasurer of Tipton county, for the aforesaid sum of money, so paid over by the relator, with interest, which, it is averred, appellant refused to do, and a writ of mandamus is prayed against appellant, as such auditor, to compel him to issue his warrant to the treasurer.</p> <p>Appellant filed his demurrer, alleging for cause that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and appellant failing and refusing to plead over, judgment was rendered in favor of the relator, and that the relator was entitled to an order for the sum so paid, and it was ordered and adjudged that appellant, as auditor of Tipton county, issue his order on said treasurer, in favor of the relator, for the aforesaid sum of money.</p>

<p>Affidavit for Continuance. — An affidavit for the continuance of a cause on account of the absence of a witness whose place of residence is alleged to be unknown, must show that diligence has been used to ascertain the whereabouts of the’ absent witness.</p> <p>Variance. — Promissory Note. — In a complaint upon a promissory note, the note was described as payable to the plaintiff, while the note filed with the complaint, and given in evidence, was payable to “A, or bearer."</p> <p>Meld, that as the variance could have been cured by amendment in the court below, the Supreme Court will, on appeal, regard the amendment as having been made.</p>

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

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

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

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

<p>Costs. — Where the defendant appeals from a judgment rendered by a justice of the peace against him, in an action for a trespass to personal property, and does not reduce the judgment five dollars, he is Itable to a full judgment for costs.</p> <p>Same. — Section 398 of the code, 2 G. & H. 227, which provides that in actions for damages solely, not arising out of contract, if the plaintiff does not recover five dollars damages, he shall recover no more costs than damages, &c., does not apply to such a case.</p>

<p>Statute op Frauds. — A took from B a chattel mortgage, which he failed to have recorded within ton days after its execution. B sold the mortgaged property to C, and took his note for the price. Subsequently, C agreed with A, orally, to surrender the property to him, if he would take up and deliver to him, C, the note given by him to B. A, in pursuance of the agreement, took up the note, and tendered it to C, who refused to surrender the property. Suit by A to recover the value of the property.</p> <p>Held, that the contract between A and C was not a contract of sale, but an agreement on the part of C to waive his claim, and allow A's mortgage to take effect upon the property, and, hence, was not within the statute of frauds.</p>

<p>Injunction. — Pbactice.—Where a restraining order has been granted upon a complaint duly verified by affidavit, and an amended, complaint is afterward filed, the objection that the latter is not supported by affidavit cannot be raised by demurrer. ■ '</p> <p>Exemption. — Where property is claimed' by an execution-debtor as-exempt from sale under executions then in the hands of the sheriff, and-is-set off; to him as exempt, it is relieved from the lien of. the executions-.</p> <p>ABSTRACT.</p> <p>Complaint by the appellee for an injunction, setting up in substance the following facts : That on the 21st day of October, 1856, Boswell C. Benedict and others obtained judgment in the Wells Common Pleas Court, against George McDowell and others, for the sum of $166 83, and that Aduah Mall, the appellant, entered himself replevin bail on said judgment; that afterward, to-wit: on the 15th day of October, 1859, the said judgment and costs were fully paid and satisfied by the levy and sale of the property of said Mall; that on the 13th day of January, 1858, one George Miller recovered judgment in the Wells Circuit Court, against said George McDowell, for the sum of $300 96; that on the 7th day of May, 1858, execution duly issued on said judgment to the sheriff’, and was by him duly levied upon certain real estate, the property of said McDowell. McDowell claimed the land under the exemption act, and it was set off to him. At the time said execution, so issued in favor of Miller, was in the hands of said sheriff, and at the time said property was so set off to said McDowell, the said sheriff held an execution which was issued upon the said judgment in favor of said B. C. Benedict and others. Subsequently, McDowell mortgaged said property to Miller, and Miller assigned said mortgage debt to the plaintiff, who afterward foreclosed the mortgage, had the property sold, and bought it in on execution. That on the 28th day of October, 1861, the said defendant, Mall, caused an execution to issue on said judgment, in favor of B. G. Benedict and others, which was placed in the hands of the sheriff’, DeMasen, and was by him levied upon said real estate, and the same was advertised for sale, &c.</p> <p>Prayer, that the court grant an injunction restraining the further proceedings of defendant.</p> <p>Copies of the records of the judgments above mentioned, upon which plaintiff' bases his title, are not set out in the complaint, nor is the complaint supported by affidavit.</p> <p>Demurrer to the complaint for the following grounds of objection: 1. The complaint does not state sufficient facts. 2. The complaint is not supported by affidavit. Demurrer overruled; motion in arrest of judgment overruled, and defendant excepts. Judgment for plaintiff.</p>

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

<p>Practice — Rehearing.—It is too late to present a question for the first time in the Supreme Court, on a petition for a rehearing.</p> <p>Fixtures. — A erected a mill upon land owned by B; under a parol contract that if B should pay off a certain judgment which was a lien on the land, and should then convey to A an undivided half of the land, he, B, should become the owner of one-half of the mill. Until the judgment was paid mill was to remain the individual property of A. B failed to pay the judgment, and the land was sold upon an execution issued thereon.</p> <p>Held, that after the sale of the land on the execution, the mill, though standing upon the land, was the personal property of A, who had a perfect right to remove it from the land.</p> <p>Held, also, that A had acquired no interest in the land as a purchaser, and his right to remove the mill did not depend upon the law in relation to fixtures erected by him as tenant, but upon the contract, by virtue of which he acted.</p> <p>Witness — Parties.—Now that parties are permitted to testify in their own behalf, they must be held to the same prompt attendance to give their testimony that the law requires of other witnesses.</p> <p>Trover — Measure op Damages. — The measure of damages, in an action for the conversion of personal property, is the value of the property at the time of the conversion.</p>

<p>Conte act. — Will.—A agreed orally with B, in consideration that the latter would continue to live with him as a laborer on his farm, that, in addition to the usual wages for such labor, he would leave to B, in his last will, the sum of $500. Suit by B against the executors of A, alleging that he had continued to live with, and labor for, A, up to the time of his death, and that A had failed to make the promised provision in his will.</p> <p>Held, that the agreement was not affected by the statute of frauds, 1st, because it had been performed by B; and 2d, because it was such an agreement as might have been performed within one year, by the death of A.</p> <p>Held, also, that an action will lie upon the contract against the executors.</p>

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

<p>Information. — In an information in the Court of Common Pleas for murder, the prosecuting attorney informed the court that A B was in custody, and confined in jail, on charge of a felony, without indictment, &c., “ said charge being described as follows:” A description of the crime of murder in the second degree followed, but the information contained no direct averment that the defendant had committed the crime.</p> <p>Held, that the information was bad.</p> <p>Town — Citt.—The word town is generic, comprehending city, and hence the law which makes shooting in a “town or village" a misdemeanor applies to cities.</p>

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

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

<p>Reversing Previous Rulings. — Great caution should be exercised by the Supreme Court in reversing former decisions, which have been received and acted upon as settling the law, and especially when a rule of property would be overturned, and that would be made criminal which had before been adjudged lawful.</p> <p>Same. — It is often better, in such cases, that what is settled should not be disturbed by judicial action, though it may be wrong.</p> <p>Foreign Insurance Companies. — Section 56 of an act entitled “an act for the incorporation of insurance companies, defining their powers and prescribing their duties,” (1 G. & H. 398,) which purports to regulate tho agencies of foreign insurance companies doing business in this state, is unconstitutional, because the subject of the section is not embraced in the title of the act, and is not matter properly connected with the subject expressed in tie title.</p>

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

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

<p>Highways. — It is not necessary, under our statute,, that .the persons remonstrating against, the location, vacation, or change of a highway, should reside immediately on the line of the highway to be located, vacated, or.changed, but it is enough if they reside in the vicinity, .or within such reasonable distance thereof that they would be .affected thereby, in their convenience of travel, or otherwise.</p> <p>Same — Practice.—Where a remonstrance against the location, change, or vacation of a highway, has been received and acted upon by the board of .commissioners, without objection, it is too late, after the case has been taken by appeal to the Circuit Court, to object that the remonstrants were not persons residing along the proposed highway.</p> <p>Same. — The viewers appointed to review a proposed change in a highway, against which a remonstrance had been filed, reported in -favor of the proposed change,, provided the petitioners would, at their own cost, put the new route in. as good condition- as- the old, otherwise against the change. The board of commissioners thereupon ordered that.'when the condition mentioned in the report of the viewers should be complied with, the new route would be established as a public highway. At a subsequent session of .the board, one of the original petitioners filed his petition, alleging that, the condition had been complied with, and asking that the new.route be accepted and established, and, thereupon, the board ordered that the new route be established and kept in repair as a public highway. Within thirty days after this last order, the remonstrants appealed to the Circuit Court,</p> <p>Held, that the appeal was taken in time.</p> <p>Held, also, that the viewers had no authority to make their report in favor. of the utility of the road dependent upon the opening of the.road by the .petitioners.</p>

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

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

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

<p>Nuisance. — The statute provides for an action in favor of any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, and, where a proper case is made, the nuisance may be enjoined or abated, and damages recovered.</p> <p>Injunctions. — Restraining orders and injunctions may be granted, under our statute, whenever it appears by the complaint that the plaintiff is entitled to the relief demanded, and that relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great injury to the plaintiff.</p>

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

<p>Supreme Court. — Jurisdiction.—In a prosecution instituted before the mayor of a town, for a violation of a town ordinance, a fine of $5 was. assessed against the defendant, and on appeal to the Circuit Court a like-fine was again assessed.</p> <p>Meld, that an appeal will not lie to the Supreme Court, the amount in. controversy being less than $10.</p>

<p>Practice. — An application for the correction of a record must be made to the court in which the proceedings were had. If an imperfect or incorrect transcript has been sent up to the Supreme Court, a writ of certiorari will be awarded, upon proper application; but the appellate court must act upon what has been done, and appears of record, below, and cannot undertake to correct the record of the lower court.</p> <p>Evidence. — Record.—A properly certified copy of an affidavit which had been filed in the Supreme Court, as the basis'of a motion to reinstate a case which had been dismissed, was given in evidence against the party who had made it, in an action in the lower court.</p> <p>Held, that as the affidavit was not connected with the case on trial by other evidence, it was irrelevant, and as it could properly have had no influence in the case, it will be presumed that it had, in fact, none.</p> <p>Held, also, that as it did not appear that any motion was made upon the affidavit to reinstate the case, and as the case dismissed was no longer in fieri, the affidavit was not the fragment of a record, but an isolated paper.</p> <p>Witness. — Executor,—In a suit against an executor, upon a contract made with the testator, where the judgment, if the plaintiff should recover, must go against the testator’s estate, the executor is not a competent witness, unless called to testify by the opposite party, or by the court.</p>

<p>Verdict. — A verdict rendered in plain and defiant opposition to all the evidence ought instantly to "be set aside.</p> <p>Highway. — Public Utility. — In determining whether a proposed highway will be of public utility, though it is necessary to consider the wants of the particular neighborhood which desires it, yet the interests of the community outside of such neighborhood ought not to be disregarded.</p> <p>Same. — That cannot be deemed a highway of public utility which, if established, would render unfit for use another of much greater importance, (as, for example, an important line of railway,) or make the transit of passengers upon the latter seriously dangerous.</p> <p>Same. — Even if the ground used for a railway owned by a private corporation might be appropriated, in whole, or in part, for a common highway, under the right of eminent domain, yet it cannot be thus appropriated without being paid for.</p> <p>Highways.— Damages. — In deciding whether a proposed highway will be of public utility, the damages which, if it were established, would have to be paid for the land appropriated, ought to be taken into consideration.</p> <p>Same. — Appeal. — On a petition to the county board for a highway, viewers were appointed, who reported that the road would not be of public utility, and assessed damages in favor of certain of the persons through whose lands it would pass. The board decided that the road should not be established, unless the petitioners would pay such damages. The petitioners then took an appeal to the Court of Common Pleas.</p> <p>Held, that under section 26 of the highway act, (1G. & H. 364,) the appeal would lie.</p> <p>Same. — Practice.—In a proceeding to establish a highway, an objection that the names of the persons through whose lands it will pass are not sufficiently denoted in the petition, is waived if not made before the appointment of viewers, especially if not made by such persons themselves.</p> <p>Same. — Inclosures.—If the viewers appointed to lay out a highway find an “inelosure” on the route petitioned for, the owner of which will not consent that the road shall be located through it, and they ascertain that a good route for a road can be otherwise had, they cannot locate the road through such inclosure; nor can they locate it upon such other route, if such route would be an essential departure from the route mentioned in the petition.</p> <p>Same. — .When the report of the viewers is silent concerning such an inclosure, it will be presumed that there is none, or that the owner has given the consent required.</p> <p>Same. — Practice.—When the case has been appealed and tried by a jury, and a general verdict has been rendered for the petitioners, the same presumption will be entertained.</p> <p>Same. — Where inquiries whether a highway would be of public utility, and what damages, if any, should be allowed, were submitted to the jury, but the remonstrants did not ask that any question touching inclosures should be submitted,</p> <p>Held, that no such question could be afterward raised.</p> <p>Same. — Jurisdiction. — The courso of proceeding required by the statute when inelosures interfere, is not pre-requisite to the jurisdiction of the county board to establish a highway.</p> <p>Same. — Jurisdiction will not be deomed to have been acquired by the county board to establish a highway, unless the facts necessary to give the jurisdiction appear affirmatively on the record.</p> <p>Same. — Presumption. — But when the jurisdiction has been obtained, the same presumption will be indulged in favor of the regularity of all subsequent proceedings as is entertained in ordinary cases in courts of general jurisdiction.</p>

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

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

<p>Bum of Exceptions. — Where time has been given by the court to file a bill of exceptions, if the bill is not tendered, or further time given, within the time first limited, the record is beyond the reach of the court, unless the opposite party be brought in by notice.</p> <p>Same. — Quaere: Whether leave can be given, even after notice to the opposite party, to file a bill of exceptions after the time first fixed for filing it has expired.</p>

<p>Inn-Keeper. — Liability op. — Suit against the keeper of an inn, to recover the value of a watch lost by the plaintiff while a guest at the inn. There was evidence of negligence on the part of the plaintiff, but there was also evidence from which it might have been inferred that the watch was stolen by a servant of the inn-keeper.</p> <p>Held, that if the larceny was committed by his servant, the defendant was liable, and, after a finding for the plaintiff, it must be presumed, in support of it, that the fact was found to be that the loss resulted from the larceny of the servant.</p> <p>New Tkiae. — Practice.—An application for a new trial, made after judgment, and at a subsequent term of the court, must be regarded as an independent proceeding, and if the application is made on the gi-ound of newly discovered evidence, the evidence given at the trial, together with the newly discovered evidence, must be set out.</p>

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

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

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

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

<p>Pleading. — Suit against A and his sureties, on a bond given by A as county treasurer. The complaint alleged that A, as such treasurer, had received the sum of $2,000, which he had failed, on request, to pay over to his successor in office.</p> <p>Held, that the complaint was - bad, for failing t.o show that the money sued for remained in the hands of A at the expiration of his term of office, and had not been paid out by him, on warrants properly drawn upon him, during his continuance in office.</p> <p>Held, also, that as the suit was upon the bond, and not against the treasurer for money collected in his official capacity and not paid over, it was barred by the staute of limitations, after three years from the expiration of A’s term.</p>

<p>In a proceeding for partition of real estate, a sale of the land was ordered, and A was appointed a commissioner, who, having given bond, and received part of the purchase money, absconded with the money. B was appointed his successor, and an action was brought on the bond, in the name of the State, on the relation of B, and of C, guardian of D and others, who were not alleged to be minors, and who were part of the persons whose land had been sold. Demurrer on the ground that B had no legal capacity to act as relator, and that the persons whose land had been sold were the only proper relators.</p> <p>Held, that B was not a proper relator.</p> <p>Held, also, that C was not a proper relator, even though D and others were minors.</p> <p>Held, also, that there being no averment that D and others were minors, they must be presumed to have been adults.</p> <p>Held, also, that the suit should have been brought on the relation of the persons whose land had been sold.</p> <p>Held, also, that the demurrer was sufficient to present the objection, under the code, that there was “ a defect of parties plaintiff.”</p>

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

<p>A mortgagee having filed a complaint against the mortgagor for foreclosure, and having purchased the mortgaged premises under the judgment, afterward filed his complaint against A and B, alleging the legal title to be in A, who had executed a title bond therefor to B, who had executed a title bond therefor to the mortgagor; that the purchase money had been paid to A, and that the plaintiff “was entitled to a conveyance in fee simple.” The complaint also alleged that the plaintiff, when he received the mortgage, believed that the mortgagor had a good title, &c.</p> <p>Held, that the plaintiff ought to have filed a copy of each of said title bonds with his complaint, but that the omission was cured by verdict, and that a motion in arrest of judgment would not lie.</p> <p>Held, also, that the averment that the plaintiff was entitled to a conveyance of the land in fee simple, though defective, as alleging rather a conclusion of law than facts, was sufficient, after verdict, to support evidence from which such conclusion might have been drawn.</p> <p>Reveal v. O' Conner, 21 Ind. 289, overruled.</p> <p>ABSTRACT.</p> <p>Tbe appellant was tbe plaintiff below. After a trial and finding for bim in tbe Circuit Court, tbe judgment was arrested on motion of tbe appellee. The sustaining of this motion is tbe only error assigned.</p> <p>Tbe judgment was arrested for a supposed insufficiency of tbe complaint. The complaint is for a deed, and charges» that in June, 1858, Wilson Stark and wife, who were made parties, conveyed tbe land to plaintiff by way of mortgage, to • secure tbe payment of $1,800, due plaintiff from Stark; that plaintiff accepted tbe mortgage in good faith, believing said Stark bad a good title thereto-that at the July term, 1859, of tbe Vigo Court of Common Pleas, plaintiff foreclosed tbe mortgage; that an order of sale was issued on tbe decree, by virtue of which the sheriff, on the 7th day. of September, 1859, sold and conveyed the land to plaintiff; that after the sale, plaintiff discovered that Wilson Stark held tbe land by a title bond executed to bim by the defendant Simpson Stark; that the legal title was in Jacob Ernest, who was made defendant, and that Ernest had executed a title bond for the lands to Simpson Stark, who had paid to him the full purchase money, and Wilson Stark had paid Simpson Stark all, or nearly ah, the purchase money. There was also an allegation, by way of amendment, that Simpson Stark had advanced the lands to Wilson Stark, who was his son, and put him in possession, and that he had made valuable improvements. The complaint was all in one paragraph, and the prayer was for a conveyance from Ernest.</p> <p>There was no demurrer to the complaint, nor any motion to strike out or separate the complaint.</p> <p>The answer was, first, a general denial; second, an argumentative denial, or matter amounting to such, to which there was a reply in denial. There was a third answer, which set up that the land had been conveyed to a third person since the commencement of the suit. This was held bad on demurrer.</p>

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

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

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

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

<p>Bastardy. — A married woman may, under the R. S. 1852, prosecute an action for bastardy.</p> <p>Same. — Witness.—The testimony of a married woman is admissible in the action, to prove non-access by the husband, and that the child, though begotten and born during the marriage, is a bastard.</p>

<p>Board of Equalization. — The board of equalization of a city has no power to determine whether property assessed is taxable or not.</p> <p>Same. — Semble that its power extends only to equalizing valuations made by the assessors.</p> <p>Constitutional Law. — Education.—The intention of. section 1 of article 10 of the constitution of 1851, was to leave the legislature at liberty to encourage the establishment of institutions of learning, by exempting them from the usual burden of taxation, whether the enterprise might be undertaken on public or private account.</p> <p>Same. — This immunity to the founders of such institutions is not in conflict with the twenty-third section of the bill of rights.</p> <p>Taxation. — Exemption from. — A building was erected upon a lot in Indianapolis, for the use of a literary and scientific institution, and the premises were kept and appropriated for that use,, a corps of teachers being employed in instructing large numbers of pupils in ancient and modern languages, in the various sciences, and in the branches of education usually taught in colleges. The institution was conducted on private account, and the earnings were applied to the individual benefit of the proprietor.</p> <p>jWeld, that under the act of 1861, the proprietor was exempt from taxation.</p> <p>Same. — By the term “institution,” as employd in said act, is meant a permanent establishment, in contradistinction to an enterprise of a temporary character.</p>

<p>Sale to Pay Debts. — A sale absolute in its terms, for the satisfaction of a debt, is not void under the act concerning voluntary assignments, (1 G. & H. 114,) merely because an excess in value of the property, over the amount of the debt, was to be returned to the debtor.</p> <p>Voluntary Assignments. — The act concerning voluntary assignments (1 G. & H. 114,) does not apply to a transfer of property made by a debtor not in embarrassed or failing circumstances.</p> <p>Contracts, whether Entire or Divisible. — Whether a sale of chattels in part satisfaction of a debt, and a transfer of notes, at the same time, as collateral security for the same debt, constitute separate transactions, or but one, is a question for the jury.</p> <p>Same. — Though the sale of the chattels and the transfer of the notes were in execution of one agreement, the transactions were nevertheless separable, and, hence, if the transfer of the notes was fraudulent, it could not contaminate the sale, if bona fide, of the chattels.</p> <p>Sale. — Jury.—Whether a sale is honest, or not, is a question, for the jury.</p> <p>Sale on Execution. — Insufficient Notice. — A sale of personal property on execution, to the execution creditor, on a notice of but nine days of the time and place of sale, is void.</p> <p>Sale. — Execution.—A sold to B a certain number of staves, and having delivered part, failed to deliver the rest.</p> <p>Held, that those delivered were not, on account of the .non-delivery of the rest, subject to execution as the property of A.</p>

<p>Appeal. — Revenue Stamps, — A motion was made in the Court of Common Fleas to dismiss an appeal from a justice of the peace, because neither the certificate of the justice, nor the appeal bond, -was stamped with the appropriate revenue stamp. Leave was granted to attach the stamps, the justice canceling the stamp upon his certificate, and one of the obligors that upon the bond. The motion to dismiss the appeal was afterward sustained.</p> <p>Held, that if the want of proper stamps rendered the certificate and bond insufficient, the appellant had a right, under the statute, to have the certificate amended, and to file a sufficient bond.</p> <p>Held, also, that as the alleged defect in the certificate and bond was cured by attaching the proper stamps, it was error to dismiss the appeal.</p> <p>Held, also, that while the statute requires, in such case, that a bond shall be filed “ to the acceptance of the court,” it is error to refuse a bond, if there is no valid objection to it.</p> <p>Held, also, that the cancellation by one of the obligors of the stamp attached to the bond was sufficient.</p>

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

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

<p>Railroads. — Injury to Animáis. — The owner of a Wind horse turned him out upon the common of a town, through which a railroad ran, where he was killed by a passing train. The injury did not occur on any street or alley, and the track was not fenced.</p> <p>Held, that the owner was guilty of gross negligence, amounting to a willingness to suffer the injury complained of, and hence he cannot recover.</p>

<p>Common Cashiers. — A delivered to the United States Express Company a package of money, to bo transported to a point not on the route of that company. The package was transported by the company to the point on its line nearest to the place of destination, and there delivered, as was customary, to the proprietors of a line of stages, known as “ Winslow’s 'Express,” 'to be'carried to its destination. The receipt given by the "United States Express Company stipulated that the company undertook to forward the package to the point nearest to itB destination reached by that company, and that the company should be held liable hs forwarders only. The package was lost while in "the custody Of TTinWow’s Express. Suit by the consignees' against the United States Express Company to recover the value of the package.</p> <p>Held, that an express company may become liable as a common carrier, though it has not complied with the requirements of section 2 of the “Act declaring expréss companies 'to"be'Common 'carriers.” (1 Q-. & II. 827:)</p> <p>Held, also, that the United States Express Compény was only bound to transport the package safely to the point on its line nearest to the place of destination, and there deliver it to the proper carrier, to be forwarded to its destination, and having done this,' that cónip'any was not responsible for its subsequent loss.</p>

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

<p>Injury to the Person. — Peeading.—In an action for an injury to the person, caused by the negligence of another, it must appear from the - complaint, either by express averment, or by a particular showing of the facts, that the injury complained of occurred without the fault or negligence of the plaintiff.</p>

<p>Pleading. — Copy op Written Instrument. — Where apleading is founded upon a written instrument, a copy of the instrument must he filed with the pleading, hut if such instrument is only referred to in the pleading, a copy need not he filed.</p> <p>Same. — The omission to file a copy of the written instrument upon which a pleading is founded may he taken advantage of hy demurrer.</p>

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

<p>Promissory Note — Assignment of part interest. — A part interest in a promissory note may be assigned in equity, and the assignee, being tho real party in interest, can, under our statute, join with the owner of the other interest in an action upon the note.</p> <p>Practice. — Defect of Parties. — If a defect of parties be not objected to by demurrer or answer, the objection is waived.</p> <p>Practice. — Interest after Verdict. — Six months having intervened between the finding of a verdict and the judgment, the court, in rendering judgment, allowed interest from the date of the verdict.</p> <p>Held, that the objection to the allowance of interest on the verdict could not be raised by a motion for a new trial, or in arrest of judgment.</p>

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

<p>Statute of Descents. — Martindale v. Martindale, 10 Ind. 566, and Ogle v. Stoops, 11 id. 380, affirmed.</p>

<p>City of Madison. — Taxation. — The charter of the City of Madison provides that a tax for municipal purposes may be assessed upon all personal property owned by, or in the possession of, any inhabitant of the city, “except goods and produce for export, or in transit.” A, being engaged in pork packing in said city, and having all of his capital . invested in pork held for export, and in.process of shipment to a foreign market, refused to return the same for taxation, and was thereupon assessed for “capital invested in pork, $50,000,” and taxes charged against him upon that sum.</p> <p>Held, that the assessment was illegal, because the property, if taxable, should have been assessed as pork, and not as “capital.”</p> <p>Held, also, that the pork, being “ produce for export,” was not subject to taxation under the city charter.</p> <p>The City of Madison et oX. v. Fitch et al., 18 Ind. 33, overruled.</p>

<p>Vendor’s Lien. — A sold to B certain real estate, by a contract in writing, for tbe sum of $2,500. By tbe terms of tbe contract, A was to execute a deed of conveyance, on tbe payment of $1,000,at a day fixed, and was to receive tbe notes of B for tbe residue of tbe purchase money, payable at one and two years from date. It was further stipulated that on tbe execution of tbe deed, B should have possession of tbe premises, “ free from rent or charge.” Tbe deed was executed and delivered at tbe time stipulated. Afterward, A caused tbe execution of tbe contract of sale to be proved by the subscribing witness, and the contract to be recorded in tbe recorder’s office. Suit by A to enforce a vendor’s lien against tbe vendees of B, who bad purchased after tbe recording of tbe contract of sale, but without actual notice of tbe equitable lien.</p> <p>Held, that section 35 of the “Act concerning real estate and tbe alienation thereof,” 1 Cr. & H. 266, authorizes tbe recording of executory contracts for tbe sale of lands, and the record of such an instrument is constructive notice of its contents to all subsequent purchasers or mortgagees.</p> <p>Held, also, that while tbe record of tbe deed from A to B was prima fade evidence that the purchase money had been paid, tbe record of tbe original contract of sale was notice to all subsequent purchasers that a portion of tbe purchase money remained unpaid, and constituted an equitable lien upon tbe land.</p> <p>Held, also, that the stipulation in the contract, that B was to have possession on the execution of the deed, “free from rent or charge,” was not a waiver or release of the vendor’s lien.</p>

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

<p>Injunction Bond. — An injunction bond was entitled “State of Indiana, Clinton county, A v. B.”</p> <p>Held, that the bond was not void for the failure to state the name of the court in which the action was brought.</p> <p>Evidence. — Record oe Deed. — The record of a deed may be given in evidence without accounting for the absence of the original.</p> <p>Practice. — Suit on Injunction Bond. — In an action upon an injunction bond, it is not necessary that a copy of the proceedings and judgment in the injunction case should be filed with the complaint.</p> <p>Same. — Damages.—A having the right to the possession of certain real estate, under a purchase by title bond, was enjoined, at the suit of B, from exercising that right, and from entering upon the land.</p> <p>Held, that in a suit upon the injunction bond, A was entitled to recover for any injury to the possession, or to the land itself, caused by the injunction.</p> <p>Same. — An injunction having been granted to continue until the determination of a case in the Supreme Court, the latter case was subsequently dismissed, but the appeal was afterward “reinstated,” and the case decided upon its merits.</p> <p>Held, that it must be understood from the record that the dismissal of the case in the Supreme Court was set aside and the case reinstated, and this being the case, the injunction was continued in force, and, in an action upon the injunction bond, damages accruing after the dismissal could be recovered.</p>

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

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

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

<p>■Common Pleas Courts. — Divorce.—The Courts of Common Pleas have jurisdiction of suits for divorce.</p> <p>Cole. — Divorce.—The proceeding for divorce is so far special as to allow all the provisions of the divorce act to have their full force, unaffected by thecode.</p> <p>■Same. — Jurisdiction.—The residence of the plaintiff, and not that of the defendant, determines the jurisdiction in suits for divorce. Process may be served in any county in the state, and service by copy is personal "service.</p> <p>■Same. — New Trials. — Section 99 of the code, which provides for relieving a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect, and section 356, which provides for granting a new trial within one year, on cause shown, do not apply to decrees for divorce.</p> <p>Alimony. — Custody of Children. — The order as to alimony and the custody of children, which is only an incident of the decree for divorce, .can be modified or set aside by a proceeding under section 7 of the act of .March 4, 1859, (2 G. is H. 349, note.)</p>

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

<p>Husband and Wife. — Resulting Trust. — A conveyance having been made in 1835, to husband and wife, the husband, in 1850, executed a deed which, after reciting that the land had been purchased with the money of the wife, purported to convey and limit the descent of the land, on the death of him and his wife, to A, B and C, the children of the wife, to the exclusion of his children by a former marriage. Afterward, the husband and wife joined in conveying separate parcels of the land to A, B and C.</p> <p>Held, that the husband held the land only as a trustee for the wife.</p> <p>Held, also, that the several conveyances to A, B and C were valid.</p>

<p>Principal and Surety.. — If a surety signs and delivers to his principal an instrument perfect upon its face, with a condition that it shall not be delivered to the obligee, payee or grantee, until some other persons who are agreed upon shall also execute the same, and the principal delivers the instrument without regard to the condition, and the obligee, payee or grantee has no knowledge of the condition,, the delivery will bind the surety.</p> <p>Same. — Promissory Note. — A executed his promissory note, payable to the order of B, and induced C and D to sign the note as sureties, and re-deliver it to him, A, upon the promise that he would procure other persons, named by them, also to execute said note. In disregard of his promise, A delivered the note to B without procuring the additional sureties agreed upon.</p> <p>Held, that the delivery to B was absolute, and that the sureties were liable, without regard to the condition.</p>

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

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

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