Volume 25 — Indiana Reports

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

<p>Obligation or Contbacts — Remedy.—The remedy given by law for the enforcement of a contract, upon a breach of its obligation, may be changed and a more efficient remedy given, if the obligation of the contract is not thereby materially lessened, weakened or impaired.</p> <p>School Fund Sales. — The law in force at the time of the execution of a mortgage to the school fund Required the county auditor to give sixty days’ notice of sales for the non-payment of the principal or interest of the loans. By subsequent legislation, three weeks’ notice was made sufficient.</p> <p>Held, that the law reducing the time of notice related only to the remedy, and did not impair the obligation of the contract.</p> <p>Same. — The law of 1861 prescribes the only rule for the government of the auditor in selling lands mortgaged to the school fund, for the non-payment of the principal or interest of such loans.</p>

<p>Statute or Descents — -Wise's Pobtion. — A died in 18G1, intestate, seized of certain real estate, leaving a widow and several, children. Proceedings for partition having been instituted, the commissioners set apart to the widow a certain town lot, valued at ¡{5800, and reported that the residue of the property was not susceptible of partition. An order of sale was entered, and a commissioner appointed to mate the sale. Before the salo was made the widow married again. In distributing the proceeds of sale, the court ordered that one-third of the net proceeds of sale, less eight hundred dollars, should bo paid to the widow, “upon her filing a bond, with good security, in double the value of the money so paid, conditioned that the principal sum should be restored to the heirs, if she should dio during coverture.”</p> <p>Held, that if sec. 18 of the statute of descents is a rule of descent, and not a limitation of the estate of the widow in the lands of her deceased husband, then the children had no vested interest in the portion of their mother. All the interest they could have must come to them as heirs of their mother.</p> <p>Held, also, that the order was wrong, 1st. because a married woman could not bo bound by such a bond; and 2d. because the $800 was ordered to be deducted from the widow’s one-third of tlie residue, instead of from the one-third of the whole property.</p>

<p>(Partition op Lands — Wife’s Inchoate Interest. — A executed a mortgage, in which his wife did not join, upon his interest in certain lands, held by him as tenant in common with others. The mortgage was afterward foreclosed, and the land bought in at the sheriff’s sale by B, the mortgagee. B afterward, and in the life-time of A, instituted a suit for partition against the persons who had held as tenants in common with A, and upon a report that the land was not susceptible of partition, an order of sale was made, and B became the purchaser. After the death of A, his widow brought an action for partition against B, claiming to have one-third <of the undivided interest of her husband set apart to her.</p> <p>Held, that as the wife of A did not join in the execution of the mortgage, the title derived by B from the sheriff’s sale was subject to her contingent interest, and this being the title represented by B in the subsequent proceedings for partition, the purchaser under those proceedings could acquire no greater interest than that held by B.</p> <p>Held, also, that the contingent interest of A’s widow was not divested by the sale under the proceedings for partition.</p>

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

<p>Practice. — Where a demurrer has been sustained to a paragraph of an answer, the error will not be available in the Supreme Court, if there were other paragraphs of the answer under which the same evidence might have been introduced.</p> <p>Instructions. — Where there is no evidence to sustain an issue, it is the duty of the court so to inform the jury.</p> <p>Renewal or Note — Consideration.—A note or bill given in renewal, merely, of another, the consideration of which is tainted, may be defended against in the same manner as if the suit was upon the first note or bill. But it is otherwise where the second note or bill is supported by a new and distinct consideration.</p> <p>Principal and Agent. — The declarations of an agent, made while he is actually transacting for his principal the business to which the declarations relate, are admissible against the principal only because they are part of the res gestee, and declarations made at other times are not admissible.</p> <p>Contract — Illegality op Part. — Where a party has contracted to do certain things, and an illegal act is included therein, he may nevertheless be held to perform so much of his contract as it is lawful to perform, if it can be separated from that part which is illegal. But if no separation can be made between the legal and illegal stipulations, the whole will be held void.</p> <p>Same — Illegality op Consideration. — So where the consideration of a contract is in part legal, and in part illegal, if the consideration is separable, a recovery may be had to the extent of the legal consideration. Same. — Suit upon several bills of exchange. Answer, that the consideration of the bills was, in part, the payment of unauthorized and illegal paper, in the similitude of bank notes. The other part of the consideration was the payment of legal bank paper.</p> <p>Held, that the consideration was sufficient to support the action to the extent of the lawful money paid.</p> <p>Same. — The same rule applies whether the consideration is made illegal by statute, or by the common law.</p>

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

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

<p>Administrators Sales or Real Estate — Venue.—The jurisdiction of the Court of Common Pleas of the county where, letters of administration have been granted, of an application by the administrator to sell real estate situated in another county, is not exclusive.</p> <p>Same — Proceedings by an administrator, for the sale of real estate were1 instituted in the Court of Common Pleas of the county in which the land was situated, the heirs of the deceased being residents of that county.</p> <p>Held, that the court had jurisdiction of the subject matter of the suit, and of the persons of the heirs, though administration had been granted in another county.</p>

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

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

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

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

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

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

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

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

<p>Uevekue Ssaiíp — Gaitcelíatiojí.—If, under the provisions of the internal revenue law, an appeal bond requires a fifty cent revenue stamp to be attached, the bond is not void for a failure to cancel the stamp.</p>

<p>Justice op the Peace — Jurisdiction.—Under the act of March 11, 1861, justices of the peace have jurisdiction in actions of replevin where the value of the property sought to be recovered, or the damages claimed, do not exceed $200.</p> <p>Descents — Widow’s Portion. — Under the statute, the widow is entitled, before any distribution, to $300 of personal property, which may be selected by her at the appraisement, but before the property can vest in her there must be an appraisement, in the course of administration, and a selection by her under the appraisement.</p> <p>Husband and Wiee — Witness.—The defendant in an action of replevin offered his wife as a witness to prove that the property in controversy was her separate property.</p> <p>Held, that as the wife was not a party to the suit, and the proposed evidence was only admissible to support a plea of property in another, it was evidence for the husband, and the witness was incompetent under the statute.</p>

<p>Partition — Bond or .Commissioner. — A suit upon the bond ©f a commissioner appointed to sell real estate in a proceeding foar partition, is properly brought in the name of the State on the relation of the owners ®f the land.</p> <p>Same — Statute oe Limitations. — A cause of action accrues upon such boná upon the failure of the commissioner to pay over the mamey within a reasonable time after he receives it, under the direction of the court, aná a suit may be brought at any time within twenty years thereafter.</p> <p>Surety — Neglect to Sue. — A mere neglect to sue, in the absence of the notice required by the statute, will not exonerate the surety.</p> <p>Administrator — Parties.—When an administrator is a necessary party f© an action, he may be sued in any county where any of his co-defendants reside.</p>

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

<p>Liquor Traitic — Restraint oj? Trade. — Public policy in this State, as evinced by the legislative enactments, from the earliest times to the present, has always been to restrain the traffic in intoxicating liquors, and hence a contract in restraint of that traffic, if made upon a sufficient consideration, will be enforced, though the restraint be territorially coextensive with the State.</p>

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

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

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

<p>Pleading. — A bad replication is good enough for a bad answer.</p> <p>Husband and Wife — Mortgage.—A mortgage executed by husband and wife, of the wife’s separate real estate, to secure a debt of the husband, ia valid Pago 136.</p> <p>Sales foe Taxes. — A statute which goes- to divest the title of the citizen- to real estate, although it may be for the-public good, must bfe strictly construed. Page 139.</p> <p>Same. — A party sotting up title under a sale for taxes must show that every provision of the statute under which the sale was made has been complied with; and as, under our statute, the personalty is made the primary fund for the payment of taxes, it i& necessary for a party claiming title to real estate under a tax sale to show some legal excuse far the. failure, to. coUest the taxes out of the personal estate. Page 139.</p>

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

<p>Promissory Notes — Set-Off.—To an action by an assignee upon a promissory note, the defendant pleaded, by way of set-off, a note made by the plaintiff’s assignor to a third party, and assigned- to the defendant. The answer showed that' the note offered as a set off was assigned to the defendant after the assignment of the note sued on to the plaintiff.</p> <p>Beld, that the answer was bad, for the want of an averment that the note offered as a set-off was assigned to the defendant before notice of. the assignment of the note sued on to the plaintiff.</p> <p>B'eld, also, that as the averment is a negative one, the burden of proving notice is on the plaintiff. The dictum in Rawlings v. Fisher, 24 Ihd. 52,. that the burden of showing notice of assignment is on the plaintiff/.is-true'as a rule of evidence, but not as a rule of pleading.</p> <p>Pleading — Written Instrument. — Where a pleading is founded upon a. promissory note, the original, or a copy thereof, must be filed with the pleading, and the failure to do so may be taken advantage of by demurrer.</p> <p>Promissory Note. — The latter clause of sec. 6, 2 Cr. & H. 40, which provides that actions by assignees shall be without prejudice to any set off, &c., “except actions on negotiable promissory notes and bills of exchange, transferred in good faith and upon good consideration before due,” is not-in conflict with the act concerning promissory notes and bills of exchange. 16. 4 H. 447. The exception in sec. 6 has reference to noteathat are made negotiable as inland bills of exchange by the latter statute:</p>

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

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

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

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

<p>Practice — Error.—A judgment will not be reversed for an error which does not affect the substantial rights ¡of the party. Page 159.</p> <p>Verdict — Special Findings. — It is only when the jury find a general verdict, that the statute authorizes a special finding upon particular questions of fact. By the phrase “particular questions of fact,” we are to understand, not an issue, but single questions of fact, pertinent to and involved in an issue, tending to support or defeat it, and which would be impliedly covered by a general verdict. Pago 160.</p> <p>Same. — The office of the special finding is that if the particular facts so found are inconsistent with the general verdict, the former may control the latter. Page 161.</p> <p>Same. — On the trial of the cause below, the jury were, at the request of the plaintiff, instructed, if they found a general verdict, to answer the following interrogatory, viz: “Are there any facts alleged in the complaint' which are not true, if so, state what they are?”Held, that the interrogatory was impertinent and should not have been submitted to the jury, and, having been submitted, there was no error in the ^ refusal of the court to require the jury to make their answer more specific. Page 161.</p> <p>Divorce — Alimony.—In a suit by the wife for divorce and alimony, evidence of the value of the wife’s separate property is admissible, and should be considered, in connection with the value of the husband’s property, in fixing the amount of alimony. Page 163.</p> <p>Divorce — Practice.—The statute regulating divorces contemplates a trial by the court, and though the court may, of its own motion, or by consent, or upon the motion of either party, submit the issues to a jury, still the verdict is not conclusive, and on the final hearing the court may lock into the whole case, and disregard so much of the finding as is without the issue. Page 163.</p> <p>Husband and Wife — Witness.—Under the act in relation to witnesses, (Acts of 1861, p. 51,) husband and wife are prohibited from testifying either for themselves or against the other in suits for divorce. Page 164.</p>

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

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

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

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

<p>Husband and wife cannot, by separate deeds, convey the lands of the wife. Such deeds do not create an equity sufficient to protect the possession of a purchaser.</p> <p>A right in equity cannot arise out of an instrument which binds nobody.</p>

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

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

<p>Railroads — Taxation.—The rolling machinery of a railroad is intimately connected with the purposes and uses of the track and superstructure, and it is within the power of the legislature to treat such machinery as real property for purposes of taxation.</p> <p>Same — Valuation.—The constitution does not require a uniform method of valuation of property for taxation, hut only “ such regulations as shall secure a just valuation.” In determining how this end shall he secured, the legislature must exercise a discretion, and unless the method adopted be clearly inadequate to secure the result, the courts cannot interfere.</p> <p>Same — Section 6 of the act of March 4, 1859, (Acts of 1859, p. 5,) which provides that the appraisers, in estimating the value of the road, shall! take into consideration the location of the road for business, the competition of other roads, its earnings, &c., is constitutional.</p> <p>Taxation of Stock. — The acts of 1858 and 1859, supra, relate only to the assessment of real property. The act of 1852 remains in force as to the ' assessment of personal property, and under its provisions a list of all the stock of the railroad company, which includes all personal property, should be furnished to the auditor of the proper county between January 1st and June 1st.</p> <p>Same. — If the proper officer of the company fails to make such return before the 1st day of July, it becomes the duty of the Auditor to make it, under' sec. 37 of the act of 1852, and the company has no longer a right, and cannot he required, to make such statement.</p> <p>Mandamus. — A mandate will not lie where the statute has expressly provided another adequate remedy.</p>

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

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

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

<p>Bounties to VogjNTEEBS. — In October, 1864, the board of commissioners of Fountain county made an appropriation of $220,000, to defray the expenses of raising, by enlistment, four hundred and twenty-eight men to fill the quota of the county under the call of the President for five hundred thousand men.</p> <p>Held, that the appropriation was made valid by the act of March 3, 1805.</p> <p>Held, also, that the fact that some townships of the county had already filled their quotas, did not take the appropriation out of the operation of the act referred to.</p> <p>Publication oe Laws. — A final judgment enjoining the county auditor from issuing the warrants provided for in the order of the board was rendered in the court below March 4, 1865. The act legalizing such appropriations was approved by the Governor March 3, 1865, and wont into force from and after its passage, and publication in certain daily newspapers. The publication was made March 4.</p> <p>Held, that the legalizing act went beyond the judgment, and made the appropriation legal ab initio, and thereby rendered the judgment erroneous.</p>

<p>Evidence.— One party cannot, by consenting to the admission of irrelevant evidence offered by the other, acquire a right to introduce evidence equally irrelevant.</p> <p>Instructions. — The court is not bound to remark upon the evidence in instructing the jury, and when it is done, it should be with great care, and the jury should be told that such observations are submitted to aid, and not to control them.</p> <p>Practice. — The Supreme Court will not reverse a cause for the reason that a mere preponderance of the evidence is against the verdict.</p>

<p>Mandate — Loss or State Revenue. — Where a loss has resulted to the .State by the default of a county treasurer, a mandate will not lie under rsec. 198 of the revenue act, (1 G. & H. 113,) to compel the county board • to add the amount of such loss to the tax duplicate, until the remedy upon the bond of the defaulting officer has been exhausted, or a showing is made that a suit on the bond would be unavailing.</p>

<p>Practice. — The refusal of the court to allow evidence to be given to the jury, if erroneous, is “ an error occurring at the trial,” and must be assigned as a cause for a new trial in order to present the question to the Supreme Court. Page 213.</p> <p>New Triar. — Surprise.—The defendant may he entitled to a new trial on account of surprise caused by his own witness testifying differently from what he had a right reasonably to expect, where no want of diligence in guarding against such surprise is attributable to him, and where it is shown that he is injured thereby. Page 220.</p> <p>Same. — The motion for a new trial, in such case, is addressed to the sound discretion of the court, and in the exercise of that discretion the court should grant a new trial when the party is not in fault, and injustice has resulted to him from the surprise, which a new trial may remedy. Page 221.</p>

<p>Statute op Descents. — Under the pr-ovisions of sections seventeen and twenty-seven of the statute of descents, the wife takes a- fee simple interest in the lands of her deceased husband.</p> <p>Same — Adopted Children. — The adopted children of the husband are not the children of the wife, nor are they “children by a previous wife,” and hence the limitations upon the estate of the wife, imposed by section 18, and the proviso in section 24, of the statute of descents, do not apply to a case where the deceased husband has left only adopted children.</p> <p>Same. — Adopted children are the heirs of the adopting father in the degree of children, and are entitled to inherit from, him all the estate of which, under the law, he has a right to deprive his wife.</p> <p>Advancements. — The subject of advancements is regulated exclusively by statute, and under section 12 of the statute of descents only a child, or the descendant of a child, can be charged with advancements. The wife is not chargeable with advancements under that statute.</p> <p>Quíere. — Whether the rule as fixed by the statute of descents is changed by sec. 9 of the act. concerning the partition of land.</p>

<p>Husband and Wife — Giet.—It is the rule in equity that if the nature and circumstances of a gift or grant from the husband to the wife are such that there is no ground to suspect fraud, and the gift amounts only to a reasonable provision for the wife, it will be sustained without the intervention of a trustee.</p> <p>Same. — In determining whether the gift is a reasonable provision, it is the duty of the court to take into consideration all the circumstances of the case.</p> <p>Same. — By section 5 of the act of 1853, (1 G. & H., 295,) the power of the wife to acquire personal property by gift, during coverture, is changed from an equitable to a legal right, and it would seem to follow that the only restriction the courts can impose on this right is to guard against fraud.</p>

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

<p>Indictment — Lament.—In an indictment for larceny at common law, the ownership of the stolen property, if known, must be correctly averred, and the proof on the trial must correspond with the averment.</p> <p>Same. — Under sec. 57 of the criminal practice act, (2 G. & II., 402,) it is sufficient if one only of several joint owners is named in the indictment, but where the stolen property is alleged to belong to two persons, proof that it is the separate property of one of them will not support the indictment.</p>

<p>New Trias. — Practice.—A complaint for a new trial on the ground of newly discovered evidence must set out the evidence given on the former trial.</p> <p>Practice. — Where a correct result has Been reached in the court helow, the Supreme Court will not reverse the judgment.</p>

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

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

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

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

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

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

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

<p>Common Ribas. — Title to Reai Estate. — An answer bad on demurrer, is not sufficient to put in issue the title to real estate, under section 1 of the act of 1859 (acts 1859, p. 94) providing for the transfer of cases in which the title to real estate is in issue from the Common Rleas to the Circuit Courts.</p> <p>Deed. — Merger oe Oras Contract. — An oral agreement by the vendor of real estate, made before the execution of the deed, to procure for the vendee an outstanding title to the land conveyed, is merged in the covenants of the deed.</p> <p>Copy or Written Instrument. — When a pleading is founded upon a written instrument, the original, or a copy thereof, must be filed with the pleading.</p>

<p>Damages. — Specific Performance. — Suit against a railroad company upon a contract by which the company agreed, in consideration of the right of way, to fence the road through the lands of the plaintiff, to pay him fifty dollars in freight bonds, and to release him from a subscription to the stock of the company. The complaint alleged a failure to perform on the part of the company, and that a judgment for damages would be unavailing, by reason of the insolvency of the company. Prayer for specific performance and other proper relief.</p> <p>Held that the complaint made a case for damages, but not for specific performance.</p> <p>Demurrer. — Practice.—A demurrer assigning for cause that the facts alleged do not “entitle the plaintiff to the relief demanded,” is bad under the statute.</p> <p>Same. — New Trial. — The ruling of the court upon 'a demurrer cannot be assigned as a reason for a new trial, nor can such ruling be reviewed by the Supreme Court in connection with such a motion.</p> <p>Veniee de Novo. — Where the finding of the court or the verdict of the jury is defective or insufficient, the remedy is by a motion for a venire de novo. A motion for a new trial will not present the question.</p>

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

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

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

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

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

<p>SnAKDEDt — Suit for slander. Tlie words charged were, “I hare f — ked Kebeeca Kelley one hundred times.” “I hare screwed Beck Kelley one hundred times.” Answer, admitting the speaking of the words, and alleging that defendant had repeatedly had sexual intercourse with the plaintiff.</p> <p>Held, that the first set of words were actionable pet se. Semble, that the second set were not actionable unless aided by other averments.</p> <p>Held, also, that if the complaint failed to show that the intercourse implied by the words charged was illicit, the answer cured the defect,</p>

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

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

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

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

<p>Damages. — Evidence.—On the trial of an action for damages for killing a horse, the plaintiff introduced a witness who stated that he was acquainted with the value of horses, but had never seen the horse in controversy. The witness was then asked, “ What, on the 10th day of May, (the day of the killing,) was the average price of a horse fifteen or sixteen hands high, three or three and one-half years old, and sound, except the ring bone on the hind foot, which had been killed?”</p> <p>Meld, that the court erred in permitting the witness to answer the question.</p> <p>Meld, also, that the value of the horse at the time of his death was the measure of damages. But it was competent for the defendant to show the condition of the horse by witnesses who had seen him at any reasonable time before the killing, ranging within three months, and then after proving by other witnesses that his condition was unchanged, the former might testify to the value of the horse at the time of the killing, on the hypothesis that his condition was the same as when they saw him.</p>

<p>Amended Pleading. — A second complaint, complete in itself, and not a mere amendment of the first, supersedes the first, so that it ceases to he part of the record, and no ruling upon it can he assigned for error.</p> <p>Same. — Continuance.—Where the complaint is amended during term, the defendant, upon a proper affidavit of surprise, may he allowed a continuance till the next term a-t the plaintiff’s costs.</p>

<p>Bounties. — Parties.—In September, 1864, the Board of Commissioners of Franklin county passed an order appropriating §117,600 to procure volunteers to fill the quota of the county under the call for 500,000 soldiers, and directed the auditor of the county to issue warrants for that amount on the treasurer to raise the money appropriated. A bounty of §300 to. each recruit credited to the county was authorized to be paid out of the sum appropriated. Suit by eighty-six persons against the county board, the auditor and treasurer, and certain other persons who set up a con-, flicting claim to the fund, to recover the sum of §25,800 of the amount ap-propriated. The complaint alleged that the plaintiffs, having already enlisted in the volunteer service of the. United States, at the request of. the.county board, and of the citizens of the county, and in consideration that., they should receive their pro rata share of said appropriation, agreed'toi be, and were, credited to the quota of said county.</p> <p>Held, that tlie facts averred created a liability on the part of the county to issue to the plaintiffs the warrants provided for in the order of the hoard.</p> <p>■Held, also, that the complaint showed such a joint interest in a common fund as authorized the plaintiffs to join in the suit.</p> <p>■Held, also, that the defendants were all proper parties to a complete determination of the controversy.</p>

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

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

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

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

<p>Practice. — A judgment will not be reversed on account of a harmless error, committed at the trial.</p> <p>Partnership. — Burden or Prooe. — To a complaint upon a promissory note purporting to have been made by a firm, A, a defendant, pleaded that when it was made he was not a member of the firm; that the partnership had been dissolved four years before, of which the payees had notice; that the note was made by B, one of the defendants, without consideration and without his consent. Reply, a general denial.</p> <p>Held, that A’s plea, though double and inartificial, was sufficient as alleging a want of consideration.</p> <p>Held, also, that as the burden of that issue was upon A, he had a right to maintain it by evidence.</p> <p>Pleading. — Evidence.—Complaint upon a promissory note. Answer: 1. A general denial, without oath. 2. That the note was not owned by the plaintiffs, but by B and others, a firm composed of the plaintiffs and C, one of the defendants. Reply to the second paragraph, a general denial.</p> <p>Held, that evidence was inadmissible to support the answer.</p> <p>Practice. — Where a party proposes to offer evidence, but the court rules that no evidence is admissible under the issues, it cannot afterward be objected that he should have stated more definitely the evidence thus proposed to be offered.</p>

<p>Change on Venue. — Practice.—An" affidavit for a change of venue can only be made a part of the record by embodying it in a bill of exceptions.</p> <p>Same. — New Trial. — An exception to the refusal of an application for a change of venue will not be regarded by the Supreme Court where the reasons assigned for anew trial áre, 1. “Error of law occurring at the trial, and excepted to by the plaintiffs.” 2. “That the verdict of the jury is not sustained by the evidence.”</p> <p>Same. — Nor will it be regarded where the reason for a new trial is assigned in the general words following: “Irregularities in the proceedings of the court; ” but the particular irregularity complained of must appear.</p> <p>Same. — Evidence.—The Supreme Court will not notice an objection that improper evidence was admitted at the trial, unless the record not only shows that an exception was taken to its admission, but also that the objection was presented as a reason for a new trial.</p>

<p>Deactice. — The objection that a pleading is too indefinite or uncertain cannot be reached by demurrer. The proper course is to move to have it made, more definite and certain.</p> <p>Damages. — Peoeits.—Suit by the keeper of a livery stable to recover damages for an injury done to two stallions of his own by the communication of a distemper to them by a horse of the defendant, which the plaintiff had been induced to receive into his stable by the defendant’s representation that the horse had recovered from the distemper and could not communicate the disease to other horses. The court permitted the plaintiff to prove the profit he would probably have derived from the services of one of the stallions during the foaling season, but for his incapacity from the disease.</p> <p>Held, that the evidence, though not admissible definitely to-fix the measure of damages, was proper for the consideration of the jury as an aid in estimating them.</p> <p>False Repeesentation. — Negligence.—The complaint alleged that the plaintiff was the keeper of a livery stable, and as such it was his business to keep horses to hire, and to feed and stable them for reward; that he kept in his stable two horses of his own of great value, to-wit, &c., for the purpose of foal-getting; that the defendant, well knowing these facts, on, &c., applied to the plaintiff to keep his, defendant’s, horse in said stable, representing to the plaintiff that the horse had had the distemper, but had recovered therefrom and could not communicate the disease, &c.; that the plaintiff, being ignorant'of the condition of the defendant’s horse, and relying upon the defendant’s representations, received the horse into his stable; that the defendant knew that the disease was then in the earlier stage, in which he knew it to be contagious.</p> <p>Held, that the plaintiff had a right to rely upon these statements of the defendant, and that they did not show that the plaintiff had been guilty of negligence in receiving the horse into his stable.</p> <p>Held, also, that the complaint was not bad for not alleging that the injury occurred without fault or negligence on the part of the plaintiff, or that the defendant did not'in his business receive sick and diseased horses for keeping.</p>

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

<p>Contract. — Consideration.—A.signed a written contract by which he agreed to enter the military service of the United States to the credit of Tobin township, in consideration of the payment of a bounty of $100. B, the agent of the township, accompanied A to fhe mustering officer to procure his muster ip, and to payffiim the bounty promised. While there, A was offered by others a bounty of $850, and refused to perform his contract, unless the township would pay him that amount, and B, thereupon, to induce A to perform his contract, promised that he would be responsible that A should receive that amount from Tobin township.</p> <p>Held, that as A was already bound by his contract to enter the military . service for a bounty of $100, there was no consideration for the promise to pay him more,</p>

<p>Ihmctmehs. — Liquor Law. — -Indictment charging that A did, on, &o., “sell and give away certain intoxicating liquors, at and for the sum of ten cents, ” to a minor. The evidence showed that the liquor had been given away.</p> <p>Held, that the giving away of intoxicating liquor to a minor is an indictable offense under the statute.</p> <p>Held, also, that the charge was double, and the indictment probajjiy bad, on motion to quash, but the fault in the pleading could not be reached by a motion for a new trial.</p>

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

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

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

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

<p>Practice. — Where an argumentative or special denial is filed in connection with a general denial, the former may be stricken out on motion.</p> <p>Same. — Where a proper result has been reached, this court will not reverse a judgment because of an error in the mode in which the result was reached.</p> <p>Highways. — Public highways may be established in this State, First. By order of the board of commissioners of the county. Second. By express grant. Third. By dedication, arising by presumption from continued use for a considerable time with the knowledge of the owner, and without objection on his part.</p> <p>Same. — A public highway, however established, cannot be altered or changed at the will of the owner of the land over which it passes.</p> <p>Pleading. — Amendment.—As a general rule, no material amendment can be allowed to a pleading after the cause has been submitted to the jury, or a finding has been announced by the court.</p> <p>Pleading. — AYhere it is apparent to the court that several paragraphs of a complaint are founded on the same cause of action, without any substantial variance in the form or legal effect of their respective averments, all but one of them should be stricken from the record.</p> <p>Same. — Trespass.—Each separate act of trespass to land may be made the foundation of a separate action, or may be included in the same action in separate paragraphs, or, if of the same character, may bo included in the same paragraph, under the averment after the day named, “and on divers other days,” within a given period of time. '</p> <p>Same. — Complaint in thr.ce paragraphs for trespass to lands. Each paragraph alleged the trespass to have been committed on the same day, “ and at divers other times since that time and before the commencement of this action,” and the act of trespass was described in all of the paragraphs in the same terms.</p> <p>Held, that each paragraph of the complaint covered all of the alleged trespasses, and in justifying by answer the trespasses charged in one paragraph, the defendant in fact justified all, though his answer in terms professed to be directed to one paragraph only of the complaint.</p> <p>Practice. — Where, an answer to a complaint in three paragraphs professes, in terms, to answer only the first, a motion, after verdict for the plaintiff, for a judgment “ on the pleadings,” is too vague and indefinite.</p>

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

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

<p>APPEAL from the Tipton Common Plena,</p>

<p>Rescission oe Contract. — Fraud.—Suit to rescind a contract for the exchange of lands, on the ground of fraud in the representations made as to tho quality and situation of the land. The complaint alleged that the plaintiff was fraudulently induced to sign a contract stipulating that in case there should be any failure as to the amount of timber or prairie on the land, the cost of the land at the government sale should constitute the measure of damages; that the defendant represented that the cost of the land was §1 25 per acre, when, in fact, it was but twelve and one-half cents per acre; that the land was a barren and rocky ridge, and no part of it was timber or prairie land.</p> <p>Held, that the facts alleged entitled the plaintiff to a rescission of the contract.</p> <p>He Id, also, that while it was competent for the parties to fix the rule of damages, that rule will not be allowed to prevail where it appears that the whole contract was procured by fraud.</p>

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

<p>Executors and Administrators. — Suit by tie heirs upon a bond executed by an administrator, with the will annexed, by order of the court. The breach assigned was, that the administrator had appropriated to his own use the sum of $8,000 belonging to said estate, which was in his hands at the time of the execution of the bond.</p> <p>Held, that it will be presumed in favor of the action of the court, that the order requiring the execution of the bond was authorized by law.</p> <p>Held, also, that the sureties on the second bond of an administrator, in any case where such bond is required by an order of the court, are liable for any breach of the conditions of the bond occurring after its execution.</p> <p>Held, also, that the statute authorizes a suit on the relation of the heirs, and that such suit may be brought before the removal of the administrator.</p> <p>Held, also, that an answer by the sureties, alleging that the administrator was for a long time after the execution of the bond solvent, and that the heirs and the court had dismissed proceedings against him by citation to compel him to account, without the consent of the sureties, &c., was bad.</p>

<p>Attachment. — Gaenishee.—The statute does not require a separate complaint to be filed against a pei-son summoned as a garnishee. The affidavit requii’ed to procure the summons is all that is necessary.</p> <p>Same. — Where no property has been taken in attachment, and a party summoned as a garnishee has, on his own application, procured a continuance of the proceedings against him, after personal judgment against the attachment defendant, he cannot afterward insist that the plaintiff has abandoned his right to judgment against him.</p>

<p>Change or Vente. — Where the venue of a case has been changed, an appearance and submission to a rule to answer is a waiver of any objection to the transcript, touching the jurisdiction of the court in which the cause is pending.</p> <p>Same. — By the term “proceedings,” in section 208, 2 O. & H., 155, is meant merely the orders made in the cause by the court granting the change of venue, and not a transcript of the whole record.</p> <p>Practice. — A defect in a verdict or finding of the court cannot be reached by a motion for a new trial.</p> <p>Same. — Where a verdict, either general or special, is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages, the proper step for relief against it is by an application for a venire de novo.</p> <p>Sajie. — A cause was submitted to the court for trial, the defendant requesting that the facts found, and the conclusions of law upon them, should bs stated in writing. The finding was for the plaintiff and stated the facts proven, but not the conclusions of law upon the facts.</p> <p>Held, that a motion by the defendant for judgment in his favor on the finding would not lie.</p> <p>Seld, also, that the court not having stated its conclusions of law upon the facts found, the case could not be prepared for review in the Supreme Court by excepting to the decision.</p>

<p>Judgment. — Notice.—In a proceeding in the Court of Common Pleas of Brown county for the partition of land, the only notice of the pendency of the action was a publication in a newspaper that the plaintiffs, heirs of A. B., deceased, late of said county, had filed their petition for a partition of tlie land of the decedent'- in said county, and that the petition would be heard at the next term of said court. The land was sold under a judgment rendered in the cause. In a collateral suit, where the validity of the judgment and proceedings was called in question,</p> <p>Held,- that the judgment was not void.</p> <p>Sold, also, that the parties to that suit were concluded by the record.</p> <p>MeId, also, that they could not object that one of the heirs had not been made a party to the suit.</p> <p>Same. — Jurisdiction.—Unless the acts of a superior tribunal are void on their face, they are valid without proof or averment -of their validity In oases of domestic judgments of courts of general jurisdiction, where they come collaterally in question, jurisdiction of the person and of the subject matter, where the record discloses nothing on the point, will be presumed, in the absence of proof to the contrary.</p>

<p>Recognizance. — Suit on. — Suit upon a recognizance conditioned for the appearance of the accused to asnwer a criminal charge upon the first day of the next succeeding term of the court. The breach alleged was a failure to appear on the day named. Answer by the surety, that the grand jury impanneled at the term of the court to which said recognizance was returnable, investigated the charge and found no bill of indictment against the accused.</p> <p>Held, that the answer was bad.</p>

<p>Quit-Ceaim Deed. — Effect of. — To a complaint upon a promissory noto, given to secure the price of land which the payee had engaged to convey to the maker by deed of quit-claim, it is not a good answer that the land, after the note was made, had been sold to discharge a lien upon it, which existed when the note was made.'</p>

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

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

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

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

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

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

<p>Transcript op Judgment. — Suit on. — In a suit upon a judgment, it is not necessary that the copy of the judgment filed with the complaint should contain either a piadla or an authentication.</p> <p>Same. — Suit upon a judgment rendered by a justice of the peace in the State of Ohio. The transcript contained the following return to the summons, viz: “Served by leaving a copy at place of residence, with A, B.”</p> <p>Held, that the service was insufficient at common law.</p> <p>Held, also, that the complaint was bad on demurrer, for want of an averment that the justice had jurisdiction of the subject matter, and that the service was sufficient by the law of Ohio, or the equivalent averment, made sufficient by our statute, “that the judgment was duly given or made.” Pleading. — A party may, under the code, state his cause of action in different forms in the several paragraphs of his complaint, and cannot be required to elect between them on affidavit of their identity.</p>

<p>Robbery. — Larceny.—In an indictment for robbery the description of the property taken need not be more particular than is required in charging a larceny.</p> <p>Sasie. — Violence.—On the trial of an indictment for robbery, the evidence showed that the accused was found standing astride the body of a man who was lying upon the ground drunk and unconscious; that he had taken from the pockets of the drunken man a pocket book and other property, and in doing so had turned the pockets inside out. The indictment charged the taking to have been by force and violence.</p> <p>Held, that the ease made by the evidence was not robbery, but larceny.</p> <p>Held, also, that a sufficient degree of force to constitute violence was an essential ingredient of the crime as charged.</p>

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

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

<p>Railroads. — Fences.—Where by contract with a railroad company the owner of the land through which the road passes has undertaken to maintain the fence, no recovery can be had by him against the company for an injury to bis animals which resulted from his failure to perform the contract.</p> <p>Same. — The tenant of the land owner, thus bound by contract to maintain the fence, or a person whose animals trespass upon the land, is in no better position to maintain an action than the proprietor.</p>

<p>Indictment. — The indorsement of the foreman of the grand jury upon an indictment returned into court as “a true bill,”'is not a part of the record, unless made so by a bill of exceptions.</p> <p>Same. — The transcript on an appeal from a judgment in a prosecution for a felony showed that a grand jury was impanneled and sworn pn tine first" day of the term, the names of the jurors, and that A was appointed foreman. At a later day in the term an indictment was returned into court by the grand jury, signed “by B, their foreman, as a true bill.” There was no entry showing that B had been appointed or sworn as foreman, nor did his name appear among the jurors impanneled.</p> <p>Held, that the failure to show the appointment of B as foreman was probably a mere ministerial omission of the clerk, by which the substantial rights of the defendant were not affected, and which furnishes no ground for a reversal of the judgment.</p> <p>Phoeessional Gamblinq. — Indictment for professional gambling, in two counts. The first charged that the defendant, at Marion county, &c., was engaged in the habit and practice of gaming, and did then and there get his livelihood thereby. The second count charged that the defendant, at, &e., was wandering about from place to place, in the habit and practice of gaming. The evidence showed that the accused had been for two months traveling about and gaming for a livelihood, but that he had come into the county where he was indicted on lawful business, and had not gamed therein.</p> <p>Held, that the evidence did not sustain the indictment.</p>

<p>Bun op Exceptions. — Practice.—Where a bill of exceptions is not fílécb within the time limited by the court, further time cannot be given without notice to the adverse party.</p> <p>Same. — Qumre, whether such leave can be given even after notice or appearance.</p>

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

<p>Promissory Notes. — Revenue Stamp. — Suit upon a promissory note dated November 7th, 1862. When the note was offered in evidence the defendant objected, on the ground that it was not stamped with an appropriate revenue stamp.</p> <p>Held, that, under the act of July 1st, 1862, the note should have been stamped, and was not admissible in evidence without a stamp.</p> <p>Held, also, that, under section 5 of the act of December 25, 1862, the party offering the note might have removed the objection by affixing the proper stamp.</p>

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

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

<p>APPEAL from, the Ripley Common Pleas.</p>

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

<p>Parent and Child. — Apprenticeship.—Statute op Frauds. — Suit by an infant, by next friend, for work and labor. Answer, that tke plaintiff was an infant, having no father living, nor any guardian, and that the defendant entered into a contract with the mother, by which it was agreed that the plaintiff should dive with and work for the defendant until he was twenty-one years of age, receiving for his labor his board and clothing, and certain presents on attaining his majority; that the plaintiff wrongfully left the service of the defendant before attaining his majority, &c., \</p> <p>Held, that, under the statute, articles of apprenticeship must be in writing.</p> <p>Beld, also, that under tbe facts alleged in tbe answer, tbe mother was entitled to tbe wages of ber son, and could make a valid contract for bis services, but unless sucb contract conformed to tbe statute regulating the relation of master and apprentice, it would confer on the defendant no right to control tbe person of tbe infant.</p> <p>Bold, also, that, as tbe contract was not in writing, and was not to be performed within one year, it was void under tbe statute of frauds, and could not be used as a bar to tbe action.</p> <p>Bald, also, that on a finding for tbe defendant, a judgment against tbe procliein ami for costs was right under tbe statute.</p>

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

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

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

<p>Beacmoe. — Where, after the court has stricken out a paragraph of a pleading, the party amends and refiles the paragraph, error cannot be assigned on the action of the court.</p> <p>Bleading. — Suit for damages caused by the sinking of a flat boat while it was being towed by the defendants’ steamboat. The complaint alleged that the loss resulted from the unskillfulness and negligence of the defendants, their servants, &e. Answer, 1st. General denial. 2d. That the loss resulted from the fault and negligence of the plaintiffs.</p> <p>Held, that the second answer amounted only to a denial, and was properly stricken out on motion.</p> <p>Negligence. — On the trial the court instructed the jury as follows: 1st. “ If there was no provision in the contract that the towing of the flatboat should be at the plaintiffs’ risk, then the defendants will be liable if the boat was sunk in consequence of the ordinary negligence of their servants or employees. You will not consider any evidence of any notice that boats would be towed by the defendants only at the risk of the owner of the tow, unless the contract was made subject to such condition. 2d. If the flatboat was too heavily loaded, and the defendants, knowing that fact, took her in tow, they were bound to use ordinary care with reference to the condition of the boat. If the overloading of the flat by the plaintiffs materially contributed to the loss they cannot recover, but if the defendants were guilty of negligence in towing the flat, and such negligence alone was the immediate cause of the loss, the defendants are liable.”</p> <p>Held, that the instructions correctly stated the law applicable to the case.</p> <p>Qucere, whether the defendants could have been charged as common carriers.</p>

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

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

<p>Practice. — Judgment on Insuiticient Service. — A defendant desiring to be relieved from a judgment by default, upon the ground that tlie return to the summons shows an insufficient service upon him, should move in the court in which the judgment was rendered to set aside the judgment. The objection cannot be taken in the first instance in the Supreme Court.</p> <p>Same. — To meet the objection to the sufficiency of the service, it is competent for the plaintiff to move to have the return'corrected.</p> <p>Judgment. — A stranger to a judgment, as he could not he admitted to reverse it or set it aside, may in a collateral suit show that it was obtained by fraud.</p>

<p>Judgment by Agreement. — A judgment entered by agreement, by a court of general jurisdiction, having power in a proper case to render such a judgment, and having the parties before it, will bind those by whose agreement it is entered, notwithstanding the pleadings would not, in a contested case, authorize such a judgment.</p> <p>Same. — In a suit for the foreclosure of a mortgage which is not accompanied by any agreement in writing by the mortgagor to pay the debt, the relief is confined to the mortgaged property. But if the defendant appears to the action and consents that a personal judgment may be rendered, the judgment is valid.</p> <p>Judgment or Foreclosure. — Lien on other Lands. — Whenever in a proceeding for the foreclosure of a mortgage the plaintiff is entitled to a personal judgment, and an order is made under the statute that after the sale of the mortgaged premises, the residue of the judgment remaining unpaid shall be levied of other property of the mortgagor, the judgment is, from the date of its rendition, a lien on all other lands of the mortgagor in the county.</p> <p>Junior Incumbrancer. — Redemption.—The right of a junior incumbrancer to redeem a prior incumbrance cannot be resisted on the ground that he has other sufficient securities for his debt.</p> <p>Same. — Pleading.—In a proceeding by A against B and others for the foreclosure of a mortgage, C, who had a judgment against B, was made a party defendant. The complaint alleged that the judgment of C was upon the foreclosure of'a mortgage upon other lands, and did not affect any of the lands mortgaged to A.</p> <p>S:eld, that the averment as to the lien of C’s judgment was not the averment of a fact but of a conclusion of law, which could not be-deduced from the facts averred, and which, if a fact, was wholly immaterial, and hence was not admitted by a default.</p> <p>Cross Pleadings. — As our statute conferring power upon the courts to determine the rights of the parties on each side o'f a case, as between themselves, does not prescribe the mode of procedure, the rules of practice in the courts of chancery, modified by the spirit of the code, must be resorted to.</p> <p>Same. — Under the chancery practice, wheifa defendant sought relief against a co-defendant as to matters not apparent upon the face of the original bill, he must file his cross-bill, making parties thereto such of his co-defendants and others as was necessary to the relief sought, and process was necessary to bring them in.</p> <p>Estoppel. — The doctrine of estoppel in pais can have no application in a case where everything was equally known to both parties, or where the party sought to be estopped was ignorant of the facts out of which his rights sprung, or where the party asserting the estoppel was in no degree influenced by the acts or admissions pleaded in estoppel.</p> <p>Same. — Estoppels in pais, unlike technical estoppels by deed or matter of record, never exist without reference to the moral qualities of the conduct alleged. The door is shut against asserting a right where that would result in doing a wrong to some other person, or where in good conscience and honest dealing a party ought not to be permitted to gainsay his previous conduct.</p> <p>Same. — A mere failure to give notice of a right where another, without knowledge of the fact, is investing his money, and where it might be fairly concluded that he would not do so if informed of the fact, will generally preclude a subsequent setting up of the right thus concealed.</p> <p>Sheripp’s Sale. — Appraisement.—A sale on execution without appraisement, where the law requires an appraisement, is void.</p>

<p>Defective Verdict. — Venire de Novo. — Where in a suit against two, the jury finds against both of the defendants upon the first paragraph of the complaint, and against one of the defendants upon the second paragraph, and there is no finding as to the other defendant upon the second paragraph, the verdict is ill for not finding the whole issue, and a venire de novo should be awarded.</p> <p>Venire de Novo. — New Trial. — A motion for a venire de novo is not a waiver of a motion for a new trial.</p> <p>Evidence. — Complete Record. — As it is made the duty of the clerks of the courts of record in this State to make a complete record of all actions involving the title to land, within one month after the same are finally determined, it will be presumed, after the lapse of the time mentioned, that such record has been made. Same. — A duly authenticated transcript of such record, in the absence oí the original, is the highest evidence of the contents thereof, and secondary evidence is not admissible, without proof of the destruction or nonexistence of the record.</p> <p>Injunction. — In a suit upon an injunction bond given to procure a restraining order from the judge of the Court of Common Pleas, in a case in the Circuit Court, in the vacation of the latter court, it is for the plaintiff to show that the order related to some matter pending in the Circuit Court.</p> <p>Same. — The defendant is not estopped to deny the- jurisdiction of the judge granting the order over the subject matter of the suit. If the order was void, it was no restraint, and the undertaking given to procuro it was of no validity.</p> <p>Pleading. — Lost Instbument. — In a suit upon a lost instrument it is incumbent upon the plaintiff to prove the contents of the instrument, as alleged, after laying the proper foundation therefor, but proof of its execution is not necessary unless the execution is denied under oath.</p> <p>Injunction Bond. — Damages.—In an action upon an injunction bond, given to procure an order restraining the plaintiff from cutting timber upon a tract of land, the defendant offered to prove, in mitigation of damages, that at the time of suing out the injunction the land and timber belonged to another person, and that the plaintiff had no right to cut the timber.</p> <p>Held, that the evidence was admissible.</p>

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

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

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

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

<p>Pleadinq. — City Ordinance. — In a complaint for the violation of a city ordinance it is not necessary to set out the whole ordinance, with its title, but only the section or sections which are alleged to have been violated.</p> <p>Titles or Laws. — Section 19 of article 4 of the constitution applies only to acts of the legislature, and has no reference to by-laws or ordinances enacted by the common council of a city.</p> <p>Evidence. — Corporation.—Section 284 of the code, (2 G. & H., 184,) which provides that the acts and proceedings of a corporation may bo proved by a sworn copy of the record, was not intended to make such copy the only legal evidence of such acts. The original record is the best evidence, and is always admissible in evidence.</p> <p>Ordinances. — Prooe op Publication. — Where in a suit for the violation of a city ordinance the publication of the ordinance is not denied under oath, proof of the publication is not necessary.</p>

<p>Common Cakeiees. — Fobwabders.—Suit against an express company for a failure to deliver a package of money consigned by the plaintiff to one A. The receipt given for the package stipulated that it was to he delivered to A in person. Answer, that the agent of the company at the place to which said package was addressed was also the telegraph operator at that place; that a person pretending to he A came to said agent and sent a telegram through him to the plaintiffs, requesting that the money sued for should he sent; that in answer to said telegram the money was sent hy the plaintiffs, addressed to A, and that the same person who had sent said telegram called for and demanded said package, representing himself to he the person to whom the same was addressed, and the money was thereupon delivered to him hy the defendant’s agent.</p> <p>Sold, that the answer did not show such a degree of care and caution as would relieve the defendant from liability, even if charged as a forwarder only.</p>

<p>Habeas Corpus. — Appeals.—Section 577 of tke code applies only to appeals from interlocutory orders or judgments. Where a final judgment has been rendered upon a writ of habeas corpus, an. appeal will lie to the Supreme Court, as in other cases, under sections 550 and 556 of the code.</p> <p>Parent and Child. — The father is the natural guardian of his infant child and is entitled to the custody of it. But if, by reason of immoral or vicious habits, he is unfit to have the custody and training of his child, the court will refuse to award it to him, or will even direct it to be taken from him.</p> <p>Habeas Corpus. — Infant.—A writ of habeas corpus proceeds upon the ground of an illegal restraint, and if such restraint is found to exist it is the duty of tlie court to free the person from it. But the court is not hound to deliver the custody of an infant to any particular person, but should do so if, under the circumstances, it ought to be done.</p> <p>Same. — If no restraint is found to exist, and the infant is of an age of discretion, the court may simply declare it at liberty to go where it will. But when the child is too young to exercise a discretion, or have a choice, it is the duty of the court to award the custody to the person legally entitled thereto.</p>

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

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

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

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

<p>Taxation. — Charitable Association. — Suit to enjoin the collection of taxes assessed upon the building commonly known as Masonic Hall. The complaint alleged that the Grand Master, &c., was a benevolent corporation: that the building was used for purposes of universal benevolence and charity.</p> <p>Held, that the allegations made a case entitling the property to exemption, under the statute.</p> <p>Exemption prom Taxation. — Construction op Statute. — The general policy of this state is to subject all private property to the burden of taxation, and hence, statutes exempting property from taxation must he strictly construed.</p> <p>Same. — Literary Institutions. — In favor of literary and scientific institutions possibly a more liberal construction would be required, for the reason that the encouragement of educational facilities is in furtherance of a public polioy manifested iu our constitution and laws.</p> <p>Same. — The use of a building by lessees for concerts, or for mercantile purposes, is not a use by a charitable institution within the meaning of the statute, though the rents derived therefrom are devoted to charitable uses.</p> <p>Charitable Society. — Limitation to a Class. — That an institution limits its benefactions to the membership of a particular religious or secular organization, does not deprive it of the character of a charitable institution.</p>

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

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

<p>■Fosisotosua,®. — Pasties-—Whore the mortgagor of lands has conveyed the mortgaged premisos, the wife ef the purchaser is a proper party defendant in a suit to foreclose the mortgage.</p> <p>Same. — ;To a complaint for foreclosure against A, the mortgagor, and B, the purchaser of the mortgaged premises, the latter answered, 1. That the plaintiff, with notice, of the sale of the premises, had- proceeded to take a decree of foreclosure against A alone. 2. That the plaintiff then haol in the hands of the sheriff an order of sale issued upon the decree of foreclosure mentioned. Reply to the second answer, that the order of sale was issued without the order, knowledge or consent of the plaintiff.</p> <p>Held, that the first answer was bad on demurrer.</p> <p>Held, also, that the reply to the second answer was good, as the clerk had no right to issue the writ without the plaintiff’s direction.</p> <p>Pbactice. — It is within the discretion of the court to allow a party to introduce further evidence, even after the argument has been eoneluded.</p>

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