Volume 26 — Indiana Reports

<p>Attachment.—Garnishee.—Appeal Bond.—A instituted proceedings in attachment against B and C, and caused a summons to be issued against the Central Sank as a garnishee, upon an affidavit alleging that the bank was indebted to C. The answer of the bank to the process of garnishment was filed by P, “ as president” thereof, and admitted an indebtedness to C. Afterwards D and E also began proceedings in attachment against the same defendants, but it did not appear from the record that they became, or asked to become, parties to the attachment proceedings instituted by A. Judgment was rendered in favor of A against B and C, and also against “ P, president of the Central Sank,” as garnishee, for the amount owing by the bank to C, and an order was made “that after the payment of the costs and the amounts that are due to the several plaintiffs in the proceedings,” the residue of the amount owing by the bank should be paid to B and C. D and E also took separate personal judgments by default against B and C. A transcript of all these proceedings was afterwards filed in the Supreme Court, on appeal, upon which errors were assigned as follows: “B and C v. A, as attaching creditor, and D and E.”—“P, as president of tho Central Sank v. A.” The above named P, as president, and B and. C come and say,” &c. The appeal bond was made payable to A alone, and recited that “Whereas the said P had prayed an appeal,” &c., “from a judgment rendered against him in favor of the above named obligees,” &c. The judgment was afterwards affirmed in the Supreme Court. Suit by A, D and E upon the appeal bond.</p> <p>Meld, that under the general banking law the president was the only proper person to answer for the bank to the process of garnishment. Page 8.</p> <p>Meld, also, that if the judgment against the bank should have been in form against “P, as president of the Central Bank," instead of “P, president of the Central Bank," the mistake must be treated as a clerical omission, which would not invalidate the judgment. Page 8.</p> <p>Held, also, that though the appeal was by P, as president of the bank, from the judgment of A only, yet as the supersedeas operated to stay all proceedings on the judgment, the appeal bond, though in form to A only, would have inured also to the benefit of I) and E, if they had become parties to the attachment suit of A in such a manner as to make the judgment against the garnishee available to them. Page 8.</p> <p>Held, also, that as the record fails to show that D and E ever became parties to the attachment suit instituted by A, the judgment against the garnishee was not available to them. The mere statement of the clerk in the transcript, after the record of A’s suit, that “the following cases are filed as claims under said attachment,” followed by a record of their suits, was not sufficient to make them parties to that suit. Page 9.</p> <p>Held, also, that while there was but one transcript filed in the Supreme Court, there were, in fact, two appeals. One by P, as president, from the judgment against the bank as garnishee, and one by C and D from the several personal judgments against them, and the bond filed was applicable to the appeal by the garnishee only. Page 10.</p> <p>Held, also, that there could be no recovery by D and E upon the appeal bond, because they were not beneficially interested in the judgment against the garnishee from which the appeal was taken. Page 12.</p> <p>Held, also, that the erroneous recital in the appeal bond that judgment had been rendered against P, (as an individual,) did not affect the validity of the bond, under the statute. Page 11.</p> <p>Held, also, that the statute, (2 G. & I-I., sec. 790, p. 333) was intended to cure defective bonds, and to impart to them the effect which they would have by law if perfect, but it cannot be so applied as to give to an instrument an effect distinctly different from that which was actually contemplated by the parties, or to impose a liability which the obligor never intended to assume. Page 12.</p> <p>Held, also, that the validity of A’s judgment could not be called in question in the suit on the bond, the judgment of the Supreme Court affirming the judgment below being final and conclusive on that question. Page 14.</p>

<p>Coupons,—Interest on.—Suit against the city of Jeffersonville upon certain interest warrants attached, to bonds issued by the city, and payable to bearer in the city of New YorJc. The complaint did not aver a presentation of the warrants at the place of payment, but alleged that the city had no. funds in New YorJc.</p> <p>'Held, that the plaintiff was entitled to interest on the warrants after maturity.</p>

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

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

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

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

<p>Indictment.-—Indorsement.—-The signature of tlie foreman of tlie grand jury by tlie initials of his Christian name to the indorsement on an indictment is sufficient.</p> <p>Continuances in Original Cases.—Section 322 of the civil codo, and the amendatory aet of 1865, (Acts 1865, p. 61,) relate only to continuances in civil cases. Page 31.</p> <p>Same.—Applications for continuances are addressed to the sound discretion of the court to which they are made, and the Supreme Court will revise the decision of the lower court only when that discretion has been clearly abused. Page 32.</p> <p>Same.—Tlie accused is entitled to have the witnesses whose evidence is material to his defense present at the trial, if they are within reach of the process of tlie court., and may have a continuance for a reasonable time to procure thoir attendance. Page 83,</p> <p>Same.—Where a proper case is made by the accused for a continuance, the State cannot avoid the continuance by an admission that the absent witness would, if present, testify as stated in the affidavit. If the facts stated in the affidavit are admitted to he true, the court might properly refuse the continuance.</p>

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

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

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

<p>Injunction.—An injunction will lie to restrain a turnpike company from entering upon lands for tlie purpose of constructing its road, before compensation lias been legally assessed and tendered. Page 57.</p> <p>Plank Roads.—Assessment oe Damages.—Title to Lands.—A proceeding before a justice of the peace for an assessment of damages, under the act authorizing the construction of plank, macadamized and gravel roads, does not involve the title to real estate. Page 58.</p> <p>Same.-—-Construction on Statute.—Notice.—In a proceeding for the assessment of damages Under section 7 of the act authorizing the construction of plank roads, &c., (1 G. & H. 474,) if the owner of the land is an adult, and a resident of the county where the land is situated, he must bo summoned to appear for trial before the justice within ten days; but if the owner be a minor, having a guardian who is a resident of the county, the summons must be served on the guardian at least ten days before the day 'of trial. Page 59.</p> <p>Same.—In such case, the act recognizes the guardian as the proper legal representative of the minor, and the guardian being properly summoned, no further notice to the ward is required. But if there be no guardian resident in the county upon whom process can be served, then notice must be given to the minor, whether a resident or non-resident of the county, by posting written notices of the time and place of trial in three of tho most public places in the township where the land is situated. Page 60.</p> <p>Same.—Section 8, which requires notice to be posted in all cases where the owner of the land is a minor, construed in connection with section seven must be held to apply only to cases where the minor has no guardian resident in the county. Page 00.</p> <p>Same.—Trial by Jury.—The provision in the plank road act for the assessment of damages in the first instance by viewers, to be appointed by the justice, is not in conflict with sec. 20, art. 1, of the constitution, which provides that “ in all civil cases the right of trial by jury shall remain inviolate.” On appeal to the Circuit Court the issue may be tried by a jury. Page 61.</p>

<p>Tender.—Costs.—When a tender has been made and refused before suit brought, and is afterwards kept good; if the plaintiff does not recover more than the sum tendered he must pay costs.</p> <p>Depositions.—Certificate.—It is not necessary that the names of the witnesses examined should he stated in the certificate of the officer taking the deposition. It is sufficient if they are referred to “ as the above named deponents.”</p> <p>Same.—Service of Notice.—The service by copy of a notice to take depositions is good, under the statute.</p> <p>Same.—Peace of Taking.—Where the adverse party is present at the taking-of a deposition, and consents to the taking at a given place, ho cannot afterward object to the sufficiency of the notice as to the place of taking.</p> <p>Witness.—Memorandum.—A witness may refresh his recollection by reference to a- memorandum made by him at the time of the transaction about which he is testifying.</p> <p>Deposition.—Revenue Stamp.—The certificate of the officer taking a deposition is not subject to stamp duty.</p>

<p>Negligence or Servant.—Liability or Master.—A master is ordinarily responsible for the consequences resulting to others from the negligence or want of skill with which his employees do his business.</p> <p>Same.—AYillebl Trespass or Servant.—But for a willful and malicious trespass of a servant, not commanded or ratified by the master, but perpetrated to gratify the private malice of the servant, under mere color of discharging the duty which he has undertaken for his master, no action will lie against the master.</p> <p>Same.—But if the act of the servant was necessary to accomplish the purpose of his employment, and was intended for that purpose, then it was implied in the employment, and the master is liable, though the servant may have executed it willfully and maliciously.</p> <p>Same.—Corporations.—These rules apply equally to corporations as to private individuals.</p> <p>Same.—Suit against a railroad company for a trespass committed by a servant of the company. The complaint alleged that the plaintiff had paid his fare and was seated in the oar, when he was violently assaulted and beaten, and ejected from the car, by a servant of the company; that the duty and employment of said servant was to provide seats for passengers and exercise care for their comfort, and that he then had charge of said car and committed said trespass in the course of his business as such servant.</p> <p>Held, that the expulsion of the plaintiff from the car, where ho lawfully was, if done without unnecessary violence, would give a right of action against the company, and as this state of facts might have been proved under the allegations of the complaint, a demurrer to the complaint was correctly overruled.</p> <p>Practice.—A judgment will not be reversed for an error in sustaining a demurrer to a paragraph of an answer, if all the evidence admissible under such paragraph was admissible under another paragraph pleaded.</p>

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

<p>Penal Statutes.—Construction oe.—Penal statutes must be construed strictly.</p> <p>Seduction.—In a prosecution for seduction, under section 15, 2 G. & H. 441, the jury cannot impose a fine, in connection with imprisonment in the county jail.</p>

<p>Covenant or Wakkanty.—Ejectment.—In a suit by A against B, upon the covenants in a conveyance of land, the breach alleged wah that one C had, in an action of ejectment against A, recovered the land on a paramount title, whereby A was evicted, &c.</p> <p>Held, that the complaint was not bad on demurrer, for not alleging that B had notice of the ejectment suit.</p> <p>Same.—But, the general denial having afterwards been pleaded, the record of the recovery in ejectment, without proof that B had notice of the penclency of the suit, though proper evidence of'the eviction of A, was not evidence of the title of G.</p> <p>Reformation of Contract.—Practice.—Since the adoption of the code of 1852, in a suit for a breach of a written contract, a mistake in the instrument may be corrected.</p> <p>Pleading.—Where the general denial has been pleaded, it is not error to sustain a demurrer to another paragraph of the answer, which alleges matter in denial of that which it would be incumbent upon the plaintiff to prove, to maintain his action.</p>

<p>Evidence.—Admissions oe Accused.—Tlie deliberate admissions of a party, made under oath, while giving testimony as a witness in a cause, are sufficient, without corroborative evidence, to support a conviction for a felony.</p>

<p>Mortgage.—Motion to Set Aside Decree.—A mortgage was giren to secure money payable in instalments at different periods, and in a suit for foreclosure after one only of the instalments had become due, the court ordered a sale oí the whole of the mortgaged premises to satisfy all the instalments, without having ascertained whether the premises were divisible. Motion, for this reason, after the lapse of two years, to set-aside the order.</p> <p>Held, that the motion, if in any view admissible, came too late.</p>

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

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

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

<p>Civil and Criminal Circuit Courts.—The act approved December 20, 1865, providing for criminal and civil circuit courts, is not repugnant to the constitution.</p> <p>Sixteenth Judicial Circuit.—The act, approved on the same day, creating the sixteenth judicial circuit, is constitutional.</p>

<p>Cebtiorabi.—Where the defendant had been convicted of larceny in a case transferred from the Common Pleas to the Circuit Court, and in the record filed on appeal in the Supreme Court it did not appear that the affidavit and information were embodied in the transcript of the proceedings of the Common Pleas which had been filed in the Circuit Court, nor even that those papers had been filed in the Circuit Court, but it nevertheless appeared that some paper had been before the latter court which had been recognized by the parties as the information, the Supreme Court, of its own motion, directed a certiorari to be issued.</p>

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

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

<p>Partition or Land.—Section five of the act concerning the partition of lands (2 G. & H. 362), does not change the rights of tenants in common as they existed before the passage of the act.</p> <p>Same.—Practice.—It is an application to proceedings for partition, of the rule of the code which allows the equitable as well as the legal rights of the parties to be settled in a single action.</p> <p>Same.—Improvements by one Tenant in Common.—Where several tenants in common are sued, under that act, by a co-tenant for partition, any one who has made improvements on the estate may set up, by cross-complaint, his equity for an allowance.</p> <p>Same.—Where one tenant in common has laid out money in improvements on the estate, a court of equity will, in making partition, assign to him that part of the premises on which the improvements have been made, or, before making the partition, it will direct an account, and that a suitable compensation be made for the improvements.</p> <p>Same.—To entitle a tenant in common, on a partition in equity, to an allowance for improvements made on the premises, it does not appear to be necessary for him to show the assent of his co-tenants to such improvements, nor a promise on their part to contribute their share of the expenses, nor that they were requested to join in the improvements, and refused.</p>

<p>Change oe Venue.—In a criminal case transferred by cliange of venue from the Common Pleas to the Circuit Court, it is sufficient if the affidavit and information are filed with the transcript from the Common Pleas, without being copied into it.</p> <p>Lament.—An information filed in the Wells Common Pleas charged a larceny to have been committed by the defendant in the county of Allen, and that he brought the stolen property into Wells county.</p> <p>Held, that the .information, though informal, was sufficient under the code.</p> <p>Change of Vende.—Where a criminal cause is transferred by change of venue from the Common Pleas to the Circuit Court, the trial proceeds upon the information and an indictment need not be found.</p> <p>Affidavit for a Continuance.—In a prosecution for a felony it is error to refuse a motion for a continuance supported by a sufficient affidavit.</p>

<p>Pledge.—Assignment in Trust.—A, being indebted to the Crescent City Bank, assigned by an instrument in writing to B, who was cashier of the bank, five hundred shares of the stock of the bank, in trust, for the purpose of securing the debt. B. was not described in the writing as cashier, nor did he sign it as such. It was stipulated in the writing that, in case of a failure to pay the debt in installments, at specified dates, B might sell the stock, after giving twenty days public notice. Suit -by C, to whom A had sold the stock, subject to the payment of the debt to the bank, alleging a tender of the amount of the debt, and a refusal to transfer the stock to him. Answer, that upon a failure to pay one installment of the debt, B, after giving the notice required, had sold the- stock to the bank.</p> <p>Meld, that if the stock was held by the bank as a pledge, the sale was invalid, first, because there was no demand of payment before sale, and second, because the pledgee became the purchaser.</p> <p>But, held, that the assignment of the stock was not to the bank, but to B personally, and not as cashier, and the sale to the bank was consequently valid.</p>

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

<p>Treasury Notes.—Legal Tender.—The decision in Thayer v. Hedges, 23 Ind. 141, that the legislation of Congress making treasury notes a legal' tender in the payment of debts is authorized by the constitution of the United States, approved.</p> <p>Same.—Tiñese notes, by being made a legal tender in the payment of debts, -were made the equivalent of coin, as a means of payment, in all but the cases excepted -by law.</p> <p>Same.—Gold Contract.—-Under a contract stipulating for the payment of a specified sum of money in gold, or if paid in paper, the amount thereof necessary to purchase the gold at the place of payment, it is not incumbent upon the promisor, in case of his failure to pay the sum in gold, to pay a greater sum in legal tender notes.</p> <p>Same.—Even were such a contract binding, a court could not, in enforcing a remedy for non-payment, judicially foreknow that the judgment would be paid in legal tender notes, nor could evidence be produced to prove that fact.</p>

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

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

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

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

<p>Instructions.—An. omission by the court, on the trial of a criminal prosecution, to charge the jury, as required by statute, that the defendant “ is presumed to be innocent until the contrary is proved,” and that “when there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted,” must be excepted to before the jury retire to consider of their verdict, in order that the court may have an opportunity to supply the omission.</p> <p>Same.-—It is too late first to make the objection on a motion for a new trial.</p> <p>Surety or the Peace.—The statute in question does not apply to a proceeding for surety of the peace..</p> <p>Same.—In a proceeding for surety of the peace, the issue to be tried is not, under the statute, the guilt or innocence of the defendant, but whether the complaining witness has just cause to entertain the fears expressed in his affidavit.</p>

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

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

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

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

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

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

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

<p>Assault and Battery.—Damages.—Suit for assault and battery against A and B. The evidence showed that the injuries were inflicted directly by A, and that he was aided and encouraged by B, who came up after the assault was begun. The court instructed the jury that if B aided and abetted A, by encouraging him to continue the battery, and A did continue the same, B would be equally liable with A for the damages resulting.</p> <p>Held, that the instruction was right, and applicable to the evidence.</p> <p>Held, also, that if the defendants jointly committed the battery they were equally liable, and the damages should be assessed against them jointly.</p> <p>Same.—Measure or Damages.—The court instructed the jury that the amount of damages in such cases is not fixed by law, but is left to the discretion of the jury; that the jury should look at the nature and extent of the injuries, and the circumstances under which they were inflicted, and then say what is just and proper under all the circumstances.</p> <p>Held, that the instruction was right.</p>

<p>Practice.—Demurrer.—A demurrer to a complaint on the ground that the complaint does not state sufficient facts, &c., will not present the question whether other parties ought not to have been joined as defendants.</p>

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

<p>SnEitipp’s Sale.—Eailuke op Title.—A purchaser of real estate at a sheriff’s sale, whose title was adjudged had for defects in the proceedings, could not maintain an action at law against the judgment defendant for the price paid to the sheriff.</p> <p>Same.—Equity.—But in equity the purchaser may recover the money paid for the extinguishment of the defendant’s debt.</p>

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

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

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

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

<p>APPEAL fx’oxxx the Wayne Cix’cuit Coux’t.</p>

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

<p>Mortgage.—A executed to B a mortgage upon real estate, conditioned that if A should pay or cause to be paid to B “ the full sum of $217, as follows: $100 paid by note on C, due,” &c., then the mortgage should be null, “but in case of the non-payment of said sum of $217, or any part thereof, as aforesaid,” then said mortgage might be foreclosed. Suit by A to compel satisfaction to be entered, alleging full payment of the debt secured by the moi’tgage. Answer that the note of C, secured by the mox’tgage, remained wholly unpaid.</p> <p>Held, that the payment of C’s'note was secured by the mortgage.</p> <p>Held, also, that it was not necessary, under the condition of the-mortgage, that B should pursue his remedy upon the note against C, before resorting to the mox'tgage.</p>

<p>Vendor and Purchaser.—Suit by A against B on a promissory note. Answer, that the note was given for the last payment due upon a purchase of real estate, which was conveyed with full covenants of warranty by A to B; that there yet remained some purchase money due from A to his vendor, for which the latter claimed a lien on the land, and that A had removed from the county, and defendant did not know of any property belonging to Mm out of wMck the debt could be made. Prayer that A be restrained from collecting the note sued on until, &c.</p> <p>Meld, that as the answer did not aver that A was insolvent, or that he had left the State, no cause was shown for restraining the collection of the note sued on.</p>

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

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

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

<p>Cities.—Ferries.—Tlie general law for the incorporation of cities does not authorize the common council to require the owner or keeper of a ferry within the city limits to take out a license from the city authorities.</p>

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

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

<p>Manslaughter.—Aiding and Abetting.—One may be guilty, under the statute, of aiding and abetting the crime of manslaughter.</p> <p>Same.—Indictment.—As under an indictment for murder in the first degree the defendant may be convicted of murder in the second degree, or of manslaughter, so under an indictment for aiding and abetting the crime of murder in the first degree, the defendant may be convicted of aiding and abetting the crime of manslaughter.</p>

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

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

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

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

<p>Where a person receives bis mother-in-law into bis bouse as a member of bis family there is no obligation on ber part to pay for board, unless there be an express promise, or the circumstances be sucb as to raise an implied promise.</p>

<p>Principal and Agent.—Prato.—Complaint by A against B, alleging that A, having been, a member of a co-partnership before that time dissolved, had employed an agent to compound and pay the debts of the co-partnership for which he was liable as such partner; that B had falsely and fraudulently represented to said agent that he held a note of said co-partnership for the payment of which A was liable, and that said note was then in the hands of an attorney in a distant town, &e.; that said agent, confiding in said representations, paid said debt, &c.</p> <p>Held, that the complaint showed a good cause of action against B.</p>

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

<p>Mechanic’s Lien.—Notice.—la a notice of a lien under the mechanic’s lien law, the lot or land upon which the building is situated should be described with such certainty that it may be definitely ascertained and located.</p> <p>Same.—Where a notice of a lien described the property as follows: “a part of lot 3, section 36, township 33, range i west, containing five acres, situated in Starke county, Indiana,” it was held void for uncertainty.</p> <p>Same.—Husband and Wife.—When .a complaint upon a mechanic’s lien alleges a joint contract with husband and wife, but does not show that the wife has any separate interest in the property, no cause of action is shown against the wife, and hence the husband is a competent witness in his own behalf.</p>

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

<p>Sheriff’s Sale.—Failure of Title.—-Where the judgment defendant hag no title whatever in the lands sold at sheriff’s sale, there is no consideration for the promise of the purchaser to pay the purchase money, and where a bid is made under a mistake of fact in this respect, the bidder ig not bound to complete the purchase. If the purchase money has been paid, he may recover it back from the judgment defendant.</p> <p>Judgment.—Lien on Equity of Redemption.—The equity of redemption of a judgment defendant in real estate is subject to the lien of a judgment rendered against him in the Circuit or Common. Fleas Court of the county in which the land is situated.</p> <p>Same.—Transcript of Judgment.—A certified transcript of a judgment filed in the office of the clerk of the Circuit or Common Fleas Court is a lien upon all of the real estate, (including an equity of redemption,) of the judgment defendant, within such county, from the time of filing.</p> <p>Equity of Redemption.—A purchaser at a sheriff’s sale of the equity of redemption succeeds to the rights of the judgment plaintiff, and may redeem as against a prior incumbrancer, before foreclosure and sale, although he, or the judgment plaintiff, may have been a party to the suit for foreclosure.</p>

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

<p>Judge Peo Tempoke.—Where a judge pro tempore has presided at a trial, the minutes of the proceedings should he signed by him, hut if signed by the regular judge, the irregularity does not render the proceedings void.</p> <p>Same.—The judge of the Wayne Circuit Court, being unable to attend on the first day of the term, wrote to the clerk of said court directing him to procure the judge of the Court of Common Pleas, to preside and charge the grand jury. The letter was delivered to the Common Pleas judge, and ho, as requested, presided in the Circuit Court until the arrival of the regular judge.</p> <p>IIeld, that the appointment was in substantial compliance with the statute.</p> <p>Held, also, that it was competent for the court to order the letter of appointment to he entered upon the minutes nunapro tunc.</p>

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

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

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

<p>Justice’s Act.—Practice.—Section 3G8 of tlie code, which provides that judgment may be given for or against one or more of several plaintiifs and for or against one or more of several defendants, &c., is adopted by section 75 of the justice’s act and governs the practice before justices,</p>

<p>Mutual Insueance Companies.—Assessments.—Under the law governing mutual insurance companies, the power to make assessments upon premium notes is limited by the amount of losses sustained and unpaid at the time of making the assessment.</p> <p>Same.—A refusal to pay an assessment made to cover the expenses of the company, as well as losses sustained, gives no right of action upon the premium note.</p>

<p>■Voluntary Assignments.—Schedule.—Tke schedule of personal property-required by section two of the act regulating assignments for the benefit of creditors, (1 G. & H. 114,) is not part of the indenture of assignment, and need not be recorded with it in the recorder’s office.</p> <p>Same.—The object of the act is to secure an equitable distribution of the debtor’s estate, and when the indenture of assignment conforms to the requirements of tho act, and there has been a substantial compliance by the assignee, the courts should not, by a technical construction of the language of the act, defeat the evident purpose of the legislature.</p>

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

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

<p>Motion to Set Aside a Default.—An affidavit filed in support of a motion to set aside a default, can only be made part of the record by a bill of exceptions.</p> <p>Defect of Parties.—An objection to a complaint for a defect of parties must first be made in the court below.</p> <p>Service of Process.-—Default.—Where a judgment has been taken by default, an objection to the service of process must be made the ground of an application to be relieved from the judgment before it can be noticed in the Supreme Court.</p>

<p>Bule in Shelley’s Case.—As the common law has been adopted by statute in this State, the rule in Shelley’s case is binding upon the courts as a law of real property. Page 259.</p> <p>Same.—Devises.—A devise to one “ for his use and benefit during his life, and then to his heirs and assigns,” is within the rule in Shelley’s case. Page 261.</p> <p>Same.—Executory Trust.—But where there is an executory trust, with a discretionary power vested in the trustee, the rule does not apply. Page 262.</p> <p>Same.—Personae Property.—The rule applies to real estate only, not to personal property. Page 262.</p>

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

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

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

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

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

<p>Pleading.—Complaint.—A executed to B a writing in the form of a promissory note, except that a condition was annexed that there should be a credit allowed on it of a sum equal to half the amount of the liabilities . of a co-partnership of A and B, existing at and up to the date of the writing. In a suit by B against A on the instrument, the complaint described the instrument as a promissory note, without noticing the stipulation for a credit, otherwise than by making a copy of the instrument part of the complaint.</p> <p>Held, that the complaint was bad on demurrer.</p> <p>Appeal.—A defendant in a judgment is not precluded by an entry of replevin bail from prosecuting an appeal.</p> <p>Partnership.—A and B having been partners, C purchased the interest of A in the firm, agreeing to pay one-half of the partnership debts of A and B, and B and C then formed a partnership. Afterwards, differences having arisen between A on the one part and B and 0 on the other part, they submitted the differences to arbitration, and an award was made setting forth, inter alia, that 0 had purchased from A an undivided one-half of the property, &c., of the firm of A and B, and had engaged in the purchase to pay half of the debts of said firm, &c.</p> <p>Held, that the partnership debts of A and B did not become debts of the firm of B and C, either by the terms of the agreement between B and 0, or of the award.</p> <p>Held, also, that it was competent for the firm of B and 0, as between themselves, to assume the debts of the firm of A and B.</p>

<p>Demurrer to Part op a Paragraph.—A demurrer will not lie to a part of a complaint consisting of a single paragraph, and containing only one causo of action. The objection must be taken either by motion or answer.</p> <p>Guardian and Ward.—Mortgage.—Suit by A, guardian of B, against 0, a former guardian, to foreclose a mortgage given by the latter to secure the amount of the trust funds in his hands and unaccounted for at the time of his removal. The mortgage recited that certain notes had been transferred by C to A, and contained an express covenant by C to pay the money within two years, if the same should not sooner be made out of the notes referred to. 0 answered that the notes described in the mortgage were taken by him for money belonging to said trust, and loaned by him as guardian, &c.; that at the time of the giving of said notes the parties were solvent, &c.</p> <p>Held, that as C had by the mortgage acknowledged his liability and promised to pay the money, he could not go behind the mortgage for the purpose of testing his liability.</p> <p>Held, also, that A was not bound to pursue his remedy on the notes assigned to him, before resorting to the mortgage.</p>

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

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

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

<p>Judgment.—Review.—A complaint for the review of a judgment is in the nature of a writ of error, and a second complaint to review the same judgment, where the first one,, on final hearing, has resulted in a judgment of affirmance, will not he allowed-</p>

<p>Insurance.—Merchandise.—The term “merchandise,” in a policy of insurance against loss, &c., hy fire on grain and other merchandise in each of two warehouses, which were kept by the assured, who were grain merchants, for the purpose of receiving and storing grain, was held not to include a platform scale, bedded in the floor of one of the warehouses, nor belting, nor a corn sheller, nor a beam-scale, which things had been dispensed with in the business, but which had not been offered for sale; nor tools, implements or articles of property purchased for use in the warehouses, as being necessary or convenient in the business, and which wore used as occasion required.</p>

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

<p>Supreme Court.—Abstract.—An appellant will be deemed to have waived all errors assigned by neglecting to comply with rule ten of the Supreme Court, requiring the appellant to furnish a complete abstract of so much of the transcript as is necessary to present the errors assigned and relied upon.</p> <p>Same.—The appellee cannot waive a compliance with the rule.</p> <p>Same.—An index to the record will not be accepted in place of the abstract.</p>

<p>Towns.—Election oj? Trustees.—Section three of the act providing for the incorporation of towns (R. S. 1843, p. 388) was intended to fix the term of office not only of the trustees first elected, but of their successors.</p> <p>Dissolution or Town Corporation.—As a method of dissolving the corporation is pointed out in section thirty of the act, whenever two-thirds of the inhabitants of the town shall desire such dissolution, the courts should not, upon a doubtful construction of the statute, resort to other methods of accomplishing the same result.</p>

<p>Corporations.—Subscriptions.—In a suit upon a subscription alleged to have been made to the stock of an existing corporation, organized under the laws of this State, where the name imports such a corporation as is authorized by law, a prima facie right to sue is shown without setting out the manner of the organization, or its specific objects. Page 313.</p> <p>High Schools.—Academies.—The terms “high schools and academies,” as used in the act of February 28, 1855, “to incorporate high schools,” &c., have reference to the organization for the establishment, government and control of a school or seminary of learning, rather than to the mere erection of a building for such a purpose, and an association for the latter purpose, only, is not within the law. Page 314.</p> <p>Same.—Neither is an association for the building, merely, of a school house within the provisions of the act concerning voluntary associations. 1 G. & H., 672. Page 314.</p> <p>Corporations.—Estoppel to Deny Existence op.—The rule that a person contracting with a corporation is estopped to deny the corporate existence is subject to the limitation that if the plaintiff assumes to be a corporation organized in this State, the name must be such as to imply such a corporation as is authorized by some statute of the State. Page 315.</p> <p>Same.—The rule does not apply to a suit upon a subscription of stock made with a view to the organization of a corporation, when other acts are required by law as a condition precedent to the exercise of corporate powers. In such case, it is for the plaintiff to show that the requisite steps have been taken to complete the corporate organization. Page 316.</p>

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

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

<p>Bill oj? Exchange.—Remedies op Sureties.—One who draws a bill of exchange for tho accommodation of the payee is the surety of the latter, within tho meaning of the statute on tho subject of “ the remedies of sureties against their principals,” (2 G. & H., sec. 674, p. 308) and as such, may, upon proper application, have execution directed first against the property of his principal. Gordon v. The Southern Bank, 19 Ind. 192 overruled.</p> <p>Same.—Form op Instrument not Conclusive.—As between the parties liable upon a promissory note or bill of exchange, the form of the instrument is not conclusive, but their actual relations may be shown by parol tobe other than they appear to bo.</p>

<p>Supreme Court.—Jurisdiction.—On a trial before a justice the plaintiff recovered $10 75, and immediately remitted $6 of the judgment. On appeal to the Court of Common Pleas there was judgment for the defendant, from which the plaintiif appealed to the Supreme Court.</p> <p>Held, that the Supremo Court had jurisdiction of the appeal.</p> <p>Revenue Stamp.—Appeal Bond.—No revenue stamp is required upon the appeal bond given on appeal from a justice of the peace.</p> <p>Practice.—Supreme Court.—When substantial justice has been done below, the Supreme Court will not reverse the judgment for errors not affecting the substantial rights of the parties.</p>

<p>Divorce.—Pleading.—A petition for divorce by tlie husband contained no allegation that the plaintiff was without fault, but it was alleged that the peace and happiness of the family were destroyed in consequence of the violent temper and misconduct of the defendant.</p> <p>Held, that the allegations wore sufficient to charge the fault upon the defendant.</p> <p>Allowance, Pending the Action.—Where the wife has sufficient funds or credit for the purposes of her defense and present support, the husband cannot be required to furnish money for such purposes pending the action.</p>

<p>Vendor’s Lien.—Constructive Notice oe.—A sold and conveyed to 33 atraet of land, taking no mortgage for the purchase money, but reciting in his deed the terms of tlie sale and particularly describing the notes taken for the unpaid purchase money.</p> <p>Held, that the recitals in the deed were notice of the-vendor’s lien to one who bought of 33 before the maturity of the notes.</p>

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

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

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

<p>Principal and Surety.—An agreement, upon a sufficient consideration, to give further time to the principal without the consent of the surety, will release the latter.</p> <p>Same.—The payment of legal interest in advance is a sufficient consideration for such an agreement.</p> <p>Same.—Usury.—An agreement to give further time in consideration of ton per cent, interest paid in advance, is not, under the law of 1801, void for usury, the contract being valid as to six per cent.</p>

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

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

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

<p>School Law.—Tkanseeb eoe, School Pueposes.—An appeal lies to the county examiner from the decision of the township trustee upon the application of an inhabitant to be transferred for school purposes to another township, and this remedy being provided by statute, a mandate will not lie against the trustee.</p>

<p>Once in Jeopardy.—Discharge op Jury.—When tho accused is put upon trial on a valid indictment, before a legal jury, and the jury is discharged by tho court without good cause, and without the consent of tho defendant, he has incurred the first peril, and the discharge of the jury is equivalent to a verdict of not guilty. Page 352.</p> <p>Same.—That the jury, after ample time spent in consultation, is unable to agree upon a verdict constitutes good cause for their discharge. Page 352.</p> <p>Same.—Tho jury should not be discharged until ample time has been given for deliberation, nor until the court is satisfied that an agreement is impossible. Page 353.</p> <p>Same.—A jury in a criminal case was out nineteen hours, and then reported to the court that there was no possibility of agreeing upon a verdict.</p> <p>Held, that the court was justified in discharging them. Pago 854.</p>

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

<p>Saves by Assignees.—Security.—Although it is the duty of ,an assignee for the benefit of creditors, upon a sale of property made by him, to require “security to be approved by him” for the purchase money, his neglect to require sufficient security will not avoid the sale.</p> <p>Vendor’s Lien.—WaivEr.—The vendor of real estate, by taking the vendee's promissory note for the purchase money, payable at a future time, with a third person as surety, waives his equitable lien on the land unless there be an express contract that the lien shall be retained.</p>

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

<p>Trespass.—Duty op Owner op Domestic Animals.—The common law imposes upon the owner of domestic animals the duty of keeping them on his own land or within inclosures, and he becomes a wrong doer if any of them escape or stray off upon the lands of another person.</p> <p>Railroads.—Injury to Animals.—A railroad company is not liable for an animal killed on the track at a point where the company was not bound to fence, unless it was killed by the gross negligence or willful misconduct of the company’s agents.</p> <p>Mutual Negligence.—Exception to General Rule.—The general rule that a plaintiff cannot recover if his own negligence contributed to the injury is subject to this exception: If the wrong on the part of the defendant is so wanton and gross as to imply a willingness to inflict the injury, the plaintiff may recover notwithstanding his own ordinary neglect. And this is always to be attributed to the defendant, if he might have avoided injuring the plaintiff, notwithstanding his own negligence.</p>

<p>Attachment.—Garnishee.—By the statute, any person indebted to the attachment defendant may be garnisheed, and from the day of the service of the summons, the garnishee is accountable to the attachment plaintiff for the amount due and owing from him to such defendant.</p> <p>Same.—Commercial Paper.—In the case of commercial paper, before a judgment can be rendered against the garnishee defendant, the plaintiff must show that the paper has matured, and that at the time of maturity it was held by the attachment defendant, or that it was not in the hands of a bona fide holder.</p> <p>Garnishee.—Payment.—A payment'of the debt by the garnishee defendant, after the service of the summons of garnishment, to the attachment ' defendant, or his general assignee for the benefit of creditors, will not discharge such garnishee.</p>

<p>Ees Adjudicate.—It is only the matters involved in the Issues made by the pleadings in a cause that are considered res adjudicates.</p>

<p>Arbitration Bond.—Attorney's Pees.—Costs.—Suit on an arbitration bond, in which the partios agreed to submit all matters in disunite between them’ to the arbitrament of certain persons therein named, and hound themselves, each to the other, faithfully to abide and carry out the award of the arbitrators.</p> <p>Held, that the plaintiff could not recover the foes paid his attorneys for prosecuting a suit to recover the award of the arbitrators, and for defending suits brought against him by the defendant on notes included in and settled by the award.</p> <p>Held, also, that in the absence of any complaint that the plaintiff did not recover his proper costs in defending the suits on the notes, the presumption is, that if the expense of procuring a transcript of the judgment on the award became a proper item of costs in those cases, it was properly included in the costs recovered.</p>

<p>Remedy.—Damages by Mill Dam.—The remedy provided in the ninth subdivision of sec. 684, 2 G. & H., p. 312, for the assessment of damages in favor of any person injured in any manner by a mill dam already built, or to have the dam declared a nuisance, as the case may require, is merely cumulative, and does not deprive the party injured of his action at the common law.</p>

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

<p>Peactice.—Amendment.—Where a variance between the evidence and t.he pleadings would have been amendable in the court below, it will be deemed to have been amended in the Supreme Court.</p> <p>Same.—Where the whole evidence is not in the record, the Supreme Court will assume that such facts were in proof as will support the action of the court below, if such a state of facts was possible.</p>

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

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

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

<p>Shekiff’s Sale —Nohoe.—Where after notice lias been given of a sale of real estate on execution, tbe sale is enjoined, it is not proper to give oral notice of an adjournment to another day, and after tbe dissolution of tbe injunction to sell without a new publication. In such case the notice required by the statute must be given de novo.</p>

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

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

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

<p>Shebiep’s Sale—Tbusts.—A. and B were parties to a bill of exchange, which was drawn by A, payable to his order at the 0. bank, and accepted by B. The bill was made by A and B for their equal benefit, and was discounted by said bank for their benefit, each receiving one half of the proceeds thereof, and each agreeing that he would pay one half of the same when it became due. Before the bill became due, A deposited in the h^nds of B cash securities, bills, notes and accounts on divers persons, to an amount sufficient to pay his portion of the bill when the same became due, which were collected by B. B did not pay the bill when it became due, but suffered a suit to be brought on it, and a judgment to be rendered against himself and A, for the amount thereof, with interest. Afterwards B caused an execution, issued on the judgment, to be levied upon the land of A, which was sold by the sheriff by virtue of said execution and levy, and was purchased at such sale by B.</p> <p>Hold, that it was the duty of B to pay the bill when it became due; that after having permitted tho debt to pass into judgment and become a lien on the land of A, it was the duty of B to pay the judgment and discharge the lion, and this duty was inconsistent with the character B assumed as a purchaser of the land.</p>

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

<p>Practice.—Mistake in Name.—A mistake in the name of a party, which was amendable in the court below, will bo disregarded in the Supreme Court, as not affecting the substantial rights of the adverse party.</p> <p>Limitation.—Legal Disability.—The phrase “under legal disabilities,” in 2 G. & H., sec. 215, p. 161, includes married women, persons under the age of twenty-one years, or of unsound mind, or imprisoned, or out of the United States.</p> <p>Same.—Where a party is under legal disability, when the cause of action accrues, and the disability continues to the time of trial, such party is not barred by the statute of limitations.</p> <p>Same.—Adverse Possession.—Color of title is not necessary to constitute an adverse holding so as to bar an action under the statute of limitations.</p>

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

<p>Injunction.—Jurisdiction.—The Circuit Court has jurisdiction of an applifor an injunction to restrain the sale of real estate upon an execution issued upon a judgment rendered in the Court of Common Pleas, where the ground of the application is that the property levied upon is not the property of the execution defendant.</p> <p>Deed to Husband and Wife.—At common law, if a conveyance of real estate was made to husband and wife, they did not take as joint tenants, or tenants in common, but both were seized of an entirety, and neither could dispose of any part of the estate without the assent of the other, the whole remaining to the survivor.</p> <p>Same.—The statute has not changed this common law rule, but has expressly recognized it.</p> <p>Same.—The husband does not, under the statutes of this State, acquire any legal interest or estate in the lands of the wife, but the same and the profits thereof remain her separate property.</p> <p>Same.—Where land is conveyed to husband and wife, the former has not such an estate in the lands as is subject to sale on execution. The right of survivorship does not constitute a contingent or vested remainder, but is'a mere incident of the estate.</p>

<p>Highways.—Banks of Streams.—The court was equally divided upon the question whether the title of the act of March 6, 1865, (Acts 1865, p. 52,) authorizing supervisors to remove fences along highways upon the banks of water-courses in certain cases, was sufficient to cover that provision of the act authorizing such removal, except in the case where the road is turned to the rear of buildings standing near the stream.</p> <p>Same..—The act referred to is not a special law, within the meaning of. sec. 22, art. 4, of the constitution.</p> <p>Same.—Neither is the law liable to the objection that it confers judicial ' power upon the supervisor.</p> <p>Same.—Section 20, article 1 of the constitution, which providés that the right of trial by jury shall remain inviolate, does not extend to proceedings for the assessment of damages in the location of highways. On appeal to the Circuit or Common Pleas Court the question may be tried by n jury.</p>

<p>Vendoe and Purchaser.—Suit by A against B to recover the possession of real estate. Answer, that D, who was the owner of the land in 1841, sold the same to A by title bond, conditioned for a conveyance upon payment of the purchase money; that §800 was paid at the time, and two notes for §473 75 each were given for tho residue of the purchase money; that A entered into possession, and by an improper use thereof gi’oatly impaired the value of the land; that in 1844, A having failed to pay any more of the purchase money, and having left the State, leaving no assets out of which tho debt could be made, D filed his bill in chancery to collect said purchase money, and a decree was entered that in default of payment within thirty days the premises should bo sold by the sheriff; that after said premises had been bought in by D on said decree, he sold and convoyed the same to defendant, and put him in possession; that the lands have greatly increased in value and that the defendant has made valuable and lasting improvements. Reply, admitting the proceedings in chancery, but denying that the land was legally sold upon tho decree, and alleging that the sale was void,because there was no appraisement and because no deed was executed to the purchaser; that defendant had notice of plaintiff’s title, and that the rents since plaintiff had been out of possession wore more than equal to the balance of tho purchase money due from him and interest thereon, and praying that an account he taken, &e.</p> <p>Held, that the plaintiff must recover, if at. all, upon the strength of his own title.</p> <p>Held, also, that to entitle tho plaintiff to recover, he must show a legal title to the possession.</p> <p>Held, also, that tho answer presented a good defense to the action, which the reply failed to meet.</p> <p>Held, also, that tho plaintiff, having been in default for nearly fifteen years, was not entitled to any equitable relief.</p>

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

<p>Pleading.—Negmgence.—In a complaint for damages, alleged to have resulted from the negligence of the defendant, there must he an averment that the plaintiff was without fault.</p>

<p>Transcript op Judcuient.I—Authentication op.—Suit upon the transcript of a judgment rendered in the Supreme Court of the District of Columbia. The certificate of the judge -was “that the foregoing attestation of A B, clerk of-said court, is in due form.”</p> <p>Held, that the authentication of the transcript ivas sufficient under the Statute. 2 G. & H. 185.</p>

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

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

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

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

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

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

<p>Highways.—Township.—A dug a mill-race across a highway upon his own land, and engaged to build and maintain a bridge over the race, in order to render the highway passable. Haying been sued by the trustee of the civil township for not having maintained it, a bridge erected by A having washed away, he, to compromise the suit, entered into a written contract with the township trustee to build a new bridge over the race, within a reasonable time, and to Peep it in repair. Having failed for six months to build the bridge, the township built it, and brought an action against A for the money expended.</p> <p>Held, that the action would lie.</p>

<p>Husband and Wife.—Separation.—If a wife, while separated from her husband, has the means of support, whether furnished by the husband or arising from her separate estate, the husband, though the separation may have taken place on account of his misconduct, can only be held liable, while she has such means, for necessaries furnished to her, upon his express promise to pay.</p> <p>Same.—But if the separation was produced by his misconduct, and she had no means of support till sometime after the separation, he would be liable for necessaries furnished to her in the interim.</p>

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

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

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

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

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

<p>Loss oe State Revenue.—Liability oe County.—The liability imposed upon the county by sec. 198 of the act for the assessment of taxes (1 G. & H. 113) for a loss of revenue sustained by the State in consequence of the default of the assessor, treasurer or auditor of the county, extends to all such losses as result from the default of either of those officers, in the discharge of the duties imposed upon them by the act of which the section named makes a part.</p> <p>Same.—A loss has not been sustained by the State, within the meaning of ' the statute, until the remedy upon the bond of the defaulting officer has been exhausted.</p> <p>Title oe Act.—The section referred to is properly connected with the subject expressed in the title of the act.</p> <p>Same.—When a matter is so closely connected with the subject of the act as to create a doubt whether it is not included within it, the court will not consider the question whether the legislative action upon it violates the constitutional prohibition relating to the titles of laws.</p>