Volume 27 — Indiana Reports

<p>Hew Trial.—Jury.—That the place where a jury is taken to deliberate is not a convenient one, is no ground for a new trial, unless it is shown that by reason thereof the verdict was not a fair expression of opinion of all the jurors.</p> <p>Same.—Misconduct op Jury.—After the jury had retired to deliberate upon their verdict, the bailiff, without the consent of the defendant, or the leave of the court, furnished to them, at their request, a volume of Bishop’s Criminal Law.</p> <p>Held, that the misconduct was such as to entitle the defendant to anew trial.</p>

<p>Counter-Claim.—The counter-claim under the code is more than recoupment at the common law. It embraces also the cross-bill in equity against the plaintiff.</p> <p>Same.—In a suit by the grantor to rescind a conveyance of land, on the ground of fraudulent representations, a counter-claim denying the fraud and alleging that the plaintiff has wrongfully kept the defendant out of possession, and asking judgment for possession and for rents and profits, is within the statute.</p> <p>Same.—But causes of action which cannot be joined in a complaint, cannot be joined in a counter-claim, and as a demand for waste is not incident to the recovery of the possession of the real estate, it was not properly joined in the counter-claim.</p> <p>Instructions.—The Supreme Court will not, in order to affirm a case on the ground that an erroneous instruction was harmless, indulge the presumption that the instruction was not applicable to the case.</p> <p>Fraud.—False Representations.—If a statement is in fact false, and is uttered for a fraudulent purpose, which is accomplished, it lias the whole effect of fraud in annulling the contract, although the person uttering the statement did not know it to be false, but believed it to be true.</p>

<p>Information.—Practice.—That no affidavit against tho defendant is filed with the information in a criminal case, is an objection which can only be reached by a motion below. It cannot be first made in tho Supreme Court.</p> <p>Same.—An information for a felony, in the Common Pleas Court, alleged that tho defendant was confined in the jail of the county on a charge of grand larceny, the identical felony thereinafter set forth, and that ho had not been indicted by any grand jury of the county for said crime; that said defendant on, &c., at, &e., did feloniously steal, &e., one bay mare, of tho value of §150, the personal property of A.</p> <p>Held, that tho information sufficiently charged the larceny, and showed jurisdiction in tho Court of Common Pleas.</p>

<p>Appeal.—Record.—It is the duty of the appellant to bring to the Supremo Court a perfect record of the judgment and proceedings of the court below.</p> <p>Same..—Complaint.—The complaint forms a necessary part of the record of .a cause, and when it appears by the record that a complaint was filed, but none is contained in the record, no question is presented for the decision of the Supremo Court.</p>

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

<p>Indictment.—Assault and Batteky.—Intent to Kill.—An indictment charged that A, “on,” &c., “at,” &c., “did unlawfully strike, beat, bruise and wound one B, with a knife, with premeditated malice, and with the intention to kill and murder him, the said B, did then and there stab, cut and wound him, the said B, with a large knife, then and there held in his hands,” &c., “with the intention of committing a felony.”</p> <p>Held, that the charge of premeditated malice was applicable to the battery only.</p> <p>Held, also, that'the indictment did not sufficiently charge the intent to commit the particular felony.</p> <p>Held, also, that as an assault and battery was well charged, a motion to quash the indictment should have been overruled.</p>

<p>Suit Against County.—Paupers.—Tlie statute does not require that a claim against the county for medical services rendered to the out-door poor, upon the employment of a township trustee, shall first he presented to the hoard of commissioners, and proof offered that would justify its allowance, before suit can ho brought upon it. Suit may ho brought in the first instance, at tho option of t|;e claimant.</p> <p>Bill of Particulars.—Practice.—If a bill of particulars is indefinite, tho objection should be taken by a motion to require it to be.made certain.</p>

<p>■ Paupers.—Medical Attendance.—Tlie decision in tlie case of The Board of Commissioners of Bartholomew County v. Ford, ante. p. 17, approved. Objection to Evidence.—An objection to the admissibility of evidence wliicli was not presented to the court below, will not be noticed in the Supreme Court.</p>

<p>Peomissoky Note.—Pbesemption of Settlement.—The giving of a promissory note is prima facie evidence of a settlement of accounts between tbs parties, but this presumption may be rebutted.</p>

<p>Peejury.—Affidavit.—An indictment for perjury, founded upon an affidavit filed by the defendant in a cause with interrogatories addressed to the plaintiff, alleged that the affidavit Ivas filed for the purpose of procuring a continuance of the cause, and that the matters stated in the affidavit “ were material to the issues joined.”</p> <p>Held, that the averment of the materiality of the statements alleged to bofalse was insufficient.</p> <p>Held, also, that the averment should have been, that the matters sworn to were material to the point then in question before the court. But held, that if the indictment showed that the statements alleged to be false were material to the point in question, an express averment of their materiality was not necessary.</p> <p>Held, also, that false swearing in such an affidavit is perjury, and the fact that the interrogatories are answered by the party to whom they are addressed, and a continuance is thus avoided, does not release the party making the affidavit from the guilt of perjury.</p>

<p>Caveat .Emptor.—Whore personal property sold at auction is, at the time, remote from the placo of sale, the purchaser, being ignorant of its condition, and having had no opportunity to examine it, has a right to rely upon the statements of, the seller.</p> <p>Covenant oe Warranty.—Measure op Damages.—Upon a breach of warranty of personal property, the measure of damages is the difference between the actual value of the property at the date of the purchase, and its value at that dato if it had answered the terms of the warranty.</p> <p>Same.—Evidence.—If the property is put upon a fair market and sold to the best advantage, within a reasonable time, the price realized is prima facie evidence of its value, while the price paid is also prima fade evidence of the value of such an article as would have fulfilled the warranty.</p>

<p>Fbahd.—Sale oe Chattels.—The purpose or intent of the parties to a sale of goods, must he judged of hy all the circumstances connected with and surrounding the transaction. Circumstances apparently trivial may, when taken, in connection with other facts proved, form important links in the chain of evidence. ' '</p> <p>Same,—Bill oe Sale.—The title, upon a sale of personal property, passes to the purchaser by delivery, and no bill of sale is necessary. But the taking of a bill of sale, attested by a witness, is not of itself a badge of fraud.</p> <p>Same.—Instructions.—Pacts or circumstances which in their nature are inconsistent with good faith, when shown to exist, necessarily tend to prove fraud, and though the jury must judge of the weight of the evidence, it is.within the province of the court to instruct the jury as to tho tendency of such evidence. But it is error to instruct the jury that facts proper and innocent in themselves tend to prove fraud, or that fraud may be inferred from their existence.</p> <p>Same.—Possession.—The retention by the vendor of the possession of goods „ sold is prima fado evidence of fraud.</p>

<p>Lien on Water Craet.—Practice.—Wliere, in a proceeding under section 658 of the code, to enforce by attachment a lien upon a boat, the defendant executes a bond, under section 661, to discharge the vessel, other persons having claims cannot afterwards 'become parties to the proceedings.</p>

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

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

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

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

<p>Information-.—Trial in the Absence of Defendant.—Where a person prosecuted by information for an offense punishable by a fine only, is not personally present at the trial, hut files the undertaking of a responsible person, to the approval of the court, for the payment of the fine, &c., under section 95 of the criminal code, (2 Gt. & H. 413), ho has the same right to test the sufficiency of the information by a motion to quash that he would have if personally present.</p> <p>Same.—When the court below has refused to entertain and pass upon a motion to quash, in such case, the Supreme Court will not look into the question of the sufficiency of the information.</p>

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

<p>Tenants in Common.—Rents.—One tenant in common, unless he has been . excluded from the possession by his co-tonant, cannot maintain an action against the latter for use and occupation.</p> <p>Same.-—Statute Construed.—The statute, (2 G. & H., sec. 1G, p. 800,) applies only to cases whore rent in money, or in kind, due in respect of the premises, is received from a third party by one co-tenant, who retains moro than his share.</p> <p>Pleading.—In a complaint for the partition of lands, it was alleged against one of the defendants that he had cut, and converted to his own use, a large amount of timber growing on the land.</p> <p>Held, that the allegation was properly stricken out on motion, for the reason that it was directed against one only of the defendants.</p>

<p>Demurrer.—The defendant cannot complain of the error of the court in sustaining a demurrer to one paragraph of his answer, if all the evidence admissible under that paragraph, was also admissible under another paragraph pleaded,</p>

<p>Obstruction or Highways.—Limitation.—Section 24, 1 G. & II., 592, which requires the supervisor of roads to sue for an obstruction of a highway within three days after he has knowledge of the fact, is not a statute of limitations, which will defeat the suit if brought after the time named.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>Judgment.—Review of.—Where judgment is taken upon a promissory note against one of two joint makers, and the suit is dismissed as to the other, and afterwards, by agreement of the parties, the judgment is reversed upon a bill of review, for errors appearing in the record, the judgment is not a bar to another action upon the note against both of the makers.</p>

<p>Townships;—A civil township is a corporation, capable of suing and being sued.</p> <p>Samis.—Costs.—When an action begun by the supervisor of a road district, in the name of the township trustee, to recover a penalty for the distraction of a highway, is dismissed, the township is liable for costs.</p> <p>Road Districts.—A road district is not a corporation, but is a part of the township corporation.</p>

<p>Murder.—Habeas Corpus.—Bail.—Upon the hearing of an application hy a person under indictment for murder in the first degree to he admitted to hail, the burden is upon him to show that the proof of his guilt is not evident.</p> <p>Same.—In order to show this, he must produce the evidence upon which the State intends to rely for a conviction. He may, however, cross-examine 'or impeach the witnesses testifying against him.</p> <p>Same.—Appeal.—On an appeal from a decision below, adverse to tlie application to be admitted to bail, the finding of the judge below is not entitled to the same weighty effect as if it had been a finding on the final trial of an ordinary cause. The Supreme Court will weigh the evidence without regard to the finding below.</p> <p>Same.—On the application of A, who was indicted for the murder of B, to be admitted to bail, the evidence showed that A shot B with a pistol, in a whisky saloon, in the presence of the father and a brother of the deceased, who, with the deceased and the prisoner, were the only persons in the saloon. The prisoner was uninjured when he entered the saloon, and when he came out he had two pistol shot wounds in his head. Eive shots were heard in the saloon, 'of which the prisoner fired four only. As he ran out of the saloon,- a shot was fired at him by some one in the saloon. The father and brother of the deceased testified that the shooting was all done by the prisoner; that no shots were fired at him, and that the homicide was without provocation.</p> <p>Held, that the case made by the evidence was not one in which the proof of guilt 'was evident, and that the prisoner was entitled to be admitted to bail.</p>

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

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

<p>Cattle Ruhhing at Large.—In the absence of an. order of the county board, the common law rulo prevails in this State, that the owner of cattle is hound to keep them on his own premises.</p> <p>Same.—Where by an order of the county board cattle are allowed to run at largo, no greater obligation is thereby imposed upon the owner of other property, in the lawful use thereof, than rested upon him by the common law.</p> <p>Same.—Railiíoabs.-—Suit against a railroad company for'killing a cow, the injury being alleged to have been caused by the negligence of the servants of the company. The evidence showed that the county board had passed an order allowing such animals to run at large; that the cow was killed at the crossing of a public highway; that the whistle was not sounded, nor the bell rung, and that the train was running at an unusual ' speed. It was storming at the time, making it difficult to see or hear at any great distance.</p> <p>Held, that the defendant was not liable.</p>

<p>Practice.—Where an objection presented in the Supremo Court has not 'been, in some proper way, reserved in the court below, it will not be noticed.</p>

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

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

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

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

<p>Lost Note.—Pleadihg.—A complaint upon a promissory note alleged that the note was in the possession of a third person, who held it without right, and had carried it beyond the jurisdiction of the court, and beyond the control of the plaintiff.</p> <p>Held, that the facts alleged were equivalent to an averment of the loss of tho-note.</p> <p>Held, also, that the person who was alleged to have wrongful possession of the noto was not a necessary party defendant.</p>

<p>Parties.—A suit to set aside a contract for the building of a school house, and to enjoin the doing of the work, on the ground of fraud, on the part of the township trustee, in the making of the contract, is properly brought in the name of the State, for the use of the civil township.</p> <p>Appeal to School Examiner.—The remedy provided by section 39 of the act to provide for a general system of common schools, (Acts 1861, p. 78), by an appeal to the school examiner, is not in such case exclusive. The matter involved is not “a local question relating to the building of school houses.”</p>

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

<p>Surety or the Peace.—Discharge or Jury.—The provision of the constitution that no person shall he twice.put in jeopardy for the same offense does not apply to a proceeding for surety of the peace.</p>

<p>Descents.—Abandonment and Adultery oe Wide.—In order to bar the widow’s interest in her deceased husband’s estate, under section 82 of the statute of descents, (1 G. & H. 298,) two things must concur: First, she must have left her husband, and, second, have been living in adultery at the time of his death.</p> <p>Witness.—Wim.-Decedent's Estate.—In a suit by the widow against the administrator of her deceased husband, to compel him to make distribution to her of her share of the personal estate, the widow is a competent witness as to all facts within her own knowledge.</p> <p>Descents.—Wire’s Share or Personalty.—The widow is entitled, under the statute, absolutely, to §300 of the personal estate of her deceased husband, but the husband may, by will, deprive her of any share in the residue of the personal estate.</p>

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

<p>Jurisdiction.—Record.—The record of a court of limited jurisdiction must affirmatively disclose such a state of facts as ■warrants the exercise of jurisdiction.</p> <p>Information.—Felony.—Jurisdiction of Common Pleas.—When one charged with a felony, and under hail to appear in the Circuit Court to answer the charge, voluntarily submits to the jurisdiction of the Court of Common Pleas, the information must allege the fact of such submission, and that the felony charged in the information is the same felony on which the defendant submitted to the jurisdiction of the latter court.</p> <p>Same.—The case is begun by the filing of the information, and an entry of record, before the filing of the information, that the defendant submitted to the jurisdiction of the court, is no' part of the record of the cause.</p> <p>Same.—The averment of a submission by the defendant to the jurisdiction, of the court is traversed by a plea of not guilty, and the defendant is entitled to have the verdict of the jury upon that issue.</p>

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

<p>Slander.—Evidence.—Where in an action of slander the words charged to have been spoken import a larceny of the property of A, proof of the speaking of words importing another and a different larceny is not admissible in support of the cause of action.</p>

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

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

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

<p>Military Arrests.—Rigiit of Removal to United States Courts.—Suit for assault and hattory and false imprisonment. The defendants appeared to the action, and filed a petition for tho removal of the cause to' the United States Circuit Court, under section 5 of the act of Congress of March 3, 1863. The petition alleged that tho plaintiff was a member of a military organization hostile to the United States, known as tho Sons of Liberty, the object of which was to aid tho rebels in arms in the southern States to overthrow the Government; that tho general commanding, by ■ appointment of the President, tlio military forces of tho United Slates in the State of Indiana, issued an order for the arrest of tho plaintiff, and delivered the same to a subordinate officer to bo executed; that tho officer charged with tho execution of said order was directed to call upon the general commanding tho militia forces of the State of Indiana for assistance in executing the same, who, in pursuance of such request, ordered the defendants, who wore members of said militia, to aid in the execution of said order, which they did. and that this was the arrest and imprisonment complained of, &c.</p> <p>Held, that the petition entitled the defendants to have tho case removed, under the law.</p> <p>Held, also, that the pase made by the petition was within the judicial power of tho United States.</p> <p>Held, also, that Congress may provide for the transfer, before judgment, qf cases which fall within the jurisdiction of the courts of the United Slates.</p>

<p>Decedents Estates..—Set-off.—In a suit by an administrator for a debt due tho estate of tho decedent, which originated after tho death of the intestate, the defendant cannot sot-off a debt duo him by tho intestate in his life timo.</p> <p>Same.—To a suit by an administrator de bonis non upon a note given for the price of property purchased at the administrator’s sale, tho defendant pleaded, by way of set-off, a debt duo him by the decedent in his life time. It was also alleged that the former administrator had agreed, at tho time tho defendant purchased the property, to allow tho sot-off.</p> <p>Held, that by the execution of the note the agreement to allow the sot-off was waived.</p>

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

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

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

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

<p>Bill oe Exchange.—Waiver oe Notice oe Non-Payment.—A waiver of notice of non-payment, contained in a hill of exchange, forms a part of the hill, and affects the contract of the indorser as well as of the drawer.</p> <p>Same.—Concealment.—An answer hy an indorser to a suit upon a hill waiving notice of non-payment, alleging that the holder concealed the fact of non-payment, is had, unless the facts constituting the fraudulent concealment are specially averred.</p>

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

<p>Furniturr.—Construction of Written Contract.—Evidence.—A sold to B, by a written contract, the lease of a hotel, and “all the furniture in the hotel, used in running the same.” It was further stipulated that the sale did not include “the private furniture of A, in his family rooms, nor the furniture in boxes which have not been unpacked, nor stores and supplies on hand,” &c.</p> <p>Held, tliat the word “furniture,” as used in the contract, meant that with which the house was furnished or supplied; good3, vessels, utensils and other appendages, necessary or convenient for carrying on the house; whatever had been added to the interior of the house for. use or convenience.</p> <p>Held, also, that parol.evidence was admissible to show what articles were required for use and convenience in the management of tho hotel.</p> <p>Held, also, that every material fact which would aid the court in applying the contract, and in identifying the property which was the subject of it, ■ and which would tend to place the court in the situation of the parties, was admissible in evidence.</p> <p>Held, also, that evidence of the acts of tho parties in reference to the fulfillment of the contract, after it was made, was admissible to show their intention and understanding in tho use of the language employed in the contract.</p> <p>Held, also, that tho contract of sale, construed in connection with the circumstances of the parties, and their conduct after the making of the con- ■ tract, must be held to include all articles of furniture purchased for the hotel, whether fully prepared at tho time for present use, or placed in the store room to be afterwards prepared and used in operating the hotel; such as linen, toweling, carpets, &c., in the piece. •</p> <p>Special Binding.—When the court below has found the facts specially, the Supreme Court may, in reversing the judgment, if justice does not require a new trial, direct a proper judgment to be entered below.</p>

<p>Jury.—Challenge.—The provision of the justices act, allowing each party to challenge peremptorily half the jury, .does not apply to the trial of a cause in the Circuit or Common Pleas Court, on appeal from a justice.</p>

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

<p>Bill or Exceptions.—Until a bill of exceptions is signed by the judge, it cannot lawfully go upon the files.</p> <p>Same.—A bill of exceptions must bo signed by the judge- within-the time limited. If signed afterwards, it cannot be regarded as any part of the record.</p>

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

<p>Chatted Mortgage.—Forecdosuee.—In a suit by a mortgagee of personal property, against the mortgagor and a junior mortgagee of tbe same property, to foreclose tbe mortgage, and to compel the junior mortgagee to account for a portion of the property which he had converted to his own use, no demand for the property, or for an accounting, is necessary before suit.</p> <p>Same.—Contract.—Consideration.—Statute or Frauds.—Suit by A, who • claimed to hold a senior mortgage upon certain personal property, against IS, the mortgagor, and C, who was alleged to be a junior mortgagee.</p> <p>The complaint alleged that B had delivered possession of the property to C, upon an agreement that C would sell the same, and out of the proceeds first pay the debt of A, secured by the mortgage; that 0 had sold and converted said property, and failed and refused to pay A's debt, &e.</p> <p>Held, that as the complaint counted upon C’s promise to pay A’s debt, in consideration of the delivery of the property to him, no averment that A’s mortgage had been recorded within the time limited by law was necessary. Held, also, that the receipt of the property by C was a suflieicnt consideration for his promise to apply the proceeds to the payment of A’s debt, and that under the code A might sue for a breach of such contract.</p> <p>Held, also, that the promise of C was not within the statute of frauds. TJstopkgl in Pais.—To a suit to enforce the lion of a chattel mortgage, against one who claimed under a purchase at sheriff’s sale, on an execution against the mortgagor, the defendant pleaded, by way of estoppel in pais, that the plaintiff was present at the sheriff’s sale, and gave no notice of his lien, &e.</p> <p>Held, that the answer should also have averred that the defendant purchased in good faith, and in ignorance of the plaintiff’s lien.</p> <p>Variance.—Were a variance between the pleading and the proof could have been obviated by an amendment, on the trial, the objection is not available on appeal.</p> <p>Pleading.-—-To a complaint consisting of several paragraphs, separate answers were filed, the fifth answer being directed to the second paragraph of the complaint. The sixth answer, which was directed to the third paragraph of the complaint, was as follows: “And for a further answer to the third paragraph of the complaint, the defendant says that the matters in the above fifth plea contained are true, in manner and form as therein alleged,” &c.</p> <p>Held, that such a mode of pleading is not sanctioned by tho code.</p>

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

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

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

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

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

<p>Record Must Show Service oe Process.—When a judgment is entered by default, the record must show that the defendant has been properly notified of the pendency of the suit.</p> <p>Same.—-Divorce.—When a decree for divorce is taken by default, and the record fails to show any sufficient notice to the defendant of the pendency of the suit, the objection maybe made on appeal, without any application to the court below for relief.</p> <p>Same.—Notice by Publication.—The record of a decree of divorce, taken by default, contained this entry: “Comes now the plaintiff and makes proof of publication in this cause.” The notice and proof were not contained in the record.</p> <p>Held, that the record did not show any legal notice to the defendant of the pendency of the suit.</p>

<p>Husband and Wife.—Wife’s Separate Dbopekty.—A writ of attachment, issued against the property of A, was levied upon a wagon. The wife of A was, upon her application, made a party, and set up a- claim to the property attached. The evidence showed 'that at, and after, the time of marriage, the wife was the owner of a tract of land, which was sold, and the money received therefor was, with her consent, kept in the possession of the husband for three days, when a portion of it was invested in the purchase of the wagon attached, with the understanding that it should remain li.er property.</p> <p>Held, that the husband never reduced the proceeds of the wife’s land to I1Í3 possession, so as to vest the ownership in him.</p> <p>Held, also, that the wagon was the property of the wife, and not subject to the attachment.</p> <p>Attachment.—Peksonab Judgment.—When the property taken upon a writ of attachment is claimed by a person other than the attachment defendant, and on the trial is found to be the property of such person, no judgment can be rendered against the attachment defendant, unless there has been personal service of process.</p>

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

<p>Suit to Quiet Titee.—Peeading.—Where, in a suit to quiet the title to lands, the complaint alleges that the plaintiff is the owner in fee simple, and that the defendant asserts an unfounded claim of title in the premises, it is sufficiently shown, under the statute, that the claim of the defendant is “adverse” to the plaintiff.</p> <p>Immorai, Contract.—The law will not give its aid to either party to enforce an immoral contract; and when the contract is executed, neither party can have any remedy against the other to be restored to his former condition.</p> <p>Same.—Champerty.—Quccre, whether champertous contracts between attorney and client are exceptions to this rule.</p> <p>Suit to Quiet Titie.—Where, in a suit to quiet'title, it appears that the statute of limitations has run against the plaintiff’s right to recover possession, a court of equity will not grant a decree to quiet the title.</p> <p>Statute oe Limitations.—Tenants in Common.—The possession by one as a tenant in 'common of lands for twenty years, is a bar to an action by a co-tenant, who was also in possession, to recover the whole premises.</p> <p>Same.—Evidence.—To an action to quiet the title to lands, the defendant answered, claiming title to an undivided one-third, under a deed from the plaintiff’s grantor, and alleging possession under the deed for twenty years. On the trial, the defendant offered -in evidence a deed executed jointly by himself and the plaintiff’s grantor for a part of the property.</p> <p>Seld, that the evidence was admissible, as tending to show the defendant's claim of title, and a recognition of it by the plaintiff’s grantor.</p>

<p>Lease.—Privilege to Lessee to Purchase.—A leased to B and C a tract of land for the period of two years, at a stipulated rent. The lessees were to build certain fences, and were to have an election to purchase the property, at any time before the expiration of the lease, at a price named in the contract, a part of which was to be paid when they should declare their election to purchase, and the residuo to be secured by notes and mortgage. Suit by B and C, alleging that within the term of the lease, they had elected to purchase and had tendered to A the money to be paid in hand, and their notes and a mortgage for the residue.</p> <p>Held, that no written notice of an election to purchase was necessary, the tender of the money and the notes and mortgage being a sufficient offer of performance.</p> <p>Held, also, that if A had accepted the offer to perform and executed the deed, the mortgage, though made before B and C acquired title, would have been valid.</p> <p>Held, also, that the assignment by B to C of his interest in the contract would not affect the right to enforce a conveyance, their joint notes having been tendered for the purchase money.</p> <p>Held, also, that the offer to sell formed a part of the consideration of the contract, and could not bo withdrawn by A, even before notice of an election to purchase.</p>

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

<p>Promissory Notes.—Pmabirg.—Suit by A against B, C and D upon a promissory note executed by B and C, payable to D, at a bank in tbis State, and indorsed by D. Answer by B and D, that the plaintiff was not the real party in interest, but that the note actually belonged to one E, and that the suit was brought in the name of A to enable B to avoid, his liability to the makers and indorsers of the note, growing out of the following facts, viz., that B and D became liable upon the note solely for the accommodation of E, and delivered the same to him with the agreement that if the note was negotiated he would pay it at maturity, and that E received the proceeds of the note. The answer further asked that E might be made a party defendant, and that if it should appear that A was a bona fide holder of the note, that judgment might go against E as principal, and against the defendants B and D as his sureties.</p> <p>Held, that the answer was not sufficient to put in issue the question whether A was the real party in interest.</p> <p>Held, also, that considered as a counterclaim, the pleading did not allege anything against the plaintiff.</p> <p>Held, also, that if the defendants B and D had any right of action against E, growing out of the facts alleged, it must be made the subject of a separate action.</p>

<p>Taxes.—Situs of Personal Property.—Where a person engaged in the provision trade in another State, where he has his domicil, purchases, slaughters and packs hogs in this State, for shipment to the place of his domicil, to be sold in the usual course of his business there, such property is subject to taxation in this State.</p> <p>Same.—Duty of Aoent to List Property.—Under section 10 of the act for the assessment of taxes, (1 G. S H. 70,) it is the duty of an agent to list for taxation the property of his principal in his custody, and in the event of his failure to do so, tho property is properly assessed to him.</p> <p>Affidavit to Release Property.—An affidavit filed in support of an application to a county auditor to release property from taxation, under section 92 of the act for the assessment of taxes, (1 G. & II. 97,) upon tho ground that a tax had already been paid in another State, stated that no specific taxation was- made upon the property in the State where tho tax was alleged to have been paid, but that the assessment and taxation there “was intended and understood to cover and include” the whole business of tho applicant, and that the taxes had been paid.</p> <p>Hold, that the affidavit did not sufficiently show that a tax had been paid upon the property in another State.</p> <p>Assessment by County Treasurer.—Under the act of March 3, 1859, (1 G. & H. 74,) it is the duty of the county treasurer to assess for taxation property which has been omitted hy the assessors; hut where an assessment made hy the county auditor was acted upon and adopted hy the treasurer, it was held sufficient.</p>

<p>Deed.—Cohsteuction or.—Some effect will, if possible, be given to a deed, for it will not be intended that the parties meant it to be a nullity.</p> <p>Same.—Words of particular description will control more general terms of description.</p> <p>Same.—Two deeds, by the same grantor, described the lands intended to be conveyed thereby as fqllows: 1. “A part of fractional section number 19, being the half of the west half of the north-west quarter of section number 29, in township 7 south, of range 14 west, containing 40 acres.” 2. “A certain tract of land in Posey county, lying on the Wabash river, with numbers as follows: the half of a fraction number 29, (it’s the west half of the fraction,) containing five acres, in township 7 south, of range 14 west.”</p> <p>Held, that as to the first conveyance, the words “ a part of fractional section number 19” being rejected, as contradicting the more particular description which follows, it was good to pass an undivided half of the west half of the north-west quarter, &c.</p> <p>Held, also, that as to the second deed, the description was unintelligible, and no effect could be given to it without evidence aliunde.</p>

<p>Mortgage.—Deed.—A executed a conveyance to a trustee for the use of his infant sou B, in which it was recited that A had received the sum of $3,000 belonging to his son. The consideration of the conveyance was declared to bo “the said sum of three thousand dollars, or so much thereof as the premises hereinafter described may be worth, and the sum of one dollar.” Covenants of seizin and of warranty were contained in the instrument, and there was no defeasance nor any covenant to pay the said sum of three thousand dollars.</p> <p>Held, that the instrument was not a mortgage but a deed, by which a title in fee passed to the son, in satisfaction of so much of the debt as the land was worth.</p>

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

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

<p>Restraining Order.—The statute authorizes a temporary restraining order to be granted until notice can be given, but when such an order is granted in term, it is unreasonable to extend it until the next term. The error, however, is not available on an appeal from a final trial on the merits.</p> <p>Revenue Stamp.—After the defendant has appeared to the action, it is too late to object that the summons was not properly stamped.</p> <p>Attachment.—Justice op the Peace.—When in a proceeding in attachment before a justice of the peace against a non-resident, the writ of attachment is returned no property found, but a summons in garnishment is served, notice of the pendency of the suit must be given by throe successive publications, the last of which must be thirty days before the day of trial.</p> <p>Same.—Where, in such case, the record of the justice shows that such notice was not given, the judgment is void.</p> <p>Same.—Garnishees.—Jurisdiction.—When each of several claims filed before a justice in a proceeding in attachment is within the juristion of the justice, judgment may be rendered against a garnishee for the aggregate amount of such claims, though such aggregate be above the jurisdiction of the justice.</p>

<p>Pkacticb.—Suit against A, upon an account for goods sold. Answer in denial, and also, in another paragraph, that the goods sued for were sold by the plaintiff to the defendant and one B, who were partners in trade, and not to the defendant alone, and that the plaintiff was indebted to the firm of A and B upon an account which was filed with the answer. Prayer that B should be made a party defendant, which was ordered bjr the court. B appeared and answered, though there was nothing alleged against him in the complaint, and also joined with A in another answer, •upon which the plaintiff was required by the court to make up an issue.</p> <p>Held, that'the statute gives no countenance to such practice.</p>

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

<p>Descents.—Wife’s Portion.—Under section 17 of tho statute of descents of 1852, the wife takes an interest of one-third in fee in the lands of her deceased husband. Section 18 of the same statute merely suspends the wife’s power of alienation during subsequent marriage.</p> <p>Same.—Section 18 is a rule of descent, and not a limitation of the estate of tho widow in the lands of her deceased husband.</p> <p>Same.—A died seized in fee of real estate, and left surviving him a widow, and three children by her. The widow, not having disposed of her -interest in the real estate, married B, and afterwards, with her husband, entered into a contract with C to convey to him the one-third of said real estate; and C, thereupon, in B’s presence, paid to her a first installment of the purchase money. 0 afterwards brought an action against B and wife to recover back this installment.</p> <p>Held, that, as B and wife could not, during coverture, alienate lands held by tho wife by descent from a former husband, there was an entire failure of consideration, and 0 was entitled to recover the purchase money.</p> <p>Held, also, that as B executed, with his wife, a receipt for the purchase money, and the same was paid to her in his presence, he was answerable to C for the money.</p> <p>Practice.—The fact that a cross-complaint is demurrable will not justify tho court in dismissing it.</p> <p>Same.—But if the cross-complaint could not have been amended so as to make a cause of action-, the error will not reverse the judgment.</p>

<p>Change on Venue.—Jurisdiction.—If the court to which a change of venue is granted has jurisdiction of the subject matter of the suit, and the parties appear and go to trial without objection, it cannot afterwards be objected that the change of venue was erroneously granted.</p> <p>Review.—Trial Without an Issue.—Complaint to review a judgment on the ground that there had been a trial without an issue. The record showed that the plaintiff “withdrew the complaint filed September, 1853,” but after this entry the parties treated a complaint which was filed September 23, as being on file, and issues were joined upon it, the defendant pleading, among other things, a set-off.</p> <p>Held, that the record did not show a trial without an issue, as the complaint upon which issue was joined might have been filed after the entry of withdrawal, or, if not, there was still an issue upon the defendant’s set-off.</p> <p>Member oe Family.—Work and Labor.—Where an adult resides with</p> <p>another as a member of his family, receiving support and attention as such, and rendering service in return, there is no implied contract to pay for such services.</p> <p>Same.—Infant.—This rule does not apply to infants, who, as they may avoid their express contracts, cannot be bound by the implied contract growing out of such a relation. But in fixing the amount of compensation to be allowed in such case, the jury may consider the circumstances under which the services were rendered.</p>

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

<p>National Bask Shares.—Muhioipal Taxes.—Under the general law for the incorporation of cities, no tax can bo imposed for municipal purposes upon the shares of the Bank of the State, and as the act of Congress forbids any discrimination against the shares of National Banks, the latter cannot be taxed for municipal purposes.</p>

<p>Water-Craft.—Attachment.—Negligence.—A complaint in attachment under the water-craft act, against a steamboat, for an injury done to a sail boat, alleged that the injury happened by the carelessness, negligence and recklessness of the officers in charge of the steamboat, and without fault or negligence on the part of said sail boat, or of the plaintiff, or of any agent or servant of his.</p> <p>Held, that the averments were sufficient.</p>

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

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

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

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

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

<p>Practice.—Waiver op Errors.—Where, after a motion for a new trial lias been overruled and time given to file a bill of exceptions, one of the parties making the motion causes to be entered of record a withdrawal of the motion, and also a waiver of the leave to file a bill of exceptions, ho cannot on appeal assign error on the overruling of the motion, or present any question reserved by a bill of exceptions taken by a co-defendant.</p> <p>Pleading.—Notice.—In a suit to enforce an equitable title to lands, it is not necessary that the complaint should charge the defendant with notice of the plaintiff’s equity. If the defendant claims as a purchaser without notice, he should set up, by way of answer, the facts which entitle him to, protection as such.</p> <p>Demurrer.—Misjoinder.—That too many parties are joined in a complaint is not a cause of demurrer, as to those against whom a cause of action is alleged. If one against whom no cause of action is shown, is joined, he may demur, not for misjoinder, but for want of sufficient facts.</p>

<p>County Commissioners.—Allowances.—Section 24 of the act providing for the organization of county hoards relates only to allowances made to persons in whose favor a liability exists against the county, and does not apply to appropriations for bounties to volunteers.</p> <p>County Orders.—Revenue Stamp.—County orders are official instruments, and are not subject to any stamp duty.</p> <p>Bounties to Soldiers.—Assessments to Pay Bonds.—Section 2 of the act of March 3, 1865, legalizing appropriations which had been made by counties, &c., for bounties, was not intended to limit the amount of the assessment to pay such appropriations, in any one year, to one-fourth of the amount thereof.</p> <p>Practice.—Demurrer.—Where a demurrer assigning several causes is sustained, the court cannot be required to specify the ground on which its action is based.</p>

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

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

<p>Escrow.—Delivery oe Bond.—Where one executes a bond as security for another and delivers it to the latter, upon his promise to procure the signatures of other persons named, and the bond is delivered to the obligee without such signatures, if there be nothing on the face of the bond to indicate that others were to sign it, it is valid.</p>

<p>Satisfaction of Judgment.—Evidence.—Suit by A against B to enjoin the collection of a judgment. The complaint alleged that the judgment was recovered for an unpaid balance of the purchase money of real estate due from A to B; that A had sold the real estate to C, and that B had agreed to, and did, accept the notes of 0 in discharge of the j udgment. B answered, denying that the notes of C had been received in satisfaction of tlio judgment, and alleging that they had been taken as collateral security only.</p> <p>Held, that a written agreement between B and C, by which it was stipulated that the judgment against A should remain in force until C’s notes were paid, was admissible in evidence, as tending to contradict the allegation that the notes were received in satisfaction of the judgment.</p> <p>Held, also, that the record of a judgment of foreclosure of a mortgage given by C to A to secure other notes, given for a balance of purchase money, above the amount of the notes transferred to B, and of a purchase by A of the land under the decree, was admissible in evidence, as it tended to show that the land was, in equity, subject to a vendor’s lien for the amount of the notes held by B.</p> <p>■Held, also, that while the taking of an appeal from the judgment alleged to be satisfied, after the date of the alleged satisfaction, did not estop A from asserting that the judgment was paid, it was proper evidence for the consideration of the jury.</p> <p>Deposition.—Copt of Contract.—Where a witness, living out of the jurisdiction of the court, refuses to attach an original paper writing, in his possession, to his deposition, a copy may be attached and given in evidence.</p>

<p>Gold -Contract.—Consideration;—A being indebted to 33 upon a promissory note, payable in gold, paid tlie debt in full in legal tender notes, and executed to B another note- for one-half of the difference between the value of legal tender notes and gold.</p> <p>Held, that there was no consideration for the last note.</p>

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

<p>Slander.—Burden op the Issue.—Where, iu an action of slander, the defendant justifies the speaking of the words, the burden of the issue is upon him.</p> <p>Transcript.—Certipicate.—The certificate of the clerk of a court that the paper to which it is attached is a “true transcript of the proceedings,” &c., is not equivalent to a certificate that the paper is a “full, true and complete transcript,” &c., and is not sufficient to authorize the use of the transcript in evidence.</p> <p>Slander.—Perjury.—Where in an action for slanderous words, imputing the crime of perjury, the defendant justifies the speaking of the words, he must prove not only the falsity of the affidavit or evidence, but that the statements were made willfully, corruptly and against the better knowledge of the witness. Perjury cannot be predicated of a statement which is according to the belief and conviction of the person making it, though he may have recklessly sworn to what he'would, if more cautious, have learned to be false.</p> <p>Same.—Justipication.—In order to sustain Ms justification, the defendant must prove, beyond a reasonable doubt, that the plaintiff willfully and corruptly swore to that which was false.</p> <p>Same.—If the justification does not cover the slander to the full extent, the plaintiff is entitled to recover for the excess not justified.</p> <p>Same.—If in such case, the plaintiff stated the facts to an attorney in whom ha had confidence, who reduced them to writing, and the plaintiff then made oath to them, under the advice of his attorney that the writing was, in legal effect, the same as his oral statement, he is not guilty of perjury, though the affidavit, as written, was not true.</p>

<p>Bastardy.—An agreement not to institute a prosecution for bastardy is a good consideration for a promise to pay money.</p> <p>Harvest.—Judioiad Notice op.—Where a promise was made in November, 1861, to pay a sum of money “after haiwest,” and suit was instituted upon the promise in 1864,</p> <p>Held, that the court would take judicial notice that the time of performance had passed.</p> <p>Bastardy.—Married W ojian.—A promise made toa married woman, living separate from her husband, to pay a sum of money, in consideration of her agreement not to prosecute the party for bastardy, is good, though made without the concurrence of her husband.</p> <p>Practice.—Amendment.—Depositions.—In a suit by a married woman, it appeared in evidence on the trial that the true name of the plaintiff was not that in which she sued, and the court, on motion, allowed her true name to he substituted.</p> <p>Held, that the action of the court was warranted by the statute.</p> <p>Held, also, that the fact that the deposition of the plaintiff had been taken in the cause as at first entitled, was not cause for suppressing it. Parties.—Depositions.—The deposition of a party to a suit may be taken under the rules governing the taking of the depositions of other witnesses.</p> <p>Impeachment.—Evidence.—Evidence of the general character of a witness, offered for his impeachment, should be confined to the time of the trial, unless the peculiar circumstances of the case render it necessary to show his previous standing, and the onus of showing this necessity is upon the party offering the evidence.</p>

<p>Chose In Action.—Jurisdiction on Court on Equity.—The power of a court of equity to reach the choses in action of a debtor and subject them to the satisfaction of a judgment, has been denied by this court.</p> <p>Same.—Proceedings in Aid on Execution.—The remedy here, in such a state of the law, is found in proceedings supplementary to execution.</p> <p>Equitable Set-Onn.—Suit by A against B and C to obtain the satisfaction of a note of A’s, payable to B, which was alleged to have been fraudulently transferred to C. The complaint alleged that A held a judgment against B, of an amount greater than the noto, and that B was insolvent. The relief asked was that the note might be set off against the judgment, and the mutual claims satisfied, so far as they were equal.</p> <p>Held', that A was entitled to the relief asked.</p> <p>Held, also, that in such case a court of equity may order the satisfaction of a claim which is not due.</p> <p>Held, also, that as the issue made was as to the present insolvency of B, the matter was not res adjudicata by reason of a former suit, brought by A before the maturity of the note, to enjoin any transfer of it, in which the insolvency of B was alleged, having been determined against A.</p>

<p>Kui.es op Court.—Instructions.—A rule of court requiring special instructions, and interrogatories addressed to the jury, to he presented to the court before the ai’gument begins, is in harmony with the statute.</p>

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

<p>Liquok License.—Sales on Sunday.—Before the passage of the act of December 19, 1865, the law provided no penalty for sales of liquor made on Sunday, by a person haying a license to sell, though the license did not extend to that day.</p> <p>Same.—Nor can a prosecution be maintained under the act referred to for a sale made before it went into force.</p>

<p>Obstruction of Streets.—Ordinances.—The power of the common council to authorize the obstruction of streets or alleys is legislative in its character, and can only be exercised by an ordinance, passed under the formalities required by law.</p> <p>Same.—License.—An order of the common council authorizing an individual to use the streets and alleys adjacent to a building being erected by him, for the purpose of depositing building materials thereon,-was held to be a license, revocable at the will of the council. •</p> <p>Nuisance.—Abatement of.—In the removal of a nuisance, the party abating it is only liable for a wan'tón or unnecessary injury.</p> <p>Same.-—A having, under a license from the city council, placed a large quantity of sand and gravel in a street of a city, to be used as building material, and having refused, after notice, to remove it from the street, the street commissioner, under the direction of the council, removed it, and used it in the repair of the streets, placing as much of it as could be so used upon the streets adjacent to the property of A. Suit by A to recover the value of the material.</p> <p>Held, that the question to be determined was, whether unnecessary damage had been done in abating the nuisance, and in determining this question, it was proper to take into consideration the value of the material, the cost of removal, the benefit to A by having it placed upon the streets bordering his premises, and the cost of removing and placing it upon A’s lot, compared with its value.</p>

<p>Depositions.—Notice.—A notice served on the 20th of December, in. Goshen, to take depositions in the city of New York on the 29th of the same month, is sufficient.</p> <p>Same.—Objections to.—An objection to a deposition “that it is not taken in due form of law" is too general.</p> <p>Cross-Compeaint.—Partnership.—Suit upon a promissory note against a number of persons who had united in an association for the purpose of carrying on a co-operative or union store. The note was given for merchandise, and was signed by the managing agent of the association, as such agent. The articles of association provided that the business should be managed by a board of directors, a president,.vice-president and a managing agent, and that no goods should be bought or sold on credit. Certain of the defendants, who were stockholders, filed a cross-eomplaint against the plaintiff and those of the defendants who had held the position of directors, setting up that the goods had been bought on credit, in violation of the articles of association, &c., and asking that if a judgment was recovered, execution might be first directed against the property of the directors.</p> <p>Held, that the facts alleged in the cross-complaint did not constitute any defense to the plaintiff’s action..</p> <p>Meld, also, that the relation of the defendants was that of partners.</p> <p>Meld, also, that while it is within the discretion of the court to determine the ultimate rights of the parties on each side, as between themselves, this should not be done to the detriment of the opposite party, by delaying his judgment.</p> <p>Meld, also, that the cross-complaint failed to show any cause of action against the directors.</p> <p>Verdict.—Interrogatories.—It is only where the jury return a general verdict that an answer to special interrogatories can bo required.</p> <p>Same.—By “particular questions of fact,” something less than an issue is intended, and the object of the statute is that these special findings, if inconsistent with the general verdict, may control it.</p> <p>Same.—Whore the questions propounded require the jury to find the evidence, rather than facts, or where they relate to matters having no ma- ' terial bearing upon the rights of the parties, the court may refuse to submit them to the jury.</p> <p>Instructions.—Practice.—Where either party desires the court to instruct the jury in writing, notice of such desire must be given at or before the close of the evidence.</p> <p>Agenot.—A general agency exists where there is a delegation to do all acts connected with a particular business or employment.</p> <p>Same.—The acts of a general agent will bind his principal so long as he keeps within the general scope of his authority, though, he may act contrary to his private instructions.</p> <p>Same.—Ratification.—Where an agent, who is authorized to buy for cash only, buys on credit, the acceptance and use of the goods by the principal will not be a ratification of the act of the agent, unless the fact of the purchase having been made on credit was known to the principal.</p>

<p>Replevin Bail.—Judgment.—In an action by one who, as replevin bail, had paid a judgment, to have the same revived; and to have execution in his - favor, an answer of the general denial is well pleaded, and it is error to sustain a demurrer to such answer.</p> <p>Same.—Inpant.—The plea of infancy is a personal privilege, that may bo waived. If not pleaded, a judgment against an infant is binding upon him.</p> <p>Same.—Guardian Ad Litem.—A judgment against an infant by default, without the appointment of a guardian ad litem, is erroneous but not void.</p>

<p>.Novation.—Fkaud.—Suit by A against B upon a promissory note. Answer, that at the time of the giving of the noto, A was the owner of a . hotel which, ho had leased to C; that the plaintiff and C falsely and fraudulently represented that C was making a profit of ton dollars per day in said hotel, &c.; .that the consideration of the note was the purchase of said lease, &c., from C, and that the note was given to A in discharge of a debt due from C for rent. The evidence failed to show that A was in any way connected with the fraud.</p> <p>Held, that this was a case of novation, and that the fraud of C could not be ' set up against the note.</p>

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

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

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

<p>Statute oe Limitations.—Concealment oe Cause oe Action.—The conceal-meat of a cause of action by the person liable to the action which will avoid the statute of limitations, under section 219 of the code, must be something more than mere silence. It must be an arrangement or contrivance to prevent discovery.</p> <p>Same.—The person liable to be sued must not, at any time, do anything to prevent the party entitled to the action from ascertaining the facts upon which the right of action depends, either by affirmatively hiding the truth, or by any device avoiding inquiry, and if he does, the statute of limitations will not run during the time of such concealment.</p>

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

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

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

<p>Wm.—Contest or.—It is sufficient, in a complaint to contest the validity of a will, to allege, in general terms, that the will was unduly executed.</p> <p>Same.—Execution or.—A will must be signed by the testator,, or by some one in his presence, with his consent, and must bo attested and subscribed , in his prosonco by two or more competent witnesses.</p> <p>Same.—The signature of the testator is necessary to make the instrument a valid will, and until such signature is affixed, the will cannot be attested by witnesses.</p> <p>Same.—The statute does not, in terms, require the testator’s name to be signed in the presence of the witnesses, but if this is not done, the testator must acknowledge his signature in their presence.</p> <p>Same.—-Where a will was signed by a witness before the signature of the testator was affixed, and the instrument was then taken away by the testator, with the declaration that he would sign it when he got another witness, and he did afterwards sign it in the presence of another witness,</p> <p>Held, that the attestation of the will was not sufficient under the statute.</p> <p>Held, also, that the declaration of the testator at the time the will was attested by tho first witness, and the fact that he afterwards signed it, re- ¿ butted any presumption that he intended to adopt the name written in the body of the instrument as his signature.</p>

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

<p>Estoppel by Former Judgment.—In a suit involving the validity of an assignment for the benefit of creditors, which was alleged to ho void for fraud, it was attempted to conclude the assignee hy pleading the record of a suit brought by him against the sheriff to recover the possession of certain property which was included in the assignment, and which had been seized by the sheriff on an execution against the assignor. The record showed that judgment had been given against the assignee.</p> <p>Held, that the record was only eonelusive as to the particular property involved in that suit.</p>

<p>Former Recovery.—Variance.—Suit upon a promissory noto which was alleged to be lost, and which was described as payable “on demand, with interest from .date.” Tho defendant pleaded a former recovery, and filed with his plea a transcript of the former judgment, which showed that tho former suit was between the same parties, and that the note then sued upon was in all respects like the one now in suit, except that it was described as payable “ one day after date.” The answer also alleged that the plaintiff intended to describo in the former suit tho identical note now in suit, &c. Tho defendant .had pleaded to tho former suit non est factum, under oath.</p> <p>Held, that as, under the issue joined in the former suit, the plaintiff could not have recovered upon proof of a noto payable on demand, the former judgment was not a bar.</p>

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

<p>Pleading.—Inteebogatoeies.—Suit upon a promissory note. Answer, that the note was without consideration. The defendant filed an interrogatory to the plaintiff, requiring him to state what the consideration of the note was, and the several items constituting such consideration and their value. The plaintiff answered that the consideration of the note was goods sold by the plaintiff to defendant, at his request., &c., and that he could not give the items or their value.</p> <p>Held, that as the plaintiff stated, under oath, that he could not give the items, or their value, the court could not require a more definite answer on that subject.</p> <p>Held, also, that under the general plea of a want of consideration, it was not important that it should appear that there was a full consideration for the note, as the defense would fail if there was any consideration, and hence the answer to the interrogatory was sufficiently definite.</p>

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

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

<p>Criminal Law.—Defective Verdict.—On a trial upon an information for grand larceny, there was a verdict of guilty, and that the defendant bo imprisoned in the state prison for one year,- &e. After the verdict was entered, the defendant moved for his discharge, on the ground that the verdict was defective, in fixing the penalty at one year in the state prison, when the shortest term fixed by statute for grand larceny is two years.</p> <p>Held, that as the jury might, under the statute, have found the defendant guilty of petit larceny, and have imposed the exact penalty they did, he was not prejudiced in his substantial rights, and was not entitled to his discharge.</p>

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

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

<p>Injunction.—Judgment in Violation oe.—-A judgment obtained in violation of an existing injunction is void, and proceedings to collect such a judgment may bo enjoined.</p> <p>Same.—Practice.—In a suit to enjoin the collection of such a judgment, a . transcript of the judgment need not be filed with the complaint.</p>

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

<p>Contest oe Wills.—Pauties.—A suit to contest the validity of a will can only be brought by a party in interest.</p> <p>Same..—The language, “any person may contest the validity of a will,” &c., used in section 39 of the statute on the subject of wills, must be limited by the provision of the code which requires every action to be prosecuted in the name of the real party in interest.</p>

<p>APPEAL from the Ilendridcs Circuit Court-</p>

<p>Ebe Taie.—Conveyance.—A conveyance of land to “A and the heirs of her body by B” passes a fee simple absolute.</p>

<p>Common Council.—Liability ov Membees.—The members of the common council of a city are not liable either civilly or criminally for acts done by them as such, in the exercise of a discretion confided to them by lavr, unless they act corruptly.</p>

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

<p>Earnings or Wins.—Tlie earnings of- tlie wife belong to the liusband. The statute lias not changed the common law rule on this subject.</p>

<p>Couxty Recorder.—The act of March 0, 1865, (Acts 1865, p. 101,) which prohibits county recorders and other officers from practicing law, is constitutional.</p>

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

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

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

<p>Record.—Appear.—Where an appeal is taken in term, the statute provides what shall compose the transcript. The parties may bring up less, if they agree to do so, but they cannot require the court to act upon it.</p> <p>Same.—Under section 558 of the code, the appellant may bring up on appeal such parts of the record as he chooses, but the Supremo Court will not act upon less than is necessary to enable it to determine whether there was available error.</p>

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

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

<p>Decedents’ Estates.—Pbactice.—Where on the trial of a claim against an estate it appears that the debt is against the administrator personally, and not against the estate, judgment should go for the defendant. A personal judgment against the administrator is erroneous.</p>

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

<p>Attachment.—Suit on Bond.—In a, suit upon an attachment bond, the complaint must ayer that the damages sued for are unpaid.</p>

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

<p>County Board.—Appropriations eor Soldier’s Families.—An. order of the board of commissioners of a county, appropriating a certain sum to the support of the families of soldiers,is a contract -with those who enlist on the faith of the order, find cannot be rescinded by the board.</p>

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

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

<p>Agreed Case.—Under section 886 of the code, parties may submit any matter of controversy to a court having jurisdiction of the subject in dispute, upon an agreed statement of facts, without pleadings, but an affidavit that the controversy is real is necessary to give the court jurisdiction.</p>

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

<p>Injunction.—Where one appeals to a court of equity for an injunction, lie must rely upon some substantial equity, and cannot avail himself of naked irregularities, or the neglect of mere forms, to shield himself from a liability confessed to be just.</p>

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

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

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

<p>Contract tor Building Vessel.—When Title Passes.—A contracted to build a vessel for B at a stipulated price, a part of which was to be paid in installments as the vessel should reach certain stages of completion, and the residue by a note payable ninety days after the boat should be moved. The installments were paid from time to time as stipulated, and the materials used and work done upon the vessel were paid for by A out of this money. B employed an agent to superintend the building of the vessel, and before the launch put a watchman in charge of her. After-wards executions were issued against A, and he being unable to finish her, surrendered the vessel to B.</p> <p>Held, that the property in the vessel had passed to B, and was not subject to the liens of the executions.</p>

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

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

<p>Pleading. — Mill Dams.—Estoppel.—To a complaint for the wrongful flowage of the water of a river over the plaintiff’s land, the defendants answered in two paragraphs: 1. That the defendants and those from whom they claimed and derived title, for more than twenty years next before the commencement of the action, had adversely and continuously enjoyed and used as their own, under claim of right, the right to flow the water back upon the lands named in the complaint, to the full extent to which it had been used by them. 2. That before the plaintiff became the owner of the land, and while the then owners had it in possession and under their control, they gave to those under whom the defendants claim title, the right to erect and maintain the dam mentioned in the complaint of the same hight it was at any time before the commencement of the action, and that relying upon the permission of the then owners of said land, the builders of the mill and dam, from whom the defendants derive title, expended large sums of money, to-wit, &c., in the erection of the mill and dam, of all which the plaintiff had notice before he purchased the lands, wherefore the plaintiff ought to be estopped.</p> <p>HeM, that the paragraphs were sufficient on demurrer.</p> <p>Pakol License.—Estoppel.—'Where a parol license is given, upon the faith of which money is expended by the licensee, the licensor will be held es-topped from revoking the license, unless the licensee can be placed in statu quo.</p> <p>Supreme Court.—Abstract.—Where it was assigned for error that the court below had erred in admitting certain evidence and in refusing other evidence, the Supreme Court refused to regard the assignment, on, account of a non-compliance by the appellant with rule ten, by presenting the evidence so admitted and refused.</p> <p>License.—Revocation.—At the trial, the court charged the jury that it must be made to appear that the licensee had notice of the death or transfer by which the license was revoked, and that if the licensee, before notice of the revocation, had expended money and made improvements, he would bo protected in the same manner as if the owner had still lived and owned the land, and that, in the case on trial, the burden of proof was on the plaintiff, not only to prove the death or transfer of the licensor, but that before the defendants expended money they had notice thereof. Held, that the instruction was erroneous.</p> <p>Mill Dam.—Limitation.—The court, in directing the attention of the jury to the evidence under the plea of adverse and continuous enjoyment for twenty years, having instructed the jury correctly that “continuously" did not mean that the water should have been flowed on plaintiff’s land every day or every month for twenty years, and that the suspension of the flowing during low water, or while making repairs, or changing the mill and dam from one location to another, by the defendants or those under whom they claimed title, would not be such an interruption to the continuity of the user or enjoyment as to affect their rights, was held to have, erred in refusing to give the following instruction: “Under a claim of right to maintain a mill dam which overflows the land of another, if such right is based upon prescription, the use and enjoyment of what is claimed must be shown to have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate in, over or out of which the easement prescribed for is claimed, and while such owner was able in law to assert and enforce his right, and to resist such adverse claim, if not well founded. The right must be shown to have been hostile in its inception, and to have so continued, notoriously and uninterruptedly. If in its origin any such right of easement by .prescription is based upon permission asked by one party and granted by the other, it cannot be maintained, because an ad-' verse right of easement cannot grow out of a mere permissive enjoyment or verbal consent.”</p>