Volume 28 — Indiana Reports

<p>Passenger Fares. — Tickets.—A railroad company may discriminate in its passenger fares in favor of those who purchase tickets before entering, the cars.</p> <p>Same. — Such a regulation, however, carries with it an obligation on the part of the company to afford an opportunity to passengers to purchase tickets, and unless such an opportunity is given the discrimination cannot, he made.</p> <p>Expulsion op Passenger. — Under the special charter of the Jeffersonville Railroad Company, which is silent upon the subject, if there is lawful cause for the expulsion of a passenger from the cars, he' may be expelled between stations.</p> <p>Measure op Damages. — Where a passenger who has been denied an opportunity to purchase a ticket is expelled from the oars because of his refusal to pay an increased rate of fare, the difference between the two rates of fare is not-tlie measure of his damages. The act being wrongful,, the company is responsible for its consequences.</p> <p>Same. — Exemplary Damages. — The rule as to the allowance of exemplary, damages in suits against natural persons, applies .equally, toisuits against: corporations.</p> <p>Rates of Rare. — The ljates of faro of a railroad corporation need not be established by the board of directors and proved by a record of their action. Agents, other than the directors, may be empowered to regulate such matters.</p>

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

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

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

<p>Offer to Confess Judgment. — An offer to confess judgment, filed with tho answer in a cause, though numbered as a paragraph of tho answer, makes no part-of the answer and does not require a reply.</p> <p>Tender. — Payment into Court. — The defendant, with a plea of tender, paid into court the money alleged to have been tendered. The plaintiff had a verdict for an amount greater than the tender, and the court rendered judgment for the amount of the verdict, and credited the money already paid in.</p> <p>Held, that tho judgment, if not strictly formal, was Substantially correct.</p>

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

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

<p>Criminal Circuit Courts. — The decision in the case of Comba v. The State, 26 Ind. 98, affirming the constitutionality of the law providing for the organization of Criminal Circuit Courts, approved.</p> <p>Esbeery. — Indictment.—An indictment for robbery alleged that the accused on, &c., at, &c., “forcibly and feloniously took from the person of A, by violence and by putting him, the said A, in fear,” certain persona) property, which was described.</p> <p>Held, that the indictment contained a distinct charge of everything necessary to constitute the crime of .robbery under the statute.</p> <p>Change op Venue. — Counter Apeidavits. — When an application is made for a change of venue in a criminal case, on account of local prejudice, it is not erroneous, hut is eminently proper, for the judge to receive the sworn statements of reputable citizens to aid Mm in the exercise of the discretion confided in him by the law.</p> <p>Continuance. — An application for the continuance of a criminal cause on account of the absence of a witness who was jointly indicted with the defendant, and was under bonds to appear for trial, was held to be insufficient because it did not show that any subpoena had been taken out for the witness, and did not negative the idea that the prosecution against the witness had been continued to a future day.</p> <p>Separation op Jury. — It is error to permit the jury to separate during the trial of a criminal cause, without the consent of the accused.</p>

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

Solomon R. Harney brought his action against The Chicago and Great Eastern Railway Company to recover damages for loss of .time, and for medical attendance upon his minor son, James JR. Harney, who was injured while in the service of said company. « .

<p>B to amt. — Indictment.—An indictment for bigamy need not aver the time and place of the first marriage, the person by whom it was solemnized, or the maiden name of the first wife.</p>

<p>Express Trust. — An express trust in lands cannot be created by parol.</p> <p>Resulting Trust. — Decedents’ Estates. — An administrator cannot maintain an action to enforce a resulting trust in lands, unless it is shown that the lands, when recovered, will bo needed to pay debts.</p>

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

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

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

<p>Contract. — Parties.—A, as administrator of an intestate, brought suit against B to recover certain personal property alleged to belong to the intestate. Pending the suit, a compromise was effected, by which B agreed in writing, in consideration of the dismissal of the suit and the relinquishment by A of all claim to the property, that he would pay all valid claims against the estate. A thereupon dismissed the suit and resigned the administration. Suit by C upon the agreement, alleging that he held a valid claim against the estate, &c.</p> <p>Held, that C might maintain an action upon the agreement.</p> <p>Amendment. — Demurrer.—When, after a demurrer is sustained to a paragraph of a pleading, the paragraph is amended and refiled, error cannot be assigned upon the action of the court upon the demurrer.</p>

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

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

<p>Statute of Frauds. — Jhe statute of frauds expressly provides tliat the consideration of a contract to answer for tlie default, &e., of another need not be set forth in the writing, but may be proved.</p>

<p>Veitdoe akd Purchaser. — Statute oe Frauds. — A sold to B a tract of land for 55900, payable in four annual instalments, which were secured by a mortgage upon tho land. When the first instalment became due, B, being unable to pay it, re-conveyed the land to A, upon a parol agreement that ho would hold it for B until a day named, and if the first instalment was then paid would re-convey the land to B, upon the terms of the first contract. Suit by B alleging these facts, and that A, in violation of the contract, had conveyed the land to another; that B, while in possession, had made improvements to the amount of §100, and had paid interest to A and taxes, &c.</p> <p>Held, that the transaction must bo construed to be a rescission of the first contract of sale by the mutual agreement of tho parties, and an agreement for a re-sale at a future time.</p> <p>Held, also, that the agreement to re-sell, not being in writing, rvas void, under the statute of frauds.</p> <p>Held, also, that B, in the absence of any such stipulation in the contract of rescission, was not entitled to recover for improvements, taxes, &c.</p>

<p>Money Had and Received. — A sued B for money had and received, at Ms special instance and request, &c. The evidence showed that A had sent to B the money sued for, with directions to loan it, and that B had applied it to Ms own use.</p> <p>Held, that the evidence sustained the complaint.</p> <p>Held, also, that no demand was necessary before suit.</p>

<p>Affidavit to set aside default. — An affidavit filed in support of a motion to set aside a judgment by default must show tbe nature of the alleged defense. It is not enough, to say that the defendant believes that he has a meritorious defense.</p> <p>Same. — The pendency of a proposition for a compromise of the claim in suit is not of itself a sufficient excuse for a failure to appear to the action.</p>

<p>Partition or Land. — Exceptions to Report op Sale. — An order having ' been made for the sale of land in a proceeding for partition, the commissioner reported a sale, and thereupon the purchaser appeared and filed exceptions to the report, upon which the commissioner made up an issue, and, without any notice to other parties, a judgment setting aside the sale was rendered.</p> <p>Held, that the order setting aside the sale was a final judgment from which an appeal will lie.</p> <p>Held, also, that an independent suit by the purchaser would have been the proper method to obtain the relief he sought.</p> <p>Held, also, that as the exceptions filed failed to show any cause of action, the objection was not waived by a failure to reserve any exception in the court below.</p>

<p>Malicious Pkosecutiou. — In a suit for malicious prosecution it is competent for the defendant to prove that he made a fair presentation of the facts to an attorney who advised the prosecution. Hut a refusal to allow proof of the mere fact that an attorney was consulted, was held not to he error.</p>

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

<p>Legal Disabilities. — The phrase “under legal disabilities,” includes persons under the age of twenty-one years.</p> <p>Statute of Limitations. — Appeal.—Under the code, persons under legal disabilities may appeal from a judgment against them at any time within three years after the disability is removed.</p> <p>Same. — Where the statute of limitations has run against some of the appellants, the Supreme Court may strike their names from the record, and proceed to determine the appeal as to those not barred.</p> <p>Same. — Practice.—A plea of the statute of limitations to an appeal is not a confession of the errors assigned.</p> <p>Administrator’s Sale. — Notice to Heirs. — A sale of real estate by an ad- • ministrator, without notice to the heirs, though confirmed by the court, is void.</p> <p>¡Service op‘Process. — Jurisdiction op Person. — In cases requiring ordinary adversary proceedings, jurisdiction of the person is necessary to the validity of the judgment., and this can only be acquired by the service of process or by an appearance.</p> <p>'Collateral Proceedings. — Jurisdiction Presumed. — Where the judgment of a court of general jurisdiction comes collaterally in question, and the record discloses nothing upon the subject, jurisdiction of the person will be presumed.</p> <p>Infants. — Service of Process. — Infants must be served with process in the same manner as if they were adults.</p> <p>Same. — Appeal.—On error or appeal, it must affirmatively appear by the record that process ivas duly served, or that the defendant appeared.</p> <p>Same. — The record on appeal from an order for the sale of real estate on the petition of an administrator recited that it appeared “to the satisfaction of the court by the process issued therein and the return thereto, that said defendants had been duly served,” &c. The process was set out in the record. One of the defendants was not named in it., and it contained no indorsement either of its receipt by the officer or of service.</p> <p>Held, that the record did not show service upon the defendants.</p> <p>Held, also, that if the record had not contained the process, nor professed to set out the return, the statement that it appeared to the satisfaction of the court that process h,ad been served might have been conclusive.</p> <p>Held, also, that the order of sale was erroneous.</p>

<p>Descent. — Kindred on Hale-blood. — Kindred of the half blood inherit equally with those of the whole blood, except that if the estate came to the intestate by gift, devise or descent from any ancestor, those only who are of the blood of such ancestor can inherit.</p> <p>Equity. — Canons oe Descent. — The doctrine that equity will follow land, or even money, into whatever shape it may assume in the hands of the holder, for the purpose of upholding an equity, does not apply to the canons of descent.</p>

<p>Voluntary Payment. — Contract.—A being indebted to tbe estate of B, of wbicb C was tbe administrator, paid to tbe widow of B, upon C’s written order, a portion of tbe amount of tbe debt. Subsequently, A paid to C tbe whole debt, tbe credit, for tbe amount paid to tbe widow not being allowed, because tbe order could not be found, and tbe administrator then agreed that if tbe order was found it should be allowed as a credit on a note owing by A, jr., to tbe estate. After tbe final settlement of B's estate, and after tbe death of C, A filed a claim against C’s estate for tbe amount paid to tbe widow of B, alleging these facts, and that tbe order bad not been found until after tbe settlement of tbe estate, and that no credit bad been allowed therefor.</p> <p>Held, that this was a case of tbe voluntary payment of money, without any mistake of law or fact.</p> <p>Held, also, that tbe promise of C to allow tbe credit, if tbe order was found, did not require him to wait indefinitely, but only a reasonable time, wbicb, in this case, could not be longer than tbe period during wbicb B’s estate should remain unsettled.</p> <p>Held, also, that tbe facts did not support A’s claim to recover tbe amount from C’s estate.</p>

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

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

<p>Township Tbiistee. — Duties and Bond op. — The duties of a township trustee are defined by statute, and the official bond required of such trustee is to secure the performance of his duties, as thus defined.</p> <p>Same. — Liability.—That money which has come into the hands of a township trustee, as such trustee, has been stolen from him, without his fault, does not release him from his obligation to pay such money over to his successor in office.</p>

<p>Husband and Wise. — Witness.—Upon the question -whether the wife was a competent witness in a suit hy husband and wife against a physician for malpractice in the treatment of the wife, the court was equally divided.</p>

<p>APPEAR from the Rush Common Pleas.</p>

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

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

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

<p>Cieeic’s Fees. — The last clause of section five of the act of 1865, (Acts 1865, p. 70,) which gives a per diem of three dollars for attendance upon court, is a part of the schedule of sheriff’s fees. The clerk is not entitled to the allowance.</p>

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

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

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

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

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

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

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

<p>Promissory Notes. — Practice.—When the assignor of a note, assigned by-delivery only, is made a party defendant to answer to his interest, and is served with process, the failure to take a default against him is not error for which the judgment will bo reversed on appeal by the maker of the note, no question having been made below as to the plaintiff’s right to suo.</p> <p>Estopmx. — If the maker of a note, by himself or an agent, represents to a person about to take an assignment of the note that the note is a valid obligation, and that he has no defense to it, he will be estopped to plead a failure of consideration to a'suit by the assignee.</p>

<p>Contested Election. — Gbotjnds of Contest. — The grounds of contest filed in a proceeding to contest an election for sheriff stated that the contestar received 1,710 votes for said office, and the contestee 1,719 votes; that illegal votes were cast for the contestee in eight townships of the county, and that but for said illegal votes the contestar would have been elected, &c.</p> <p>Held, that as illegal votes were alleged to have been cast for the contestee in eight townships, the number of such could not have been less than eight, and as these taken from the vote of the contestee would show the contestar entitled to the office, the grounds of contest were well stated.</p>

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

<p>Warehouseman. — A sale by a warehouseman of property deposited with him for storage, without notice to the owner, is a conversion of the property.</p>

<p>Guardian and Ward. — A guardian's deed of the real estate pf his ward, made under the order of the court, on the guardian’s petition for a sale of the land, has only the effect of a deed of quit-claim. The guardian cannot bind his ward by any covenants in the deed.</p> <p>Same. — Where, after a sale by a guardian of the ward’s land, it is, upon the petition of the administrator of the estate of the ancestor, sold to pay debts, the guardian is not authorized to protect the title of the purchaser at his sale by buying in the land at the administrator’s sale. The payment of money by the guardian for such a purpose is no answer to the suit upon his bond.</p>

<p>Common Pleas Court. — Signature oe Judge to Proceedings. — -Under tlie statute, the signature of the judge to the record of the proceedings of the Court of Common Pleas is necessary to give validity to the judgments of the court, and a sale upon a judgment not thus signed is void.</p> <p>Same. — Queers, whether the judge may not sign the record at any time during his continuance in office, and whether, in the event of his failing to do so, his successor may not sign.</p>

<p>Tax Duplicate. — A tax duplicate which is legal upon its face is sufficient to justify the treasurer in seizing property in the collection of the taxes charged thereon.</p> <p>Same. — Pleading.—In justifying the seizure of personal property for the payment of taxes, it is not nec.essary that the answer of the treasurer should allege that each requirement of the statute had been complied with in the preparation of the duplicate. A general allegation that tho duplicate was delivered to the treasurer in conformity to law, &c., is sufficient.</p> <p>Treasurer’s Notice. — The statute requiring the county treasurer to give notice of the amount of the tax charged for the different purposes authorized by law is merely directory, and the failure to give the notice will not prevent the collection of the tax.</p> <p>Seizure by Deputy. — Pleading.—Where the treasurer has seized property by a deputy, it is not necessary that his answer justifying the seizure should show that tho deputy had been sworn as such.</p>

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

<p>Military Bounties. — The fact that one township of a county had filled its military quota did not relieve the citizens of that township from liability to pay taxes to meet appropriations made by the county board for bounties.</p> <p>County Board. — Special Sessions. — When the county board is once lawfully convened in special session by the call of the auditor, the board has power to adjourn.from day to day, until the business before it is finished.</p> <p>Same. — It is not necessary that the record of the board should show the ■ call of the auditor for a special session. This may be shown by other • evidence.</p> <p>Assessment op Taxes. — -The fact that the board of commissioners contem-■ plate an unlawful use of the county revenue will not make void a general levy for county purposes.</p> <p>County Bonds. — Innocent Holder. — The fact that county bonds may have ■ passed into the hands of innocent holders will not deprive the county- of any defense that might have been made against the first holder.</p> <p>Assessment to Pay War Bonds. — The ruling in Nave et al. v King, 27 Indi 356, approved.</p>

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

<p>Frauds. — Contents or Written Instrument. — To a suit upon a premium note, given on a policy of insurance, the defendant answered tliat the agent of the company had proposed to defendant, for the sum named, to insure his house against loss by fire; that defendant accepted said offer upon the condition that for the sum named he should have an unconditional policy, which should not be subject to the payment of any further assessments for premiums; that the agent delivered a policy which he falsely and fraudulently represented conformed to the contract, -but that in fact said policy contained a condition which made the liability of the company depend upon the prompt payment by defendant of such assessments as might be made upon a premium note for $126; that defendant was an illiterate man, only able to read with great labor and difficulty, as the agent well knew, and relied upon the truth of said representations ; that the condition in said policy was printed in type so small as to make it extremely difficult for any one to read the same, and that defendant was wholly ignorant thereof until he received notice of au assessment upon said premium note; that said note was procured by the fraudulent representation of said agent that the paper which defendant signed was an application for insurance, &c. The policy was brought into court and offered for cancellation.</p> <p>Held, that the rule that the law favors the diligent, should not he applied for the protection of those who take advantage of ignorance to perpetrate fraud.</p> <p>Held, also, that if a party may not rely upon the representations of another as to the contents of a written instrument, neither must the other contracting party, by his own act, increase the difficulties of such an examination. The amount of diligence required is to be determined by the relation of the parties and the circumstances of each case.</p> <p>Held, also, that the answer presented a good defense.</p>

<p>Parties. — In a suit brought by one person, for himself and others having a common interest with him in the cause of action, the complaint asked that the money sued for should be paid into court for the benefit of the several persons interested therein, or their assigns. A schedule of the names of the persons interested, and the several amounts due to each was filed with the complaint, by which it appeared that several of these persons had assigned their claims to the person prosecuting the suit. On a demurrer for a defect of parties, because the persons who had assigned were not made parties to answer as to the assignment, it was</p> <p>Held, that as the suit was prosecuted for the benefit of the persons interested, the question of the assignment was not involved, and that there was no defect of parties.</p>

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

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

<p>Mistake op Law. — Estoppel.—In a suit to enjoin the collection of certain taxes, assessed upon a return made upon oath, in these words: “ Money on hand or on deposit within the State, $2,500,” it was alleged that this sum was in United States treasury notes, which are not liable to bo taxed by state authority; that the return was made, “ by reason of a mistake of facts, of which plaintiff was not cognizant at the time,” and that he filed an affidavit with the auditor of the county for an order on the treasurer, releasing the tax. The affidavit was made an exhibit, and discloses the fact that, the appellant “ is informed and believes that" United States treasury notes “ are not taxable.”</p> <p>Held, that the error under which the return was made, if error there was, was one of law and not of fact, and one for which no relief could be granted.</p> <p>Held, also, that the appellant, having made the return, was estopped to deny its correctness.</p>

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

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

<p>Supreme Court. — Practice.—Motions to correct a record must bo made in the court below.</p> <p>Same. — Where a record had been amended by the court below, after the term, and there had been no exception taken and no motion made below to restore the original record, it was held that the- Supreme Court could only look at the record as sent up,' and would presume in favor of the action of the court below.</p> <p>Change or Venue. — When a change of venue is ordered in time for the change to be perfected for the then next term of the court to which the change is taken, and it is not so perfected until afterwards, the court from which the change was taken may order the papers returned and resume the control of the case.</p> <p>Same — In such case, no certificate of the clerk of the court to which the change was ordered is necessary.</p> <p>Abstract. — The court declined to examine an assignment of error on the overruling of a motion for a continuance, because the abstract of the appellant was not sufficient to present the question.</p>

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

<p>Highways. — Dedication.—Iii a prosecution for obstructing a highway, the court below charged the jury “that a road which communicates with a public road at one end only, and is closed up at the other, is not susceptible of dedication to public use as a highway.”</p> <p>Held, that there might be a state of facts as applied to which the instruction , would not be erroneous, and as the evidence is not in the record this court will presume in favor of the action of the court below.</p> <p>Obstruction oe Highways. — The following instruction given by the court on a prosecution for obstructing a highway was held to be erroneous: “The road must not only be used as a public highway, but must also be worked, to constitute it a highway within the meaning of. the act forbidding the obstruction of highways.”</p>

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

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

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

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

<p>Injunction.-‘-Waste. — Injunction by the owner of the fee to restrain the owner of the life estate from waste by cutting timber. The court instructed the jury as follows: 1. Waste is whatever does a lasting damage to the inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. What might bo for the benefit of the life tenant, if a permanent loss to the owner in fee, is waste. 2. If the contemplated cutting, when done, would lessen the value of the fee after the death, of the life tenant, the jury should find for plaintiff; if not, then for defendant.</p> <p>ScId, that the instructions were correct.</p> <p>Motion eob New Tbial. — Motion for a new trial; one cause assigned being that error of law occurred at the trial of the cause, which was excepted to at the time by the party, in this: that the court, in giving instructions to the jury, gave instructions contrary to law.</p> <p>Meld, that this was sufficient to bring in review all instructions specially excepted to at the proper time.</p> <p>Same. — Oyebeüled Case. — The decision in Sorm et al. v. Williams, 23 In.d., 37, overruled on this point.</p> <p>Common Law. — The common law of England, and acts of Parliament of a general nature in aid thereof, prior to the fourth year of James I, are, no statute contravening, in force in Indiana when applicable, but when .inapplicable, the courts will modify to suit the requirements of our condition.</p> <p>Same. — Waste.—The common law that cutting a standing tree is waste is inapplicable in this State.</p>

<p>APPEAL from the La Grange Common Pleas.</p>

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

<p>Sheriff’s Sale. — It is a departure from his official duty for a sheriff, knowingly, from an entire body of two hundred and forty acres of land, suitable for one farm, to select and sell on execution eighty acres out of the centre, and thus separate the other two eighties, and destroy all communication between them for the purposes of a farm; and a complaint alleging such facts, together with the averments that the property sold was worth $2,500, and was sold for $213, to the execution creditor, and that the sale of the central eighty acres had destroyed the value of the remaining property to the extent of $1,000, makes a case of gross inadequacy of consideration, and shows good cause for setting aside the sale.</p> <p>Same. — Evidence.'—An offer to prove that at the sale there were ten or more persons present competent to bid, and that three or more did bid, and that defendants had offered the land soon after the sale to an agent of plaintiffs’ for the amount of the judgment, interest and costs, is immaterial, and properly rejected.</p> <p>Same. — If property of an execution defendant has been improperly sold, it is no bar to his action to set aside the sale, that the purchaser, being the execution plaintiff, and hence chargeable with notice of irregularities, offered to reconvey to him on payment of the debt. He can insist that the execution shall ho legally levied upon his property, and the sale fairly conducted, and the money collected in the manner provided by law.</p> <p>Bill of Exceptions. — Amendment oe. — The bill of exceptions which purported to contain “ all the evidence given upon the trial,” failed to . show that any evidence was introduced to prove that any levy upon, or sale of the property had ever been made by the sheriff, or any deed executed to defendants.</p> <p>Held, that the want of proof was fatal to the relief prayed for.</p> <p>Held, also, that the bill of exceptions could not be amended by the court below ,o-n parol testimony alone, so as to embrace such testimony. Courts cannot amend their records at a subsequent term, except “in a fact which appears to be the misprision or neglect of the clerk,” unless there is something in the record to amend by.</p>

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

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

<p>Habeas Cobbtjs. — Petition for a writ of habeas corpus. Tlie petition alleged that the petitioner was imprisoned and held in custody by the sheriff in the jail of the county, for an alleged contempt in disobeying an order of the court directing him to pay certain moneys; that in fact said imprisonment is not by virtue of any writ or order of the court authorizing the same, &c.</p> <p>Held, that the petitioner was entitled to the benefit of the writ.</p>

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

<p>Cities, — Under the act for the incorporation of cities, approved March 9, 1857, one elected to fill a vacancy in the office of councilman is entitled to hold the office during the unexpired term of his predecessor.</p>

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

<p>Decedents' Estates. — Promissory Notes. — Where a note purporting to have been made by a decedent is filed as a claim against the estate, the answer of the administrator, denying its execution, ,need not be sworn to, in order to put the plaintiff to proof of the execution.</p>

<p>Tkbspass. — LrCElTSE.—To an action of trespass for cutting timber, the defendant answered that he had purchased the- timber from plaintiff’s vendor, and had a parol license to cut and take it away; that plaintiff knew of the license and acquiesced therein.</p> <p>field, that the answer was good as a plea of license from the plaintiff.</p>

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

<p>Criminal Law. — Pleadino.—In a criminal prosecution the defendant may plead specially any matter in confession and avoidance constituting a defense, and the proper method to test the sufficiency of such plea is by demurrer.</p> <p>Same. — As in criminal cases all matters of defense are admissible under the general plea of not guilty, the Supreme Court will not reverse a judgment for an error of the court below in rejecting a special plea.</p> <p>Mill-dam. — Appurtenant to Mill Seat. — Where a mill and mill seat are conveyed by deed, as such, by metes and bounds, the dam will pass as appurtenant to the mill seat, though it is not included within the metes and bounds given, and does not abut on the land described.</p> <p>Same. — Evidence.—In a prosecution for a nuisance, in the erection and continuance of a mill-dam, the defendant justified under an act of the legislature authorizing his grantor to construct tho dam. The deeds given in evidence to show the defendant’s title described only the mill seat by metes and bounds, and to show his title to the dam, tho defendant offered to prove that the dam was built by the person to whom the legislative grant was given, and that he and his grantees had ever since been in possession under a claim of right from him.</p> <p>Held, that the evidence offered was competent, and was sufficient evidence of title against all other persons except the owners of the banks.</p> <p>Navigable Streams. — Ordinance on 1787. — Under article i of the ordinance of 1787, the navigable waters leading into the Mississippi and Si. Lawrence rivers, &c., cannot be obstructed by State authority, but the operation of the act and the power of Congress over this subject is limited to those streams which are channels of commerce between the States — such as are navigable in fact for vessels of commerce coming out of and returning into the navigable waters of other States, by continuous voyages.</p> <p>Same. — Judicial Notice. — The courts will take judicial notice of the navigability of streams, as a part of the common public history of the country.</p> <p>Same. — Wabasii Biver. — The Wabash river, where it passes through Adams county, in this State, is not a navigable stream.</p> <p>Same. — Nuisance.—Mill-dam.—Wherever, in the course of a stream, it ceases to be a public highway for commerce between this and other States, at that point its national character terminates, and above that it is within the exclusive jurisdiction of the State, and a legislativo act authorizing its obstruction by a mill-dam is a good defense to a prosecution for a nuisance.</p> <p>Navigable Stream. — A stream cannot be said to be navigable in the legal sense of the term, unless it be of such a character as to bo useful to the public as a channel of travel or commerce.</p> <p>Same. — Mill-dam. — When an act provides that a dam shall be built with a suitable slope or lock, so as not to interrupt navigation, the omission to provide such slope or lock will not deprive the party of the benefit of the law, when it does not appear that any person since tho erection of the dam has either attempted or desired to navigate the river at that point, and especially when it is clear that it never was used, or was capable of being used, as a navigable highway, in the proper sense of •the term.</p>

<p>Indictment. — In a trial for violation of the Sabbath, the indictment, among other averments, charged that the defendant was over the ago of fourteen years.</p> <p>Held, that the age of the accused must be proven by sworn testimony, and that the court or jury could not determine this fact for themselves from the personal appearance of the accused alone.</p>

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

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

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

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

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

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

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

<p>Verdict. — Affidavits of Jurors to Impeach. — The affidavits of jurors cannot be used to impeach a verdict, but they may be used to sustain it.</p> <p>New Trial. — The action of the court below in granting a new trial was assigned for error on an appeal from the judgment rendered on a second trial. One reason assigned for the new trial was the misconduct of the jury, which was attempted to be shown, in part, by the affidavits of jurors. The party in whose favor the verdict was, did not object to the filing of the affidavits.</p> <p>Held, that though the court erred in receiving the affidavits of the jurors, yet, as no exception was reserved, the error is not available.</p> <p>Held, also, that as other causes were assigned for a new trial, and it does not appear for what cause the new trial was granted, the Supreme Court will presume in favor of the correctness of the ruling of the court below.</p> <p>Continuance. — A judgment will not be reversed for an error of the court below in granting a continuance.</p> <p>Depositions. — When the deposition of a witness who resides in a county adjoining the place of trial is taken, on account of his sickness, without an order of court or an agreement of the parties, it cannot be used on the trial, unless it then appears that the cause for taking and reading the deposition still continues.</p> <p>Same. — The refusal of the court, in such case, to allow the deposition to be used on the trial, because it did not appear that the cause for taking it continued, furnishes no ground for a continuance.</p> <p>Slandek. — Evidence oe Chakacter. — Where, in an action for slanderous words imputing the crime of larceny, the defendant does not justify the speaking, and offers no evidence impeaching the plaintiff’s character, evidence of the plaintiff’s good character is not admissible.</p> <p>Going so Trial Pending a Demurrer —It is the duty of the demurring party to present his demurrer to the court, and if he fails to do this, and goes to trial without calling the attention of the court to the fact that it is undisposed of, and fails to present the objection by motion for a new trial or in arrest, the error is waived.</p>

<p>Bun, of Exceptions. — Time of Filing. — The statutory rule, that the time within which an act is to he done, &c., shall he computed hy excluding the first day and including the last, applies to the filing of hills of exceptions.</p>

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

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

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

<p>Instructions. — Assuming Facts. — Where, in an instruction to the jury in a criminal case, the judge assumed that the crime, if committed, was committed on a particular day, it was held that the instruction, though erroneous in this particular, worked no harm to the defendant, because there was no conflict in the evidence upon that point., and the case was such as to exclude the possibility that the jury could have discredited tho witnesses who testified on that subject.</p> <p>Evidence. — Existence oe Corporations. — In a prosecution for larceny, the property in the goods was alleged to be in a railroad company, and it was held that proof of the de facto existence of the corporation was sufficient.</p> <p>Ehbezzelment. — The act to punish embezzlement ( Acts Spec. Sess. 1865, p. 204), was intended only to punish acts not before made criminal, and though the language of the first, section might seem broad enough to cover any felonious taking, by a servant of his master’s goods, yet construed in connection with the second section, it cannot be held to embrace any taking which before would have been larceny.</p>

<p>APPEAL from the La Grange Common Pleas.</p>

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

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

<p>Appeal — Effect of. — The only effect of an appeal to the Supreme Court is to stay execution on the judgment. In all other respects, the judgment, until annulled or reversed, is binding upon the parties as to any question directly decided.</p>

<p>Colleges. — Subscriptions.—Where a subscription to the funds of a college is made upon the condition that a certain sum shall be raised, the liability of the subscriber is fixed when that sum is raised, and a subsequent misapplication of the funds will not relieve him from liability.</p>

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

<p>Tax Deed. — Evidence.—In an action to recover the possession of real estate, the defendant claimed title under a tax deed. The deed, which was executed'under the R. S. 1838, did not recite several of the facts necessary to constitute a valid tax sale. The court instructed the jury that the tax deed “is presumed to be legal so far as is shown by the evidence in this cause.”</p> <p>Held, that the instruction was erroneous.</p> <p>Limitations.— Successive Disseizins.— Separate, successive disseizins cannot be tacked so as to constitute in law one disseizin and a continuous single possession, unless there is a privity of estate between the successive parties.</p> <p>Same. — Doweess.—Where the husband died while the R. S. 1843 were in force, it will be presumed, nothing appearing to the contrary, that the widow took as dowress.</p> <p>Same. — As, under that law, the widow was entitled to occupy in common with the heir any lands in which she was entitled to dower, until objection was made by the heir, such an occupancy by her would be a continuance of the possession of the husband, and not a new disseizin.</p> <p>Statute or Limitations. — Reteoactive Eitect oe. — Tho statute of limitations contained in the code of 1852 is retroactive in its operation, and bars an action to recover real estate which is not commenced within the period limited, after the cause of action accrued.</p> <p>Same. — Coneeictino Insteuctions. — In an action to recover real estate, the defendant pleaded the statute of limitations, and gave evidence tending to show that he had been in possession of the land under a tax deed for more than twenty years. The court instructed the jury that the plaintiffs’ cause of action accrued at the date of the tax sale.</p> <p>Seld, that the instruction was erroneous, and that the error was not cured by the giving of another instruction to the effect, that when the claim of title is only colorable, the cause of action does not accrue until possession is taken under it.</p>

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

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

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

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

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

<p>Rescission. — Re-sale without Notice. — Wken, on a refusal by the buyer to complete a contract of sale and an abandonment by him of the property, the seller re-takes possession of the property, treating it as his own, ■ and sells the same, without notice to the buyer of an intention to sell for his account, it is a rescission of the contract.</p>

<p>Railroads. — Evidence.—In a suit by a father for an injury to his minor son, it was held that the declarations of the son, made the day following the injury, as to the cause of the accident, were not admissible against the plaintiff.</p> <p>Same. — Injury to Servant. — A minor son of the plaintiff was, with his consent, employed to go upon a construction train to furnish water to the laborers at the points where they stopped for labor. The son was also, at times, with the father’s knowledge, employed as brakeman and fireman upon the train. By the negligence of the person in charge of a section of the road, in not signaling the train, it ran off the track at a curve, where the rails were being elevated.</p> <p>Held, that the rule respondeat superior applies only to actions sounding in tort, and that where the relation of master and servant exists, the duties and liabilities of the parties must be determined by the contract.</p> <p>Held, also, that where one accepts a situation in which he must, of necessity, be exposed to injury by any want of care on the part of his fellow-servants, he must be held to have made his contract in view of such hazard, and cannot recover for an injury thus caused, unless by express contract the master has made himself an insurer, or unless the master has failed in his implied obligation to employ competent fellow-servants.</p> <p>Held, also, that as to injuries resulting from other causes than the ordinary hazards of the employment, the servant stands towards the master as a stranger.</p> <p>Held, also, that the company was not liable in the case stated.</p>

<p>Cities. — Pkecepts.—Where a precept, issued for the collection of an assessment for a.street improvement, is abandoned by the city before sale, and upon a new order of the common council a second precept issues for the same assessment, the time within which an appeal may bo taken is to be computed for the time of giving notice under the second precept.</p>

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

<p>Constitution. — Amendment of Laws. — Section 21 of article 4 of the constitution of Indiana, which provides that “ no act shall over be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length,” does not require that the old act or section shall be set out at length, hut only that the revised or amended act shall be complete in itself.</p> <p>Same. — Cases Overruled. — Langdon v. Applegate, 5 Ind. 327, and the decisions following that case, in which a contrary doctrine is held, are overruled.</p> <p>Plank Roads. — Time of Completion. — The 5th section of the act of February 28th, 1855, (1 G. & H. 487 ) giving to plank and macadamized, &c., road companies ten years, instead of four, to complete their roads, is constitutional, not as an amendment of the act of 1852, but as an independent provision.</p>

<p>Indictment. — Larceny.—An indictment for larceny, charging the stolen goods to be the property of “the overseers of the poor for tho county of IT.,” was held to be bad.</p> <p>Same. — If the property belonged to the township trustee, who is ex officio .overseer of tho poor, in his individual right, his name should have been given.</p>

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

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

<p>Verbal Instructions. — When the court is requested in time to charge the jury in writing, it is error to give a verbal charge.</p>

<p>Fokgeey. — Indictment.—An indictment for forgery must show that, the instrument of which the forgery is predicated is such, on its face, as is naturally calculated to have some effect, or if that he not the case, then extrinsic matter must bo averred, so that the court may judicially see its fraudulent tendency.</p> <p>Same. — An indictment for forging a certificate purporting to be signed by a mustering officer of the United States, and certifying that a certain person named had been mustered into the military service of the United States and credited to Allen county, and that said soldier was entitled to a bounty which had been voted by the county board, was held to be bad, because, at the time of the alleged forgery, the appropriation of money for bounties was illegal and- void, and no extrinsic facts were averred showing the fraudulent tendency of the certificate.</p>

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

<p>Judge Pro Test. — A judge called to preside, under the act of 185-5, at the trial of a cause, in the place of another judge who is disqualified, derives his power from the statute, and not from the notice given to him by the disqualified judge. The object of the notice is simply to secure the attendance of a competent judge, and the notice is not part of the record.</p>

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

<p>APPEAL from tho Harrison Common Pleas.</p>

<p>Raiíboajds. — The courts will not take judicial notice whether a railroad company owns and operates a road through a particular county, when there is no law prohibiting it from doing so.</p> <p>Geography. — Judicial JTotice. — Judicial notice will be taken of the geo■graphical position of Uazelrigg Station.</p>

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

<p>Contract op Sale. — Usury.—In a contract for the sale of lands, it was agreed between the vendor and vendee, by parol, that the sale should bo at §80 per aero, upon a credit of ten years, and that interest at the rate of ten per cent, should be paid annually, but the contract was not cxo~ cutod so as to be binding upon cither party. Afterwards, a written contract was entered into, by which the vendee agreed to pay a specified gross sum. for the land, payable in ten annual installments, the first nine being for a sum equal to ton per cent, on the value of the land at §80 per acre, and the last for the value of the land at the price named and ten per cent, added. Nothing was said in the written contract about the price per acre, or about interest. The legal rate of interest at the date of the contract was six per cent.</p> <p>Held, that the contract was not tainted with usury.</p>

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

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

<p>Gist. — Delivery.—A promised to give a bank certificate to B. After-wards B found the certificate in a room usually occupied by him and A.</p> <p>Held, that this was not sufficient to show a delivery of the certificate.</p>

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

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

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

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

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

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

<p>Burdiss ob tub Issue. — In a suit before a justice of the peace upon a promissory note, the defendant pleaded affirmative defenses only, and at .the beginning of his answer admitted the exeoution and delivery of the note. On appeal, the issues remaining the same, the defendant orally admitted the execution of the note, and disclaimed all benefit of the general issue provided by the statute, and claimed to open and close the case.</p> <p>Skid, that the burden of the issue was upon the defendant, and that ho was entitled to open, and close the case.</p>

<p>Breach or Marriage Contract. — To an action for a breach of marriage contract, the defendant answered that the plaintiff had fraudulently concealed from him the fact that she had beforo that time been delivered of a bastard child.</p> <p>Reid, that the answer constituted a good defense to the action. '</p>

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

<p>Judgment — Relief Against. — Complaint to enjoin tho collection of a judgment. It appeared by a letter from the judgment plaintiffs to their attorneys, made an exhibit with tho complaint that tho debt upon which the judgment was afterwards taken, had been in some manner arranged, and the attorneys were directed to deliver up the note upon the payment,' by one A, of the costs and attorneys' fees. The costs and fees were not paid by A, but after judgment tho defendant paid them. As an excuso for not making a defense, it was alleged that tho character of the judgment plaintiffs for integrity was so high as to induce the present plaintiff to believe that they would not take a judgment under such circumstances.</p> <p>Held, that the complaint was bad', 1, because it did not appear what the arrangement stated was based upon — whether the debt had been paid in full, or whether anything had been paid or given in satisfaction — and 2d, because the condition as to the payment of the eosts, &c., not having been compilied with, the defendant was not entitled to receive the note, and should have made his defense.</p>

<p>Infant. — Habeas Corpus. — In suit by a motlier to recover the custody of her infant child, when her right to such custody has been before declared by a decree in an action for divorce, a copy of the decree need not bo filed with her petition.</p> <p>Same. — Return.—A return to a writ of habeas corpus, which disclosed that recently before the issuing of the writ the custody of the child in controversy had been transferred to another, was held to be bad, because it did not disclose the reason for such change.</p>

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

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

<p>Ihfaitcí. — A plea of infancy is a good defense to an action to recover money paid at the request of the infant to relieve him from a draft for military duty.</p>

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

<p>Contract. — A, who was a contractor with the United States to carry a triweekly mail between certain points, employed B to carry the mails for him at a stipulated price for a term of years. The contract stipulated. that if A should be removed as contractor before the expiration of the term, the contract should be discharged; and B on his part agreed that if the service should be either increased or decreased, his compensation should be increased or decreased in like proportion. The government. changed the service to a daily one, and the price being too low,. A refused, to take the contract, and was discharged.</p> <p>Held, that the agreement between A and B did not require the former to., make any new contract with the government, and- that he incurred' no ■ liability to B by refusing to do so.</p>

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

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

<p>Composition. — Fraud.—Inhere a debtor procures a composition with his creditors by means of false representations as to the amount of his property, the contract is void, and the creditor may recover the whole of his debt.</p>

<p>Mistake.' — Patmekt- oj? a Lesser por a Greater Sum. — Suit to correct a mistake in tke settlement of a claim against an estate, and to recover a balance due thereon. The complaint alleged that the plaintiff had filed a note as a claim against the estate, which had been allowed; that in pay- ' ing the claim a mistake was made in the computation of interest, and that plaintiff gave a receipt for the amount paid as in full of said claim, ■ whereas, in fact, the further sum of $1,452 was due thereon. The administrator answered, 1. The general denial; 2. Payment before suit; 3. The payment of the sum of $7,174, which was accepted and received in full satisfaction and discharge of the claim, for which a receipt was given accordingly, and denying any mistake.</p> <p>Held, that as there was no controversy as to the consideration of the note, or the credits thereon, and the estate was solvent, the payment of a loss sum than the amount really due was not good, either by way of accord and satisfaction or payment.</p> <p>Held, also, that the receipt was not conclusive, but was open either to explanation or contradiction by parol evidence.</p> <p>Held, also, that the third answer was only good on demurrer by reason of the denial with which it concluded, and, the general denial being in, should have been stricken out, on motion.</p> <p>Decedents’ Estates. — Witness.—In a suit by A’s administrator against the estate of B upon a promissory note executed by B in his lifetime, and to correct a mistake in a settlement made with B’s administrator, it was held that the latter was not a competent witness, unless required to testify by the opposite party, or by the court.</p> <p>Computation op .Interest. — In computing interest, whore there have been partial payments, the payments should be applied first to the interest then accrued, and the surplus, if any, to the principal. If the payment be less than the interest due, interest should be computed on the whole principal until the payments exceed the interest.</p>

<p>Voluntary Assiqnment. — A and B made a general assignment to C, in trust for the benefit of their creditors. Preferences were made among the creditors as follows: the first class to be paid in full; the second, if the assets were sufficient; and the third, if any assets remained, after paying the first and second classes. Suit by A and B and certain creditors of the second and third classes agaipst C, the complaint alleging waste of assets, &c., without averring that the assets were sufficint to pay the first class in full.</p> <p>Held, that the complaint showed no cause of action as to the creditor plaintiffs, and hence was bad on demurrer.</p>

<p>Attachment. — In an action for the possession of personal property, the defendant answered, inter alia, that he held said property as sheriff, under an order of attachment duly issued out of the office of the clerk of the Vanderburgh Circuit Court, against the property of A, whose property it was, &e.</p> <p>Held, that the answer was good as a plea of property in a stranger.</p> <p>Same —Return or Writ. — The sheriff had a right to retain the writ of attachment until the return of the goods replevied from him. so that he ■ could proceed with its execution.</p> <p>Same — Bond—Appkovah oe. — The issuing of a writ of attachment upon, the filing of a bond with the clerk, is a sufficient approval of the bond.</p>

<p>Decedents’ Estates. — Witness.—Under the second proviso of section 3 of the act of 1861 (2 Cr. & H. 168), the discretionary power conferred upon the court to require a party to testify in suits by or against executors, &c., is an absolute one, and not subject to review by this court.</p>

<p>Covenant on? Warranty — Measure or Damages — Evidence.—Suit by a railroad company upon the covenant contained in a deed executed by the defendant to the company. The complaint alleged that the company had neglected to record the deed, and that the defendant had conveyed to another; that by the laws of Ohio, where the lands were, the second grantee had a valid title, and had entered into possession, &c. Answer: 1. That the deed was executed in payment of a subscription of $3,000 to the stock of the company; that it was agreed by parol, at the time of making the written subscription and deed, and as part of the consideration thereof, that the company should not begin work until stock enough had been subscribed to complete the road, and that if the company should fail in this, within a reasonable time, defendant should be allowed to retract his subscription; that the company did fail to procure sufficient stock, and expended and wasted the stock subscribed, &c. 2. That the defendant re-sold the premises by the license of the company. 3. That the company promised and agreed to deliver to defendant the certificate of his stock at a place named; that it failed to so deliver the stock, though often demanded; that when it should have been delivered the stock was worth par, but had now become worthless, &e.</p> <p>Held, that the written subscription and the deed constituted an entire contract between the parties, and that their terms could not be varied by proof of any parol agreement or negotiations which preceded or accompanied the making of the written contract.</p> <p>Held, also, that the acceptance of the writings bound ike company to the terms of the written contract.</p> <p>Held, also, that the plea of a license was bad.</p> <p>Held, also, that the third answer was bad, because it did not allege‘that the defendant could have sold the stock if he had had the certificates, or even that he desired to sell it.</p> <p>Held, also, that the measure of the plaintiffs’ damages was the purchase money and interest thereon.</p>

<p>Frisk Banks — Expiration op Charter. — When a bank organized under the general banking law of 1852 (1 R. S. 152) failed to conform to the requirements of the amended law of 1855, and having before failed to redeem its circulating notes in coin, did not afterwards resume payment, it ceased, under the latter law, to have any corporate existence. But under section 6 of the general law respecting corporations (1 G. & H. 2C9), its corporate existence was continued for three years, for the purpose only of winding up its business.</p> <p>Same — Extinguishment oe Claims Uncollected. — No application haying been made to the Circuit Court for the appointment of a receiver, and an extension of the time for collecting the debts due the bank, such debts are, at the expiration of said three years,-totally extinguished.</p>

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

<p>Pleas in Abatement — Practice.—Section 200 of the code of 1813 (p. 706), which requires pleas in abatement to be verified by oath, is continued in force by section 802 of the code of 1852 (2 G. & H. 336).</p>

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

<p>Practice. — An application for leave to withdraw a reply, for the purpose of entering a motion to strike out parts of the answer, Was held to be addressed to the discretion of the court, and the action thereon not subject to review on appeal, because the substantial rights of the parties could not be affected by the decision.</p> <p>Admissions or Counsel. — Evidence.—On a former trial, the plaintiff’s counsel had admitted certain things to be true, but before the second trial began, gave notice that said facts would not again be admitted. The defendant’s counsel having again offered the admission, objection was made, and proof offered that the admission had been made by the attorney without the knowledge of his client, and for the purposes of the former trial only, to save time.</p> <p>Eeld, that the admission could not be given in evidence.</p> <p>Depositions. — Order Suppressing. — The deposition of the same witness having been taken in a cause twice on behalf of the defendant, the plaintiff afterwards moved the court to suppress “ depositions herein taken on the part of the defendant,” and the motion Was sustained. The first deposition being offered in evidence, the plaintiff objected, on the ground that it had been suppressed.</p> <p>Eeld, that the order of the court was too indefinite to indicate any particular deposition, and was therefore insufficient to justify the exclusion of any.</p> <p>Evidence. — The declaration of the holder of a bill of exchange that it had not been paid, cannot be given in evidence by his assignee against the other parties liable on the bill, to prove the fact of such non-payment.</p> <p>Instructions. — The instructions of the court to the jury should be pertinent to the case as made by the evidence.</p>

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