Volume 29 — Indiana Reports

<p>Deed. — Construction op. — That part of a deed, in which the premises conveyed are described is always construed with great liberality. Same. — Where the premises intended to be conveyed were described as forty acres in a certain section, north of Otter Creek, and reference was made in the deed to a mortgage of the same premises, in which the land was described as all of said section north of Otter Creek, it was held that the deed was not void for uncertainty.</p> <p>Mortgage to School-Fund. — Sales by Auditor. — In selling lands mortgaged to the school-fund, the auditor must proceed strictly in accordance with the requirements of the statute, and where a sale is made for the payment of a greater sum than is actually due, the sale is void.</p> <p>Same. — A payment of interest on such a loan to the county treasurer is a valid credit, and the failure of the borrower to file the treasurer’s receipt with the auditor and procure a quietus, will not excuse the auditor for selling the mortgaged property for more than the sum actually due.</p>

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

<p>Default. — Motion to Set Aside. — An affidavit, filed in support of a motion to set aside a default, showed that the defendant and his counsel had been in attendance upon the court until the announcement was made by tho judge that the case would nS be tried at that term', and that upon the faith of this statement defendant and his counsel left the court, &c. The affidavit also disclosed merits.</p> <p>Held, that good cause was shown for setting aside the default.</p> <p>Held, also, that such applications should be disposed of by the judge in a summary way, upon the affidavits and the facts within his knowledge.</p> <p>Same. — Bill of Review. — Where the record disclosed that a paper was filed with the affidavit which was treated as a complaint to review the judgment, and iipon which an issue was made up, but the answer and reply were not in the record, it was held that tho action of the court in granting the relief without the trial of any issue was not erroneous, as it did not appear that the answer tendered any issue.</p> <p>Decedents’ Estates. — Widow’s Portion. — Suit by a widow against the executors of her husband’s will to recover the $300 allowed by law to her. It appeared in evidence that the widow took, under the will, $750 of personal property, and of the residue of the personal estate, a small sum, remaining after the payment of debts,'was distributed to the widow and children of the testator. The widow, after taking $750 under the will, instituted an action to set aside the will, and in that action secured a partition of the real estate without regard to the will.</p> <p>Held, that while retaining the personal property taken by her under the will, which was in excess of the amount coming to her under the law, the widow could not maintain the action.</p>

<p>Jurobs. — Examination or.- — On the trial of a eause, in which one of the material issues was whether a partnership had existed between certain persons, the court refused to allow the persons called as jurors to be asked whether they had formed or-expressed an opinion as to the existence of such a partnership.</p> <p>Held, that the refusal to allow the question was error.</p> <p>Depositions. — Certificate.—Where the certificate to depositions, which purported to have been taken before the clerk, was signed in the clerk’s name by a deputy, it was held that the taking of- the depositions and the making of the certificate must be construed to be the act of the clerk, the deputy simply signing his principal’s name by his authority.</p>

<p>Attempt to Peovoee Assault. — An affidavit for an attempt to provoke an assault and battery charged that the defendant on, &c., at, &c., did, “by words, signs and gestures, attempt to provoke A to commit an assault and battery upon him, said B.”</p> <p>Held, that the offense was well charged in the affidavit.</p>

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

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

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

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

<p>Statute or Frauds. — A Laving a claim against B for goods sold, C, by a parol agreement between Mm and A, assumed tbe payment of the debt, and tbe same was charged to O. B had no knowledge of the arrangement, and it did not appear that he was discharged by A from the debt, or that his account was credited.</p> <p>Held, that the promise of C was a collateral one, and within the statute of frauds.</p>

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

<p>Bill oe Exceptions. — Time or Filing. — Where final judgment has been rendered in a cause, and time is given beyond the term to prepare a bill of exceptions, the court has no power, at a subsequent term, to make an order extending the time for filing the bill, unless some sufficient ground be shown to amend the record.</p>

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

<p>Evidence. — Damages.—It is not .competent to ask a witness wliat damages ' resulted from tlie omission of a party to do an act lie had contracted to do. The witness should state the facts, from which the court or jury may determine the damages under the legal rules governing the case.</p> <p>Instructions. — The Supreme Court., in reviewing the instructions given by the court below to the jury, will look at all the instructions upon the same subject, and if the instructions taken together present'the law correctly, the judgment will not be reversed, though a single instruction, standing alone, might seem to be incorrect.</p>

<p>Arbitration and Award. — The statute regulating arbitrations is cumulative, and does not affect common law submissions.</p> <p>Same. — Parol Submission. — A parol submission was valid at common law, and there is nothing in the statute malting such a submission void.</p> <p>Same. — Award.—It is not necessary that an award should recite the submission, or show what it was that was submitted.</p>

<p>Diyoece. — Alimony.—Where a divorce was granted to a husband for tie adultery of the wife, it was held that an allowance of §433 for alimony, an amount equal to one-third of his estate, was unreasonable, and the judgment was reversed, and the court below directed to enter a judgment for $150.</p>

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

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

<p>Attachment. — Claimant op Property. — Practice.—Where property taken in attachment is claimed by a person other than the defendant, he must prosecute his claim by a separate action, and cannot be admitted as a defendant in the attachment proceeding to set up his claim to the property.</p>

<p>Decedents’ Estates. — Under the statute, the widow and minor children are entitled to occupy the dwelling house and adjacent fields, not exceeding forty acres, for one year from the death of the husband free of rent¿ but where the minor children are removed by their guardian, he cannot^ maintain an action against the widow to recover any part of the rental value of the premises for such year.</p>

<p>Ejectment. — Estate oe Mortgagee. — The rule, that a plaintiff in ejectment cannot recover where the title to the land is in a third person, does not apply where the outstanding title is a mortgage.</p> <p>Assignment oe Mortgage. — The assignment or conveyance of the mortgaged premises by the mortgagee, without an assignment of the debt secured by the mortgage, will pass no estate.</p>

<p>Highwaxs. — Appeal.—On an appeal from the county hoard to the Circuit Court, in a proceeding for the location of a highway, the Circuit Court does not take jurisdiction for the correction of errors, hut must try the cause as an original cause, and make a final judgment. The court may either execute its own judgment or send the case down to the county hoard, with directions to execute the judgment.-</p>

<p>Agreed Case. — Jurisdiction.—An agreed ease, under the statute, presented the following facts: A commenced a proceeding for the foreclosure of a mortgage upon lands, executed by B and his wife; B died pending the suit, and his widow and heirs were made defendants, and a decree for the sale of the lands entered. The venue having been changed from Warren county, where the lands were, the decree was entered in the Boone Circuit Court. Subsequently B’s administrator sold the land for the payment of the debts, subject, to A’s decree and to the rights of B’s widow, and C became the purchaser. A afterwards purchased and took a conveyance from the widow of B of her interest in the land. Upon these facts A claimed that the portion of the lands which descended to B’s heirs was liable to be sold to pay the mortgage decree before the widow’s portion purchased by him, while C claimed that the widow’s portion should contribute to the payment of the decree, and the question was submitted to the Warren Circuit Court, where a decree was rendered that the widow’s portion should not be sold until that which descended to the heirs had been exhausted.</p> <p>Held, that under the statute authorizing agreed cases, the statement of facts must show a cause of action in favor of one party against the other.</p> <p>Held, also, that as the whole land was subject to be sold to satisfy the decree, no such question could arise between the parties as presented until it appeared that a surplus would remain.</p> <p>Held, also, that the Warren Circuit Court could not modify the decree of the Boone Circuit Court.</p>

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

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

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

<p>Courts of Conciliation. — Costs.—As the act ,of. 1865, repealing the law establishing courts of conciliation, contained no saying clause as to pending suits, costs cannot be taxed against the plaintiff in an action of slander tried after the repeal, on account of his failure to go into a court of conciliation.</p>

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

<p>Negligence. — Pleading.—In an action for an injury to the person, it was held that an answer alleging that the injury resulted from the carelessness of the plaintiff was properly stricken out on motion, as evidence of the fact pleaded was admissible under the general denial, which was also pleaded. , i -</p> <p>Interrogatories to the Jurx. — Practice.—The court declined to consider an objection that improper interrogatories had been submitted to the jury, because the party objecting could not have been injured.</p> <p>Negligence. — Where the negligence of the plaintiff directly contributes to the injury, he cannot recover.</p> <p>Passengers. — Railroads.—The duty of a carrier of passengers docs not extend to the imprisonment of the passenger, so as to prevent him from voluntarily exposing himself to needless peril.</p> <p>Same. — The carrier is not bound to so protect the windows of its coaches that a passenger cannot get his limbs through them; and where an injury resulted from the arm of a passenger, placed by him several inches outside the window, coming in contact with the structure of a water-tank, it was held that the carrier was not liable.</p>

<p>Conflict of Evidence. — Supreme Court.. — Where there is a conflict in the evidence, and a conclusion can only be reached by passing upon the credibility of the witnesses, the Supreme Court will not interfere with the judgment.</p>

<p>Pleading. — Reomissoey Notes. — A complaint against an assignor of a promissory note described it as a note of $480, but tlie copy of the note set out with the complaint showed an indorsement, by which it-was stipulated that if the note was paid in town lots, the sum paid should be $550. Held, That the complaint was sufficient.</p> <p>Same. — To this complaint the defendant answered, 1. That at the time of the indorsement, it was agreed that defendant should not bo held thereby; that the indorsement was only made to enable the plaintiff to collect the note, and was without any consideration whatever. 2. That plaintiff purchased the note upon the sole responsibility of the maker, and with the understanding that defendant was not to be held liable, and that there Was no consideration for the indorsement. 3. That the maker offered to pay the note in town lots, and plaintiff refused to receive them. 4. That before the note became due, defendant offered to pay the same in town lots, which plaintiff refused. 5. That the indorsement was procured by the fraud of the plaintiff, and without any consideration.</p> <p>Held, that the first and fifth answers were only good because of the concluding averment in each, that the indorsement was without consideration.</p> <p>Held, also, that the second answer was bad, because it admitted a sale of the note, which imports a consideration, and the alleged contemporaneous ' verbal agreement contradicted the written contract.</p> <p>Held, also, that the third and fourth answers were bad, because they did not show when the offer to convey town lots was made, or that a deed was tendered, or that the title was in the party tendering them.</p>

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

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

<p>Pleading. — An answer pleaded to the entire cause of action, which in fact answers but a portion of it, is bad on demurrer.</p> <p>Deed. — Mill Dam. — A deed of a mill seat, and the appurtenances, stipulated that the dam was to be five feet high, and contained full covenants. To an action for the purchase money, the grantee answered a breach of the covenant that the grantor was seized of a right to raise the dam to a hight of five feet; that in fact he had no right to raise the dam higher than two feet, and that the right to raise the dam to the hight named in the deed was of a value greater than the purchase money sued for.</p> <p>Held, that the answer was a good bar to the action.</p>

<p>Mandate. — A petition for a mandate against the members of tihe common council of the city of' Oreencastle alleged' that the petitioner was a contractor with the city for the improvement of a certain street; that he had performed his contract, and that the engineer had submitted his final estimate of the work, which had been approved by the council; that certain of the property holders along' said street having refused, for more than twenty days, to pay the several sums assessed. against them, the petitioner had filed with the council his affidavit, stating the fact of such refusal and the amount due from each, and asking that precepts issue for the collection of the same; that tho council refused to issue such precepts, alleging that the estimate of the engineer was not correct, and that a part of the work had been paid for to another person. .</p> <p>Haid, that the court erred in sustaining a demurrer to tho petition, and that an alternative writ of mandate should have issued, upon return to which the question whether the contractor was demanding more than was due him might have been tried.</p>

<p>Lease. — Defective Desceiption. — The description of the premises demised, in a lease required by the statute of frauds to be in writing, cannot be Supplied by parol evidence, but an ambiguity may be explained and the premises identified.</p>

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

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

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

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

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

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

<p>Bounties. — Substitutes.—:It was held that the fact that the person procuring the substitute had been drafted, did not distinguish this case from that of Miller v. The Board of Commissioners, §c., ante, p. 75.</p>

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

<p>Practice. — Where a pleading is stricken out, on motion, it is no longer a part of the reeflrd, and can only be made so by a bill of exceptions.</p> <p>Attachment. — Where a creditor, after the commencement of a proceeding in attachment, becomes a party to the proceeding and files his complaint and bond, no new summons need issue against the defendant in order to entitle such creditor to share in the proceeds of the attachment. The service of the original summons is notice to the defendant of the pendency of a proceeding to which any creditor may become a party at anytime before judgment. '</p>

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

<p>Judgments. — Statute op Limitations. — Under the fifth subdivision of section 211 of the code, an action.upon a judgment is barred after twenty years from the date of the judgment, unless the case comes within some of the exceptions of the statute.</p> <p>Same. — The fact that an execution was issued upon the' judgment and returned unsatisfied, within twenty years, is not sufficient to avoid a plea of the statute of limitations.</p>

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

<p>Husband and TíVife. — Divorce..—During marriage, a husband erected a building upon real estate belonging to bis wife, upon an agreement that he should receive the rents until reimbursed for his expenditures. After-wards, and before he had received any rents, the wife applied for a divorce, and pending her application, it was agreed in writing that in compromise of the husband’s claim, the wife should pay him a certain sum, one day after the divorce should be granted. Suit by the husband, alleging those facts and a failure to pay the sum agreed upon.</p> <p>field, that the agreement to pay the sum named when the divorce should be granted was against public policy and void.</p> <p>■ Held, also, that as alimony is an incident to a suit for a divorce, and in adjusting alimony all matters of property between the parties are to be considered, the legal inference is that the claim of the plaintiff for the improvements on the wife’s land was adjusted and settled in the divorce suit.</p>

<p>Change oe Venue. — Appearance.—Where the court has jurisdiction of the subject matter of the action, an appearance to the action in the court to which a change of venue has been taken, by a motion to publish depositions, is a waiver of any objection to the venue.</p> <p>Contract — Acceptance op. — Where a contract is sign'ed by one only of the contracting parties, but the paper is accepted by the other party, and acts are done by him under it, he is bound by the contract.</p> <p>Warranty. — Where an engine and boiler were contracted for, and the manufacturer bound himself “ to furnish a steam boiler suitable to the engine,” it was held that there was a warranty that the boiler delivered under the contract was suitable for the purpose proposed.</p> <p>Same. — MitAsur.E op Damages. — A contract for a steam engine stipulated that if the engine should fail to furnish power sufficient to run four pairs of burr mill stones, the manufacturer would remove it, and pay to the purchaser one thousand dollars, and it was held that the measure of damages for a failure of the engine, and the refusal of the manufacturer to remove it, was the cost of removal and one thousand dollars, and that the failure of the manufacturer to remove the engine did not remit the purchaser to his action for a breach of the warranty.</p> <p>Same. — The court below having instructed the jury that in a suit upon the warranty the purchaser would also be entitled to recover for any other materials purchased for use in connection with the engine, which were rendered worthless by reason of the defects in the engine, it was held that the damages contemplated by the instruction were too remote, and were not covered by a general warranty.</p> <p>Same. — The measure of damages upon a breach of a warranty of personal property is the difference between the actual value of the article and the value it would liavs possessed if it had conformed to the warranty ; the price paid being mere evidence of the latter value.</p>

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

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

<p>Practice. — A- demurrer will not lie to a part of a paragraph of a pleading. Tho only method of reaching special allegations is by motion to strike out.</p> <p>Bum of Exchange. — Attorneys Fees. — Where a bill of exchange contained a stipulation for the payment of attorney fees, it was held that it became a part of the contract of the acceptor.</p> <p>Same. — LaIY of the Place. — In a suit upon a bill of exchange, the law of the place where the remedy is sought controls as t.o the parties who may be joined in the action.</p> <p>Same. — Usury.—To an action upon a bill of exchange, drawn in this State and payable in Ohio, the acceptor answered that he had accepted the bill for the accommodation of the drawer; that the bill was usurious, under the laws of Indiana, and was made payable in Ohio to evade the statutes of Indiana and to defraud the defendant.</p> <p>Held, that the allegation of fraud could have no force, as the acceptance was of a bill for a sum fixed.</p> <p>Held, also, that as, so far as appeared by the pleadings, the bill was drawn in good faith, and .with the intention that the contract should be performed in Ohio, the intention to secure the greater rate of interest allowed in that state did not make the bill usurious.</p> <p>Held, also, that as no statute of Ohio was pleaded, tho court must presume that the common law prevails in that state, and that the rate of interest on money is not limited.</p> <p>Plea of Usury. — No greater certainty or strictness is required in a plea of usury than in any other defense.</p> <p>PLEAniNG. — Suretyship.—That a defendant is a surety upon a note or bill is no defense to the action, and should not delay the plaintiffs proceedings. The issue made by an averment of this fact, is between the surety and his principal.</p>

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

<p>Promissory Notes. — Ratieicatiox.—To a suit upon a due till, signed hy the name of a copartnership, one of the defendants answered, under oath, denying file execution of the instrument. Reply, that after the execution of the instrument, the defendant ratified the act of his partner in signing it in the copartnership name.</p> <p>S'eld, that the reply was good, on demurrer.</p> <p>Evidence. — Compromise.—Evidence by the plaintiff tending to show that the defendant made no objection to the signature when the paper was presented to him, and that he offered to compromise the debt, was held not to be rendered inadmissible by the fact that the offer was made in an effort to compromise, admitted debts, on the ground that defendant was not able to pay in full.</p> <p>Deeadlt. — Motion to Set Aside. — Where, upon the application of one of several defendants, against whom judgment had been entered by default, the judgment was set aside as to him, it was held that the judgment as to the others was not vacated, and that after trial and judgment against him; he could not object that the judgment was not joint.</p> <p>Same. — Practice.—It would be a better practice, in such cases, to hold the judgment subject to the result of the defense.</p>

<p>New Triad — Newdt Discovered Evidence. — A new trial is rarely, if ever, granted on the ground of newly discovered evidence, where the new evidence only tends to impeach the credibility of witnesses who were examined upon the trial.</p>

<p>County Boards. — Appeals.—An appeal lies to the Circuit or Common Pleas Court, on behalf of any person aggrieved, from any decision of the board of commissioners.</p> <p>Same. — The word “decisions,” as used in the statute authorizing such appeals, (1 G. & H., ji 31, p. 247,) was construed to extend to all final rulings of the board upon any subject, except those upon which the board is invested with a legislative power, in which class of cases no appeal will lie.</p> <p>Same. — Poor Farm. — Where the county had already purchased a farm, and erected suitable and sufficient buildings thereon for the use of the poor, it was held that their legislative discretion of the board to provide an asylum for the poor was exhausted, and that an appeal would lie from an order directing the purchase of another tract of land, remote from the former, for that purpose.</p>

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

<p>Revivok. — Pbactice.—Where a hill in chancery was pending at the time of the adoption of the code of practice, and afterwards the death of the plaintiff was suggested, and a supplemental complaint filed in the name of the personal representatives and heirs, it was held that a new summons for the defendants was not necessary.</p> <p>Pleading. — Where in a complaint to enforce a trust by the executors and devisees under a will, some of them were expressly named as plaintiffs, and reference was made to a copy of the will annexed for the names of f the others, and it was alleged that the suit was prosecuted by all of them, it was held that an objection that the plaintiffs were not named was not 'tenable.</p> <p>Code — Effect of on Pending Cases. — Where in a chancery suit pending at the adoption of the code, the prayer of the bill was sufficient to authorize a certain judgment under the then practice, the code did not change the rule as to such cases, or require any remodeling of the pleadings.</p> <p>Practice. — Equitable Assets. — Suit in chancery, begun before the code, to enforce a trust in lands purchased with the money of the plaintiff, and to recover certain other moneys, the proceeds of other lands held under the same trust, and sold to innocent purchasers. The bill alleged that the defendant had fraudulently conveyed certain real estate of his own to a co-defendant, to avoid t.he payment of his debts. The suit was tried after the code took effect, and a judgment rendered for the recovery of certain lands, for a certain sum in money, and that certain other lands had been fraudulently conveyed, and that they be subjected to the payment of the money judgment.</p> <p>Held, that as the suit was tried after the code took effect, its provisions governed the character of the judgment, and under section 72, the judgment subjecting the lands fraudulently conveyed was correct.</p> <p>Practice - — Bevivor.—Where, upon the death of the plaintiff, leave was granted to his personal representatives' to prosecute the suit, and to file a supplemental complaint, and such a complaint was filed in the name of the executors and of the heirs and devisees, it was held that an objection that the leave did not extend to the heirs and devisees came too late in the Supremo Court.</p> <p>Evidence. — Parties.—In a suit to subject lands alleged to have been fraudulently conveyed, it appeared that one parcel of the land had been convoyed to a person not a party to the suit. On the trial, the defendant offered to prove that that person had paid full value for the tract sold to him.</p> <p>Held, that as the person holding the land was not a party defendant, the judgment could not affect his interest, and hence the evidence was not pertinent to any issue in the case.</p> <p>Held, also, that as the controversy between the parties to the action could be determined without him, he was not a necessary party.</p> <p>Instructions. — Where an instruction was correct in itself, but was not sufficiently guarded to prevent a possible misapplication by the jury, the court looked at the whole evidence upon the point, and there being no reason to doubt the correctness of the finding, it was held that there was no error.</p> <p>Interrogatories to Jury. — Where the defendants asked the court to instruct the jury, “in the event that they found for the plaintiffs,” to answer certain interrogatories, it was held that the instruction was correctly refused.</p> <p>Estoppel. — Pleadiitg.—An estoppel in pais must he pleaded. Evidence of such a defense cannot he offered under the general denial.</p>

<p>Municipal Corporation. — Nature op Powers. — A municipal corporation is, for the purposes of its creatio'n, a government possessing, to a limited extent., sovereign powers, which, in their nature, aro either legislative or judicial, and may be denominated governmental or public.</p> <p>Same. — Exercise op Powers. — The extent to which it may be proper for a municipal corporation to exercise the powers vested in it, as well as the mode of their exercise within the limits prescribed by the law creating them, is, of necessity, entrusted to the judgment, discretion and will of the properly constituted authorities to which they are delegated.</p> <p>Same. — Liability.—A municipal corporation being public and sovereign in its nature, is not liable to be sued- either for a failure to exercise powers entrusted to the judgment and discretion of its proper authorities or for errors committed in their exercise.</p> <p>Same. — Loss by Fire. — The power conferred on the city of Mvamville by the special charter of 1847, (Local Acts 1847, p. 14) to organize and regulate a fire department, for the purpose of preventing and guarding against damage by fire, is a legislative or judicial one, and the failure of the corporate authorities to exercise the power to the full extent necessary to protect the citizens from such damages, does not render the city liable to an action therefor.</p>

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

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

<p>Landlord and Tenant. — Where a field was rented to he cultivated in corn, and the lessor was to have one-third of the crop as it stood in the field after it was laid by, it was held that the property in the one-third vested absolutely in the lessor, without any formal delivery or setting apart.</p>

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

<p>Abstract. — Cross Errors. — Whore the appellant’s abstract does not sufficiently present the part of the record on which cross errors are assigned, the appellee, in order to have them considered, must, under rule 11, furnish an abstract of that part of the record himself.</p> <p>Verdict. — A verdict giving the amount in figures, with the sign §> prefixed, is sufficient.</p>

<p>Appray. — Highway.—A highway is not necessarily “a public place,” within the meaning of the statute defining an affray.</p>

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

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

<p>APPEAL from the De Kalb Common Pleas.</p>

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

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

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

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

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

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

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

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

<p>Insurance. — Accident Polict. — Notice.—A was insured against loss of life in a named sum, which, by the terms of the policy, was to be paid to B, in. the event of injury caused by accident, within the meaning of the policy, resulting in the death of A. There was a clause in the policy which required, “in the event of Injury, within the meaning of this policy, occurring to the assured, he, or, in case of his death, his legal representatives, shall, as soon thereafter as possible, give notice thereof to the company at their office in C., or to the agent writing the policy, together with the full name, occupation and address of the assured, with full particulars of the accident or injury.” A died from the effect of a gun shot wound, at a place so near 0, where the office of said company was, that notice of the death of A might have been given to the company in one day thereafter. B lived at the time at the place where A died, but did not give notice to the company until eight or ten days after the death of A. The policy was in the trunk of A at C when he died, and had never boon in the possession of B, nor seen by him, before the end of said eight or ten days, when he notified the company of the death of A, and the officers of the company gave him a blank form of an affidavit in regard to the death, and stated that it would be sufficient if ho made it out and returned it in three or four weeks, which he did.</p> <p>field, that it was not necessary that B should have a pecuniary interest in the life of A to entitle him to maintain an action against the company on the policy.</p> <p>jHeld, also, that the. clause in the policy requiring notice of the death of the assured to be given to the company by his legal representative, as soon thereafter as possible, must receive a reasonable construction, and, under the circumstances of this case, the notice given to the company by B was sufficient.</p>

<p>Deed of Trust. — Construction.—A conveyed certain lands to B, in trust, • first, that all the rents and profits thereof should be used and enjoyed by A during her natural life, as fully as if she had not conveyed the same to B. Second, that if she, A, at her death, should leave any heirs of her body begotten, the lands were to go to them jointly in fee simple. But if all the heirs of her body, living at her death, should die before arriving at the age of twenty-one years, then said lands should go to certain persons who were named in the deed, if they were living at her death, and if any of them should be dead at the time of her decease, the share or shares of such to go tq their heirs at law. A was not the owner of the entirety of the lands described in the deed at the date of its execution, but after its execution, and prior to her death, she acquired the full title to them, and died without having had living issue, but leaving surviving her the cestuis gue trust named in the deed.</p> <p>Held, that the cestuis gue trust, in the deed named, were entitled, under the provisions thereof, to the portion of the lands owned by A at the time of its execution, but not to the benefit of the interest in the lands acquired after its execution.</p>

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

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

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

<p>Bills op Exceptions. — Time cannot be given beyond the term to file a bill of exceptions in a criminal case.</p>

<p>Husbaot> and Wipe. — Executoby Cohteact. — The common law rule, that a wife is not capable, ..during coverture, of entering into any executory contract concerning her lands, is not changed by the statutes of this State.</p> <p>Same. — An executory contract by the wife, or by the husband and wife, for the sale of her lands, is not binding on her.</p> <p>Same. — Deed.—The court has no power to compel a husband to join with the wife in a deed of the wife’s lands.</p> <p>Same. — Where the wife had executed a deed of her lands and received the consideration, the husband not joining, it was held that the court could not, by decree, require him to join in a conveyance.</p>

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

<p>Practice. — Reserved Case. — Under section 347 of the code, only such questions can be reserved as affect the merits of a real litigation, and only by the party injured by the ruling.</p>

<p>Seduction. — Pleading.—It is not necessary that a complaint for seduction should contain an averment of the previous chastity of the plaintiff.</p> <p>Same. — Evidence.—Evidence of previous chastity is admissible, as affecting the question of damages.</p> <p>Same. — Instructions.—On the trial of an action for seduction, the court instructed the jury as follows: “1. If an unmarried man, having by his visits and attentions to an unmarried female gained her affections and confidence, importunes her to sexual intercourse with him, and she, through her confidence in and love for him, yields to his solicitations, it is seduction, 2. If an unmarried man solicits sexual intercourse with an unmarried female, and she yields through the promptings of her own lascivious desires, it is not seduction,” &c.</p> <p>Held, that the first instruction was not subject to any well founded objection, and, taken in connection with the second, could not have misled the jury.</p> <p>Same. — The court refused to instruct the jury that “they could not indulge in any presumption in favor of the good character of the plaintiff, as the law raised no such presumption — that being matter of proof. In passing upon the question of character, you should take into consideration her own evidence, and her own conduct as shown by the evidence.”</p> <p>Held, that the instruction was correctly refused; 1, because much of the evidence of the plaintiff had no bearing upon the subject of character; and 2, because her conduct was not proper to be considered in that connection, as character can neither be attacked nor sustained by proof of specific acts.</p> <p>Practice. — Where a motion in the court below is based upon affidavits, the bill of exceptions to the ruling of the court must contain the affidavits, in order to present the question on appeal.</p> <p>Same. — Supreme Court. — The Supreme Court will not disturb a judgment upon a more question of the credibility of witnesses.</p>

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

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

<p>Pleading. — Copy oe Whitten Contract. — Where a complaint upon a written instrument contains, in the body of 'H, a copy of the writing, it is sufficient.</p> <p>Pleading. — Contract.—A contract for the sale of lumber stipulated for the delivery thereof “on or before August 1st,” and for payment on delivery, and it was held that the seller had the whole of the day named to deliver, and that in a complaint for the non-delivery, an averment of readiness to receive, &c., “up to the first day of August,” was insufficient.</p> <p>Revenue Stamps. — In a suit upon a written contract, hearing a proper revenue stamp, cancelled, the defendant offered to prove that he did not affix the stamp, nor authorize it to he done.</p> <p>Held, that the evidence was incompetent, as the plaintiff himself might properly have affixed the stamp, and a failure to cancel it would not render the instrument void.</p>

<p>Ditching Associations — Liability ot Members__If the liability imposed by section 4 of the act of 1859 (1 G. & H. 805) upon the members of ditching associations, to pay the debts contracted by the company, is a collateral one, nothing more can be required of the creditor than to show that he has been unable to compel payment by the ordinary process of law.</p>

<p>Pleading. — Promissory Notes. — A complaint upon a promissory note should contain an averment that the note is unpaid.</p> <p>Same. — Practice.—An objection to the want of such an allegation in the complaint comes too late after verdict.</p>

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

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

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

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

Suit by Underbill against Gard, Gilmore and Sabine. The first paragraph of the complaint charges that Gard was the contractor to build for Gilmore and Sabine a cement mill in Clarice county, Indiana; that the plaintiff was employed by Gard to work in and about the construction of said mill, and that afterwards he had a settlement with Gard for' the work so done by him, and there'was found to be owing to him the sum of §50 75, which was still unpaid; that there was owing from…

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

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

<p>Pleading. — Failure or Consideration. — To a suit upon a promissory note, given for the furniture in a hotel, the defendant answered, by way of failure of consideration, in eight paragraphs, all of which were held to be bad, because they failed to connect the several articles as to which fraud or mistake was alleged with the consideration of the note, and for other equally obvious reasons.</p>

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

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

<p>Fish Law. — The act of 1867, (Acts 1867, p. 128) to provide for the protection of fisli, &c., is constitutional-.</p>

<p>Verdict. — In an action to recover money alleged to have been obtained by fraud, the jury returned the following verdict: “We, the jury, find for the plaintiff, and assess his damages at §275. The jury, in their verdict, decline to impute improper motives to the defendants, in the matter in controversy.”</p> <p>Held, that the last sentence did not vitiate the verdict.</p>

<p>Cities. — Subscriptions to Railroads. — Under section 60 of the act for the incorporation of cities, of March 14, 1867, express authority is given to subscribe to the stock of railroads running into or through the city, and to borrow money to pay such subscriptions.</p> <p>Same. — As the issuing and salo of bonds is the usual method adopted by corporations to borrow money, cities may exercise the power thus given to borrow by issuing and selling bonds.</p> <p>Same. — Statute Construed. — The proviso in section 60 relates to donations by cities to railroads, and not to subscriptions of stock.</p> <p>Same. — A petition of a majority of the resident freeholders of a city is necessary to authorize a donation to a railroad, but is not necessary to authorize a subscription of stock.</p> <p>Same. — Section 60, supra, is constitutional.</p>

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

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

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

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

<p>Motion to Set Aside Default. — Under section 99 of the code, an application to be relieved from a judgment by default is addressed to the discretion of the court, and where there has been negligence on the part of the person applying, the application should be refused, unless it is shown that the negligence is excusable.</p> <p>Same. — The Supreme Court will not be justified iu interfering with the exercise of this discretion, unless in a clear case of an abuse of it.</p> <p>Same. — The affidavit upon which such a motion is based should show a meritorious defense.</p>

<p>Variance. — Under the code, no variance between the pleadings and the proof is material, unless it is proved to the satisfaction of the court that it has misled the adverse party to his prejudice.</p> <p>' Statute or Frauds. — Where, in an action for the specific performance of a contract for the sale of lands, there has been a finding by a jury for the plaintiff, ovep a plea of the statute of frauds, upon a clear preponderance of proof, under proper instructions of the court, it is not the duty of an appellate court to interfere, notwithstanding the rule in equity, that to take a case out of the statute on the ground of part performance, the act done should be clear, definite and referable only to the contract, and that the contract itself be established, in all its terms, by clear, definite and unequivocal proof.</p> <p>Same. — Instructions.—In view of the rule of the code as to variances, it was held that the refusal of the court to instruct the jury, in such ease, that the act of part performance must be referable only to the .“contract alleged in the complaint,” was not erroneous.</p> <p>Mobtgage. — The statute providing that no power of sale shall be contained in a mortgage, does not prevent the mortgagee from acting as the agent of the mortgagor in selling the mortgaged premises, where the agency is not created by the mortgage.</p> <p>Specific Pebfobmance. — Husband and Wipe. — In an action to enforce a contract for the conveyance of land, against a husband and wife and their vendee, who was charged with notice of the plaintiff’s equity, it was held that a recovery by the plaintiff did not annul the deed of the husband and wife to the purchaser with notice, but transferred the legal title from ■him to the holder of the prior equity, and that the wife was estopped by her deed.</p>

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

<p>Bill or Review. — A complaint to review a judgment must bring befo,re the court a full record Of the proceedings and judgment in the case sought to be reviewed, including the pleadings.</p> <p>Same. — A complaint by the plaintiff in a proceeding for the partition of lands, to review the judgment rendered in the cause, after alleging facts tending to show that her interest in fthe lands was larger ihan that awarded to her in the decree of partition, averred that plaintiff took stops to institute proceedings in partition, and that the defendants were summoned, but that she did not file a petition, and that no pleading was ever filed showing the description of the lands or the rights of the parties; but that notwithstanding there was no complaint on file, the court proceeded to decree, &c. A copy of the decree in partition accompanied the complaint for review, from which it appeared that the plaintiff appeared by attorney, and that the infant defendants had answered at the previous term by guardian ad litem, &c. The application for a review was put upon the ground that the court had no jurisdiction, because no complaint had been filed.</p> <p>Held, that the complaint was bad, because it did not bring before the court the whole record of the judgment sought to ho reviewed.</p>

<p>Surety — Discharge of. — An affirmative act of the creditor, whereby any indemnity of which the surety might avail himself is put out of his reach, operates as a discharge of the surety pro tanto.</p> <p>Same. — But a surety is not discharged from his liability by the mere passive negligence of the creditor, whereby another sufficient security, held by such creditor upon the property of the principal debtor, becomes unavailable or worthless.</p> <p>Married Women. — Mortgage.—The power of a married woman to incumber her real estate by mortgage, in which her husband joins, is not confined to the securing of existing notes or obligations, but is without limitation.</p> <p>Same. — A mortgage must somehow describe and identify the indebtedness which it is intended to secure; and this description is not a covenant in the sense of the statute, which enacts that a married woman shall not be bound by any covenant in her deed.</p> <p>Practice. — Pleading.—A want of consideration must, under the code, be pleaded. On demurrer, mere inferences which a jury might draw from a comparison of dates will not be indulged.</p>

<p>New Trial as of Right. — In an action to recover tlie possession of real ■ estate, judgment having gone against the plaintiff, he moved, at the same term, for a new trial as of right, under the statute. The motion was granted upon condition that the costs be paid within sixty days, which was not done. Afterwards, and within a year after the judgment, the plaintiff having died, his heirs at law paid the costs and moved for a now trial, which was denied.</p> <p>Held, that the right to a new trial in such cases, within one year, upon the, payment of costs, is absolute, and that the failure to comply with the unauthorized condition imposed by the court, in granting the first motion, did not affect that right.</p>

<p>Highways. — Notice or Petition. — Proof of the posting up of notice of a petition for the location of a highway may be made before the board of commissioners by affidavit, and the same mode of proof is admissible on appeal.</p> <p>Same. — The sufficiency of such proof is a jurisdictional fact, which must be determined by the board before the appointment of viewers. After the board has taken jurisdiction, objection to such proof comes too late.</p> <p>Same. — Where the record of the board stated that proof of legal notice of the petition had been made, and set out a copy of a notice, to which an affidavit was attached, which stated that three copies of the notice had been posted up in the township “according to law,” it was held that it did not appear that the affidavit was the only proof made to the board, and that the board had jurisdiction.</p> <p>Same. — It is not necessary that the notice of the petition should be signed by any one.</p>

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

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

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

<p>Evidence. — Custom.—Written contract between A and B, for the purchase, killing and packing of hogs. By its express terms, the hogs were to be killed and packed by B, 11 on joint account, each party to have one-half interest.”</p> <p>Held, that evidence of the existence of a custom among those engaged in the business of packing pork in the city of L, and at two or three other points in the State of Kentucky, that when under such a contract the packers themselves slaughtered the hogs, they were entitled, to the exclusion of the- other contracting party, to the profits on the sale of the bristles, gut fat and grease from the hogs packed, was inadmissible, as being in direct conflict with the express terms of the contract.</p>

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

<p>Pleading. — An answer directed to the whole cause of action, which is a bar to but part thereof, is bad, on demurrer.</p> <p>Mistake. — Pleading.—Where an answer is pleaded setting up a mistake in the written contract deplared on, the pleading should ask affirmative relief, as in a cross bill, that the instrument be reformed, &c., and that when so reformed, it be allowed as a bar to the action.</p>

<p>Suit to Subject Lands. — Equity.—The rule in equity was that relief would not be granted, unless it was shown that there was no adequate relief at law, and this rule has not been changed by the code.</p> <p>Sasie. — In a suit to subject lands to the satisfaction of a judgment, it must be shown that satisfaction cannot be obtained by the ordinary process of execution.</p> <p>Husband and Wite. — Witness.—A husband cannot be required to testify against the wife.</p>

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

<p>Bounties to Volunteebs. — The board of commissioners of Fulton county oifercd a bounty of $200 to each recruit who should enlist to fill the quota of said county A enlisted and caused himself to be credited to Rochester township, but at the time of his enlistment the quota of that township was already filled. The Provost Marshal of the District, without the knowledge or consent of A, caused him to be credited to another township, the quota of which was not full. Before A applied to the auditor for his bounty, certificates of muster for more men than were required to fill the quota of the county had been filed, but the auditor had not issued orders for as many as the quota. Suit by A against the county for the bounty.</p> <p>Held, that he was entitled to recover.</p> <p>Held, also, that the fact that the townships, and not the counties, were the districts to which the quotas were assigned, by the call for troops, did not affect the validity of the order.</p>

<p>Bui, or Exceptions — Time oe Eiling. — Where time is given beyond the term to file a bill of exceptions, it must be signed within the time limited, unless the signing is prevented by the death or absence of the judge. Same. — Where the time given for the signing of the bill has expired, the power of the judge over the record is at an end.</p>

<p>Insurance. — Policy Construed. — An open or running policy of insurance contained a stipulation that it should not cover a loss “ accrued at the time of the entry, or indorsement, caused by any gale, disaster by explosion, fire, or otherwise, which occurrence might be known to the applicant, the public, or the company, at the time of such application being made, whether such property was known to be involved thereby or not, without such contingency is expressly provided for, in writing, on the policy.” At the time of the indorsement of a risk upon certain property shipped from Evansville to New Orleans, it was known to the insured and the company that a certain steam boat had been lost by explosion, but it was not known to either that the property insured had been shipped upon that boat, nor was that contingency provided for in the policy. . .</p> <p>Held, that the loss was not covered by the policy.</p>

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

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

<p>Husband and Wise. — Evidence.—Where husband and wife are jointly sued for the recovery of personal property, each is competent to testify in his or her own behalf.</p>

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

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

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

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

<p>Suretyship. — -Practice.—In a suit against one of two makers of a joint and several promissory note, the fact that the defendant sued is surety for the other promisor is no defense to the action, nor can the proceedings of the plaintiff be delayed by a cross-complaint to bring in the alleged principal. Such a pleading should be rejected.'</p>

<p>Bounties to Vouunteeks. — The court being equally divided upon the question of the liability of the city of Indianapolis to pay a bounty to appellee, under a resolution of the city council offering bounties to volunteers, a division of opinion was certified.</p>

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

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

<p>Capias. — Jurisdiction.—In suits commenced hy capias ad respondendum, the jurisdiction of a justice of the peace extends throughout his county, and ■ over all persons found therein, whether they reside therein, or in other counties.</p> <p>Same. — Practice.—Such a case stands for trial on the merits, and the truth of the affidavit on which the capias issues cannot he brought in question.</p>

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

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

<p>Attorneys. — Liability or. — An attorney is liable to his client for the con- ■ sequences of his ignorance, carelessness or unskillfulness.</p> <p>Same. — Evidence.—Where damages were asked against an attorney for the consequences of his unskillfulness in taking a judgment upon insufficient service of process, it was held that the fact of the alleged defective service could only be proved by the record.</p>

<p>Executors and Administrators. — It is the duty of an administrator to pay the debts of an estate, and so long as there are debts to be paid, a creditor cannot complain that the money is not paid into court.</p>

<p>Liquor License. — Remonstrance.—Appear.—Tie act of 1861, giving an appeal to tlie remonstrant from the decision of the county hoard granting a license to sell liquor, (Acts 1801, p. 143) is only declaratory of a right which already existed under the general statute authorizing appeals from the decisions of the county boards. 1 G. &. H., sec. 31, p. 253.</p> <p>Same. — Overrured Case. — The case of Drapcrt v. The State, 14 Ind. 123 is overruled upon this point.</p> <p>Same. — Appear Rond. — The party appealing must give an appeal bond, as required by the general statute authorizing such appeals.</p>

<p>Practice. — Supreme Court. — That the finding is contrary to law, or to tin* evidence, is ground for a new trial, hut in the Supreme Court error shouldsf he assigned upon the overruling of the motion for a new trial.</p>

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

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

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

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

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

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

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

<p>Practice. — Supreme Court. — The court refused to consider the errors assigned because they related to matter which would have been ground for a new trial below, and the action of the court in overruling the' motion for a new trial was not assigned for error. •'</p>

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

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

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

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

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

<p>Attorneys. — Contract.—To an action against an attorney to recover money collected by him as such, it was answered that the money was collected under a special contract, by which he was to receive one-third of the amount collected for his services. On the trial, it appeared that after a portion of the money had been collected, the plaintiff demanded an accounting, which was refused, and it was hold that the attorney, after this default, could not claim the benefit of the contract as to money thereafter collected by the plaintiff.</p>

<p>Will. — Suspension of Ownership of Property. — A, by her will, directed that all of her property be converted into money, and then divided into seven equal parts, four of which were given to the “heirs” of her four children. The will directed the money to be put at interest and paid to the heirs as they should severally arrive at the age of twenty-one years. The children of the testator were all living at her death, and the grandchildren were all minors. One grandchild was born after the death of the testator.</p> <p>Held, that the bequests were valid, and not in conflict with the provisions of the statute concerning the suspension of the ownership of personal property. 2 G. & H. 482. The estate vested upon the death of the testatrix.</p> <p>Held, also, that if grandchildren born after the death of the testatrix can claim under the will, the distribution as to them must take place when the youngest grandchild living at the death of the testatrix arrives at twenty-one years of age.</p>

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

<p>Sales eor Taxes. — A complaint to recover back money paid for the purchase of real estate on a sale by a city for delinquent taxes, on the ground that the property sold was used as an institution of learning, and not subject to taxation, was held to be bad, because it did not show that at the time the taxes were levied the properly was so used.</p> <p>Same. — In the absence of fraud, accident, or mistake, money paid by a purchaser of real estate on a sale for city taxes cannot be recovered back.</p>

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

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

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

<p>Judgment for Costs. — Where one recovers a judgment for his costs, the amount recovered is due to him, and he is entitled to control the judgment and receive the money so recovered. Each party is liable to the officers for the costs made by him, which may be collected, at any time after the service is rendered, and the party entitled to recover his costs has judgment for the amount, which, according to the theory of the law, he has paid, or is liable to pay, to the officers of the court.</p> <p>Same. — Payment to Cleek. — Legal Tender Money. — If the clerk of the court is authorized to receive money due on judgments, he cannot, without express authority, receive payment in anything but legal tender money, and a payment of a judgment for costs in national bank bills was held not to discharge the judgment.</p>

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

<p>Evidence. — Church Trustees.. — To an action by certain persons claiming to be the trustees of a church, to have a conveyance to them of the church property, the defendants answered alleging that they themselves were the duly elected trustees of the church, &c. On the trial, the defendants offered in evidence a certified copy of the proceedings of the church meeting at which they were elected, and also offered to prove by parol the fact of such election, &c.</p> <p>Held, that the evidence offered was admissible.</p>

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

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

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

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

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

<p>Practice. — Assignment of Ekroe. — Where the court below has errod iu any matter which may bo made the ground of a motion for a new trial, the assignment of error in the Supreme Court should be upon the overruling of the motion for a new trial.</p>

<p>Nuisance.- — Information.—An information for a nuisance, charging the defendant with urinating in a spring of water, near a public highway, from which many persons in the vicinity, and travelers on the highway, were accustomed to -drink, thereby rendering the water of the spring unfit for use, &c., was held to bo good.</p>

<p>Constitutional Law — The act of March G, 1865, entitled “An act authorizing supervisors of roads to remove fences standing near public highways, on streams and water courses, and to turn public roads and highways on water courses to the rear of buildings, where such buildings stand too near the stream to give room for said roads or highways, and assess damages for losses occasioned thereby,” is not repugnant to section 19 of article 4 of the constitution.</p>

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

<p>Statute of Fkauds. — To an action against the husband to foreclose a mortgage upon lands, the wife became a party, on her own motion, and filed a cross-complaint alleging that before the execution of the mortgage she had purchased the land of her husband, and paid the consideration in full; that she, in connection with her husband,. had ever since been in possession, but that the husband had failed and refused to convey, &c.; that the mortgagee had full notice, &c., and asking specific performance.</p> <p>Held, that as there was no change of possession, and po such part performance that the parties could not be put in statu quo, the contract was void by the statute of frauds.</p>

<p>Contract. — Agent.—Damages.—Complaint by A upon a written agreement, which, in the body of it, recited that A had sold his house and lot to B, for a certain farm, and stipulated that deeds should be executed as soon as possible. The writing was signed by A, and by “ Mrs. P. L., per B, Agent.” The first paragraph of the complaint alleged a tender of a deed to B for the house and lot, and a demand of a deed for the farm, &c. The second paragraph alleged that in making the contract, B falsely and fraudulently represented himself as the agent of Mrs. P. L., in whom the title of the farm was, and that the plaintiff, relying upon said representation, entered into the contract, &c.; that A had tendered to B a deed for the house and lot, and demanded a conveyance of the farm, which was refused, &e.; that the farm was worth $5,000 more than the house and lot, for which sum judgment was asked. ■</p> <p>Held, that the first paragraph showed no cause of action against B, because he executed the agreement as agent only.</p> <p>Held, also, that if the facts alleged in the second paragraph were sufficient to give a right of action against B, there could not be a recovery for more than nominal damages, upon the facts alleged.</p>

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

<p>Negligence. — Pleading.—In a complaint for an injury to the person, there must be an express averment that the plaintiff was without fault, or it must clearly appear, from the facts alleged, that such was the case.</p> <p>Same. — Where a complaint for an injury to the person by a railroad alleged that the injury resulted from a broken rail, which the company had carelessly left unrepaired for a long time, whereby the car in which the plaintiff was being carried as a passenger was thrown from the track, and the plaintiff thereby injured, &c., it was held good, without an express averment that the plaintiff was without fault, &c.</p>

<p>Bill or Exceptions. — Where, on the overruling of a motion for a new trial, time is given 11 to prepare and file a bill of exceptions herein,” objections taken during the trial to the admission of testimony may properly be incorporated in the bill containing the evidence.</p> <p>Township Trustees. — Oepicial Bond. — The statement of the township trustee, in his annual report to the county board, of the amount of money in his hands is conclusive against the trustee and his sureties in a suit on Ms official bond. Evidence tending to impeach this statement, and to show that the defalcation sued for occurred during a previous term of the officer, isnot admissible.</p>

<p>Taxes. — Injunction.—Complaint to restrain by injunction the collection of taxes on personal property, on the ground that the sworn statement of the plaintiff as to the amount of his personal property having been received without objection, the city council afterwards, without notice, or any evidence, had increased the assessment, &c. There was no averment that the assessment was in fact too large.</p> <p>Held, that the complaint did not mate a case for an injunction.</p> <p>Same. — Curative Statute.. — If the assessment of city taxes upon real estate for the year 1866, upon the basis of the appraisement made in that year, and the failure of the assessor to return his lists within the time allowed by law, were irregularities which would otherwise have rendered the tax invalid, the irregularities were cured by the act of 1867, (Acts 1867, p. 70).</p>

<p>Right oe Way. — Assessment oe Damages. — Where sever»! exceptions were filed by the owner of lands taken by a railroad, to he assessment of damages, each containing some valid objection to He assessment, though ail might have been included in one general exception, that the damages assessed were too small, it was held that deriirrers to the exceptions were rightly overruled.</p> <p>Same. — Evidence.—Evidence that the tract of land thr<igh which the road is located is worth as much, or more, with the road thD without it, is not admissible.</p> <p>Same. — Any consideration of the benefits resultingio the residue of the land from the building of the road is expressly prhibited by the statute.</p> <p>Same. — In assessing damages, the jury should cdsider the value of the land appropriated, together with any injury to fie residue of the land, naturally resulting from the appropriation, such as the cutting of fields into inconvenient shapes, the interruption of convenient access to stock water, the necessity of additional fencing, &c.</p> <p>Same. — Where the application for the assessment of damages was made after the road had been constructed, and in such construction a large amount of earth had been taken outside of the right of way asked, it was held that it was not error for the jury to consider the damages for taking earth, as the claim of appropriation asked to have the damages occasioned by the “construction” of the road assessed, and evidence of such damage was given without objection.</p> <p>JPbactice. — The court refused to consider the question whether the court below erred in giving the opening and close to the owner of the land taken, because the action of the court was not assigned as a cause for a new trial.</p>

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

<p>Railboads. — Fences.—A railroad company may lawfully fence, across a private way, maintained by the owner of the land for his own use, and failing to do so, is liable for killing stock at such a crossing.</p> <p>Same. — This would not be so in the case of a private way established under the statute for the use of one over the lands of another.</p>

<p>Practice.- — Fictitious Suit. — A court will not take cognizance of a suit which appears to be fictitious.</p> <p>Same. — Affidavits of third parties interested in the questions involved will be heard in the Supreme Court in support of a motion to dismiss the appeal, on the ground that one of the parties to the- action is a fictitious person, and that there is no real controversy existing between the parties to the suit.</p> <p>Same. — Contempt oe Court. — Such a proceeding is a punishable contempt of court, and the appeal will be dismissed at the costs of the real •party to the action.</p>

<p>Attachment. — Notice by Publication.- — In a proceeding by attachment, the affidavit filed with the- complaint, showing the nature of the demand, &c., and that the defendant is a non-resident of the State, is all that is necessary to authorize the publication of notice of the pendency of the action.</p> <p>Same. — It is not necessary that the notice should show that the proceedings are by attachment.</p> <p>Same. — Sheriff’s Return. — The sheriff’s return to a writ of attachment showed that he had made a diligent but ineffectual search for personal property; that he had attached certain real estate, describing it, and had caused it to be appraised, with the assistance of a reputable householder and freeholder of said county, &e.</p> <p>Held, 1. That as the property was specifically described in the return, a separate schedule was not necessary. 2 That the word “reputable” was equivalent to “ credible,” and as C was not a party to the suit, he was, prima facie, “ disinterested.” 3. That it was not necessary that the return should show that all the property of the defendant in the county was attached. 4. That as the sheriff could not foresee what claims would be filed under the attachment, the levy could not be said to be excessive.</p> <p>Attachment. — Non-resident.—In a proceeding by attachment against a non-resident, it is not necessary that the court should find whether the family of the defendant remain settled in the county. This is matter of defense.</p> <p>Same, — Judgment by Default. — Where judgment in attachment is rendered by default, the Supreme Court will, on appeal, consider any errors in the proceedings below, as the defendant had no opportunity to make objection there.</p>

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

<p>Insurance Company. — Receiver.—Where an insurance company is insolvent, or in imminent danger of insolvency, the court has the power, under section 199 of the-code, (2 Gr. & H. 151), to appoint a receiver for such company.</p> <p>Same. — Pleading.—Where the facts alleged in the complaint are sufficient to give the court jurisdiction of the subject matter, and power to appoint a receiver, the proceedings, if erroneous, cannot be questioned in a collateral suit.</p> <p>Same. — Costs.—Assessment.—Where a receiver has been appointed to settle the liabilities of a mutual insurance company,- the expenses of the suit brought to procure the appointment of the receiver, together with all other incidental expenses in collecting the assessment ordered by the court, and settling up the affairs of the company, are necessarily chargeable to the fund raised by the assessment, there being no other; and if the assessment made is more than sufficient to pay the liabilities of the company, and the necessary expenses attending the settlement, it cannot be objected to, where there is nothing in the decree of the court authorizing a misapplication of the fund, because the surplus would be refunded to those from whom it was collected.</p> <p>Amount of Assessment. — Discretion of Court. — In case of a receivership to settle the liabilities of an insurance company, the amount necessary to be assessed for such purpose is a proper matter for the court to determine; and an error of judgment in that respect will not vitiate the assessment, or render it liable to be questioned collaterally.</p>

<p>Pueading. — Each paragraph of a complaint must be complete in itself. It: is not sufficient, in a second or subsequent paragraph, to refer to a fact or averment contained in a preceding one, without setting out such fact or averment.</p> <p>Practice. — In proceedings supplementary to execution, under the code, an affidavit is necessary, without which the proceeding should be dismissed.</p> <p>Jurisdiction. — The Court of- Common Pleas has no jurisdiction to try the title of the wife to real estate which it is alleged in the complaint is held in her name for the purpose of assisting the husband to defraud his creditors.</p> <p>Practice. — Discovery.—The proceedings supplementary to execution, and the mode of obtaining a discovery in all cases by interrogatories filed with the pleadings, as provided in the code, have superseded the former practice of a bill for discovery in case of a creditor’s bill, and possibly in all other cases.</p>

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

<p>Pleading. — Copy or Writing. — A complaint by the vendors of land against the vendee, alleging that the deed was in fact a mortgage, and that the vendee had resold for a sum in excess of the debt secured, and asking to recover such excess, is not founded upon the deed, and no copy need be set out.</p> <p>Deed. — Mortgage.—A parol agreement that a deed, absolute in its form, shall stand only as a security for a debt., and that in case of a sale by J.I10 grantee, the excess over the amount of the debt shall be paid to the grantor, is not void as an attempt to create a trust by parol.</p> <p>Same. — Evidence.—Parol evidence is admissible to show that a deed, purporting to pass an absolute title, was intended only as a mortgage to secure a debt.</p> <p>Same. — Sale by Grantee. — A resale by the grantee to an innocent purchaser would pass a good title, but the grantor would be entitled to recover the excess above the debt intended to be secured by the deed.</p> <p>Husband and Wive. — Witness.—Where husband and wife are joined in an action, each is a competent witness in his or her own behalf, but the evidence of one cannot be considered in determining the issues as to the other.</p>

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

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

Suit by Ann V. Kimes against Vandoren and Walters, for the partition of certain lands, of which she claims to be entitled to one-third as the widow of Hemp Kimes deceased.

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

<p>Construction — County Auditor.. — Rees.—The only construction that can fairly bo given to the language used in section 107, of the school law of' 1865, (Acts 1865, p. 25,) is that it was intended thereby to compensate •the county auditor for all services of 'every kind rendered by him, and chargeable to the county, in the care and management of the school fund.</p> <p>Same. — It was the evident intention- of the legislature, in the passage of the act, not to provide double compensation for the same services, but to - definitely fix the compensation that should be allowed to county auditors. for “ managing the school fund,” and-t-hereby to protect both the county and the fund from unreasonable charges.</p> <p>Same. — Repeal.—The repealing clause.-in section 168 of the act of 1865, (Acts, 1865, p. 37,) taken in connection .with section 107, of the same act, repeals so much of section 8, of the act of 1855, (1 G. & H. p. 333,) as gives to county auditors specific fees-for services, to be paid by the coun- • ties, in connection with their management of the school fund.</p> <p>Same. — Section 8, of the act of 1855,. (pP GK.& H: p. 333r);allows a fee of five cents to the county auditor for each county order issued, .but no fee can be claimed by him for canceling returned orders.*.</p> <p>Same. — The county auditor is-allowed twenty-five1 cents*for each, certificate-issued to purchasers of land sold for delinquent taxes j :and. this -includes • the seal of the board of commissioners, if it is required to be-attached,, and if it is not required, the fee cannot be increased .by attachingit..</p> <p>Same — Repeal.—Section 25 of the act of 1852, (1 G. & H. p. 252,) which made it the duty of the hoard of commissioners to make to the clerk, sheriff and auditor an annual compensation for extra services, not exceeding one hundred dollars each, was repealed 6y the act'of 1855, (1 G. & H. p. 328.)</p>

This was an action by 'William G. B. Sewell and others, against Lewis Adler and others, to recover the possession of real property. The complaint alleged title in Sewell,, for himself, and as trustee for his co-plaintiffs.

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

<p>Statute oe Ebauds. — The following was held not to be a sufficient memorandum in writing to take a contract for the sale of lands out of the statute of frauds: “ Received of A three hundred dollars cash, on payment on house.”</p> <p>Deed. — Escrow.—A purchased of B, by parol, a house and lot for $500, and paid $300 of the purchase money. The legal title of the property was in C, who, at B’s request., made a deed to A, and handed it to B, to be delivered if A would release the claim he set up to a pile of manure on the lot, which O claimed as his own; A refusing to do this, B refused to deliver the deed, and destroyed it.</p> <p>Held, that the deed was not delivered to B as an escrow, but only to place him in a condition to comply with his contract with A, and having been destroyed before A had paid the balance of the purchase money, he could claim no title under the deed.</p>

<p>Abstract of Record. — The abstract required by the rules of this court is an abreviated statement of the pleadings, orders of court, verdict and judgment, and, when made part of the record by bill of ‘exception's, any motions made, the evidence and the instructions.</p> <p>Same. — This abstract need not be.of the entire record, but only of so much as is necessary to present the errors assigned and relied on. Just what is necessary, in a variety of cases, stated by the court, is fully explained in the opinion.</p>

<p>Inthkeooatoetes to Juey. — -In this case, .the questions considered by the court arise upon numerous interrogatories addressed to the jury, and the answers thereto. . The points cannot he stated without setting out the interrogatories and answers, and reference is therefore made to the opinion for the points decided.</p>

<p>Use and Occupation. — Set Ora. — Taxes on real estate, paid by the occupant or tenant thereof, constitute, under the statute, (1 G. & H. § 199, p. 113) a good set-off in an action against such occupant or tenant, but the value of improvements voluntarily made do not. '</p> <p>Same. — Infancy.—Neces3Akies.—It is a general rule that a step father who takes the infant children of his wife by á prior marriage to reside with him, as members of the family, cannot hold -them liable for necessaries which he furnishes them.</p> <p>Same. — But where a step father, at the request of his wife, consents to, and does, take her infant children by a former marriage to his house, and maintains and educates them in consideration of their services, and the use of the land which belonged to her and them as tenants in common, and which constituted a very inadequate compensation to him, they cannot hold him responsible for the use and occupation of the land, without themselves being responsible for the necessaries furnished by him to them; and in an action by them against him for the use and occupation of the land, the value of the necessaries furnished constitutes a valid set-off to the extent of the rents and profits of the land.</p> <p>Practice. — Where the general denial is pleaded, any other plea merely amounting to the general denial may be struck out, on motion. The sus- ■ taining of a demurrer to such plea does not, therefore, do any harm.</p> <p>Lease. — Payment.—A lease from one tennant in common, -who is in possession of the land, and payment of the rent to him, may be pleaded in bar of an action for use and occupation by the other tenants in common.</p> <p>Same. — Payment to one tenant in common for the use and occupation of the land, and for waste committed thereon, is a good defense to an action by the other tenants for such use and occupation and waste.</p> <p>Tenants in Common. — A tenant in dower, not having her dower Interest in the land assigned to her, is not a tenant in common with the children of the deceased owner of the land.</p>

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

<p>Mortgages. — Application op Surplus Proceeds. — A mortgaged his land to B to secure a debt, and afterwards executed a second mortgage to C upon the same property. Afterwards, certain creditors of A attached the land, and at the same term of the court, a decree of foreclosure was rendered upon B’s mortgage and an order of sale in the attachment proceedings. The land was sold upon B’s foreclosure, for a sum much greater than the debt. While the surplus funds of the sale remained in the sheriff’s hands, C instituted proceedings to foreclose his mortgage, and notified the sheriff that he would claim to have the money in the sheriff’s hands, but that officer applied the money to the attachment debt.</p> <p>Held that C was entitled to have the surplus proceeds applied upon his mortgage.</p>