Volume 3 — Indiana Appellate Court Reports

<p>Guaranty. — Construction of. — Continuing Guaranty. — Sight of Sevocaiion.— Notice. — A guaranty in the words “ I hereby guarantee the payment, when due, of all bills of goods sold, or that may be sold, on and after this date, by 0. & Sons to B.” is an original, or absolute guaranty, and is also a continuing guaranty. It may be revoked by the guarantor upon notice; not so as to prejudice the other party in so far as he has already acted upon it, but as to other or additional liability thereafter. The notice of revocation, unless the contract of guaranty so provides, need not be in writing.</p> <p>Payments. — Appropriation of by Debtor or Creditor. — Appropriation by Law.— Separate Accounts. — Intention of Debtor. — A debtor who owes his creditor money on distinct and separate accounts, or debts, may direct his payments to be applied to either, as he pleases. If he omits to make any such appropriation, then the creditor has the right to apply the payments to such debts due to him by the debtor as he may choose. If the debtor pay with one intention, and the creditor receive with another, the intent of the debtor must govern. Neither party can claim the right, however, to make an appropriation after a controversy has arisen. If neither party make a specific appropriation, the law will apply it “ according to its own notion of the intrinsic equity and justice of the case,” but seeking always to ascertain the intention of the debtor, which intention, if it can be ascertained, must prevail.</p> <p>Same. — General Account. — Entry of Payments. — Inference of Law. — When both parties concur in the entry of the payments upon a general account, without specific appropriation, the lawinfers an intention on the part of both that they shall satisfy the charges therein in the order of their entry, and they will be so applied unless some controlling equity requires a different disposition. An appropriation maybe implied from circumstances.</p> <p>Same. — Running Account. — Absence of Appropriation by Parties. — Appropriation by Law. — Guaranty.—Where there is no appropriation, either express or implied, the law will, in running accounts, make the appropriation according to the order of time in the items in the account, the first item on the debtor side being the first discharged by the first item on the credit side. This rule will apply although part of the account is governed by guaranty, or surety. The rule that payments not otherwise appropriated by the parties will, by the law, be appropriated to the most precarious security does not apply to the case of a running account.</p> <p>Instructions to Jury. — Sow Made Part of Record. — Bill of Exceptions. — In order that instructions may be made a part of the record, without a bill of exceptions, they must not only be excepted to, but they must also be signed and filed. The record must show affirmatively that they were filed.</p> <p>Same. — Failwre to Sign. — Motion for New Trial. — Error can not be assigned upon the overruling of a motion for a new trial, based upon the refusal to give an instruction not signed by the party, or his attorney, asking the same.</p>

<p>From the Harrison Circuit Court.</p>

<p>Justice of the Peace— New Trial After Time Limited by Statute —Waiver. —Appearing before a justice of tbe peace, consenting to a continuance and having a cause set down for trial are a waiver of any objections to an order setting aside a former judgment and granting a new trial therein, made after the time limited by statute for the granting of a new trial. Section 1487, R. S. 1881.</p> <p>Judgment. — Parol Evidence Attacking Judgment Void on its Face. — Parol evidence attacking a judgment which the record shows on its face to be void, though incompetent, does not prejudice or impair the rights of a party claiming under it, and the admission of such evidence is not reversible error.</p>

<p>From the Henry Circuit Court.</p>

<p>Prom the Allen Superior Court.</p>

<p>From the Rush Circuit Court.</p>

<p>From the Allen Superior Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>From the Howard Circuit Court.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Tippecanoe Circuit Court.</p>

<p>J usticje OP THE Peace. — Application to Allow Appeal to Circuit Court. — Trial of. —In an application in the circuit court to allow an appeal from a judgment rendered by a justice of the peace more than thirty days previous thereto, an issue can not be tendered and tried after the court has granted leave to appeal, touching the facts set forth in such application.</p> <p>Same. — Demurrer.—Motion to Dismiss Application. — In such case a demurrer can not be filed to the application; the proper proceeding is to move to dismiss the application for the appeal, or to dismiss the appeal after it is granted and perfected.</p> <p>Same. — Length of Time After Judgment Rendered. — On a proper showing, length of time will not defeat the application.</p> <p>Same. — Cause for Application. — Sufficiency.—A woman residing in Kentucky, while on a temporary visit to this State, was sued before a justice of the peace, and, on appearing at the hour set for trial, was informed that the cause had been dismissed and costs paid, and there was no necessity for 1 her remaining any longer. She departed. The plaintiff then appeared, defaulted the defendant, filed an amended complaint, obtained judgment, and wrote an order on the docket not to issue an execution until ordered by the plaintiff. Nine years afterwards the plaintiff filed a transcript of such judgment in the clerk’s office of the circuit court, caused an execution to be issued and served on the defendant, who, for the first time, was thus apprised of the judgment against her. She filed an application in the circuit court to be allowed to appeal, setting out these facts and averring that she did not owe any part of the debt sued upon.</p> <p>Held, that the application was sufficient.</p>

<p>Evidence. — Opinion of Witness.— When Not Admissible. — Tbe opinion of a witness is not admissible in evidence where the facts upon which it is founded can be stated to, and intelligently comprehended by, the court or jury trying the case, and where, from such facts, men in general are capable of drawing reasonably correct conclusions.</p> <p>Same.— Opinions as to Value. — Upon questions of value a non-professional witness may give his opinion.</p> <p>Same. — Value of Services. — The opinion of a witness may be taken as to the value of services rendered.</p> <p>Statute op Limitations. — Continuous Services. — If there is no certain time for payment, nor when the services shall end, a contract of employment will be treated as continuous, and the statute of limitations will not begin to run until the services have ended.</p>

<p>From the Vigo Circuit Court.</p>

<p>New Teial. — Newly-Discovered Evidence. — Cumulative or Corroborative Evidence. — A new trial will not be granted because of newly-discovered evidence that is merely cumulative, or corroborative of the testimony of a witness who has testified on the trial; nor for evidence that would not probably change the result.</p> <p>•Same. — Counter-Affidavits.—Upon a motion for a new trial because of newly-discovered evidence, counter-affidavits may be filed.</p> <p>Evidence. — Cross-Examination.— Witness Explaining on Re-Examination.— Where a witness is asked a question on cross-examination concerning his conduct, or action, to affect his statement made in his examination in chief, he may be permitted on re-examination to explain such conduct or actions.</p> <p>Instbuctions. — Refusal when Covered by Another Instruction. — It is not error to refuse an instruction covered by another instruction given to the jury.</p>

<p>From the Howard Circuit Court.</p>

<p>RailkoAD. — Sale.—Condition Contained in Sheriff’s Deed in Accordance with • Decree of Foreclosure. — Debenture.—Purchaser Liable to Pay. — Where a decree of foreclosure for the sale of property contains a clause that the purchaser thereunder shall be liable for certain outstanding indebtedness, or deben tures,.secured by the mortgage foreclosed, and such condition is inserted in the sheriff’s deed issued in pursuance of the sale created in said decree, the purchaser is liable in personam, for the amount of indebtedness thus secured, and the action is not based on the decree.</p> <p>Same. — Debenture Payable in Freight or Work. — Repudiation.—If a railroad company issue debentures receivable in payment of freight named, and it repudiate them, it is liable for their face value in money, and judgment may be rendered thereon for that amount.</p> <p>Same. — Company Declining to Pay According to Tenor of Contract. — Effect.— Liable for Amount in Money. — So, if such company notify the holder of such debentures that it construes the contract so as to make them receivable only in a way contrary to their tenor and effect, this is a notification that it does not regard itself as bound by the contract, and amounts to a renunciation thereof; and such holder is not bound thereafter to tender the debentures for acceptance according to their tenor and effect, but may bring his action at once for the recovery of the amount in money for which the debentures were by their terms receivable in part payment of freight.</p> <p>Same. — Tender.—Number of Debentures. — A refusal to honor one debenture amounts to a refusal to honor all held by the person tendering it; and such holder is not bound to first tender all he has before bringing an action thereon.</p> <p>Same. — Debenture Receivable to the Extent of One-Half Due from Holder for Freights. — A debenture conditioned that it shall not be receivable in payment of freight “ to a greater amount than one-half of the amount then to be paid by the holder to the company for freights,” requires the company to accept it, when tendered, although the freight due is more than double the amount of the debenture tendered; and such company can not insist that one debenture shall be tendered for each shipment. Upon such a contract the freight of several shipments may be added together, and a demand made that one-half, or any less amount, of it be paid by acceptance of debentures.</p> <p>Judgment. — Motion to Modify. — Bill of Exceptions. — A motion to modify a judgment can only be presented on appeal by a bill of exceptions. Pleading. — Exhibit.—Judgment.—Where a judgment or decree is the foundation of the action, it is not necessary to file a copy of it with the complaint.</p>

<p>Appellate Court.— Weight of Evidence. — The Appellate Court will not reverse a judgment, either in a civil or criminal case, where there is evidence which fairly supports the finding of the court or verdict of the jury on every material point.</p> <p>Criminal Law.— Distinct Offences. — Election by the Slate. — Where a prosecution is upon a single count, and two entirely distinct and disconnected offences are proven, the State must elect which offence it will prosecute. But a motion by the defendant requiring the State to elect, made when it is only beginning to be disclosed whether more than one distinct of-fence of the kind charged has been committed by the defendant, is premature.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Intoxicating Liquor. — Judicial Knowledge as to what is. — Indictment,—Sufficiency of. — In a prosecution for the unlawful sale of whiskey, an indictment is sufficient which alleges “ the unlawful sale of one gill of whiskey,” without alleging that the whiskey sold was intoxicating liquor. The word “ intoxicating ” may be omitted if the liquor charged as having been sold unlawfully is such that the court judicially knows that it possesses the intoxicating quality.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Bartholomew Circuit Court.</p>

<p>From the Warrick Circuit Court.</p>

<p>Evidence. — Negative Allegation. — Burden of Proof. — Where the plaintiff grounds his right of action upon a negative allegation, the establishment of which is an essential element in his case, he is bound to prove it, though negative in its terms. ■- ></p>

<p>From the Benton Circuit Court.</p>

<p>From the Howard Circuit Court.</p>

<p>Execution. — Levy.—Possession.—A sheriff or marshal who makes an authorized levy upon goods under an execution or attachment acquires thereby a special property in the goods of the defendant, on which the levy is made, and the officer is entitled to the possession and control of the property as against a purchaser from the execution defendant until the writ is satisfied or the levy abandoned.</p> <p>Same. — Retention of Goods by Execution Defendant. — Abandonment of Levy.— The fact that the officer, without fraud, has left the' goods in the care of the execution defendant, will not'eonstitute an abandonment of the levy.</p> <p>Same. — Receipt by Officer of Subsequent Writ. — Effect of. — When property is in the actual or constructive possession of the officer by virtue of a levy, the receipt by him of a subsequent writ operates as a constructive levy thereof upon the property so in his possession.</p> <p>Replevin. — Purchaser after Levy. — Subsequent Satisfaction of Judgment.— The plaintiff purchased of an execution defendant property which the sheriff had levied on to satisfy the judgment, with knowledge thereof. Subsequently the property was attached by the same officer at the suit of another creditor, and the plaintiff, without first satisfying the judgment, instituted an action of replevin.</p> <p>Held, that the action would not lie, and that the action was not sustained by a subsequent satisfaction of the judgment.</p>

<p>RaiIiKOAD. — Killing Stock — Agreement to Maintain Cattle-Guards. — Pleading. — Exhibit.—In an action against a railroad company to recover damages for the wrongful killing of plaintiff’s colt, caused by the removal of cattle-guards, which defendant’s grantor had agreed in writing to maintain, such agreement is not the foundation of the action, and neither the original nor a copy thereof need be filed with the pleading.</p> <p>Same.— Maintenance of Cattle- Guards. — Agreement. — Purchaser Chargeable with Notice. — Where a railroad company, by agreement with a landowner, maintains cattle-guards and wing fences, the grantee of such company is chargeable with notice of such cattle-guards and fences, and is thereby warned that there is some claim of right connected therewith.</p>

<p>From the Vanderburgh Superior Court.</p>

<p>From the Allen Circuit Court.</p>

<p>Attobney and Client. — Power io Compromise Claim. — An attorney has no general authority to compromise a claim put in his hands for collection by receiving a sum less than its face value. It is his duty to serve his client with reasonable skill and vigilance, and to secure to him whatever honorable advantages these qualities will obtain. It is only in cases of emergency, where the interests of the client reasonably appear to be in jeopardy if action be deferred, that an attorney is justified in departing from his usual and general line of duty.</p> <p>Same. — Emergency.—Acceptance of Offer of Compromise. — In such case an offer of compromise may be accepted by the attorney acting upon his own advice, provided it appear to be in the best interest of the client, and immediate action thereon is demanded to prevent a probable sacrifice. If the attorney has time to communicate the situation to the client without hazarding a loss he must do so.</p> <p>Same. — Compromise of Claim. — Liability.—Where attorneys compromised a claim of their clients where there was no emergency requiring immediate action, consulting but one, who gave his consent, but did not assume to act for the rest, they are liable for the full amount of the claim to those who did not assent to the compromise. The fact that all the clients but one lived in distant parts gave the attorneys no authority to accept an offer of compromise, unless they were compelled to act before they could by reasonable efforts advise with their clients concerning the matter.</p> <p>Same. — Settlement.—In such case an agreement with an attorney employed by the clients to compel the attorneys to pay over the collection, whereby a third person should pay.a certain sum in full settlement and compromise of the claim, will not protect the delinquent attorneys, unless the clients’ attorney had authority to compromise the claim.</p>

<p>From the Tipton Circuit Court.</p>

<p>Bailroad. — Killing Cattle. — Complaint.—Name.—In an action against a railroad company for the killing of cattle, while operating the road of another company, it is not necessary to allege in the complaint in what name the road was being operated. See sections 4001 and 4025, B. S. 1881.</p> <p>Same. — Joint Operation of Bailroad. — Contract Between Companies. — Effect of. —Where two railroad companies run and operate a road jointly, the one as owner and the other as lessee, each agreeing to pay for all stock killed by its own trains, the fact that the lease provided that the officers of one of the companies should prescribe the rules for and direct the running of all trains can not in any way change the character or effect of the contract.</p> <p>Same. — Company Operating on Another Boad. — Liability of for Damages. — Under section 4001, B. S. 1881, the owner of locomotives and trains operated and run over another railroad is liable to persons for damages occasioned by such locomotives and trains to the same extent as though the track and road upon which said locomotives and trains were run and operated belonged to the company owning and operating the same.</p> <p>Same. — Private Farm Crossing.— What Does not Constitute. — Killing of Animals. — Where a land-owner puts up gates in a right of way fence to enable him to go from his land tó a private side-track on the railroad right of way, said gates do not constitute “ a private farm crossing,” within the meaning of the acts of April 8th and 13th, 1885, and the railroad company is liable in damages for the killing of stock belonging to a third person which entered on its right of way through said gates.</p> <p>Same. — Bailroad companies can not make contracts with private persons to make openings*in its fence for private purposes, and thereby relieve itself from the duty it owes to the general public to keep the road securely fenced, except at private farm crossings where the railroad right of way separates tracts of land into two parcels, and to enable the owner to go from one piece of land to another thus separated.</p> <p>Same. — Where a railroad company permits or contracts with an individual to put gates in its right of way fence, or to make openings therein, when it could not be compelled to do so under the law, it is liable for damages resulting to all except the contracting parties.</p> <p>Damages. — Judgment for. — Interest May be Added. — In an action for tor^ where exemplary damages are not allowed, interest may be added by the court from the date of the commencement of the action to the sum which it finds to represent the loss.</p> <p>Pbactice. — Answer.—Demurrer.—It is proper to sustain a demurrer to a paragraph of answer when the facts alleged therein may be presented under the general denial already on file.</p>

<p>Instructions to Jury. — Practice.—Criminal Law. — Bill of Exceptions. — The only method by which instructions in criminal cases may be reviewed, on appeal, is by having them embodied in a bill of exceptions.</p> <p>Appellate Court.— Weight of Evidence. — The Appellate Court will not reverse a judgment on the evidence, if the evidence fairly tends to sustain it.</p>

<p>Pleading. — Complaint.—First Questioned on Appeal.. — Defects Cured by Verdict. — Where the sufficiency of a complaint is first questioned on appeal, all intendments are taken in favor of the pleading, and if facts sufficient are stated to bar another suit for the same cause of action, the finding of the court or the verdict of the jury cures all other defects, and the complaint will he held sufficient to uphold the judgment.</p> <p>Landlord and Tenant. — Holding Over. — Lease.—Pleading.— Where a tenant holds over after the expiration of his written lease, and the landlord and his grantee receive rent from the tenant, another tenancy is created of equal length and upon the same terms and conditions; and such written lease is not the foundation of an action for possession of the land and damages for holding over.</p>

<p>From the Washington Circuit Court.</p>

<p>Bill of Exchange. — Discounted by Bank. — Bight of Bank to Sue Upon.— Where parties drew a draft in favor of themselves, and endorsed to a bank for collection, with a letter of advice stating that if the bank desired to discount the draft on the same terms as it had a former one, to send check for the amount, and it could have the paper, and, upon the acceptance of the draft by the drawee, the bank discounted the same as requested by the drawers, and sent them a check for the amount which they received under the proposition to the bank to discount the bill, the bank thereby became the holder and owner of the bill as payee for value, with full power to sue for and recover in the proper action, in case the same was dishonored.</p> <p>Same. — Liability of Drawers to Bank. — In such case, where the acceptor failed to pay the bill, although it was duly presented, payment demanded, and protested, and notice of protest duly given, the drawers of the bill became liable to the bank.</p> <p>Same. — Against Whom Suit May be Brought. — Under section 5516, B. S. 1881, suit may be brought by the holder of a bill of exchange negotiable by the law merchant or by the law of the State, against the whole or any number of the parties liable to such holder.</p>

<p>From the Steuben Circuit Court.</p>

<p>From the Elkhart Circuit Court.</p>

<p>Husband and Wipe. — Action for Alienation of Wife’s Affections. — Proof of Adultery not Required. — An action by the husband for the alienation of the affections of his wife may be maintained without proof of adultery.</p> <p>Same. — Basis of Action. — Proof of Pecuniary Loss. — In such action it is not essential to recovery that there should be proof of actual pecuniary loss, as the action is based on the loss of the consortium.</p> <p>Same. — Evidence.—Instructions.—An action for the alienation of a wife’s affections, whether adultery is charged or not, is an action for seduction, within the meaning of section 501, R. S. 1881, which provides that in a suit by the husband for the seduction of his wife, the wife shall not be a competent witness ; and it is not error to charge that no inference is to be drawn for or against either party from the fact that the wife has not testified.</p> <p>Same. — Instruction.—In an action for the alienation of the affections of plaintiff’s wife, it is not error to charge that if the defendant made presents to plaintiff’s wife, and gave her other attentions with the consent oí the husband, with no evil intent, and not intending to alienate her affections, and never had carnal knowledge of her, the plaintiff can not recover, even though as a consequence of such acts she conceived a fondness for him.</p> <p>Evidence. — Action for Alienating Wife’s Affections. — In an action for alienating the affections of plaintiff’s wife, where the plaintiff had testified in chief that he had witnessed certain acts and conduct between his wife and the defendant, a question asked the plaintiff on cross-examination as to whether from those acts and conduct he inferred adultery, was improper, as calling for the statement of a conclusion, and not a fact.</p> <p>Same. — Admission of. — Harmless Error. — Permitting the plaintiff, in an action for the alienation of his wife’s affections, to ask a witness if she had ever heard the neighbors talk about his wife and the defendant going to a show, to which a negative reply was given, if error, is harmless.</p> <p>Same —Where the plaintiff, in an action for the alienation of the affections of his wife, had shown that while the children were sick their mother left them, and accompanied the defendant to places of amusement, testimony of a general character as to how plaintiff’s wife treated her children was properly excluded.</p> <p>Pkactice. — Refusal to Give Instructions. — No Question Presented. — No question is presented in this court on the refusal to give instructions requested where it appears that they were not asked until after the commencement of the argument.</p> <p>Same. — Objection to Question. — Ruling Sustaining. — Presumption.—A ruling of the trial court sustaining an objection to a question asked a witness will be presumed to be correct .in the absence of a showing to the contrary.</p> <p>Same. — Pleading.—Amendment.—Permitting the filing of additional paragraphs of pleadings and amendments after the jury has been sworn and the trial begun, is very largely within the discretion of the court, and unless the appellant shows affirmatively that he was prejudiced the ruling will not lead to a reversal.</p> <p>Same. — Failure of Jury to Find on all the Issues.— Venire de Novo. — The jury’s failure to find upon all the issues is not a defect appearing upon the face of the verdict for which a venire de novo will be awarded.</p> <p>Same. — Finding Upon One Paragraph. — Effect of. — The finding of the jury upon one paragraph of the -complaint, where there is evidence tending to support another paragraph, will preclude an action on the cause averred in the paragraph as to which no finding was made.</p>

<p>From the Hendricks Circuit Court.</p>

<p>Pbactice. — Motion to Strike Out. — Pleading.—Bill of Exceptions. — A motion to strike out a pleading must be made part of the record by bill of exceptions or order of court.</p> <p>Same. — Refusal io Strike Out Pleading. — An erroneous refusal to strike out a pleading is not an available error.</p> <p>PbincipAD and Surety. — Alteration of Note. — Release of Surety. — Where, after the making and delivery of a note with one name thereon as surety, the name of another surety is added without the consent of the first surety, the latter is released.</p> <p>Same. — Agent.—Payee Bound by Agent’s Knowledge of Alteration. — The facts that the agent of a payee of va note had special instructions to loan money only upon a note with two sureties, and that the payee refused to receive the note from his agent when he presented it with only one surety, and that the name of the additional surety was thereafter obtained, will not affect the question as to the liability of the first surety. The contract was completely executed so far as the first surety was concerned when it was delivered to the agent. The payee was bound by the knowledge of his agent that the name of the second surety was signed without the consent of the first surety.</p> <p>Same. — Ratification After Alteration. — A surety upon a promissory note, having a right to insist upon his discharge because of the material alteration of the note by the addition without his consent of the signature of a new surety, may renew his liability without any new consideration, by subsequently consenting to the alteration with full knowledge of all the facts.</p> <p>Same. — Signature of Swely Subsequent to Execution. — Consideration.—One who, subsequently to the signing and delivery of a note, signs as co-surety j is not bound unless a new and distinct consideration be shown.</p>

<p>From the Howard Circuit Court.</p>

<p>Usury. — Pleading.—Insufficiency of Answer. — In a suit upon a promissory note, an answer seeking to avoid the entire contract for usury, without showing what amount of illegal interest it includes, or specifying the particulars of the contract upon which the usurious interest was included in the note, or the quantum of the usurious interest that was agreed upon, is bad.</p> <p>Same. — Pleadings.—Usury bars a recovery only for interest, and not for the principal; and an answer setting up usury, which is pleaded in bar of the action, is bad.</p> <p>Practice. — Overruling Demurrer to Bad Answer. — Reversible Error. — The overruling of a demurrer to a bad answer is reversible error, even though there be other good answers under which the same evidence is admissible.</p>

<p>Decedents’ Estates. — Claim Against. — Motion to Strike Out. — Motion to Dismiss Claim. — Bill of Exceptions. — Where a motion to strike out a part of a claim filed against a decedent’s estate is not made part of the record by bill of exceptions or order of court, the action of the court below in overruling the motion can not be considered on appeal. The same rule applies as to the overruling of a motion to dismiss the claim.</p> <p>Same. — Sufficiency of Claim. — Insufficiency of Certain Items. — Demurrer.—A claim filed against a decedent’s estate is sufficient if it contain enough to apprise the defendant of the nature of the claim and the amount demanded, and to bar another action for the same demand. The insufficiency of the statement of one or more of the separate items of the claim will not render bad on demurrer the entire claim containing other separate items of indebtedness so stated that if they had been the only items the claim would withstand a demurrer.</p> <p>Same. — Amendment of Claim. — If, after a claim has been transferred to the issue docket, the claimant, without objection on the part of the administrator, is permitted to amend the statement by introducing therein an item of claim based upon facts accrued after the claim was filed in the clerk’s office and was placed upon the docket, upon which it is the administrator’s duty to allow or reject claims, the defendant can not, by answer in bar of such part of the claim, raise an objection, which he has so waived, to the making of such amendment.</p> <p>Same. — Special Defence Pleaded by Administrator. — Demurrer.—Answer of Partial Defence. — If an executor or administrator plead a special defence, which is sufficient, it is error to sustain a demurrer thereto, which is not rendered harmless because of the fact that the defence might have been proved without special plea. If the paragraph, however, to which the demurrer was sustained, amounted only to a partial denial, and there remained in an answer in denial of “ each and every material allegation in said claim and complaint contained,” the action of the court in sustaining the demurrer will not be available error.</p> <p>Special Finding. — General Verdict. — The special finding in answer to interrogatories can not control the general verdict, if it be possible to reconcile the special finding with the general verdict upon any supposable evidence admissible on the trial.</p> <p>New Teial. — Motion for. — Excessive Damages. — The assignment in a motion for a new trial that the verdict is contrary to law does not raise the question that the amount of recovery was too large.</p> <p>Instetjctions to Juey. — Refusal to Give Instructions.— When not Available Error. — Where the evidence is not in the record, the refusal of the court to give an instruction asked for by one of the parties can not be considered on appeal.</p> <p>Same. — Giving of Instructions. — Evidence not in Record. — Where the evidence is not in the record, the judgment will not be reversed for the giving of instructions unless they would be erroneous under any possible state of the evidence.</p>

<p>From the Allen Superior Court.</p>

<p>From the White Circuit Court.</p>

<p>From the Cass Circuit Court.</p>

<p>Taxation. — Action to Recover Penally. — Omission of Property. — Complaint.— Sufficiency of. — In an action to recover a penalty, under section 6339, R. S. 1881, for giving a list which was made false and fraudulent by omitting a portion of the defendant’s property subject to taxation, the complaint need not aver that at the time the tax-list was made and delivered to the assessor, the defendant was a person of full age and sound mind; nor need it aver that the notes which it was alleged were omitted from the tax-list were of any value. ,</p>

<p>From the Jay Circuit Court.</p>

<p>From the Pulaski Circuit Court,</p>

<p>From the Tippecanoe Circuit Court.</p>

<p>Ceiminatj Law.— Using Obscene Language. — Sufficiency of Information. — An affidavit and information under section 1995, E. S. 1881, for using obscene or licentious language in the presence of a female, set out words which were not in their nature obscene or licentious, unless aided by extrinsic averments, and the averments did not show in what connection the words were uttered, or that they had any local or provincial meaning.</p> <p>Held, that the affidavit and information were bad on a motion to quash.</p>

<p>Judgment. — By Default. — Belief From. — For insufficient grounds for relief from a judgment by default, see opinion.</p> <p>Same. — The fact that a party may have a good cause for a continuance will not entitle him to relief from a judgment which he does nothing to avert.</p> <p>Same. — Belief From. — Cornier Claim and Set-Off. — A judgment will not be set aside to permit a defence in the nature of a counter-claim and set-off to be asserted.</p>

<p>Tenants in Common. — Action for Rent. — Parlies.—Where there is a joint demise executed by tenants in common, they must join in actions based upon the lease, unless the lease provides for a separate rendering of rent to each, or a separate covenant for the payment of rent to each. But where tenants in common have not bound themselves by a joint ■demise, but are claiming rents under a lease made by the ancestor, their rights accord with their interests, the accruing rent is apportioned among them, and the tenant can be compelled to pay to each his proportionate share.</p>

<p>Fi’om the White Circuit Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>Appellate Court. — Review.— Weight of Evidence. — Where there is evidence tending to support the finding and judgment of the trial court on all material points, the Appellate Court will not reverse the judgment on the weight of the evidence.</p> <p>Damages. — For damages held not excessive in an action to recover for stone drilling, see opinion.</p>

<p>Promissory Note. — Special Verdict. — Failure of Consideration. — In an action upon promissory notes governed by the law merchant, brought against the maker by the plaintiff, to whom they had been endorsed by the payee before maturity, the plaintiff was not entitled to judgment upon a special verdict which found that the warranted machine for which the notes were given was worthless, and that the agent who purchased the notes in suit for the plaintiff knew at the time that the maker had refused payment because of the worthless character of the consideration, for which they were given.</p> <p>Same. — Special Verdict. — Statement of Conclusions of Law, — A special verdict is bad which states that at the time the agent purchased the notes for the plaintiff he knew from the appearance of the same, and from the circumstances of their offer for sale, that there was a dispute between the maker and the payee as to the validity of the notes, and that the maker had refused to pay the same on account of some defence claimed by him thereto. It is the office of a special verdict to state facts simply and to leave all conclusions of law to the court.</p> <p>Same. — Action on Commercial Paper. — Failure of Consideration. — Knowledge of Defence. — How Shown. — In an action on commercial paper held by one who purchased it for value before maturity, where the defence is failure of consideration, it is necessary to show that the plaintiff had knowledge of the defence existing against the payee, his endorser, or to show facts which create a legal presumption that he acted in bad faith in abstaining from inquiry which would have resulted in such knowledge. The circumstances which will justify such an inference must be pointed and emphatic, and must lead directly and irresistibly to the conclusion that the purchaser had notice, before the presumption that he purchased the note in good faith can be overthrown.</p>

<p>From the Sullivan Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Township. — Repair of Highways. — Negligence.—Damages. —A township is not liable to the owner of land abutting on a highway for an injury to him occasioned by the manner in which the work of repairing the highway was performed by the road supervisor. The act of March 2, 1883 (Acts 1883, p. 62), amended by the act of April 13, 1885 (Acts 1885, p. 202), did not change this rule.</p>

<p>From the Boone Circuit Court.</p>

<p>From the Pike Circuit Court;</p>

<p>Fibe Insurance. — Action Upon Policy. — Notice of Loss. — Performance of Conditions. — Averments in Complaint as to. — Sufficiency of. — In an action upon a policy of insurance which contained a provision that “ Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the company,” the complaint stated that the plaintiff had “ performed all of the conditions on his part to be performed, and on the 16th day of May, 1890, said house was totally destroyed by fire; that plaintiff immediately thereafter, on the-day of June, 1890, notified the defendant of said loss,” etc.</p> <p>Held, that the general averment of performance in the complaint would so modify the specific averment as to the time when notice of loss was given, as to require the blank to be supplied by inserting the first instead of the last day of June.</p> <p>Held, also, that it could not be said as a matter of law that notice of loss given fifteen days after the loss occurred was not given within a reasonable time.</p> <p>Held, also, that the averment in the complaint as to the performance of conditions on the part of the insured, though preceding the statement of loss, was intended to apply to and qualify the conduct of the insured to the time of the commencement of the action, and must be so construed.</p> <p>Same. — Foreign Insurance Companies. — Notice of Loss to. — Section 3770, P. S. 1881, Construed. — Under section 3770, R. S. 1881, conditions inserted in insurance policies issued by foreign insurance companies requiring notice of loss to be given forthwith, or within less than five days, are null and void. The insured is required, however, to use reasonable diligence in giving notice of loss.</p> <p>SAME. — Fraud, in Procurement of Contract. — Increase of Hazard. — Answer.— .Fraud and misrepresentations in the procurement of a contract, when pleaded as such, will not authorize its overthrow or rescission, unless they relate to and affect some material feature of the transaction. In insurance contracts, only that can be regarded as material which, from a business stand-point, may have influenced the insurer in undertaking the risk. An answer to a suit upon a policy of insurance is bad which avers that the building was not constructed as set forth in the policy, but which fails to aver that the hazard was increased thereby, or that the company would have refused the risk, or charged a higher premium for carrying it if it had known the truth.</p> <p>Same. — Building Used for Specific Purpose.— Warranty in Policy as to. — A statement in a policy of fire insurance that the building insured is used for a specific purpose amounts to a warranty that it was so used at the time the policy was issued, but it does not warrant the continuance of such use during the existence of the insurance.</p> <p>Same. — Change of Use. — Increase of Hazard. — Agreement in Policy Concerning. — Promissory Warranty. — Fraud.—Instructions to Jury. — The agreement in a policy that the assured shall not subsequently change the use of the building so as to increase the hazard is a promissory warranty, the substantial breach of which, either with or without actual fraud, will defeat the policy without regard to its being the cause of the loss. Whether a particular change will increase the hazard is a question of fact, to be submitted to the jury under proper instructions.</p> <p>Same. — Destruction by Fire Caused by Biot. — Answer.—Demurrer.—Where a policy of insurance provided that the insurance should not cover “ any loss or damage by fire caused by, means of an invasion, insurrection, riot,” etc., it was error to sustain a demurrer to a paragraph of answer setting up the defence that the building in question was destroyed by fire by means of a riot, the evidence showing that five masked men, in the night time, assembled and forcibly broke into the building, and compelled the occupants to vacate under threats of personal violence, and then burned down the building.</p> <p>Pleading. — Instrument Filed with Complaint. — Not Necessary to File with Answer. — Where an instrument is made the basis of an action, and is set out with the complaint, it is not necessary to set it out with an answer based upon any of its conditions or provisions.</p>

<p>From the Greene Circuit Court.</p>

<p>From the Noble Circuit Court.</p>

<p>From the Sullivan Circuit Court.</p>

<p>From the Gibson Circuit Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>United States Makshals. — Official Bond. — Action Upon, — Measure of Inability. — Liability of ■ Principal and Surety Identical. — Where an officer is sued officially upon the bond he gave for the performance of his official duty, that instrument must clearly furnish the measure of his liability, and in such an action his liability is identically the same as that of his sureties.</p> <p>Same. — Bond.—Liability of Sureties. — Appointment of Special Deputy. — .Liability of Deputy. — Instructions to Jury. — Qomplaint.—An action was instituted against a United States marshal and the sureties upon his official bond as United States marshal, and a special election deputy appointed by him, to recover damages for the alleged unlawful arrest and imprisonment of the plaintiff.</p> <p>Held, that the complaint did not state a cause of action against the special deputy; that he did not sign the bond and was not answerable for its breach.</p> <p>Held, also, that the complaint failed to state a cause of action against the sureties on the bond, it not being shown that the injury complained of was the result of official misconduct, the averment in the complaint that the marshal and his alleged deputy were acting illegally, but under cover of office, not being sufficient.</p> <p>Held, also, that an instruction was erroneous which denied the right of the marshal, when sued upon his official bond, to deny that he had any authority to appoint á special deputy in the given instance.</p> <p>Same. — Extent of Surety’s Liability. — The engagement of a surety upon an official bond extends only to official acts — acts done by virtue of the trust reposed in the officer by law. But where an officer, though he assumes to act as such, commits a wrong under circumstances where the law does not impose upon him any duty to act at all, the wrong is not a violation of any official duty, and is consequently not embraced within the sponsorship of the surety.</p> <p>Same. — Appointment of Election Deputy.— Void Appointment. — An appointment by a United States marshal of a special deputy marshal to serve at an election is void if the appointment is in a town or city having a population of less than 20,000. See section 2021, Revised Statutes U. S.</p> <p>Same —Misconduct of Special Deputies, — The statute making a United States marshal liable for the conduct of his deputies applies only to general deputies. He is not answerable for the misconduct of special deputies if he exercise due care in their selection.</p>

<p>From the Cass Circuit Court.</p>

<p>Contract. — Seal Estate Broker. — Commission. — Husband and Wife.— Agency. — Where a firm of real estate brokers was employed by the defendant through her husband, who was acting as her agent, to sell a piece of real estate for a certain sum, and negotiated with a party for the sale of the property at the price agreed upon, and after such negotiations the husband, with a knowledge of the same, sold the property to the same party for the same purpose, though the conveyance was made to another party, the brokers are entitled to recover their commission.</p> <p>Same. — Complaint.—Quantum Meruit. — Special Contract. — Evidence.—Custom. —Where a complaint for the recovery of a real estate commission was in two paragraphs, the first being upon a special contract, and the second upon a quantum meruit, and the recovery was had upon the first paragraph, evidence as to what the customary price was for the kind of services the plaintiffs performed in the premises, even, if improperly admitted, would be harmless error, as it could have reference only to matters under the second paragraph, and could in no way have influenced the verdict upon the first paragraph.</p> <p>Principal and Agent. — Salification of Acts of Agent. — It is not always necessary to the establishment of an agency that the authority be conferred before the commission of the act by which the same is exercised. If the act is afterwards ratified by the assumed principal, as when he accepts the benefits therefrom, this will be sufficient to establish the agency.</p> <p>Same. — Establishment of Agency. — Circumstantial Evidence. — The relation of principal and agent may be shown by circumstantial evidence alone, and when there is evidence that one openly acts for another under circumstances implying a knowledge on the part of the supposed principal, this makes a prima facie agency, and authorizes the court to admit evidence of the declaration of such agent. Proof that the principal permitted the person claimed to be the agent to perform similar acts and transactions with other persons is competentes tending to establish such agency. . *</p> <p>Same. — Holding out Parly as Agent. — Effect of. — If a person holds out another as his agent, by placing him in control of his business or property, and a third person acts upon the faith of such appearances, the principal may be bound by the acts of the agent, if within the scope of such ostensible authority, although, as between the agent and employer, no such authority in fact existed.</p> <p>Same. — Relationship of Parties. — Jury may Consider. — In determining the question of agency, the jury have the right to consider that the alleged agent was the husband of the party who was claimed to he the principal. Same. — Instructions to Jury, — Failure of Defendant to Deny Agency. — In determining the question of agency, an instruction to the jury was proper that they might consider' whether or not the defendant (the alleged principal) had offered any evidence denying the same. The rule that the failure of the defendant to testify shall not be considered against him applies only to criminal cases.</p>

<p>From the Morgan Circuit Court.</p>

<p>Replevin. — Judgment.—Be s Adjudicata. — Ownership of Property. — The judgment in a replevin action is conclusive as to all questions that were litigated or might have been litigated under the issues, including the question of ownership.</p> <p>Same. — Judgment.—Collateral Attach. — An omission, in a judgment in replevin against plaintiff, to order a return of the property does not render the judgment void or subject it to collateral attack.</p> <p>Pbactice. — Instructions.—Beview on Appeal. — Instructions not brought into the record by a bill of exceptions, nor as provided for by sections 533 and 535, B. S. 1881, will not be considered upon appeal.</p>

<p>Married Woman. — Contract of Suretyship.— What is Not. — A cote executed by a married woman to pay for a transcript to appeal a case wherein her husband is a party, the reversal of which will give priority to junior liens held by her on his real estate, is not a “contract of surety-ship” within section 5119, R. S. 1881.</p> <p>Practice. — Instructions.— Waiver of. — Objections.—An objection that an instruction is not sufficiently specific will not be considered on appeal where no request was made at the trial for a more specific instruction. Same. — Motion to Strike out Deposition. — Review on Appeal. — No question is presented on a refusal to strike out a deposition, where the motion for a new trial assigns no specific error on the ruling.</p>

<p>Railroads. — Contributory Negligence. — Injury to Team. — Obstruction of Highway. — Where a railroad company constructed its track upon a highway, digging an excavation in the highway, and piling the dirt from said excavation along the sides thereof, making an embankment, so as to entirely obstruct the view of travellers along the highway, and an engineer, approaching at an unusual hour, omitted to give the statutory signals in time so that a boy fifteen years of age driving along the road might take his horses to a safe distance, and the horses became frightened and ran away, the driver was not guilty of contributory negligence, although he did not stop and listen, and although he knew the horses were afraid of the cars.</p> <p>Same. — Obstruction of Highway by Company. — Liability of Company for Accidents. — Where a railroad company has rendered the use o£ a highway unsafe in violation of statute, it is bound in operating its railroad to exercise proper care to prevent the injury of a person placed in danger by that wrong, in his lawful use of the highway.</p> <p>Special Findings. — General Verdict. — Conflict Between. — If, considering special findings together, and in connection with any supposable evidence admissible under the issues, they are not wholly inconsistent with the conclusion involved in the general verdict, the latter must stand.</p>

<p>Negligence.— Injury to Railroad Employee. — Contributory Negligence.— Pleading. — In an action against a railroad company for the negligent killing of a brakeman in its employ, the complaint alleged that the company had negligently and unskilfully placed a ■window on the top of the caboose, at the rear end of the freight train on which the brakeman was employed, so near the front end of the caboose that he could not climb out on the top of the caboose without falling between the cars; that it was the duty of the brakeman to set the brakes at all stations where his train was required to stop, and that in attempting to go to his post of duty by the usual way, which was through the window, he fell between the cars, and was killed, without negligence on his part.</p> <p>Held, that the complaint did not show that the brakeman was absent from his place of duty, within the meaning of the law, when he lost his life.</p>

<p>Mechanic’s Lien. — Action to Enforce. — Sub-Contractor.—Notice to Owner.— Copy of Need not be Filed with Complaint. — In an action by a sub-contractor to enforce a mechanic’s lien, it is not necessary that the plaintiff should file with his complaint a copy of the notice sent to the owner of the building, as such notice is not the foundation of the action.</p> <p>Pleading. — Complaint.— Copy of Account. — Exhibit.—Where the account sued on is set out or described in the body of the complaint, it is not necessary that any more .particular statement be filed as an exhibit, unless called for by special motion. Under such circumstances a demurrer to the complaint would not be well taken.</p> <p>Same.— Uncertainly in. — Uncertainty is not generally a ground for demurrer, unless the pleading is so vague as not to state a cause of action or ground of defence.</p> <p>Practice. — Defect of Parties. — Where a demurrer was filed for defect of parties, and overruled, and afterward they were made parties defendant to - the action, the error, if any there was, in overruling the demurrer, was rendered harmless by the subsequent order of the court, in making these persons defendants to the action.</p> <p>Same. — Answers lo Interrogatories.— General Verdict. — Agreement of Parties. — Where by agreement of the parties the jury was directed to return answers to interrogatories only, and was not required to return a general verdict, such mode of procedure can not be complained of.</p>

<p>Master and Servant. — Assumption of Risk. — Master’s Duty to Provide Safe Appliances andnSurroundings. — While a servant assumes all of the incidental risks of his employment, and those which are patent and within the reasonable range of his observation, at the same time the master undertakes to exercise reasonable care and diligence to provide him with safe appliances and surroundings. And the servant may rely upon the fact that the master has performed his duty in that regard until he has information otherwise.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Carroll Circuit Court.</p>

<p>Venue. — Change from County. — Insufficiency of Affidavit. — Affidavit Filed m Season. — An application for a change of venue from the county was properly refused when the affidavit, upon which the application was based, alleged that the affiant, one of the defendants in the action, stood well in the county where the trial was to be had, until the arrival of the plaintiff — a non-resident — on the night before the trial, but that after his arrival, the plaintiff by his talk about the affiant and the defence interposed, created such a prejudice against the defendants that they could not have a fair and impartial trial in the county where the action was pending. The affidavit disclosed a sufficient reason for not complying with*the rule of the Benton Circuit Court, which required an application for a change of venue to be made ordinarily before the second day of the term, but it did not disclose any sufficient reason for a change of venue from the county. The “ odium ” referred to in the statute (section 412, B. S. 1881,) could not, in the judgment of the court, be created in the manner set forth in the affidavit.</p> <p>Same. — Change of. — When Must he Granted. — Conclusiveness of Affidavit. — Whether sufficient cause exists authorizing a change of venue is a question of fact, and the statute makes the affidavit of the applicant conclusive evidence of its existence. When an application is made supported by sufficient affidavit, it is the imperative duty of the court to grant the change.</p> <p>Same. — Change of. — Application for After Time Fixed by Court. — Affidavit Must Disclose Diligence. — To entitle a party to a change of venue, after the time fixed by proper rule of court has elapsed, the applicant must show that he exercised reasonable diligence to discover the existence of the cause within the limit, but failed to do so.</p>

<p>Taxes. — Fake List. — Action to Recover Penalty. — Complaint.—Motion to Make More Specific. — In an action to recover the penalty prescribed by section 6339, R. S. 1881, for making a false tax list, the complaint alleged that the defendant on the first of April was the owner of five thousand five hundred and forty-five dollars loaned by him, and on said day was also the owner of credits due him to the amount of five thousand five hundred dollars; that the tax list made by the defendant was false and fraudulent, in that it did not contain said sums of money loaned by the defendant and the credits owing him as aforesaid.</p> <p>Held, that the defendant was entitled to a more specific statement of the moneys loaned and credits owing him, and that a motion to make the complaint -more specific in those particulars should have been sustained.</p>

<p>Contract. — Member of Family. — Services.—Infant.—Where a niece resides with her aunt, as one of the family, there is no obligation to pay for services rendered, on the one hand, and for board, lodging, and clothing on the other, unless there is an express promise to pay, or the circumstances are such as to raise an implied promise. This rule is applicable to infants as well as to adults; and the infant can not, after reaching its majority, disclaim the family relation, and recover the value of the services performed during minority.</p>

<p>Municipal Corporation. —Defedive Drainage. —Failure to Provide Drainage. — Liability of Town. — A ditch was established by decree of court, upon petition of a property-owner. The ditch in part ran through a town, but the town had nothing to do with its construction, and never repaired it or drained into it, and had no relation to it save that the greater portion thereof, if not all of it, so far as it was completed, was within the corporate limits, and the town had been assessed for benefits to certain of its streets and had paid such assessments.</p> <p>Held,, that the'owner of property in'the town which was damaged by reason of defects in said ditch could not maintain an action against the town, since a municipal corporation is not responsible for failure to exercise its power to provide drainage.</p> <p>Practice. — Sustaining Demurrer to Certain Paragraphs.— When not Error.— There is no available error in sustaining a demurrer to the second and third paragraphs of an answer when the material matters alleged in said paragraphs were admissible in evidence, and were admitted under the first paragraph of answer.</p>

<p>From the Howard Circuit Court.</p>

<p>Promissory Note. — Action upon. — Cross-Complaint.—Demurrer.—In an action upon a promissory note, a demurrer was properly sustained to a cross-complaint which averred that the payee, the father-in-law of one of the defendants, agreed to release and cancel the note upon condition that his son-in-law, who had preferred charges of immorality against his wife, leading to their separation, would become reconciled to and live with and support his wife, but which contained no averment that he had performed the condition thus imposed.</p> <p>Same. — Adoancement.—ISMence.—Judgment.—Where, in an action upon a promissory note, it was claimed that the note was given by one of the defendants, with his co-defendant as surety, as evidence of an advancement made to him by the payee, and with the distinct understanding that the principal was never to be paid, and only as much of the interest as the payee might need during his lifetime for his support, and that at the same time, and under the same arrangement, another note for the same amount was given by the other defendant, with his co-defendant as surety, both of the defendants being sons-in-law of the payee, it was proper to admit in evidence the record of the judgment upon the other note showing that suit had been brought upon the same and judgment obtained thereon by default, and the judgment collected by sale of the principal’s property.</p> <p>Deposition. — Aged and Infirm Person. — Resident of County. — The deposition of a person, a resident of the county where the trial was had, was properly admitted in evidence, the preliminary hearing showing that the deponent was seventy-five years old, and was suffering from a rheumatic affliction, and her physician testifying that she might be able to attend court without injury to her health, but he thought she ought not to be required to do so. She lived eleven miles from the county seat. See section 423, R. S. 1881.</p> <p>Peactice. — Objection not Persisted in.-Non-available Error. — Where objection is made to a question asked of a witness, and the question is not answered, but later in the examination of the witness the question is repeated, and answered without objection, there is no available error.</p> <p>Gift. — Obtained by Fraud.— Who may Avoid. — Gifts obtained by fraud or imposition, as a rule, are voidable only, and if they are not avoided by one who has been especially injured by the fraud, no one else has the right to complain. No one may avoid a transaction for fraud who was not injured by it.</p>

<p>From the Howard Circuit Court.</p>

<p>Parties. — Action on Account. — Assignment without Endorsement in Writing.— Demurrer — In a suit upon an account alleged to have been assigned to the plaintiff, but not by endorsement in writing, the complaint is subject to a demurrer for defect of parties defendant if the assignor is not made a party. Section 276, R. S. 1881.</p> <p>Pleading. — Complaint before Justice of the Peace. — A complaint in a cause originating before a justice of the peace is good if it contain enough substance to bar another action for the same demand.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the La Porte Circuit Court.</p>

<p>From the Adams Circuit Court.</p>

<p>From the Elkhart Circuit Court.</p>

<p>County. — Negligence of Contractor. — Repair of Bridge.— Failure to Warn Travellers. — Liability of County for Injuries. — Where a contractor employed by a county to repair a bridge negligently fails to place lights or barricades to warn approaching travellers of danger, the county is liable for any injury resulting.</p>

<p>Execution. — Mortgaged Chattels. — Sale of on Junior Judgment. — Rights of Mortgagees Ignored. — Constable.—Notice of Mortgage. — Where personal property mortgaged, pledged, or assigned is levied on, the levy is only upon the interest which the mortgagor has in such property after the payment of his mortgage, etc., or, in other words, upon the equity of redemption, but for the purpose of the levy and sale of such interest the officer may take the property in possession as against both the mortgagor and the mortgagee. It is the duty of the officer, however, to exercise due care for the protection of the interest of the mortgagee in the property, and he is prohibited not only from diverting such property from the security o-f the mortgage, but from doing anything which would have the effect of diminishing its value as such security. If the mortgage has been duly recorded, the officer is bound to take cognizance of the same without any other notice.</p> <p>Same. — Action upon Officer’s Bond. — Measure of Damages. — An officer who levies upon property thus mortgaged, and sells it upon execution, the lien of which is junior to that of the mortgage, must hold it until the terms of the mortgage have been complied with by the purchaser, and if he fails to do this he is liable on his official bond for any damage sustained by the mortgagee.</p> <p>Same. — Indemnifying Mortgage. — Complaint.—Sufficiency of. — A chattel mortgage was given to indemnify the mortgagees against any loss on account of their being sureties on certain notes. The mortgage further provided that the mortgagor was bound to pay the notes upon which the mortgagees were sureties at a time certain, fixed in the mortgage, and if the mortgaged property should be levied on, this, as well as default in payment, should entitle the mortgagees to take immediate possession without process of law, and the same should become the absolute property of the mortgagees. The mortgaged property was levied upon by a constable, and sold to satisfy a judgment against the mortgagor, junior to the mortgage, and the property was delivered to the holders of the junior judgment without the constable requiring the purchasers to comply with the terms of said mortgage. The mortgage had been duly recorded. A suit was brought upon the constable’s bond by the mortgagees, the complaint averring, in addition to the above facts, that the notes on which the mortgagees were sureties were due and unpaid, and that the mortgagor, the principal on said notes, was wholly insolvent and unable to pay the same.</p> <p>Held, that the complaint stated a good cause of action on the constable’s bond.</p> <p>Held, also, that the fact that the mortgagees had not paid out anything, on account of their suretyship, did not constitute a defence to the action.</p> <p>Held, also, that while the constable had nothing to do with passing upon the question involved in the mortgage, it was his duty to hold the possession of the goods until these questions were settled, and if he sooner surrendered the possession he did so at his peril.</p> <p>Held, also, that the constable must be held to know that a liability had accrued to the mortgagees by the terms of the mortgage, and that the purchaser had acquired nothing at the sale except the mortgagor’s equity of redemption.</p> <p>Measure op Damages.— What Constitutes. — Where the value of the property is found to be less than the amount of the debt, the measure of damages is such value of the property, while if the value of the property is more than the debt, the amount of the indebtedness furnishes the measure for the amount of the damages.</p>

<p>Practice. — Bad Reply Sufficient- for Bad Answer. — Demurrer.—A bad reply is sufficient for a bad answer on demurrer, and a demurrer to such reply ought to be carried back and sustained to such answer.</p> <p>Same. — Demurrer.—Overruling of.— When not Available Error. — When a demurrer was overruled to certain paragraphs of a reply, and it appears that the verdict for the plaintiff was upon proof admissible independently of the paragraphs to which the demurrer was addressed, the error, if any there was in overruling the demurrer, is not available error.</p>

<p>Pbactice. — Appellate Court. — Review.—Ruling on Evidence. — How Preeented. —Where it is sought to presenta question on the refusal of the court to hear offered evidence, the offer to make the proof, the exception and the ruling of the court thereon must be incorporated in the bill of exceptions. The fact that they appear in affidavits used in support of the motion for a new trial, and incorporated in the bill of exceptions, will not avail the appellant.</p>

<p>From the Washington Circuit Court.</p>

<p>From the Ripley Circuit Court.</p>

<p>Negligence. — Proximate Cause. — Liability.—"Where two causes combine to produce an injury, both of which causes are proximate in their character, the one being the result of culpable negligence, and the other an occurrence as to which neither party is at fault, the negligent party is liable, provided the injury would not have been sustained but for such negligence.</p> <p>Railroad. — Obstruction of Highway. — Injury to Runaway Horse. — Liability. —Where a railroad company leaves its cars standing in a public highway in violation of sections 1964 and 2170, R. S. 1881, and a horse, through fright, without the fault of the driver, becomes uncontrollable and runs away, and in attempting to leap through one of the spaces between the coupled cars is killed, the company is liable.</p>

<p>From the Clinton Circuit Court.</p>

<p>Beidges. — Over Ditch. — Liability for Defects. — Sufficiency of Complaint. — In an action against a board of county commissioners for an injury resulting from the defective condition of a bridge, the structure concerning which complaint was made was designated as a certain culvert-bridge situated upon a public highway within the county. Its dimensions were not given, and the manner of its construction was not stated. A reference to “ the timbers of the bridge ” and “ the planking thereof ” constituted the only description of its material. Eeference was made to “ the ditch over which said bridge was built.” What the bridge spanned, or over what it constituted a passage way, was not shown otherwise by direct or indirect averment.</p> <p>Held, that these allegations did not show that the structure in question was a bridge within the meaning of the statute which requires the board of county commissioners to keep bridges in repair; and that an averment that “ the defendant, in its corporate capacity, had supervision over and control of” the structure did notsupply the want of the pleading in this regard.</p> <p>Same. — Contributory Negligence. — Crossing Bridge with Threshing Machine Engine. — The general allegation that the plaintiff was without fault is. not overcome by specific averments showing that the plaintiff' attempted to pass over the bridge with a steam threshing machine engine. The Appellate Court will not take judicial knowledge that such use of a bridge upon a highway in the country is unusual and unsafe.</p>

<p>Appeal. — Action Originating Before Justice. — Appeal to Supreme Court.— When will not Lie. — Judgment for Costs. — Assignment of Cross-Errors. — A suit was instituted before a justice of the peace, and judgment recovered by default for one hundred dollars. The defendants appealed to the circuit court, and demurred to the complaint. The demurrer was sustained, but judgment was rendered against the defendants for costs. The defendants appealed to the Supreme Court (the cause being afterward transferred to the Appellate Court), assigning as error the ruling of the court in rendering judgment against them for costs. The appellee made a cross-assignment of error upon the sustaining of the demurrer to the complaint.</p> <p>Held, that, under section 632, R. S. 1881, an appeal should not lie to the Supreme (Appellate) Court, said section applying to a case where no amount but costs is recovered.</p> <p>Held, also, that the fact that the appellee assigned cross-errors will not confer jurisdiction.</p>

<p>From the Park Circuit Court.</p>