Volume 30 — Indiana Reports

Circuit Court. The appellee, who was the plaintiff' below, sued the appellant for the rent of part of a lot numbered three, in the city of New Albany. He averred that he leased the premises to appellant, by a verbal agreement, from month to month, at the rate of twenty dollars per month, from July 1st, 1861. The suit was commenced October 12th, 1863. The appellant answered in three paragraphs. The first was the general denial.

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

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

<p>Guardian and Ward. — Foreign and Resident Guardians. — By the common law, letters of guardianship are local to the jurisdiction in which they arc granted, and a guardian of the person and estate of a minor cannot, by virtue of bis letters granted by a proper court in another state where he and the ward are domiciled, claim as a legal right to recover money belonging to the ward in the hands of a guardian of the estate of such ward resident in this State. But tlie Court of Common Dleas, possessing general chancery jurisdiction in such cases, and having jurisdiction of tho resident guardian and the funds in his hands belonging to the ward, has power to order that such funds be transmitted or paid over to the guardian in another state where the ward is domiciled.</p> <p>Same. — Statute.—Section 107 of chapter 35,-Devised Statutes 1843, authorizing the court having jurisdiction to make such order respecting the delivery and payment of property and moneys to the non-resident guardians of non-resident wards as to tho court may seem just and right-, was but declaratory of what the law was in that respect before its enactment.</p> <p>Same. — Judicial Discretion. — The question of the exorcise of this power is addressed to the sound judicial discretion of tho court, to he determined upon principles of comity, equity and justice; and where it appears for tho best interest of the ward, and it does not appear that any principle of public policy will be violated, or the legal rights of any of our citizens injured or impaired, the court should grant the order.</p> <p>Pkactice. — Bill of Exceptions. — A memorandum attached to a bill of exceptions, and signed by the adverse party, acknowledging that tho bill is correct, and agreeing that it may be signed by the judge as of date of filing, is not, a waiver of the question of time. It will bo presumed to have been so signed, but, where that date is after the time limited by the court, the bill is not properly in the record.</p>

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

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

<p>Partnebship. — Evidence,—Where the issue was, whether a partnership in a contract for street improvement existed between the plaintiff and defendant, as averred by the defendant, or the plaintiff was simply a surety for the defendant upon such contract, and, as such, advanced the money sued for, to enable tho defendant, to comply with bis contrac!, the court refused to permit the defendant to introduce in evidence a receipt for money paid on account of the work under said contract, .part of which was paid by the plaintiff and part by tho defendant, at tho grocery of the plaintiff, on the day the receipt was dated — tho plaintiff, defendant and person to whom the money, was paid being prcsent^-which receipt was drawn up at the same time by the defendant in tho name of both parties, and signed by the person receiving the money, in his own handwriting, in the presence of tho plaintiff and defendant.</p> <p>Eddy that tho receipt was properly excluded.</p> <p>Practice. — Assignment of Error. — A motion for a new trial, on tho ground that “tlio verdict is not sustained by tho evidence,” docs not present the question stated in an assignment of error, “ that tho judgment is for a larger amount than was proved by the evidence of the appellee.”</p> <p>Evidence.— Weight of — The weight to be given to the evidence of witnesses cannot be determined from the record.</p>

<p>Resulting Tkust. — Evidence.—Parol evidence to establish a resulting trust in land held by an absoluto conveyance, after a long lapse of time and the death of the nominal purchaser, must be strong and clearly relevant.</p>

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

<p>Will.- — Contingent Remainder. — Executory Devise. — Deviso to trustees in trust for C. and his family during his life, and, if his wife should survive him, for his wife and his children surviving him, during her widowhood; upon the death of C. and his wife, or his death and the marriage of his widow, thereupon, instantly, and thenceforth the real estate devised to descend, go to, and become the absolute property of the children of C. living at the happening of such contingency, and such others of his children as might thereafter bo born, if any, and the children of any deceased child of his; if any child of C., “now inexistence, or hereafter born,” should die a minor and without heirs of his or her body begotten, or die after majority, intestate and without such heirs, the estate or interest of such child to go to, vest in, and become the property of his or her brothers and sisters and their descendants, and for want of such brothers or sisters, or their descendants, such estate or interest to go to, vest in, and become the property of the cousins of such deceased child, children of J., an\l their descendants.</p> <p>Held, that the children of C. took a contingent remainder, and that the limitation to the cousins was void under the rule against perpetuities.</p> <p>Same. — Remainders.—Intention of Testator. — In cases of doubtful construction, the law leans towards vested remainders, but the intention of a testator, where it can be ascertained, governs, whether it result in vested or contingent remainders.</p> <p>Same. — Perpetuities.—Rule Against. — If, by any possibility, the vesting in possession of an estate limited over by way of executory devise may be postponed beyond the period of a life or lives in being and twenty-one years and nine months, the limitation is void; and the rule runs from the death of the testator.</p> <p>Same. — Statute.—The proviso in the eleventh section of the act regulating descents, distribution and dower, of February. 17th, 1838, did not change the rule against perpetuities.</p> <p>Vendor and Purchaser. — Consideration.—Covenant.—A. and B. sold,'and, by deed with full covenants, conveyed, to C. certain real estate, A. having only a life estate therein, and B. only one undivided half in fee, subject to such life estate.' ■ ■</p> <p>Held, in a suit against C., in possession under the deed, on his note given ■ for a part of the purchase money, that this partial want of title in the vendors was no failure of the consideration of the note, or breach of the covenants in the deed entitling C. to recover back any part of the purchase money.</p>

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

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

<p>Costbact. — Construction of. — A contract provided : “ Both parties are to use due diligence in procuring all necessary logs and timber for the employment of said mill, and bear equal’ expense in procuring the same, and also to share equally in all expenses necessary in procuring the necessary hands and teams to run said mill, and aro to share and share alike in the profits thereof.”</p> <p>Held, that this provision did not require either party to furnish a definite part of the logs, teams, or hands.</p> <p>Pbactice. — Demurrer.—A judgment will not be reversed for overruling a demurrer to a bad paragraph of an answer in support of which no evidence was given on the trial.</p> <p>Same. — Motion to Strike Out. — A paragraph of an answer which does not differ in substance from another paragraph should be stricken out on motion, but overruling such a motion is a harmless error, for which a judgment will not bo reversed.</p> <p>E6T0FPEB by Deed. — A. and B. were partners in a grist mill, to which was permanently attached a circular saw mill, in which C., who had no ownership in the real estate, held an interest. A. and B. sold,, and by their joint deed conveyed tho entire property, including, with C.’s assent, the saw mill.</p> <p>Held, in a suit by C. against A., the surviving partner, to recover the value of the saw mill, that the latter was estopped from saying he did not acquiesce in its salé.</p>

<p>Vendor and Purchaser. — Incumbrance.—Recoupment.—In a suit by the assignee against the maker of a promissory note given as the last payment on certain real estate conveyed by warranty deed, the purchaser who had paid all the consideration money except the note in suit, was properly allowed to recoup an amount which ho had been compelled to pay to discharge an incumbrance not excepted from tho warranty, being a note secured by mortgage on said real estate, other notes secured by the same mortgage being so excepted in- the deed.</p> <p>Practice.— Withdrawal of Submission for Trial.— Erronously permitting the submission of a cause to the court for trial to be withdrawn, after all the evidence has been heard and before finding, is not a good cause for setting aside a trial had at a subsequent term.</p> <p>Same. — Assignment of Errors.- — Whore tho overruling of a motion for a new trial is not assigned as error, questions which should be included.in such a motion will not be considered by this court on appeal.</p>

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

<p>Bastardy. — Costs.—Wliere the relatrix in a prosecution for bastardy dismisses the suit by entering of record an admission that provision for the maintenance of the child has been made to her satisfaction, it is error to adjudge costs against the defendant.</p>

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

<p>General Denial. — Burden of Proof. — An answer of general denial throws upon the plaintiff the burden of proving every material allegation of his complaint.</p> <p>Principal and Agent. — Admissions.—Evidence.—The declarations or admissions of an agent are evidence against his principal, only when they are made as to a business matter within the scope of his agency, and which is being transacted at the time.</p> <p>Railroads. — Injury to Animals. — Jurisdiction.—A cow and heifer, together worth §110, standing at the same time a few feet apart upon a railroad track, were killed by a passing train. The value of the heifer did not exceed §50.</p> <p>Held, that they constituted one cause of action, of which the Common Pleas Court had jurisdiction.</p>

<p>Relief of Soldiees’ Families.— Statute. — Construction of. — Tlio provision of the third section of tho act of December 20th, 1865, that disbursements from the fund for the relief of soldiers’ families should cease after the Sd of March, 1866, has relation to the time for which such disbursements should bo made, and does not prohibit payment after that date to those entitled for time prior thereto.</p> <p>Same. — Application for. — Since the 4th of March, 1866, an application for payment from such fund is properly made directly to the Board of County Commissioners, whose determination of the question whether the applicant had otherwise sufficient means for comfortable support is final.</p>

<p>Bonds. — Official.-—Surety—A surety upon an official bond, as well as his principal, is a debtor, within the meaning of the statute which provides that “judgments on bonds payable to the State of Indiana, shall bind tho real estate of the debtor from tho commencement of the action.” (2 G. & II. 233, seo. 414.)</p> <p>Same —Payable to State. — Relator.—No relator is necessary in an action by the State on a bond payablo to her, when the obligation is to the State, and no individual has an interest therein other than that common to all.</p>

<p>Mortgage. — Decedents' Estates. — Administrator.—An administrator is presumed to be cognizant of mortgages executed by the decedent in his lifetime upon his real and personal property, and they are not barred by a failure to file a statement of them within the time limited for the filing of claims by section 62 of the “ act providing for the settlement of decedents’ estates,” &c. (2 G. & H. 501), being expressly excepted therein.</p> <p>Same. — Residue after Foreclosure.- — -After foreclosure, by proceeding in rem, and sale of land mortgaged by a decedent in his lifetime to secure his promissory note, the residue of the debt does not cease'to be a mortgage debt within the meaning of the exception in that section, and payment thereof may be claimed out of the other assets of the estate.</p>

<p>Practice. — Motion for Judgment on Verdict.— Waiver. — Where a new trial was granted to the plaintiff upon the payment of costs within a prescribed period, and, without sufficient excuse for the failure, such costs were not all paid in the time allotted; it was held, that the defendant did not waive his right to judgment on the verdict by consenting to continuances and issuing a subpoena after the expiration of such period, believing the costs had been paid.</p> <p>Same. — Replevin.—Judgment.—General verdict for the defendant jn replevin and judgment thereon for the return of the property. JSTo exception was taken to the nature of the judgment.</p> <p>Held, that an objection to the judgment, on the ground that the verdict did not find the value of the property, could not be raised in this court.</p> <p>Same. — Supreme Court. — The general rule is, that a question must have been raised below before it can be presented in the Supreme Court.</p>

<p>Practice. — Location of Highways. — Appeal Bond. — A bond signed by the appellants only, is not a bond with, surety as required by the statute allowing an appeal from, the decision of the Board of County Commissioners in a proceeding for the location of a highway (1 G. & H. 364, sec. 26); nor can the defect be cured by filing a proper bond in the appellate court.</p>

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

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

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

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

<p>Ceiminai. Law. — Indictment.— Qualifications of Grand Jurors. — That an indictment does not show that the grand jury presenting it was composed of persons possessing the statutory qualifications is immaterial, the caption showing the indictment to have heen found by the grand jury of a county named, in the circuit court of such county, and the record reciting that the grand jurors were sworn as required by law.</p> <p>Same. — Name of Grand Juror. — Among the names of the grand jurors in the record was “ A. J. Moore,” and the record recited that “ Andrew J. Moore ” was appointed foreman.</p> <p>Held, that there was nothing in the objection, that the names of the members of the grand jury wore not, for this reason, sufficiently set out.</p> <p>Same. — Name Unknown. — Evidence.—Where an indictment states that the Christian, or “ given ” name of the defendant is unknown to the grand jury, and there is no proof of the allegation on the trial, there can be, no conviction.</p> <p>Same —Liquor Law. — Evidence.—A person having purchased liquor in a store room from one who stated that it must not be drank there, opened a door and stepped into a shed attached to the store room building, placed the bottle of liquor and tumblers furnished by the seller on a box found there, and, when the liquor had been drank, left the tumblers on the box, and passed back through (¿he store room to the street, -the entire premises belonging to a third person, the store room, but not the shed, being l-ented by the seller.</p> <p>Held, that the seller suffered the liquor to be drank in his house within the intent of the statute.</p>

<p>Practice. — Judgment hy Mistake, S¡c — Statute Construed. — The net of March 4th, 1867 (Acts 1867, p. 100), .amendatory of section 99 of the code, changes the discretionary power of the court to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, • or excusable neglect, to an imperative duty; applies the limitation to the time of commencing the proceeding, instead of the time of granting the relief; extends the time to two years; and authorizes the proceeding to he instituted by'Complaint or motion.</p> <p>Process. — False Jdeturn. —Where the service of summons is on Sunday, and therefore void, so that if true return be made no legal default can be taken, but the sheriff returns the writ as served on Monday, the defendant cannot impeach the false return for the purpose of avoiding an appearance to the action.</p>

<p>Promissory Note. — Full Indorsement. — Alteration of. — If a full indorsement of a promissory note be changed by striking out the name of tlio indorsee and inserting that of another person, without the consent of the indorser, such other person cannot, as indorsee, maintain an action against tho indorser.</p> <p>Spoliation of Written Instrument. — The spoliation of an instrument by a stranger, without tho knowledge or consent of the parties in interest, cannot change the rights or liabilities of those parties.</p>

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

<p>Witness. — Evidence of Character of. — Where there has been an attempt to impeach a witness by proof of statements out of court contrary to what ho has testified at the trial, the party calling him has the right to sustain him by proof of general good character for truth.</p> <p>New Tkial. — Charge to Jury. — A misstatement of the law in the charge to the jury on the trial of an indictment, which, under all the circumstances, could not prejudice the defendant, is not a good cause for a new trial.</p>

<p>Pleading. — Answer.—A paragraph of an answer began thus: “ That at the time of said supposed wrongful taking of the property in the first count of said plaintiff’s complaint mentioned, the defendant,” &c.</p> <p>Meld, that this was sufficiently explicit to distinguish this paragraph as intended to apply only to the first, paragraph of the complaint.</p> <p>Taxes.- — Authority of City Treasurer. — The tax duplicate and the warrant attached thereto, provided for by section 23 of the act for the incorporation of cities (Acts 1807, p. 41), constitute the city treasurer’s authority for enforcing the payment of taxes by seizure and sale of property, and, taken together, confer on him the same power to seize and sell personal property as is conferred by an execution upon a sheriff; but the duplicate, unaccompanied by the warrant,, is not sufficient.</p> <p>Same. — Alteration of Assessment. — The city treasurer has power to assess persons whom the assessor has failed to list, but has no authority to alter upon the tax duplicate an assessment made by the assessor, or to add to such assessment by the assessor property omitted therein belonging to the person assessed.</p>

<p>Liquor Law. — Disorderly House. — An action can be maintained by the State on a bond executed under tlie requirements of tbe act to regulate the sale of spirituous liquors, approved March 5th, 1859, for the breach of keeping a disorderly house.</p> <p>Practice. — Motion for New Trial. — Damages.—A motion for a new trial assigned for cause, “ error in finding any sum against the defendants and giving judgment for the plaintiff, when the judgment shóu’ld have been given against the State, and in favor of the defendants, because, at most, only nominal damages could be recovered on the evidence against the defendants.”</p> <p>Held, that the question of the assessment of too large an amount of recovery was not presented.</p>

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

<p>Decedents’ Estates. — Mortgage.—Tlie personal property of a decedent is the primary fund for the payment of debts, and the fijing of a note made by the decedent in his lifetime, and secured by mortgage on his real estate, as a claim against his estate, entitles the holder to a pro rata dividend out of the assets.</p> <p>Same. — Sale by Administrator to Discharge Lien. — Nothing less than full payment of such a note releases the mortgage, though the holder of the note have notice of the sale of the mortgaged property by the administrator, under an order of court, and receive hisy>™ rata portion of the proceeds, unless the property be sold under the provisions of the statute (2 G. & II. S12, sec. 89) authorizing a sale for the purpose of discharging the lien.</p>

<p>Pkacticjü. — Appeal.—No appeal can betaken to the Supreme Court from an order remanding a cause to a court from rollick there has been an attempt to change the venue, at the costs of the party taking the change.</p>

<p>Parent and Child. — Custody.—Jurisdiction.—A judgment, the effect of wM<di is to deprive a father of the right to the custody of his infant child, without jurisdiction of the person of the father having been'acquired by notice, is void.</p> <p>Collateral Proceedings. — Fraud.—A stranger to a judgment may attack it in a collateral proceeding for fraud used in obtaining it.</p>

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

<p>Trusts and Powers. — A railroad company conveyed by deed forty-four tracts of land, each described, numbered, and valued, to trustees, to secure the payment of bonds, issued by the former, and "put upon the market to raise money, reserving the power to sell any portion of the land at its valuation; and, upon the surrender by the company to the trustees of bonds equal in amount to the land sold, the latter were empowered to convey in fee.</p> <p>Held, that this was a power coupled with an interest, and required only a substantial compliance with its terms.</p> <p>Samis. — Practice.—The deed from the trustees passed the legal title, and the equities of the plaintiff could not be inquired into in an action under the code for the “ recovery of real property,” on a complaint averring the legal right of the plaintiff to the possession.</p> <p>Conveyance. — A deed in which the grantor uses the words “release, roniise, and forever quit claim,” passes the fee to the alienee.</p> <p>Adverse Possession. — The possession of the grantor is not adverse to the title of his grantee.</p> <p>Champerty. — ’The conveyance of land, pending a suit to sot asido a deed therefor, if made to one not haying any connection with the action, or knowledge of it, is not void for champerty.</p>

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

<p>Common Pleas Covet. — Jurisdiction.— Vendor’s Lien. — The Court of Common P.eas has jurisdiction to enforce a vendor’s lien on real estate for unpaid purchase money.</p> <p>Same.— Title to Real Estate. — To deprive the Court of Common Pleas of jurisdiction in an action, on the ground that the question of the title to real estate is involved, that question must he the principal thing to bo determined.</p> <p>Promissory Note. — Partnership,—Tlio fact that the maker of a note payable to a firm was one of the firm at the time of its execution, if any defense to an action thereon against the maker by one of the late firm to whom the other members except the maker have assigned their interest in the note, only goes to the amount of recovery.</p> <p>Same. — The action may be maintained, though there has been no final settlement of partnership accounts, and there are outstanding credits and liabilities.</p> <p>Same. — Extension of Time. — Suit on a note payable one day after date. Answer, setting out a written agreement by the parties, made three days after the execution of the note, that in consideration of a sale then made of a stock of goods, to the maker, he should first pay two other notes executed at the date of said agreement to the same payee, due six and twelve months after date, tlio same to be paid off with the proceeds of said goods, and that after they wore so paid, tlio note in suit should be paid.</p> <p>Held, that this agreement did not extend the time at which the notes last executed became duo, but did extend the time for the payment of the note in suit one year from the date of said agreement.</p> <p>Practice. — Judgment.—Form of.— Vendor’s Lien. — The complaint averred that the consideration of the note was the sale of a town lot to defendant; that a bond to convey tlie same to him had been executed, and ho had been placed in possession, and before bringing suit a deed (which was filed in court) had been tendered and payment demanded. Judgment, in accordance with the prayer, for the amount of the note and interest, and that the same be declared a lien upon the land.</p> <p>Held, that tlio facts stated in the complaint did not entitle the plaintiff to this relief, but as no exception was taken to the form of the judgment, this court could not even modify it.</p>

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

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

<p>Cohmoij Schools. — Special Revenue.* — School trustees, in anticipation of the actual collection of funds levied under the act of March .9th, 1867 (Acts 1867, p. 30), may employ teachers to carry on schools within the year for which the levy has been made, to be paid out of such funds when collected.</p> <p>Same. — School Revenue for Tuition. — The only portion of the school fund which the school trustees may not expend in- anticipation is the school revenue'for tuition belonging to the State, and by it apportioned.</p>

<p>Pleading.— Omission of Christian Name. — The omission of tho Christian name of the plaintiff in the statement of a claim against a decedent’s estate is only matter in abatement, and the objection may be obviated by amendment.</p> <p>Peactice.- — Special Finding by the Court. — To prepare a case for tho Supremo Court under section 341 of tho code, the court below should first state the facts in writing, and then the conclusions of law upon them, to which conclusions the party aggrieved should enter his exception.</p> <p>Same. — When the finding covers the issues, and the court has passed therein on all the facts in the case, questions of law involved in tho finding are not saved by a motion for a new trial, or by a motion for judgment on the special finding.</p> <p>Same. — New Trial —To entitle a motion for a new trial to consideration by this court in such case, the evidence must be made part of the record by bill of exceptions.</p>

<p>Phactice. — New Trial after Term. — Complaint under section 356 of tie code for a now trial of a cause wherein husband and wife were plaintiffs. One paragraph of the complaint in the original proceeding counted on a cause of action belonging to the wife, for which she might have sued alone, or, as she did, jointly with her husband.</p> <p>Held, that the application should have been by both plaintiffs, and being so, that the complaint was insufficient for not averring that the newly discovered evidence was not fully known to the husband at the time of the previous trial, but merely alleging that tho wife had since discovered it.</p>

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

<p>Decedents’ Estates. — —Judgment.—Pending the settlement of a decedent’s estate, a court not having the probate jurisdiction thereof cannot set off a personal judgment held by a debtor to the estate against a • legatee, in satisfaction of a judgment in favor of the estate against such debtor.</p>

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

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

<p>APPEAL from the Judge of the Eloyd Common Pleas.</p>

<p>Limitation or Actions. — Fraud.-—-Tho statute providing that actions for relief against frauds must bo commenced within six yfears after tho cause of action has accrued (2 Q. & H. 156, sec. 210), greatly changes the law as it existed when Raymond v. Simonson, 4 Biackf. 77, was decided. It applies as well to suits in equity as at law; and under it time begins to run before discovery, of the cause of action, unless the defendant shall conceal his liability.</p>

<p>Pleading. — Departure.—Suit on promissory note. Answer, alleging payment of a certain amount of illegal interest and seeking to reduce the recovery that much. Reply, that such payment was made under a subsequent written contract to pay that rate.</p> <p>Held, that the reply was not a departure.</p> <p>Intbkest. — Statute Construed. — Constitutional Lato. — The change in the interest law by the act of 1807 did not impair the obligation of a contract, but enabled parties to a contract previously voidable to avail themselves of the provisions of the new law, and validated their acts done in accordance therewith.</p>

<p>Railkoads. — Assessment of Damages. — Constitutional Law. — Trial by Jury.— Upon an appeal f.o ilie Circuit Court from a proceeding before a justice of the peace to assess damages sustained by the owner of land taken for public use under the ninth section of the act to incorporate the Evansville and Illinois Railroad Company (Local Laws 1849), the Circuit Court, sitting as a court of chancery, may take the opinion of a jury upon a single question of fact, but in such cases trial by jury is not a constitutional right.</p> <p>Same. — Practice.—Burden of the Issue. — The only question fu'esented in the Circuit Court on an appeal by the owner of the land condemned being ' the measure of damages; held, that the appellant had the right to begin.</p> <p>Same. — Judgment.—In such case it is error to render a common judgment against the corporation for the damages, without a decree for the conveyance of the land in question to the corporation upon the payment of the money.</p>

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

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

<p>Draining Association. — Assessment.—A draining association under the laws of this State can have no corporate existence or power to make a valid assessment upon the lands affected by the drain, until its articles of association have been recorded.</p>

<p>Sale. — Misrepresentations.—Where a misrepresentation as to the nature and quantity of property sold amounted only to an opinion of the seller, who had no notice or reason to suspect that the buyer was relying upon his estimate, and no special qualification in the particular matter for making a more accurate estimate than the buyer, and it did not appear that the buyer, who relied upon such representation, had been injured; held, that there was no fraud.</p> <p>Pleading. — Fraud.—It is not enough that a pleader characterize a transaction as fraudulent by the simple use of that word; he must allege such facts as show that conclusion.</p>

<p>Decedents’ Estates. — Payment of Debts. — The act concerning the settlement of decedents’ estates (2 G. & H. á83) makes the personal estate the primary fund for the discharge of all liabilities, whether for debts contracted by the intestate which might in his lifetime be made by execution against his general property, or liabilities which arc primarily incumbent on his real estate only (having been contracted by liis grantor), with a personal liability over to indemnify his grantor if the debt should fall upon the latter.</p> <p>Same. — Mortgage.—A decedent’s real estate was incumbered by a mortgage made by his gx-antor, who conveyed subject to the mortgage.</p> <p>Held, that the personal estate was the primai'y fund for the discharge of the incumbrance.</p> <p>Same. — Sale of Real Estate to Pay Debts. — Real estate cannot be sold by an administx-ator unless the personal estate is insufficient to pay the liabilities, and, ordinarily, only so much as is necessary for that purpose.</p> <p>Same.— Order of Payment. — Judgments which are liens upon a decedent’s real estate and mortgages thereon may in every case be paid at once, and must bo paid before general debts, wbioli may not be paid until a year has expired fx-orn tlie first granting of letters of administration.</p>

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

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

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

<p>Gravel Road.— Way. — Trespass.—A proceeding in regular form before a justice of the peace to obtain the right of way for a gravel road company resulted in a judgment on the report of the jury, that no damages would bo sustained by the owner of the land. From tliis judgment the owner appealed to the circuit court, where, on his motion, the cause was dismissed over the objection of the company, and the company appealed from the judgment of dismissal to the Supreme Court. Pending this appeal, the owner sued the company for trespass.</p> <p>Held, that the proceeding before the justice gave the right of entry, which the order of dismissal could not divest.</p> <p>Same. — Estoppel by Record. — It may be that but for the appeal to the Supreme Court the company would have been estopped by the judgment of dismissal from showing that the proceeding before the justice was regular.</p>

The appellants, Jane, and Maxy M. Minot, sued John Mitchell, the appellee, and Charles S. Mitchell, alleging, in substance, in their amended complaint, that in the spring of 1855, Samuel Minot, the husband of said Jane and father of said Mary M., became embarrassed in business and unable to pay his debts, many of which had then passed into judgments; that he applied to his friend,William Mitchell, since deceased, father of the defendants, who entered himself replevin bail…

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

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

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

<p>Pleading. — Justice of the Peace. — A complaint filed before a justice of the peace was a promissory noto indorsed by the payee, whereby the defendant promised to pay him “ one hundred & JL<L..”</p> <p>Held, that this was sufficient as a complaint.</p> <p>Set-Oit. — A set-oif in favor of one of two makers of a promissory note, both being principals, pleaded by him in answer to a suit on the note against the makers, is bad on demurrer.</p>

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

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

<p>Proceeding Supplementary to Execution.— Contract. — Fraud.—Proceeding supplementary to execution under section 522 of tho code, by the executor of A., execution plaintiff, against B., execution defendant, and 0., alleged to be indebted to B. in an amount which, with other property of B. exceeded the amount exempt by law. It appeared in evidence, that B. had recovered a certain judgment payable in annual installments which ho had assigned to O. upon the record, in consideration of which O. had agreed with B. to board, lodge, and take care of him for seven years, furnish him expense money, and pay a certain judgment against B.; that before service of notice on O. in this case he had sold tho judgment so assigned to him to one D. for a valuable consideration; that in fulfilment of his contract O. had hoarded and taken care of B. one year and eight months, and had paid tho judgment against B. as agreed, and certain other sums to and for B.; that O. had the remainder of the judgment assigned to him by B.; that B. was not a resident householder; that O. had no property belonging to B. and was not indebted to him except his obligation to board, keep and take care of him under said contract.</p> <p>Held, that in the absence of evidence of the disability of either of tho parties to make the contract, it was valid and binding between them, and O. was only hound for tho performance thereof according to its terms, or for damages for a breach of it should he fail to perform it.</p> <p>Held, also, that the facts that the contract was of an unusual character and that a judgment was soon afterwards rendered ¡'.gainst B. might throw suspicion on tho good faith of the transaction on the part of B., but they did not establish fraud, especially on tho part of C.</p> <p>Same. — Trustee.—In the samo entry with tho judgment assigned by B. to O. the latter was appointed trustee for the former, to hold in trust for him the moneys and property therein adjudged to B. and required to give bond to B.; “to become trustee at the time when, and on the condition that he give bond,” &e.</p> <p>Held, that in the absence of proof that O. in fact became trustee he was not by this provision disabled from making the contract for the assignment of the judgment to himself.</p>

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

<p>APPEAL from the Judge of the Floyd Common Pleas.</p>

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

<p>Judgment. — Compromise of. — Money paid in satisfaction of a judgment, on a settlement and compromise of such judgment and of the subject of litigation, cannot be recovered back upon the reversal of the judgment by the Supreme Court.</p>

<p>Pleading. — Replevin.—Complaint in replevin before a justice of the peace in the usual form, for “one white shoat of the value of fourteen dollars.’’</p> <p>Reid, that the description of the property was sufficiently specific.</p> <p>Practice. — Evidence.—In the absence of a contrary showing, the Supreme Court will presume that the evidence was introduced in it3 proper order on the trial, and was relevant.</p> <p>Same. — There is no error in refusing to allow the defendant to introduce testimony in reply to strictly rebutting evidence introduced by the plaintiff.</p>

Petty sued for the value of cattle killed by the cars of the appellant. The complaint was in two paragraphs.

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

<p>Liquor Law. — License.—Appeal by Remonstrators. — An appeal by remonstrators, within thirty days, from an order of tho board of county commissioners granting a license to retail intoxicating liquors suspends the operation of tho order.</p> <p>Same. — The appeal is taken by -the filing of the bond as provided by section 32, 1 O. & II. 253. The issuing of summons, where necessary (by section 34, id.), is after the cause has been docketed in the court to which the appeal is taken, where it is tried as an original cause.</p> <p>Same. — Retailing without License. — Evidence.—On the trial of an information for retailing intoxicating liquor without license, proof that it was sold at a saloon in which tho defendant transacted a retail liquor trade, by a person who was his servant in conducting that trade, sufficiently connected tho accused with the commission of tho offense.</p> <p>Arraignment.— Waiver. — By his personal appearance and agreement to submit the trial to the court the defendant waives arraignment.</p>

<p>Decedents’ Estates. — Oaths of Administrator and Sureties. — The fact that the' oath of an administrator, on taking letters, his affidavit a? to the value of the decedent’s property, and the affidavits of his sureties as to the value of their property, have boon sworn to before a notary public, instead of the clerk, does not render the administration void.</p> <p>Same. — Collateral Proceeding. — If a wife die, intestate, leaving no child or any descendant thereof, and no father or mother, the husband is entitled, without administration, to the possession of property received by her from a settlement by administration, not void, of the estate of a former husband, as against a subsequent administrator of the estate of such former husband.</p>

<p>Pleading. — Complaint.—Prayer for Relief — Tho fact that one of tho paragraphs of a complaint contains no prayer for relief docs not render it insufiieieut, if the complaint contains a demand of the relief to which the plaintiff may suppose himself entitled.</p> <p>Resulting Teust. — Statute.—If a husband fraudulently take a conveyance of real estate in his own name, tho consideration having boon paid by his wife, a trust thereby results in favor of the latter. The statute (1 G. & II. 651, secs. G,' 8) does not chango this rule of equity.</p> <p>Same. — Suit by Heir.— Witness.— Competency of. — In a .suit by an heir to enforce an implied trust in real estate, growing out of tho taking of the title by the defendant in his own name, the purchase money having been paid by tho plaintiff's ancestor, tho defendant is not a competent witness for himself as to any matter occurring prior to tho death of such ancestor.</p> <p>Same. — Instructions to Jury. — In such a suit the court, while instructing the jury, was asked by the defendant to instruct that “verbal testimony, to be suGicientto establish a resulting trust in a case like this, ought to be clear and strong.” Tho instruction was not given as asked, but as follows: “A deed is a solemn instrument, and evidence to vary tho cGbet expressed in it,and establish a resulting trust, must prove necessary facts by a clear preponderance.”</p> <p>Held, that there was no error in this.</p> <p>Practice.— Withdrawal of Pleadings. — After a now trial had been granted, the defendant asked tho court for leave to' withdraw his answer and demur to the complaint, which was refused.</p> <p>Held, the complaint being good, that there was no available error in this ruling.</p> <p>Common Pleas Judge. — Jurisdiction.—A common pleas judge holding the circuit court has jurisdiction whore the title to real-estate is in issue.</p> <p>Witness. — Party called by Adverse Party. — A party called as a witness by the adverse party, to prove a single fact, will be permitted to testify in bis own behalf.</p> <p>Interrogatories to Jury. — At What Time Requested. — After the evidence and the argument of counsel, and while the court was instructing the jury, a party requested the'eourt to require the jury, if they shouldronder a general verdict, to find specially in answer to certain interrogatories, and the court refused.</p> <p>Held, that tho refusal was proper.</p>

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

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

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

This was an indictment in which the offense was charged in these words: “That on or about the 20th day of December, A. D. 1867, at the county of Cass and State of Indiana, one John Pottmeyer did then and there unlawfully cut, saw, and remove from land belonging to one Daniel P. Baldwin, in said county, one hundred cubic feet of iee, of the value of ten dollars, being then and there the property of the said Dauiel P. Baldwin, without a license so to do from said Daniel P.…

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

<p>Damages. — Railroad.—If a railroad company in constructing its road make a ditch along the side thereof so as to carry off the water from the adjoining land to a natural channel, it is not bound to keep suck ditch open, if the flow of the water is not changed injuriously to the owner of the land by tho building of the road.</p>

This was a suit, by Cate, the appellant, against the executor and heirs at law of Joshua Cranor, deceased. The complaint Avas in two paragraphs.

<p>Common Pleas Coukt. — Jurisdiction.—Title to Real Estate. — The common pleas court is not deprived of jurisdiction by reason of the title to real estate being put in issue in a cause commenced in that court, -when it does not appear on the face of the complaint that such question is involved, and no subsequent pleading raising that issue is verified by affidavit.</p> <p>Same. — Mechanic’s Lien — Where the question of title to real estate is incidentally put in issue in the common pleas in a case in which jurisdiction is expressly conferred on that court, as in a suit to enforce a mechanic's lien, the jurisdiction is not thereby ousted.</p> <p>Mechanic's Lien. — Insufficient Notice. — Practice.—In an action to enforce a mechanic’s lien under the statute, the objection that the notice of the lien filed in the recorder’s office does not contain a sufficient description of the property against which the lien is sought, is not raised by demurrer to the complaint, but by motion to strike put that part of the complaint relating to the lien.</p> <p>Same. — Pleading.— Complaint. — The question of the indebtedness and of tho right to tho lion are properly presented in the same paragraph of the complaint.</p> <p>Depositions. — Parties.—Where a party to a suit is a competent -witness, his deposition may be taken under tho rules governing the taking of the depositions of other witnesses.</p>

<p>Conveyance to Husband and Wife.— Common Law. — At common law, if a conveyance of real estate is made to a man and his wife, they are not joint tenants or tenants in common, but both are seized of the entirety, per tout, and not per my. Neither can dispose of any part of the estate without the assent of the other, but the whole must remain to the survivor.</p> <p>Same. — Statute.—Such was the law under the act of January 2d, 1818 (Rev. Stat. 1838, 398), and such is the law under the statutes of 1852 (1 G. & H. 259, secs. 7, 8).</p>

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

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

<p>Board of County Commissioners. — Appeal from. — Turnpikes.—Application to the board of connty commissioners for permission to organize an association and construct a gravel road, under the act of 1865 (Keg. Scss. p. 90). A paper called a defense was filed by persons alleged therein to be owners of land which would bo subject to bo taxed lor the construction of the proposed road, urging objections to the application. The application was granted. Appeal to the circuit court, wlierc, on motion of the appellees, the appeal was dismissed.</p> <p>Held, that an appeal might have been taken under section 31, 1 G. & II. 253, by filing with the county auditor an affidavit as required by that section; but,</p> <p>Held, also, that as it did not appear that any such affidavit was filed, or that the persons taking the appeal were, in a legal sense parties to the proceedings before the commissioners, the appeal was proper]y dismissed.</p> <p>Query, whether the commissioners might admit persons having an interest in the subject of the application to make themselves parties defendants, upon proper petition verified by affidavit.</p>

<p>Will. — Trust.—Bequest by J., “that my son S. shall receive of my estate the sum of $200, to be paid him at the .death of my wife, provided my wife shall outlive me; which said $200 it is my wish my son S. shall add to the advancement he may make to his son R., when R. comes of age.”</p> <p>Held, that the bequest created a trust in favor of R., and that the legacy, received by S., on the death of J.’s wife, from the executor of J., was to go to R., on his arriving at majority, whether his father made any advancement to him or not.</p> <p>Decedents’ Estates.— Witness. — On the trial of a claim against a decedent’s estate for the amount of a legacy received by the decedent in his lifetime, in trust for the claimant, the plaintiff is not a competent witness, unless called by the adverse party or by the court.</p>

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

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

<p>, Railroads. — Injury to Animals. — Statute Construed. — The act to provide compensation to the owners of animals killed or injured by the cars, &c. (Acta 1863, p. 25), does not apply when the killing or injury occurs at a point at which the road cannot be legally fenced in.</p> <p>Same. — Pleading.—The fact that the company is not bound to fence at tho place where the killing or injury occurs is purely a matter of defense, and need not be negatived in the complaint.</p> <p>Same. — Pleading.—Evidence.—Animals killed or injured at different times constitute separate and distinct causes of action, each of which should he stated in a separate paragraph of the complaint; and where the complaint indicates but one. cause of action, the plaintiff should be confined, in his evidence, to a singlo transaction.</p> <p>Same. — Jurisdiction.—Two or more causes of action cannot be united in the same suit for the purpose of giving the Circuit or Common Pleas Court jurisdiction, which is wanting when the value of the animal or animals killed, or the injury done, at the same time, does not exceed fifty dollars.</p>

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

<p>Process. — Revenue Stamps. — It was not necessary in a suit commenced September 20th, 1867, that the process should he stamped with a revenue stamp.</p>

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

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

This was a suit by Piel, the appellant, against Brayer, Sehwier, and Brandt. The complaint, which was filed on the 23d of May, 1866, alleges, inter alia, that the plaintiff, on-the 25th of November, 1857, executed to the defendant Brayer a note for one thousand six hundred dollars, payable one year after date, with interest, and without .relief from valuation or appraisement laws.

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

<p>Fraud. — Pleading.—The general allegation of fraud is not of itself sufficient to raise such an issue. The facts — the act3 and circumstances — which constitute the fraud must bo alleged.</p> <p>Same.— Weakness of Mind. — If a party be compos mentis, mete weakness or feebleness of mind does not render him incapable of making a contract, but may become a controlling circumstance, when connected with other facts tending to establish fraud, in giving character to the transaction, and ren- •» dcring it fraudulent; but to make a pleading good for that purpose, the indicia of fraud must be alleged.</p> <p>Evidence.— Unsoundness of Mind. — A witness testified that ho had been acquainted with the plaintiff for several years, and said, 111 think her mind was rather weak at the time of making the contract, but was improving. I did not think her mind was sufficient for mo to contract with her.”</p> <p>Held, that this did not prove that the plaintiff was of unsound mind.</p>

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

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

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

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

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

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

<p>Location or Highways. — Supervisor.—Trespass.—Trespass for entering the enclosed land of the plaintiff and removing fences. Answer, justifying the entry and the removal of the fences under an order of the board of county commissioners locating and establishing a' township road.</p> <p>Held, that the answer was bad for failing to aver that the supervisor gave the occupant of the land sixty days notice in writing to remove his fence.</p> <p>Sajín.— Order of Location. — Description of Highway. — In a proceeding for the location of a highway, the final order of the board of commissioners was as follows: “And the board, having duly examined and considered said report, accept and approve the same, and it is now here ordered that said road be, and the same is hereby located to the width of twenty-five feet.” The beginning, terminus, course, and distance of the road were described in the petition.</p> <p>Held, that the order was sufficiently definite.</p> <p>New Trial. — Excessive Damages. — The Supreme Court will not consider the question of excessive damages if it be not embraced in a motion for a new trial.</p>

The appellee sued the appellant in the Johnson Common Pleas for the value of stock killed on the track of the appellant at different times by passing trains. Various paragraphs of the complaint charging the defendant with negligence were dismissed.

<p>New Trial. — Misconduct of Jury. — That the finding of a jury should be reached without its members being- exposed to improper influences is essential, in order to give any value to the verdict; and where, by reason of an irregularity on the part of the jury there can be no certainty that the verdict has not been improperly influenced, there should bo a new trial.</p> <p>Same. — Separation of Jury. — Where the jury had retired to consider of their verdict, and, without the consent of the defendant or the permission of the court, about eleven o’clock at night, they agreed to return as a finding, that they agreed to disagree, and sealed up the same and disbanded (having informed the bailiff that they had agreed upon a finding and sealed it up, and the bailiff, acting in good faith, having permitted them to go to their homes); and they did not meet again until the hour of eight the next morning, when they destroyed the finding agreed upon, and brought into court a general and special verdict against the defendant;</p> <p>Held, that a motion for a new trial by the defendant, assigning this misconduct of the jury for cause, should have been sustained.</p>

<p>Moktgage. — Redemption.—A mortgage of real estate executed and recorded after a decree of foreclosure on a former mortgage, but before sale under such decree, does not give the junior mortgagee the right to redeem.</p> <p>Same. — Suit by a junior mortgagee to redeem the mortgaged premises from a sale under a decree of foreclosure on a prior mortgage, to which decree the junior mortgagee, whoso mortgage was unrecorded, was not a party. The complaint did not aver that the holder of the senior mortgage had notice of the unrecorded mortgage, or that the purchaser had such notice.</p> <p>Held, that the complaint was bad on demurrer.</p>

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

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

<p>APPEAL from tho Po'rter Circuit Court.</p>

<p>Decedents’ Estates.— Claims. — The statement of a claim filed against a dece- • dent’s estate consisted of a copy of a note given by the decedent to 'the claimant, and was accompanied by an affidavit ns required by the statute. Held, that the statement was sufficient.</p>

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

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

<p>Descents.— Widow's Distributive Share. — A widow’s share in the personal property left for distribution on the settlement of the estate of her deceased husband is the same whether she be the widow of a first or any subsequent marriage.</p>

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

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

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

Suit by Anderson as administrator of Abraham II. Sears, against Stevens, the appellant. The complaint was originally in five paragraphs, but demurrers were sustained to the first, second, and third para-, graphs, and no question is presented on them in this court.

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

<p>APPEAL from tho Henry Circuit Court.</p>

<p>Pleading. — Justification.—An answer setting up matter in justification of acts therein mentioned, but not indicating the acts justified as the acts complained of, is bad on demurrer, but may be good as an affidavit against a temporary restraining order.</p> <p>Trespass. — License.—One in whom is vested the legal title in fee in trust for himself and others cannot maintain trespass against a person whom hfe has himself licensed to do the acts complained of.</p> <p>Waste. — Tenants in Common. — One tenant in common may be liable to his co-tenant for waste.</p> <p>Same. — Pleading.—An averment in a complaint, that the trees cut, “as a part of the inheritance to which they attached, arc not capable of being valued,” is not an allegation that the land has been diminished in value as an inheritance.</p> <p>Same. — Common Law. — The common law doctrine that the cutting of standing trees is waste, does not apply to the members of a band of Indians in the use of a large tract of wild land in this State granted to them by the United States.</p> <p>Indian Reservation.— Ultimate Title. — A reservation of land in an Indian treaty of cession simply secures to those in whose favor the reservation is made a continuation of the right of occupancy in the land reserved, while the ultimate title remains in the United States, as before the treaty.</p> <p>Practice. — Supreme Court.— It will be presumed by the Supremo Court, nothing appearing to the contrary, that the court below tried the cause on the theories of the law as ruled on demurrers in making up the issues.</p>

Polley purchased of Wood a lot of fat cattle, designed to be shipped and sold in the city of Yew York. By the terms of the contract, Wood was to keep the cattle for one or two weeks, during which time he was to feed them carefully and take proper care of them and keep them in good condition for shipment, and at the expiration of the time, they were to he weighed and then received and paid for by Polley at the rate of eight cents per pound, gross weight.

<p>Practice. — Supreme Court. — Motion for Mew Trial. — A party making a motion for a new trial is bound by the reasons assigned therein, as shown by the record, and can urge no others in the Supreme Court.</p> <p>Same. — Judgment.—Form of. — The form of a judgment cannot be questioned in the Supreme Court, if not excepted to in the court below.</p>

Suit for partition, &c. In 1866, Patrick Lynch died at Cass county, Indiana, testate, seized of the real estate desBcribed in. the complaint, of the probable value of fifteen hundred dollars. He died without issue, and did not leave surviving either father or mother, but left a brother and sisters, whose names arc alleged to be unknown, and also Nancy Lynch, bis widow, who is the appellant.

<p>APPEAL from the Marion Civil Circuit Court.</p> <p>Mary Gilmore and Daniel, her husband, sued tho city of Indianapolis, William II. Craft, treasurer of said city, ML-hael O’Connor, and Thomas Dorsey.</p> <p>The complaint is fully set out in the opinion.</p> <p>A demurrer to the complaint by O'Connor and Dorsey having boon overruled and exception taken, these defendants answered in two paragraphs: first, the general denial; second, that tho common council of said city, on the 16th of April, 1866, passed an ordinance providing for the grading and graveling of Stevens street and the sidewalks thereof; that the contract’ for said grading and graveling was let to these defendants; that they did said work in pursuance of said contract, with the knowledge and consent of the plaintiffs, and by the plaintiffs’ direction.</p> <p>The city answered: first, the general denial; second, that the assessment was duly made by the authorities of the city, for the improvement of said street under an ordinance duly and properly passed, and under and by direction of the plaintiffs, and in accordance with the plaintiffs’ instructions; third, that the street was improved under the provisions of the general law for the incorporation of cities; that no injunction was asked or obtained prior to the making of said contract for said improvement, but the plaintiffs suffered and permitted said street to be improved by grading and graveling, and made no objection to said improvement until after the work was completed.</p> <p>The plaintiffs replied by the general denial to the second paragraph of the answer of O’Connor and Dorsey, and to the second paragraph of the city’s answer; and demurred to the third paragraph of the city’s answer. The demurrer was sustained, and exception taken.</p> <p>The city treasurer made no appearance, and was defaulted.</p> <p>Trial by the court; finding for the plaintiffs — that Mary Gilmore owned and was entitled to the possession of said lot; that the city of Indianapolis and O’Connor and Dorsey did wrongfully enter upon said premises and seize and take possession of a portion thereof and dig down and grade the same as a street, and exclude the plaintiffs therefrom; that an estimate .had issued against said Mary to collect that portion of the cost of said street improvement assessed against said lot, and was, at the time of bringing this suit, in the hands of the defendant, ■ the treasurer of said city, who was then about to sell' said lot thereon; and that said estimate and precept were illegal. Decree, that said Mary do recover the possession of that portion of said lot so wrongfully taken by defendants, to-wit, &e.; that the sheriff execute this order; that all proceedings under said, estimate and the precept for the collection thereof be forever restrained and enjoined; and that the plaintiffs recover their costs from the defendants.</p> <p>Separate motions for a new trial were- filed by the city and the contractors, which were overruled, and the rulings excepted to.</p>

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

<p>Landlord and Tenant.— Tenancy from Year to Year. — A. tenancy in which the premises are occupied by the assent of the landlord without any written or definite verbal agreement, the tenant paying the taxes and such other rent as the landlord requires, is, under our statute, a tenancy from year to year.</p> <p>Same. — Parol Contract. — A tenant from year to year by parol may by parol convey or surrender his right of possession.</p>

<p>Sheriff. — Different Executions Against the Same Person. — Of two executions in the hands of a sheriff in favor of different judgment plaintiffs against the samo judgment defendant, it is the officer’s duty, if not otherwise directed, to first levy the one first placed in his hands; and if he has failed to do his duty, hy levying and collecting the later execution and paying over the money, leaving the former one unsatisfied, it is no defense to a suit against him and the sureties on his official bond for his failure to levy and collect the other execution, that the execution defendant had at the time the same was issued and still has sufficient property to satisfy it.</p> <p>Practice. — Failure to Reply. — The failure to reply to an answer which states no facts constituting a defense is not a cause for the reversal of a judgment.</p>

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

<p>Practice. — Instructions to Jury. — Record.—Where instructions are in writing signed by the judge, they become a part of the record, and exceptions may be entered in writing upon the margin, “given and accepted to,” or “refused and excepted to,” signed by counsel; but whore they are not signed by the judge, they can only be made a part of the record by bill of exceptions.</p> <p>Same. — Motion for New Trial. — Amount of Recovery. — If, in an action on a promise to pay, the motion for a new trial does not specify the'fifth statutory cause, no question as to the amount of tho verdict is presented.</p> <p>Trusts and Trustees. — Lost Writing. — Evidence.—At a regularly organized public meeting of the citizens of a township, called and held to raise money, volunteers, and substitutes, for the purpose of relieving the township of an impending draft for soldiers, various citizens agreed, each for himself, to pay divers sums for such purpose, and among them A., who was subject to the draft, promised to pay a certain sum on condition tho township should beso relieved; if not, the money to be refunded. By tho aid of tho money so raised and promises so made, or by such money, promises, and otherwise, tho township was relieved. Certain citizens were appointed by the meeting, to collect and receipt for the money so paid and promised, and to apply the same so as to effect the release of the township; and they collected the several amounts and so applied them, to the satisfaction of the promisors, including A, except the sum promised by A., who refused to pay on their demand.</p> <p>Held, that the persons so appointed were trustees of an express trust, and entitled to sue on the promise of A.</p> <p>Held, also, that the minutes of the meeting being lost, it was proper to introduce parol evidence of their contents; and the memorandum kept by the clerk of the meeting, of the names and the amounts pledged, was only a part of the minutes.</p>

<p>_ APPEAL from the Elkhart Circuit Court.</p>

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

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

<p>New Trial. — As of Eight. — In an action to recover real properly a new trial was granted the defendant upon condition of the payment of costs in sixty days. After the sixty days, but within one year after judgment, ho paid the costs and moved for a now trial. The judge having been of counsel, the motion was sot down for hearing before another judge, and the order for a now trial was made after the expiration of the year.</p> <p>Held, that the court could only make the order upon the payment of the costs, and, the costs not having been paid, the first order amounted to nothing-.</p> <p>Held, also, that the defendant, having entered his motion and paid the costs within the time fixed by laiv, thus secured the right to have a new trial, of which right the- delay of the court could not deprive him.</p> <p>Conveyance to Husband and Wife. — Where laud'is convoyed in foe to a man and his wife, upon the death of either the land vests in the other in foe by right of survivorship.</p> <p>Estoppel. — Judgment.—Process.—In a proceeding for partition of real estate in the Probate Court, in 1848, a subpoena in chancery was issued August 21st, served August 24th, and judgment was taken by default September 22d. The complaint was at law (the court having also chancery powers, the statute requiring service of thirty days in chancery). After the interlocutory order of partition was made and commissioners wore appointed and process was issued to them, the court, on motion, without notice to parties, permitted the petition to be amended by the insertion of other lands, and changed the order and process to agree with the amended petition. The commissioners were not re-sworn. Certain real estate owned in fee by one of the defendants, a married woman, whoso husband was not a party, was set off to her as and for her dower, the remainder not being disposed of.</p> <p>Held, that such married woman was not estopped by this proceeding and judgment from assorting her right to the foe simple of such real estate.</p>

<p>Practice. — Assignment of Error. — New Trial. — If .tlie court trying n cause overrules a motion for a new trial and the moving party excepts, the questions arising on the causes set out in the motion arc saved for the consideration of the Supreme Court; and the assignment as error, that the court below improperly overruled the motion, presents all those questions to the appellate court; but the assignment of the causes as error is not the proper mode of raising any question embraced in the motion.</p> <p>Yendoe ahd Pubchasee. — ■ Vendor’s Lien. — Pleading.—Suit by A. against E, on a promissory note. Answer, that the note wa3 executed in part payment for certain land sold and conveyed by deed Avith full covenants by A. to B.; that A. had purchased the land of C., giving in part payment his two. notes, Avhich were due and unpaid; that before commencement of this action C. had notified B. that he hold a vendor’s lion on the land, Avhich he intended to enforce; that C. had sued and obtained judgment, on one of said two notes, and an execution issued on the judgment had been returned nulla bona; that at'the time of conveyance by A. to B., the latter Avas ignorant of C.’s lien, the existence of Avhich A. falsely and fraudulently concealed; that A. had sold all his real estate, had loft the State, and Avas not a resident thereof; that defendant was informed and beliovcd that plaintiff AvasAvholly insolvent; that ho had not left sufficient property within the jurisdiction of the court to satisfy any judgment which C. had obtained or might obtain against him, or any part thereof; that A. Avas not fully able to respond in damages to B. for any breach of the covenants in his deed; that B. AAras, and always had been, Avilling to pay the note in suit, and then paid the money into court. Prayer, that before the money should bo paid over B. might bo indemnified, '&c. Judgment against B., and the clerk enjoined from paying the money to A. until, &c.</p> <p>Held, that the answer Avas sufficient to entitle the defendant to the relief awarded him, independent of the averment on information and belief of the plaintiff’s insolvency.</p> <p>Held, also, that it was not necessary to set out, as part of the answer, a copy of C.’s judgment, or of the notes executed by A. to C.</p> <p>Held, also, that C. had a right to pursue his remedy on the notes without Avaiving his lion.</p>

<p>Pleading. — Answer.—A paragraph purporting by a set-off to answer an entire complaint for a larger sum is bad on demurrer.</p> <p>Practice. — General and Special Findings. — Where a special finding does not conflict with the general finding, this court, in the absonce of the evidence, will presume that the general finding is correct.</p>

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

<p>Principal and Surety. — Pleading.—In a suit on a promissory note by A., the payee, against B. and C., the makers, each of the defendants answered that ho executed the note as surety of the other.</p> <p>Held, where the parties went to trial as if they regarded the issue made, that such answers-formed a sufficient issue between the makers, neither of whom could claim on appeal that his suretyship was confessed by the other.</p> <p>Same. — Evidence.—B. testified that he executed the note, intending thereby to bo bound only as the surety of 0., but A. and O. testified that they did not so understand it, and the previous negotiationstended strongly to show that they could not well have so supposed, and that if such wa3 B.’s intention it was not made known.</p> <p>Held, that this court could not, upon such evidence, interfere with a judgment against B. as a principal.</p>

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

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

<p>Vendor and Purchaser. — Incumbrances.—Notice.— Notice to the purchaser of real estate at the time of purchase that his vendor owes any part of the purchase money, is sufficient to put such purchaser upon inquiry as to the amount unpaid and the condition thereof as to security.</p> <p>Same. — A. sold and conveyed certain real estate to B., and took his notes for the purchase money, and a mortgage on the land to secure the same. Before the mortgage was recorded, but after the time limited therefor, B., still owing the entire purchase money, sold and conveyed the land to 0., who at the time of his purchase had notice that there was due from B. to A. unpaid purchase money to a certain amount, being only a part of the actual amount, but had no notice of the mortgage.</p> <p>Held, that O. could not be considered a purchaser in good faith without notice of the mortgage.</p> <p>Query. — Whore a purchaser, who has taken a conveyance and paid part of the purchase money in good faith, receives actual notice, before all the purchase money has been paid, of such a prior outstanding unrecorded mortgage, does the land thereby become chargeable in his hands for the whole amount due on the mortgage? And is there a distinction in this respect between a prior mortgage or other mere money incumbrance, and a prior legal or equitable title to the estate itself?</p> <p>Query. — Does the vendor of real estate, by taking a mortgage thereon to secure unpaid purchase money, waive his implied equitable lien?</p>

<p>Practice. — Instructions to Jury. — A party having- required the court to give the instructions to the jury in writing, the judg-o repeated orally a part of one of the charges, and in reading- another charge remarked orally that ho had not intended to read so far, and then re-read the charge as ho intended to give it.</p> <p>Held, that this was not a violation of the provision of the code, that all instructions shall bo in writing if required by either party.</p> <p>Sunday.— Common Labor. — Contract.—Whore persons enter into a contract to be performed on Sunday by common labor, such contract, as to its performance on Sunday, is illegal and void.</p> <p>Sam.— Work of Necessity. — The delivery of a quantity of flour on board a steamboat on Sunday in order to avoid the liability of delay in getting it to market occasioned by danger of the closing of navigation, is not a work of necessity.</p>

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

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

Suit by the appellees against the appellants and others for partition of the lands of Solomon Hushaw, deceased, of whom the plaintiffs and defendants were tbe heirs at law.

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

17. That Thomas M. Browne be allowed the sum of fifteen hundred dollars, for services as attorney .to tbe Morgan Raid Commission, by appointment from Governor Baker, as provided for in the concurrent resolutions of the General Assembly of tho State of Indiana, for the year 1867;” that on the 24th day of May, 1869, the plaintiff, said Thomas M. Browne, demanded of tho defendant, John I).