Volume 31 — Indiana Reports

This was a petition by Pearson, as administrator de bonis non of the estate of Reuben Simpson, deceased, praying an order for the sale of certain lands in Lawrence county, Indiana, for the payment of the debts of the decedent.

This was a suit by the appellees against the .appellants to enjoin the collection of taxes assessed against the plaintiffs for the construction of a turnpike under the act of March 6th, 1865. The substantial averments of the complaint are set forth in the opinion. The defendants answei^ed in three pax’agraphs: First, the general denial.

<p>New Tkial.—As of Right.—The form of the issues in an action to quiet title to real property cannot abridge the right of the losing party to have a new trial on the payment of costs as provided by section 601 of the code.</p> <p>Same.—In a suit to quiet title to real property, there was a finding for the defendant upon a cross complaint.</p> <p>Held, that the plaintiff was entitled to a new trial on the payment of costs.</p> <p>Repeal oe Laws.—Inchoate Rights.—Inchoate rights generally, derived from a statute, are lost by its repeal, unless saved by express words in the repealing statute.</p> <p>Same.'—Redemption.—School Lands.—A purchaser of school lands having made default in the payment of interest on purchase money, the lands were re-Bold. By the law in force at the time of his purchase, a defaulting purchaser had a right to redeem within one year after sale; by that in force at the time of the sale, and at the time' of the default, a delinquent purchaser could redeem at any time before sale, but not after.</p> <p>Held, that the right to redeem was goTerncd by the latter law.</p>

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

<p>Pleading.—General Denial,—The answer .of general denial, under the code, merely puts in issue such of the averments of the complaint as;the plaintiff is bound to prove in order to maintain his action; it does not controvert redundant allegations.</p> <p>Common Carrier.—-Express Company.—Delivery.—An express carrier’s duty to-deliver to the consignee in person and the consignee’s duty to receive are reciprocal. The consignee cannot, by design, or to- promote his- convenience; take away the right of the carrier to terminate, by delivery, the- liability as insurer within a reasonable time.</p> <p>Same.—Absence of Consiynee.—Whore the consignee has notice of the arrival', and the carrier is ready to deliver, but is prevented by the eonsi'gneo’s absence, required by his interests, convenience, or pleasure, then the liability as carrier ends, and thenceforward the liability is for such reasonable care of the property as prudence requires.</p> <p>Same.—Suit against an express company, to recover the value of a package of U. S. bonds entrusted by plaintiff to defendant, to be carried from X. to W., consigned to plaintiff, lost by the negligence of defendant, and not delivered to plaintiff. Answer, that defendant kept an agent and office at W., and plaintiff resided there; that W. was a small village to which-valuable packages were seldom sent, the express business of defendant at that point being so small as not to require or justify defendant to keep an iron safe, and none was kept there by defendant; of all which plaintiff had notice;, that when the package was delivered by plaintiff to defendant at I., the former well-know that by due course of transmission it would arrive at W- at noon on a certain day, at which hour it did arrive safe, and was ready for delivery to plaintiff, who was absent from home during all that day and had no agent there, so that delivery to him in person could not be made on that day during business hours, though defendant was then ready to make such delivery; that defendant afterwards, on that day, deposited said package in a good and secure iron safe of one IT., reputed to be a respectable and responsible merchant of the village, and caused the safe to be securely locked, said safe being the most secure place of deposit in the village; that on that night the safe was robbed by burglars, and the bonds stolen, wherefore it became impossible to deliver.</p> <p>Meld, that the answer showed that the liability of the defendant as carrier had ended when the package was lost, and that the defendant exercised reasonable care as bailee after the termination of such liability.</p>

Suit by Ereelove McAlister and her husband, James Mc-Alister, Joanna Breedlove and her husband, Thomas J. Breedlove, said Ereelove and' Joanna being daughters of John Butterfield, Sen., deceased, against John íí.

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

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

This was a complaint against the appellants by Rebecca A. Dodge, claiming title, as the widow of Nathan B. Dodge, deceased, to an undivided third part of certain real estate. Issues were formed, and the cause was submitted to the court for trial.

<p>Principal and Surety.—Extension of Time.— Contract.—An oral agreement by tbe payee of a promisory note with the principal maker, without the knowledge or consent of the surety whose suretyship is known to the payee, to extend the time of payment during a definite period beyond the maturity of the paper, is valid, and releases the surety, if founded upon a sufficient consideration.</p> <p>Same.— Consideration.—Interest.—The oral agreement of the principal debtor to pay merely the same interest that the note would have borne if the indulgence had been given voluntarily, is a sufficient consideration for such a promise of forbearance.</p>

<p>Practice.— Weight of Evidence.—AVhore fliers is a conflict i u the testimony, this court will not reverse a judgment on tlie weight of the evidence.</p> <p>Convey arce.— Consideration.—A deed of conveyance of real estate is good between the parties thereto without any consideration.</p> <p>Voluntary Conveyance.—Trust.—Where a husband voluntarily conveys real estate to his wife, or a father to his child, no trust arises in his favor, but the presumption is that the conveyance is intended as a provision or advancement. This presumption is not conclusive. The onus of removing it is upon him who insists that a trust exists.</p> <p>Same..—Marriage.■—The owner in fee of certain real estate conveyed the same in fee, his wife joining in the deed, to his brother, who, having received the title for such purpose, immediately conveyed in fee to the wife and minor daughter of the original grantor. Both deeds were voluntary, the former expressing a consideration in a certain sum, the latter none. After the deeds were recorded, the daughter intermarried with one who had knowledge of the deeds and believed her to be the lawful owner of the land so conveyed to her. The daughter died, leaving one child, the only issue of such marriage; and the child died, leaving its father its sole heir at law.</p> <p>Held, in a suit by the surviving father of such child for partition, the original grantor still retaining possession, that no trkst resulted to such grantor under the deeds.</p> <p>Held, also, that the marriage of the daughter made her a purchaser for a valuable consideration, and it would be a fraud upon her husband to withdraw the estate passed to her.</p> <p>Held, also, that the plaintiff was entitled to possession of the land so conveyed to said daughter.</p>

<p>Promissory Note.—Pleading.—Bastardy.—It is not a good defense to a suit upon a promissory note given in compromise of a prosecution against the maker for bastardy, “that it was understood that if the child should be born too soon, or the circumstances would not make out a case of bastardy, the note was to bo delivered up, and that the child was born eight months from the time the defendant first met the prosecuting witness;” nor is it a good answer, “that the defendant has since learned that ho could prove ho was not the father, but could not make such proof at the date of the compromise.”</p> <p>Same.—Party Plaintiff.—It is not necessary that the plaintiff in a suit upon a promissory note should be the legal owner thereof;—it is sufficient if he is the equitable owner.</p> <p>Pleadikg.— Written Instrument.—Where a defense is founded upon a written agreement, the instrument should be set out.</p>

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

<p>'Fugitive from Justice.—Appeal.—No appeal by the State to the Supreme Court lies from the ruling of a judge discharging from arrest a prisoner brought before him for examination as provided by the act of March 9th, 1SG? (Acts 186T, p. 126), “to regulate the arrest and surrender of fugi- ' tives from justice from other states and territories.’"</p>

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

<p>Descekt.—Surviving Second Wife without Children.—Where a ¡mandies, leaving surviving Slim a widow, a second or other subsequent wife by whom ho lias no children, and children by a previous wife, the widow, as against creditors, takes the same share of liis real estate, by descent, in fee simple, as if a first wife.; and at her death this fee simple descends to her said husband’s children free from the -demands of his -creditors.</p>

<p>Criminal Law.—Indictment.—Where a statute in a criminal case is not to he taken in the broad meaning of the words used, but to bo limited by construction to a special subj ect or matter, it is proper that an indictment thereunder . should not charge the crime in the language of the statute simply, but should limit the case and bring it within the construction placed upon the statute.</p> <p>Same.—Trespass to Land.—An indictment, under section 14, 2' G. & II. 402, for removing a quantity of valuable gravel from the land of another, should show the property removed to have been a part of the realty.</p> <p>Same.— Construction of Statute.— Words.—The words “remove from” in this section have not a technical meaning authorizing, in such a case, the implying of an averment that the thing removed was a part of the realty.</p>

<p>Estoeebii in Pais.—Whore an act is done or a statement made by a person, which cannot be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what would otherwise be mere evidence; the estoppel being limited within such bounds as are sufficient to put those who have dealt on the faith of appearances that turn out to be incorrect in the same position with reference to the author of such appearances as if they were true.</p> <p>Same.—Principal and Surety.—Bond.—When a bond has been signed and delivered to the principal obligor by a surety, upon the condition that others, not named in the instrument, shall sign before it is delivered to the obligee, and it is delivered without such signatures being obtained, and received by the obligee without notice of such condition or circumstances which should put him upon inquiry, the condition imposed will not avail the surety. This is not a question of the power of the principal to deliver the bond in its apparently perfect condition, but simply a question of estoppel.</p> <p>Same.—Blanks.—-A surety signing and delivering to the principal obligor at bond before the names of the sureties have been inserted in the body of the instrument will be held as agreeing that the blank for such names may be filled after ho has executed it.</p> <p>Same.—Signing after Forged Signature.—A surety signed a county treasurer’s official bond, at the request of the principal obligor, after the signatures of other sureties, without reading it, or hearing it read, or asking what it was, upon being told by the principal that it was a comity paper.</p> <p>Held, that such surety was not released by the fact that one of the signatures before his was forged.</p> <p>Agenoy.— Official Bond.—The principal obligor in a county treasurer's official bond is not the agent of the board of county commissioners in procuring its execution.</p>

<p>Criminal Law.—Forgery.—Indictment.—Ail indictment for defacing and destroying a promissory note, in which it is alleged, as an excuse for not setting forth the tenor of the note, that it was destroyed by the defendant, must state its substance and effect.</p> <p>Same.—-An indictment for defacing- and destroying a promissory note must show whether the note was for the payment of money or property.</p>

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

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

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

<p>Married Womak.— Contract.—Our statutes do not change the rule of the common law, so far as it applies to the contracts at large of a married woman, that she is incapable of binding herself by an executory contract, and that all such contracts made by her, whether in writing or by parol, are absolutely void at law.</p> <p>Same.—Promissory Note.—A married woman carrying on a business in her own name and living with her husband, whom by a written instrument she had made her agent to manage her business, borrowed for her own use a sum of money, which was delivered to her personally, for which she and her husband executed a promissory' note, the payee relying on her for its payment.</p> <p>Held, in a suit on the note, after the woman had been divorced from her said husband and while she was still unmarried, that she was not personally liable on the note.</p>

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

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

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

<p>Dceess.—Pleading.—An answer setting up coercion mustaxeartho facts constituting it.</p> <p>Same.—Husband and Wife.-—Much less force or putting in fear by a husband will amount to coercion which will avoid the deed of his wife than would be necessary coming from a stranger.</p> <p>Same.— Wife's Separate Property.—Mortgage.—Suit upon a note payable in bank'and a mortgage to secure the same, executed by husband and wife and assigned to the plaintiff. Answer by the wife, showing that the note and mortgage wore given for the debt of the husband, and that the land mortgaged was the separate property of the wife, and averring, “that she was induced by the persuasions of said payee and the coercion of her said husband to execute said note and mortgage.”</p> <p>Held, that the answer was bad on demurrer.</p>

Suit by the appellee against Cheek and Arnold. The complaint alleges, that Cheek, as clerk of Dearborn county, on the 15th of February, 1864, contracted with the apjjellee to act as his deputy, their contract being set forth in a certain writing, as follows:— “State of Indiana, Dearborn County, Set. “I, John E. Cheek, clerk of the courts of Dearborn county, Indiana, do hereby constitute and appoint William Wirt Tilley my deputy during my term of office, his compensation to…

<p>Railroad.—Fences.—Where a railroad passes upon an embankment erected in the bed of a canal, such embankment must bo guarded by fences.</p>

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

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

The appellee filed his complaint, consisting of two paragraphs, against the appellant. The first paragraph is an ordinary statutory count for goods sold and delivered, with a bill of particulars.

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

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

<p>Jurisdiction.— Collateral Proceeding.--It is well settled, that the proceedings of courts of inferior jurisdiction will bo deemed of no validity unless their jurisdiction is affirmatively shown.</p> <p>Practice.—Supreme Court.—This court will not, ordinarily, reverse a correct judgment merely because the court below may have acted upon a bad reason.</p>

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

<p>PartiesDecedents’ Estates.-—The heirs at law of a decedent against whose, estate it appears there exist any debts cannot maintain an action for money due the estate.</p> <p>Same.—Suit by the heirs at law of A. against the administrator of B., to recover money collected by B. in his lifetime, as attorney of A. The complaint alleged, that, in the same year that A. died, an administrator of his estate was appointed, who six years afterwards resigned his trust; that no assets over came to his hands; that no claims against A’s estate were ever filed in court; that no other administrator of A.’s estate was ever appointed; that the widow of A. paid all the claims that were presented or that she know existed against his estate, and fully administered the same, years before.</p> <p>Held, that these plaintiffs could not maintain the action.</p> <p>Interest.—Money Collected by Attorney.—Demand.— Conversion.—An attorney is not liable for interest on money collected by him, until demand made by the party entitled to receive it, or until a wrongful conversion.</p>

<p>Pleadikg.—Decedents' Estates.— Promissory Note.—Abatement.—Where the assignee'of axiromissory note, to whom it has been indorsed in blank by the payee, dies, intestate, and, there being no administration upon his estate, his widow, the note not having been made her property, assigns and indorses it in blank, and, the intestate having been largely indebted at the time of his death, his debts remain unpaid; or where, in addition to these facts, the maker holds a claim against the estate of the decedent, which in a suit by his administrator would bo a proper set-off; in an action against the maker by one to whom the assignee of the widow has indorsed the note in blank, upon the note as if indorsed by the payee to the plaintiff, an answer, verified by affidavit, setting forth these facts and praying that the suit abate is good on demurrer.</p> <p>Same,—General Denial.—An answer of general denial not sworn to would not, under our code, put the plaintiff upon proof of the genuineness of the indorsement as shown by the complaint, or admit evidence of the facts se.t up in such answer in abatement.</p>

<p>Contract.— Practice.— Parties.-■Written.agreement as follows: “Whereas:--^ there is an action now pending in tlie Bartholomew Common Pleas Courts,153 wherein A. is plaintiff and the undersigned'md others are defendants*. wherein said A. sues for money expended by said A. at their request in obtaining recruits under a call made by the President of the United States; and whereas the undersigned are desirous of compromising said cause and paying to said A. whatever sum may bo found due him; and whereas B., C., and D. are trying to compromise said cause and ascertain the sum due to said A., in order to pay the same to him; now, therefore, we, the undersigned, agree to and with said B., C., and D. that if they should compromise said cause and ascertain the amount due to said A., upon any compromise they may make, to pay to said parties or to said A. the proportional interest due from each of the undersigned as the ascertained amount due to said A.; and should said B., C., and D. agree upon the amount due to said A. and pay the same to him, or in any way satisfy the same, each of the undersigned promise and agree to pay to him the proportional amount due from them, and severally promise to pay their several proportions of said amount that may have been so paid to said A., without relief from valuation or appraisement laws, and agree to indemnify them against all loss .or damage in any way in making said compromise; and said B., C., and D. :are left to compromise said causo in such manner as they may think best.” ¡'Suit on this agreement against the signers thereof by B., C., and D., alleging a compromise by them with A. by giving him their note for a certain sum, which B. had paid with his own funds, &c.</p> <p>.■Held, that the defendants were properly joined in the same action.</p> <p>¡Release.—The fact that defendant E. paid a certain portion of a judg.ment against the plaintiffs on said note, and defendants E. and F. became ; replevin bail on such judgment, upon the agreement of B. to release E. and F. from liability upon the contract in suit, was a good defense as to E. and F., but not available as to the other defendants.</p> <p>; Same.—The release by the plaintiffs of any one originally liable in the action pending when the written contract was made, but not a party to such contract, could not avail as a defense to this action.</p> <p>.Parol Evidence.— Contradiction of Written Contract.—It could not bo set up in defense to such suit on said agreement that there were other parties defendants in said action by A. than those who signed the agreement, and that plaintiffs agreed to get all said defendants to sign it, and failing to do so the agreement was to be void, and that it was upon that express condition it was delivered to plaintiffs. .</p> <p>¡.Pleading.—Partial Defense.—Answers by certain of the defendants alleging that the indebtedness, to compromise which the contract in suit was executed, was one in which the plaintiffs were equally involved with the defendants, and pleading certain payments made by these defendants, and asking that they might be considercd.in fixing the final liability.</p> <p>Held, that the answers were good to the extent and purpose for which they were pleaded. .</p> <p>Compromise.—Doubtful Question of Law.-—Answer by one of the defendants that there, was a doubtful questiomofilaw us to.his. liability ..under, the. contract in suit, and that a compromise was therefore made and a less sum given in discharge of a greater liability.</p> <p>Held, that the answer was bad.</p>

<p>Widow.—Partition.— Statute Construed.—Where in an action for partition there are several tracts of land in which a widow is entitled to an estate for life or in fee simple, and there are tenants in common with her in all or any part of such lands, the act of March 5th, 1859 (2 G-. & H. 361), does not give her the absolute right to have her interest in several tracts located in a body, selected by her, on one of them, but confers on the commissioners acting under the direction of the court the power, where she has made such selection, to sot over to her the tract so selected, if they deem it just and proper to do so. The tenants in common in the several tracts, in lieu of her interest in which she makes such selection, must be the same, and each one’s interest must bear the same relative proportion in each tract to tho interests of the other tenants.</p> <p>Same.—Estoppel.— Vendor and Purchaser.—An administrator, under an order of court granted upon a proper petition in which it was stated that the decedent left a widow surviving- him, sold a certain lot, being- one of two tracts of land of which tho decedent was seized in fee simple at his death, for the payment of the debts of the decedent. After tho payment of the debts, tho widow, with knowledge of all the facts, received tho residue of the proceeds of tho salo, as a part of the three hundred dollars to which she was entitled, under the statute, as against heirs and creditors.</p> <p>Held, that tho widow was not estopped from claiming her share, as against creditors, of tho real estate so sold.</p> <p>Held, also, that tho purchaser at such sale or his vendee could not claim to be a purchaser in good faith believing that ho was acquiring an unincumbered title to the entire lot.</p> <p>Held, also, that the widow’s entire interest, as against creditors, in all her husband’s real estate could not be assigned to her in one body, upon her selection, from the other unsold tract in which she as widow was tenant in common with the children and heirs at law of her husband.</p>

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

This.was an action by James II. Arnold, as administrator of James II. Scott, deceased, against the Columbus and Indianapolis Central Railway Company, the appellant, for causing the death of the decedent, an employee of the company. The suit was brought for the benefit of two infant sons of the deceased, who are his only children and heirs at law. The complaint is in two paragraphs.

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

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

<p>Criminal Law.— Change of Venue.—Affidavits.—In a criminal action the defendant moved for a change of venue on account of local excitement and: prejudice, and filed affidavits in support of the motion. Counter affidavits - were filed by the State; and thereupon the defendant moved for leave to.file additional affidavits in support of the application/which the court refused.</p> <p>Held, that as no additional affidavits were offered by the defendant, no question could be raised in the Supreme Court upon this ruling.</p> <p>Same.—Judicial Discretion.— Query, whether the Supreme Court ought, under; any qircumstances, to reverse the ruling of a court refusing to grant a change of venue where the affidavit is founded upon excitement or prejudice in the county against the defendant.</p> <p>Same.—Juror.— Competency.— Previously Formed Opinion.—Rumor.—Newspaper Statements.—On the examination of persons called as jurors to try an indictment for murder, as to their competency, certain ones of the panel answered, that they had formed opinions as to the guilt or innocence of the defendant, from rumor and newspaper statements on that subject. Upon further examination each of said persons answered, that it would require neither more nor less evidence to satisfy him of the existence or non-existence o"f the material facts involved in the case by reason of his so already .formed opinion. The court thereupon overruled the defendant’s challenge “for cause.”</p> <p>Held, that this ruling was correct.</p> <p>■Dying Declarations.— When Admitted.—Where the statements of a per.son are offered in evidence as his dying declarations, the proof must .elearjy show that the declarant was in fact at the very point of death, and .that he was fully conscious of that fact, not as a thing of surmise and conjecture, or apprehension, but as a fixed and inevitable fact.</p> <p>Bame.—It is not required that the deceased should have declared in terms that he expected to die at once, if his condition was such that, of necessity, such an impression must have existed on his mind. On the other hand, no matter how strong the expression of this certainty of death may have been, if there be any evidence of hope in the language or actions of the declarant,his statements will be rejected.</p>

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

<p>Ceimihal Law.—Information.— Uncertainty.—An information in which the district attorney charges the offense, “as he verily believes,” is bad on mo-' tion to quash.</p>

<p>Liquidated Damages.—Where a party covenants for the abstaining from doing, or for the performance of, some particular act or acts which are not measurable by any exact pecuniary standard, and it is agreed that the party. so covenanting shall pay a stipulated sum for a violation of any of such covenants, that sum is to be deemed liquidated damages, and not a penalty.</p> <p>Same.—Bond.—Restraint of Trade.—Liquor Trafic.—Bond for $1,000, conditioned that the obligor should sell no more spirituous or malt liquors or wine, within a county named, after a specified date, or cause the same to bo sold within said county, either directly or indirectly, after the time specified, or manufacture or obtain any spirituous or malt liquors or wine, or cause to be sold, in said county, by himself or any other person, either directly or indirectly, after said date; that he should settle a certain obligation calling for liquors, payable to a third person named, of a certain sum mentioned, so that the liquors should not bo brought to a town named, in said county; and should use his influence to prevent any person or persons from bringing any of the aforesaid liquors to said town with the intention of selling the same within the town.</p> <p>I-Ield, that such a bond is valid in this State.</p> <p>Held, also, that said sum of $1,000 was liquidated damages, and not a penalty.</p> <p>Held, also, that the failure of the obligor to deliver any liquor in fulfilment of his contract with such third person, would not have been a broach of the condition of the bond.</p>

Action by the appellee against the appellant. The complaint was in two paragraphs, a demurrer to each of which was overruled. Au answer of general denial was filed, and the issue thus formed was tried by a jury. Yerdict and judgment for the plaintiff.

<p>Paety Wall.— Contract.—Construction of.—A. purchased of B. a portion of a certain lot, a part of the consideration, as shown by a written agreement between said parties, being that A. promised to build thereon within a short time a first class three story brick building; and it was agreed that one of the walls of the building should be a party-wall, each owning one moiety thereof and giving an equal amount of the ground; and that “whenever B. or his heirs or assigns use said wall by erecting a building on the lot adjoining on the said A.’s, B. or his heirs or assigns putting the joists of their building in said wall, then said A. or liis heirs or assigns is to receive one-half of the actual cost of the building of said wall from B. or his heirs or assigns.” A. complied with his contract by erecting a three story brick building, leaving joist-holes. B. erected a two-story brick building capable of lasting many years, rising the party-wall as one of the walls of his building, but did not insert bis joists therein.</p> <p>Held, in a suit by A. against B. upon the written agreement, to recover one-half the cost of the party-wall, that the use of the wall was the thing contracted for, and that putting the joists into it was only an incident.</p>

<p>Statute oe Limitations.—Reasonableness of Time.—Where a right springs, not from a contract, but from legislative enactment, the action to enforce a claim under such enactment may be limited by law; and the legislature is the exclusive judge of the reasonableness of the time allowed within which tho action may be brought.</p> <p>Same.—Minors.—No exception can be claimed in favor of minors, unless they are expressly mentioned by the statute as excepted.</p> <p>Same.—Descent.— Widow.-—-A man died in 1854, seized in fee simple of certain real estate, leaving surviving him a widow and brothers and sisters, but no child, or father, or mother. Tho widow toot possession of the entire property. Suit for partition, the plaintiffs claiming title to an undivided interest in the land as brothers and sisters of the deceased.</p> <p>Held, that it was a sufficient answer, that before the commencement of the action more than ninety days had elapsed from the 9th of March, 1867, when section 3 of the act of March 4th, 1853 (Acts 1853, p. 55), was repealed and a limitation fixed to tho right of action under its provisions. (Acts 1867, p. 204.)</p>

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

<p>Saee.—Deceit.—Where a seller of goods knowingly makes false representations to the buyer as to their quality, but the buyer does not rely upon such representations and is not deceived thereby, the seller is not liable in an action for deceit.</p> <p>Same.—Where a seller has made false representations as to the quality of the goods, but the buyer, in making the purcha'se, relies on a test of their quality made by his own agent who is not prevented by any act or word of the seller from testing the goods, the seller is not liable for deceit.</p> <p>Same.—Evidence.—Examination of Goods 5y Jury.—Upon the trial of an action for deceit in the sale of a quantity of flour, its quality at the time of sale being in question, the court refused to permit the flour to be examined by the jury, to test its odor.</p> <p>Meld,' that it was properly excluded.</p> <p>Instruction to Jury.-—There is no error in refusing to give to the jury an instruction asked by a party -which is not pertinent to the issues.</p>

<p>Pleading,— Gomplaini.—Promise.— Guardian and Ward.—A complaint against a guardian, to recover for maintaining and providing for his ward, did not contain any averment of a request or promise made by the defendant, or any allegation that he had failed to provide, within the means in his hands as guardián, for the reasonable wants of his ward.</p> <p>Eeld, that the complaint was bad on demurrer for want of sufficient facts.</p>

<p>Pbactice.—Supreme Court.—Assignment of Errors.— Criminal law.—In the assignment of errors on an appeal by the defendant In a criminal action, the only errors assigned were, that the finding was contrary to law and to the evidence given on the trial.</p> <p>Held, that no question was properly presented for the decision of this court.</p>

Suit by the appellee against the appellant. The complaint alleges, that the plaintiffj as the sheriff of Marion county, is the keeper of the prison of said county; that the defendant having no prison wherein to confine prisoners convicted and committed for violations of the ordinances of said city, before the judge thereof, such prisoners are committed to the custody of the plaintiff as keeper of the prison of the county; that the defendant is indebted to him for the…

<p>Maekied Woman.—Separate Real Estate.— Contract.—In this State a married woman can charge her real estate by such contracts only as are reasonably calculated to make the estate profitable to her, or to preserve it, or to protect her title thereto.</p> <p>Same.—A married woman who owns real estate in her own separate right and is in the habit of making contracts in her own- name without the cooperation of her husband, who has abandoned her and is residing in another state, cannot charge such real estate by her written agreement to pay a certain sum to a third person if he will tell her the whereabouts of her husband so that she can find him.</p>

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

<p>Injunction.—Nuisance.— Obstructing Highway.—A private person cannot enjoin the obstructing of a public highway without showing a special and peculiar injury to himself, not common to the public. The fact that the injury to such person is greater in degree than that to others does not entitle him to such relief. The injury may be to more than one person, but must not embrace the entire public.</p> <p>Same.—In a complaint to enjoin the obstructing of a public highway, the only averments connecting the plaintiffs with the highway were, “that it is their usual, convenient, and necessary route of travel from their houses, which are all on, or in the vicinity of, the road, to their market town and usual place of business; and that without greater or less circuity, when the road is so obstructed, they and each of them have no other means, nor have the public wishing to use the road, of going to and fro, as they have a right to do, for business, comfort, and pleasure.”</p> <p>Held, that the complaint was bad on demurrer.</p>

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

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

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

Suit by the appellee against Taylor Iíeavilon and Joseph. Heavilpn, the appellants. The complaint is in two paragraphs.

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

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

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

<p>Evidence.—Number of Witnesses.-—A party cannot lawfully be limited by the court to one witness upon a vital point in issue.</p> <p>Same.—Resulting Trust.—Suit by A. against B. and 0. for possession of certain real estate purchased by the plaintiff at sheriff’s sale on an execution in favor of the plaintiff issued upon a judgment against B., the legal title at the time of such sale standing in the name of 0., to whom it had been conveyed by D. The plaintiff claimed, that B. had paid the purchase-money, and, to defraud his creditors, particularly the plaintiff, to whom he was then largely indebted; procured the conveyance to be made by D.to 0. It was claimed in defense, that in making the purchase B. acted as the authorized agent of 0., who was not present, and that B. advanced the purchase-money in pursuance of an agreement with 0. by which he was to so advance it as a short loan to 0., who soon afterwards repaid the money. On the trial, B. testified to this effect, and 0. testified to the same facts, except as to the fact of the loan, concerning which the court refused to allow him to testify.</p> <p>Held, that this refusal was error.</p> <p>Resulting Trust.—Fraud.—Presumption.-—In such suit the court instructed the jury, that if B. was indebted to plaintiff in a largo sum at the date of the deed from D. to 0., and B. contracted for and paid for said land out of his own moneys, and had the same conveyed by deed to 0., “such conveyance is presumed fraudulent as against the plaintiff, and a trust results in favor of the plaintiff to the extent of his just demand, unless the fraudulent intent is disproved by the evidence before you.”</p> <p>Held, that the instruction was correct.</p> <p>Same.—Evidence.—Admissions.—The admissions and declarations of the person paying the purchase money, made after the conveyance to the other person, are not admissible in evidence against the latter.</p> <p>Practice.—Motion for New Trial.—Filing of Affidavits.—Motion for a new trial on the ground of misconduct of the jury. Affidavits in support, though ready, the party making the motion refused to put on file or submit to the inspection of the opposing counsel before the motion was taken up for argument, though he was previously notified in open court that objection would be made to the reading of them unless they were so filed. The court refused, therefore, to allow them to be read.</p> <p>Held, that in this there was no error.</p>

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

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

This was a suit by Benjamin P. Fuller against the appellant, Mary E. Eawlings. The complaint contained two paragraphs. The first paragraph is for the recovery of real estate, and damages for use and occupation, based on a written contract, which is made a part of the paragraph, and is as follows:— “Articles of agreement between Benj. P. Fuller, and M. Rawlings. I, Benj.

<p>íHüsband and 'Wine.— Wife's Separate Property.—Agency of Husband.—A man loaned money belonging to his wife, taking notes therefor in his own name, but declaring, at the time, that it was his wife’s money, and after-wards kept the notes distinct from those, received on the loan of other funds. '.The administrator of the husband’s estate 'took .possession of such notes as a part of the estate, with notice of the wife’s claim thereto, and collected the money thereon.</p> <p>Held, that the administrator was liable to the wife for the money so collected.</p>

<p>Statute oe Kbauds.— Verbal Contract.—Partner.—A partnership liability may become an individual debt against one member of the firm by contract not in writing between the partners, with the consent of the creditor.</p> <p>Practice.—Supreme Court.—Abstracts.—The evidence, although it be made a part of the record, if not abstracted as required by rule tenth of this court, will not be examined.</p>

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

This was a joint prosecution against the appellant and others for an assault and battery on the body of Elizabeth Miller. Horton, one of the defendants, filed an affidavit for the continuance of the cause as to himself and Stingle, another defendant, in consequence of the absence of certain witnesses, by whom, it was alleged, an alibi could he proved as to said Horton and Stingle. The appellant, White, also-moved for a continuance on the same affidavit.

<p>Descent.—Surviving Wife.—Mortgage.—A man during marriage purchased certain land which he entered upon and improved and of which he received from his vendor a deed of conveyance in fee simple, which was lost, misplaced, or destroyed by the grantee, without having been recorded; and, with his eonsent another deed was made to his son by said vendor. After-wards the father and son executed a mortgage of the land, in which the wife of the former did not join. The father, son, and said wife resided as ono family upon the land and cultivated it from the time of said purchase till the father and son died, leaving said wife surviving and said mortgage unpaid.</p> <p>Meld, that the surviving wife was entitled to one-third of .the land in foe simple as against the mortgagee socking to foreclose his mortgage.</p>

The appellant ivas sued before a justice of the peace, on a promissory note, as follows: “ $50.00. March 11th, 1867- Thirty days after date I promise to pay to treasurer of Lebanon corporation, or order, fifty dollars, value'reeeived, without any relief whatever from valuation or appraisement laws. Mabtiit McBeoom.” The note was filed as the only cause of action.

<p>Practice.—Admission of New Party.—Complaint on a noto and mortgage, the plaintiffs claiming to be the surviving partners of a late firm named. Before any further pleadings had been filed, another person filed a petition, alleging, that he was a member of said late firm to which the note in suit was payable, and as such had an interest; and praying to be made a party plaintiff; and the court so ordered.</p> <p>Meld, the facts alleged in the petition being undisputed, that there was no error in this ruling.</p> <p>Same.—Pleading.—Amendment.—An amendment of the complaint, so as to show the facts alleged in such petition, could properly have been made, only after the court had authorized the new party to come in.</p> <p>Same.—The new party, having been admitted, over the defendant’s objection, upon such petition, which was signed by his attorneys and the attorneys of the other plaintiffs, was, without formal amendment of the complaint, treated thenceforth throughout the case as a party plaintiff, without further objection.</p> <p>Meld, that, under the circumstances, such petition might, on appeal to this .court, be regarded as an amendment to the complaint.</p> <p>Same.—Dismissal.—Disclaimer.—One of the original plaintiffs was allowed to dismiss the suit as to himself without filing a disclaimer.</p> <p>Meld, that it ivas his right to do so.</p> <p>Same.—Interrogatories.—Harmless Error.—Where the defendant filed, with his answer, interrogatories to the plaintiff, which were answered, but the answers wore not sufficient, and the court erroneously refused to compel him to answer, but it appeared by the record that the plaintiff was sworn as a witness, and as such testified fully to the facts sought to be elieted by the interrogatories, fully supporting, in that respect, the averments of the answer;</p> <p>Held, that the error could not avail the defendant.</p> <p>Same.—Statement of Evidence to Jury.—Hill of Exceptions.—The statement of the evidence which a party is allowed to make to the jury by section 324 of the code is, as to its brevity or prolixity, a matter to be left, to a considerable extent, to the control of the court trying the cause; and where the interference of the court is complained of on appeal, the bill of exceptions must show the statement that was being made when the court interposed. Same.—Supreme Court.—The Supreme Court is not bound to express an opinion upon decisions of the lower courts which obviously result in no harm. Witness.— Character.—Remarks of Court before Jury.—A cross interrogatory was put to a witness which had been already twice propounded and answered ; and the court, upon objection made, refused to allow a third answer, remarking, in the hearing of the jury, that “when a witness of his standing and character had answered a question twice it was sufficient.”</p> <p>Held, that, under the circumstances of the case, there was no error.</p> <p>Pleading.— Code.—In a suit by surviving partners on a note payable to the firm, it was not shown in the body of the complaint what persons composed the late firm or how the right of action accrued to the plaintiffs as surviving partners, but these things were alleged in naming the parties plaintiffs. Held, that such a method of stating facts, though not to be commended, is sufficient under the code.</p> <p>Joint Debtoks.—Release.—A. held a judgment against B. and C. for a certain amount; B. paid half the amount, and thereupon A. executed to him a written instrument wherein A. covenanted that he would thenceforth “pursue the legal and equitable remedy on said judgment against 0. alone, and not against B., looking to 0. alone for the full and final payment and satisfaction of said judgment,, without, however, intending to prejudice or interfere with the rights and liabilities of said B. and C. to each other on account of said judgment.”</p> <p>Held, that this instrument did not operate as a release of C. from liability upon the judgment.</p>

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

<p>Interest.—Bate of upon Judgments.—The act of 1867, increasing the maximum rate of interest to ten per cent, when that rate is provided for by contract in writing, does not affect the third section of the act of 1861, enacting, that11 interest on a judgment, or decree for money, shall be from the date of signing until the same bo satisfied, at the rate per cent, agreed upon by the parties in the original contract, not exceeding six per cent., and if there was no contract by the parties as to interest, then at the rate of six dollars a year on one hundred dollars.’'</p> <p>Same.—Suit on a promissory note, dated April 8th, 1868, and providing for the payment of interest at the rate of ten per cent. The court refused to require, as prayed by the complaint, that the judgmenj should draw interest at the rate of ten per cent.</p> <p>Held, that this was not error.</p>

The appellee on the 10th day of May, 1867, filed her complaint in the Wayne Common Pleas, against the appellants, and George P. Eddy, Thomas Wadsworth, George T. M. Davis* George A. Robbins, John C.… Held: which deposit shall authorize the parties to proceed to consolidate without further payment to such stockholder. (172.) Sec. XI.

Debolt, the appellant, filed his complaint in the Randolph Circuit Court, at the September term, 1866, against Carter, Commons, Myirphy, and Eisenhour, alleging, in substance, that the plaintiff is, and for eleven years has been, the owner in fee simple of lots numbered 290 and 291, in the corporate town of Union, in said county; that, to enclose and improve said lots, in the year 1862, he erected a fence on his own grounds, immediately south of the north line of said lots,…

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

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

<p>Parties.—Defeat of'.—-Demerrer.—Answer by way of set-off,, alleging, “that before the commencement of this action the plaintiff was, and still is, indebted to the defendant on an account before that time assigned to him in writing by” a third person named but not made a party; copies of the account and assignment being filed therewith.</p> <p>Held, that the answer was bad on demurrer expressed in the statutory form, for a defect of parties defendants.</p>

Gregg sued Matlock before a justice of the peace, on an account for sixty-eight dollars, for professional services as an attorney. Answer, the statute of limitations. Gregg recovered Before the justice, and Matlock appealed! to the circuit court.

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

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

Suit against the appellees, Eliza Matlock, James Matlock, her husband, and Thomas S. Vermillion, administrator of the estate of Amos ITibbs, deceased, the complaint alleging, that said Amos left a will in full force, by which he disposed of all his personal and real estate; that at the time of making the will said Amos had a wife alive, named Lydia, who is mentioned in the will;, that said Lydia died, intestate, there being no issue of said marriage, and said Lydia leaving…

<p>Supreme Court__Rules of'Court.—Abstracts.</p>

<p>APPEAL from the Clark Common Picas.</p> <p>Replevin by the appellant for a horse, saddle, and bridle, alleged to have been unlawfully taken and detained from him by the appellees, Layman and Clegg.</p> <p>An affidavit was filed at the commencement of the action, upon which an order was issued, and the property seized and delivered to the appellant. Subsequently, the court, on motion of the appellees, quashed the affidavit, to which the appellant excepted. Clegg answered by a general denial. - Layman filed an answer in two paragraphs:</p> <p>■1. The general denial.</p> <p>2. Admitting the seizure and detention of the property, but'' justifying the same as a constable, under an execution then' in his hands, issued by a justice of the peace on a judgment' in favor of the defendant Clegg against the appellant' and! one Brooks, for fifty cents and costs of suit.</p> <p>A demurrer was overruled to the second paragraph of" Layman’s answer, and the appellant excepted.</p> <p>Trial by the court; finding and judgment for the defendant.</p> <p>Motion for a new trial overruled, and the ruling excepted to.</p>

<p>Contract.—Implied Assumpsit.—Suit on a promissory note. Answer, tliat in purchasing a saw-mill of the plaintiff the defendant agreed to pay off for the plaintiff and deliver to him a certain promissory note described, made by the plaintiff and payable to a third person named; that the defendant was induced so to agree upon the plaintiff’s representation that said note to said third person did not bear interest until maturity, upon the truth of which the defendant relied; that said note did, in fact, bear interest from its date, which the plaintiff well knew; that such interest at the maturity of the note amounted to a sum specified, which the defendant paid together with the principal, which sum so paid as interest-hc asked to set off.</p> <p>Held, that the answer was good on demurrer.</p>

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

<p>Pleading.— Demand of Judgment.—A complaint upon a note alleged the promise of the defendant by his promissory note to pay the plaintiff a certain sum mentioned, and demanded judgment “for said sum and interest.”</p> <p>Dekl, that the demand of judgment was sufficiently definite.</p> <p>Same .— General Prayer.—A complaint upon a note executed by two makers-averred, that one of the- makers had. died, since the execution of the note, and his administrator was named and made a defendant with the other maker, and judgment was “claimed also of the assets of said deceased in the hands of said administrator, and plaintiffs pray for general relief.”.</p> <p>Ildd, that though the claim against the assets might not bo in form, yet the general prayer included all proper relief.</p> <p>Promissory Note.— Consideration.—Failure of.—Award.—A prosecution for bastardy was submitted to referees whose report recited tho submission of “the said prosecution and case of bastardy,” the award of a certain sum in instalments, and the execution of certain notes therefor by the father of the child to its mother and her father and guardian; that, in consideration of said notes, the mother acknowledged a sufficient provision for the education and maintenance of the child; and that tho father and guardian of said mother, in consideration of the foregoing promises, released and waived all right of action for damages and any and all proceedings for seduction arising out of, or in any way connected with, said case of bastardy.</p> <p>Held, in a suit on one of said notes, the award being all tho evidence in relation to tho consideration thereof, that tho maker could not claim that such consideration had failed by tho death of the child.</p> <p>Practice.—Supreme Court.—Judgment.—Form, of.—No question can be made in tho Supremo Court as to the form of a judgment where no objection has been taken below.</p>

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

<p>Common Carrier.—Special Contract.—Negligence.—A. common carrier cannot contract against liability for loss from his own ordinary negligence. Such a condition is void as against public policy.</p> <p>Same.—A contract for the shipment of live stock by a railroad company provided, that, in consideration of a certain reduced rate of transportation, the owner of said stock should assume all risks of injuries which the animals or cither of them might receive in consequence of any of them being wild, nnruly, vicious, weak, escaping-, maiming and killing themselves or each other, or from delays, or in consequence of heat, suffocation, or the ill effects of being crowded upon the cars of said company, or on account of being injured by the burning of hay, straw, or any other material used by the owner in feeding the stock, or otherwise, and any damage occasioned thereby, and also all risk of any loss or damage which might bo sustained by reason of any delay, or from any other cause or thing in or incident to, or from, or in, the loading or unloading of said stock; that said owner should load and unload said stock at his own risk, the railroad company furnishing the necessary laborers to assist, under the direction and control of said owner, who should examine for himself all the means used in loading and unloading, to see that they were of sufficient strength, of the right kind, and in good repair and order; that each person riding free to take care and charge of said stock should do so at his own risk of personal injury from whatever cause; and that the owner should release, and hold harmless, and keep indemnified, the railroad company, from all damages, actions, claims, and suits, on account of any and every injury, loss, and damage heretofore referred to, if any should occur or happen. Suit against the railroad company to recover for certain animals shipped by the plaintiff, under this contract, and lost, while in course of transportation, by escaping through a window open in the end of the car in which they had been loaded by the plaintiff’s agent, who accompanied them on the route, and who, after the escape of one of the animals, told the conductor to fix said window, and, the conductor not doing so, fixed it himself.</p> <p>Held, that the railroad company was liable for the loss.</p>

'This-was.a suit by Wiiisler, as assignee, against “Picken .& Yanclevender,” on tire following written instrument: “$208.00 7th February, 1867. Ye promise to pay to Sophia Bowlin, or order, the sum of two hundred and eight dollars, value received, waiving relief from valuation or appraisement laws. To be paid when we collect a note for six hundred dollars, dated J anuary 1st, 1866, given by Francis II. Wheatley to Sophia Bowlin, and assigned by said Sophia Bowlin to us.

<p>APPEAL from the Marion Civil -Circuit Court.</p> <p>Earrel-1 sued the -railroad company, averring in his ,coin-p'laint, that at the time of the injury complained of, the defendant was the owner and operator of the Columbus and Indianapolis Central Railwaji, extending from Indianapolis to Columbus, and likewise the owner and operator of all the rolling stock used upon said road, and was engaged in the business of common carrier for hire, of passengers and freight upon said road, by means of said rolling stock, and as such admitted the plaintiff' into a car and train upon said road as a passenger thereon from Indianapolis to the town and station of Cumberland, in Marion county; that he then and there paid defendant the fare demanded from him by defendant; that by reason 'of the premises it became the duty of defendant to safely, carefully, and without negligence, cany the plaintiff from Indianapolis to Cumberland and safely, carefully, and without negligence, to land him and allow him to land from said car and train at Cumberland; and for that purpose it was the duty of defendant to stop said train and car at, opposite to, and against, the platform at said station; that whenever the train was stopped at and against said platform as it should have been, it was safe for passengers to get out of said car and train so stopped, at any time, whether day or night, said platform being an easy and safe landing from said cars; that when defendant received the plaintiff and undertook as aforesaid to carry him, it was night and dark; that defendant performed her said duty in that behalf so carelessly, that instead of safely and carefully carrying the plaintiff' and landing him and suffering him to alight and land at and on said platform, tlio defendant stopped said train and car near to and over a eertain-culvert; that it was dark so that the plaintiff could not see that the train was not stopped at said station and platform -as 'it should 'have been; that being so stopped, defendant -announced, and caused to be announced, the -station “Cumberland,” as a notification to the passengers for that station that the train was there; that the plaintiff, relying on the good faith of the defendant, as he had a right to do, without any fault or negligence on his part whatever, stopped off said car, as he supposed upon the platform, but, in fact, down upon and into said culvert, a-distance of twenty -feet or more, and by so stepping off' into said culvert and falling upon the same, received great, severe, and permanent hurts and injuries, and among others, a severe rupture, resulting in great and permanent hernia; and received such injuries to his brain and spinal column and marrow, as to cause permanent paralysis; and had his eyes injured and put out, whereby he became blind, and still is, of one eye; and was confined to bis bed, by reason of said injuries, for a long time, to wit, for one year; and had to pay surgeons’ and physicians’bills in a large sum, to wit, five hundred dollars; and was great-ly damaged, to wit-, in the sum of ten thousand dollars, &c.</p> <p>The defendant demurred to the complaint, for want of sufficient facts; the demurrer was overruled, and the defendant excepted.</p> <p>The defendant then answered by the general denial, and also several special paragraphs upon which no question is made in argument here; and the plaintiff replied by the general denial.</p> <p>The cause was tried by a jury, who found for the plaintiff, assessing his damages at three thousand dollars, and answered interrogatories.</p> <p>A motion for a new trial made by the defendant was overruled, and the defendant excepted.</p> <p>In the instructions to the jury, excepted to by the defendant, was the following:</p> <p>“If the plaintiff did not alight from the train until it had been fully stopped, nor until the defendant’s servants had announced the name of the station or it had been announced from the proper and usual place of making such announcement, he had a right to believe that the train had reached a proper stopping place, and that he could safely alight; and if he did then alight, and did so without knowing the danger of the place, and in consequence of the darkness of the night he had no reasonable opjDortunity of ascertaining the danger, and he was injured by so alighting, he will be entitled to a verdict. * * * If at the stopping of the train an announcement of the station was made at and from the point on the train where announcements were commonly and properly made, so as to be heal’d by the plaintiff', then the plaintiff had, from that, a right to believe that the train was at a proper and safe landing place; and if he stepped off, after the stopping of the train, without fault on his part, and received injury, then he would be entitled to recover. But if the announcement was made by a person not a servant of the company, and from a place not the usual and proper place on the car for making such announcement, or was the mere talk of the passengers upon the train, and -was not within the knowledge of the defendant’s servants, then the act of plaintiff' in stepping off the train in an unsafe place would not bo caused by any fault or negligence of the defendant; and in such event the plaintiff would not be entitled to recover.”</p>

<p>Practice.—Demurrer.—Misjoinder of Causes.—Complaint to recover the possession of certain real estate hold by the defendant as tenant of the plaintiff, for non-payment, upon ten days’ notice, of rent due, and also for the rent unpaid, in one paragraph. Binding, that the plaintiff was not entitled to the possession of the premises, and that the defendant was indebted to the plaintiff in a certain sum. Judgment for the sum found duo.</p> <p>Meld, that if two causes of action were improperly joined, the only method .to reach that error was by demurrer.</p> <p>Held, also, that this court can in no case reverse a judgment for this error.</p>

<p>Replevin.—House Treated as Personalty.— Trust.—A., being the owner of a certain town lot on which was a dwelling house, built another house adjoining the former and permanently attached thereto, but standing in a street of the town, though he supposed that it was upon a lot. Becoming financially embarrassed, ho fled the country; and an execution was issued on a judgment which had been rendered against him in favor of B., by virtue of which the sheriff levied on and sold said house in the street as personal property, G. being in possession thereof at the time of the sale. Afterwards, the agent of B., who had bid off the property for B., informed 0., that by B.’s direction he would let 0. have the house for. A. if 0. would pay the amount it had been bid off at, and also pay said agent a small debt that A. owed him. 0. thereupon wrote to A., staling the proposition made by said agent, and offering to furnish the money and buy the house for A.’s benefit. A. replied, advising 0. to buy the property and sell it again, pa.y himself out of the proceeds, and apply the balance to the payment of A.’s debts. Subsequently, G., being the owner of the lot, purchased the house of said agent, paying him therefor the amount the agent ha'd bid for it and a certain sum for back rent, 0. furnishing the money, which A. never refunded or offered to refund. 0. continued to occupy the house, always claiming it as his own, till his death, when his sole heir sold the lot and the house in the street, by two separate and distinct sales, to D. Suit by A. against D. to recover possession of the house in the street as personal property, the above facts appearing in evidence, but there being- no written evidence of title to the lot in 0. or D.</p> <p>L'eld, that, in the absence of a conveyance to C., in terms sufficiently comprehensivo to cover the house as appurtenant to the lot, it was reasonable to presume that it was properly treated by the parlies as personalty.</p> <p>Held, also, that there was no trust in favor of A.</p> <p>Held, also, that a subsisting indebtedness of G. to A. growing out of a partnership which had existed between them long prior to the purchase of the house by the former, could not be deemed a refunding by A. of the money paid by 0. for the house.</p>

<p>'Contract.— Consideration.—Failure of.—Sale.—Suit on a note. Answer, that the defendant bought of the payee a certain number of fruit trees; that it was agreed by them that.said trees should be in good condition, and that if any of them should not grow, the seller would replace them with other good trees; that on the day the note, was given (in November), the seller delivered said trees, and represented them to be as provided for by said contract ; that the defendant, not being experienced in the nursery business, believing the trees to be as represented, in consideration thereof, executed the note, and properly set out the trees; that the same were not in good condition, but were wilted, and in bad condition, and wholly worthless; that defendant did not and could not know their condition till long after the note was executed; that they did not grow, of which the seller had notice on the 1st day of the next June; yet he had wholly failed to replace them.</p> <p>Held, that the answer was good on demurrer.</p> <p>.Same.—Evidence.—The trees were delivered to the buyer upon his written order directed to the seller, for certain trees at specified prices.</p> <p>Held, that parol evidence was admissible to prove an agreement of the parties at the time of making said order, that the seller should replace any of the trees that might not grow.</p> <p>Principal and Agent.—Declarations.—As steps in proving tho authority of one as an agent in the transaction in controversy, evidence of his similar transactions with different persons and of his delarations therein was held ■ admissible.</p>

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

<p>Court o¡? Commos Pleas.—A Iteration of Districts.—•Vacancy.—Election.— Statute Construed.—By act of 1859 (2 G. & H. 20, sec. 3), the counties of Tippecanoe, Benton, White, and Carrol, were made a common pleas district, in which it was required that a judge should be elected on the second Tuesday of October, 1860, and every fourth year thereafter. By act of 1861 (2 G. & H. 653), this district was required to be designated and known as the fifteenth district. By act of 1861 (Acts 1861, p. 92), the twenty-third district was created, consisting of the counties of Tippecanoe and Warren, and it was enacted that the then elected judg'e of the fifteenth district should be, and perform the duties of, judge of the twenty-third district, until the expiration of his term of office.</p> <p>TIeld, that by said act of 1861, the remaining counties, White, Benton, and Carrol, did not cease to be the fifteenth district, but a vacancy was thereby created on its bench, to be filled by appointment by the Governor till the general election of 1861, then by election for the unexpired term, till October, 1868, when a judge of that district was required to bo elected.</p>

This was an information under the statute, in the name of the State, on the relation of Samuel J. Wright, against Benjamin P. Douglass, filed on the 16th day of November, 1867.

<p>Statute.—Legislative Interpretation.—It is not ordinarily the function of the legislature to interpret statutes; nor is such interpretation binding upon the courts as to a past transaction, but as to matters occurring thereafter such legislation guides all the departments of the government.</p> <p>Jurisdiction.—Associate Judges.—Guardian and Ward.—The Associate Judges, as a Court of Probate, had jurisdiction on the 10th of August, 1829, to appoint guardians for infants, and such court was a court of record. It had jurisdiction of guardians’ petitions to sell lands. Such jurisdiction extended to lands situated anywhere within the State. Though the law required a bond to he given before'entering the order of sale, the failure to require one would not render the proceeding void.</p> <p>Same.—Probate Court.—The Probate Court, upon its organization under the act of 1829, had authority to take jurisdiction of matters in relation to guardians and wards then pending in such Court of Probate held by the Associate Judges, and conduct them to conclusion.</p> <p>Same.— Collateral Proceeding.—Where a proceeding in a court of superior jurisdiction is of such a character that upon final action the court should, from tho nature of the case, ascertain whether it is such in fact that it has jurisdiction to act as it is invoked to do, and it does so act, the matter cannot be questioned collaterally.</p> <p>Same.—Residence of Ward.—The Associate Judges, as a Court of Probate, on the 10th of August, 1829, appointed a guardian for certain infants.</p> <p>Held, that an inquiry as to whether the infants were at the time of such appointment residents of this or another state, could' not be raised collaterally.</p> <p>Same.— Vendor and Purchaser.— Guardian’s Sale.—Application of Proceeds.— Where a guardian, who has received his appointment from a court of superior jurisdiction having authority to make such appointments and jurisdiction of guardians’ petitions to sell lands, but without jurisdiction to make the particular appointment, sells land of his ward, under an order of such court, to one who purchases and pays for such land, relying in good faith on such order, such purchaser will be protected in the title so acquired, if the guardian applies the proceeds properly. And in an action by the late ward, arrived at majority, to recover such land, a debt of the guardian against the deceased father of the ward, through whom the plaintiff claims title, allowed by such court as a credit to the guardian upon settlement, will be presumed to have been rightfully allowed.</p> <p>Indian Treaty.—Grant.—Relation.—A section of land, to be located under the direction of the President, was granted to a certain person by an Indian treaty; and after the death of the grantee,the proper court, upon petition of the guardian of the grantee’s heirs at law, ordered the sale of the unlocated section; and, the land having been located by the assignee of the purchaser at such guardian’s sale, the proper court ordered a conveyance of the specific land to such assignee, which was made, but never approved by the President.</p> <p>Held, that, by the doctrine of relation, the treaty operated instantly in law as a grant, the subsequent location of the land merely ascertaining'the specific thing which was granted.</p> <p>Held, also, that the approval of the President was not necessary to the validity of the guardian’s deed of conveyance.</p> <p>Same.— Case Stated.—Suit by the heirs at law of A. against B., to recover certain real estate. Trial upon the following agreed statement of facts: A section of land was 'granted by treaty with the Potawatamics, of October ICth, 1826, to A., to be located under the direction of the President. It was located, in 1837, in Allen county, without the territory ceded by the'Indians under said treaty, the promises in controversy being a part of that section. ' In 1828, A. died, in Illinois, whore he then resided, leaving a widow and children surviving him, who continued to reside in Illinois until 1831, when they removed to Knox county, in this State, prior to which they had no property in Indiana, except the unlocatod land. It appeared by the record of certain proceedings in Knox county, that on the 10th of August, 1829, the court doing probate business, held by the Associate Judges, appointed a guardian of A.’s children, the plaintiffs in this action, and that “there being no property,” no bond was required. The bond required by law was to be in double the value of the personal property. On the following- day, the guardian presented his petition to sell the unlocatcd section, and, after an appraisement at $800, the sale was ordered, the guardian to give bond with sureties approved, within thirty days, but no such bond appeared in the transcript of the proceedings. The sale was to be private, for one-half cash and the balance in two equal annual instalments. In August, 1839, the guardian reported to the Probate Court, that in November, 1831, he had sold the float for $1,000 to one who transferred his right to another, and ho to C., who paid the purchase-money and, after having procured the land to be located, died, the report describing the section located. The Probate Court confirmed the sale and directed a conveyance of the specific land to the heirs at law of C. which was accordingly delivered, but was never approved by the President. The title of C. and his heirs afterwards became vested in B., who, with his grantors, paid taxes on tho land and took care of and protected it from 1841, though not in actual possession, till the commencement of this action,in 1865. Prom its location,in 1837,till 1841, it was worth $30 per acre. From January, 1829, till 1840, the United States, it was admitted, held public lands in Knox county and elsewhere, in this State and other states. Upon this evidence the court found fon the defendant.</p> <p>Hold, that the evidence sustained the finding.</p>

<p>County Clekk.—Fees where Nolle Prosequi is Entered.—A county is not liable to its clerk for fees taxed by him for services rendered in a criminal prosecution disposed of by a nolle prosequi being entered.</p>

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

<p>Statute of Fbauds.—Parol Lease.—To Commence in Futuro.—A parol lease of lands for tlie term of one year, to commence thirty days after the making of the contract, is valid within the Statute of Frauds; and the lessee may maintain an action against the lessor to recover possession according to the terms of the lease.</p> <p>Same.—It seems that the parties to such a lease may have such remedies for • violations of the contract as would appertain to violations of other valid contracts. Staclcberger v. Mosteller, 4 Ind. 461, questioned.</p>

The appellant was indicted for murder in the first degree. Upon a plea of not guilty, the jury found him guilty of manslaughter, and that he be confined for three years in the state’s prison. The court overruled a motion for a new trial and a motion in arrest of judgment, and rendered judgment in accordance with the verdict.

<p>Criminal Law.—Insanity.—Where a person is moved to the commission of . an unlawful act by an insane impulse controlling his will and his judgment, ho is not guilty of a crime; and if he is a monomaniac on any subject, it is.wholly immaterial upon what subject, so that the insane impulse leads to . the commission of the act.</p> <p>Same.—Knowledge of Eight and Wrong.—On the trial of an indictment for murder in the first degree, the court instructed the jury, that if they believed from the evidence “ that the defendant knew the difference between right and wrong in respect to the act in question, if he was conscious that such act was one which he ought not to do, and if that act was at the same time contrary to the law of the State, then ho is responsible for his acts.”</p> <p>Held, that this is not law.</p> <p>Same.—So far as a person acts under the influence of mental disease he is not criminally accountable; and the jury in a criminal case must be satisfied beyond a reasonable doubt of the defendant’s mental, capacity to commit tho crime charged.</p>

<p>Instructions to Jury.— Conflict of.—An erroneous instruction to the jury in a criminal case cannot he corrected by another instruction which states the law accurately, unless the erroneous instruction he thereby plainly withdrawn from the jury.</p> <p>Same.—Extracts from Books.—The law which goes to the jury from the court should be given as law, unquestioned by authorities extracted from books.</p> <p>Reasonable Doubt.—A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused—that is, unless he bo so convinced by the evidence, no matter what the class of the evidence, of the defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests, under circumstances where there was no compulsion resting upon him to act at all. Arnold v. The State, 23 Ind. 170, explained.</p> <p>Same.—On the trial of an indictment for murder in the first degree,the court instructed the jury, in effect, that if the evidence satisfied them of the guilt of the defendant with such certainty that a prudent man would feel safe in acting upon such conviction in his own important affairs, then, in such case, there would be no reasonable doubt of the defendant’s guilt.</p> <p>Held, that this test was too narrow.</p> <p>Insanity—The defendant in a criminal case is not required to prove his insanity in order to avail himself of that defense, but merely to create a reasonable doubt on this point, whereupon the burden of proving his sanity falls upon the state.</p> <p>Same.— Cognitive and Conative Faculties.—Insanity is a disease which may impair or totally destroy either the understanding or the will, or both; and in a criminal case all symptoms of such disease and its effect upon these faculties should go to the jury, and they must determine, as a matter of fact, the mental condition of the defendant; and an instruction to them which limits their inquiry to the condition of the power to apprehend by the understanding is erroneous.</p> <p>Same.— Voluntary Drunkenness.—Continued Drunkenness.—Voluntary drunkenness is no excuse for the commission of a crime, but insanity produced by continued drunkenness is a good defense in a criminal action.</p> <p>Same.—Hereditary.—Evidence.—Evidence of the insanity of the mother and uncle or other relatives of the defendant in a criminal case must be disregarded,if there be not other evidence tending to show that he was himself insane at the time ho did the act charged.</p> <p>Presumption.— Use of Deadly Weapon.—The intent to murder is not conclusively presumed from the deliberate use of a deadly weapon.</p> <p>■Witness.—Discredit of by the Court.—An attempt in an instruction to the jury in a criminal case to cast discredit upon a medical witness because he had attended the trial from a neighboring state to testify in behalf of the defendant with the expectation that his expenses would be paid by the defendant or others for him, the defendant being a stranger to such witness, was disapproved.</p>

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

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