Volume 32 — Indiana Reports

<p>Principal and Surety.—Official Bond.—Estoppel.—Suit on a sheriff’s official bond. Answer by a surety thereon, that he signed the bond upon the ex- ' press condition and stipulation, stated to the principal, and by him agreed upon, that said principal would procure twelve other names of as responsible men as there were in the county to execute said bond as co-sureties with defendant, which the principal had failed to do; and that said bond (executed September 23d, 1863) had never been acknowledged.</p> <p>Held, that the answer was bad on demurrer.</p> <p>Constitutional Limitation.—Taxation.—National and Slate Governments.— The power of taxation exists in the state governments concurrent and coextensive with that of the general government (except as to duties on imports and exports), and has for each this limit: neither may tax the legitimate machinery or agencies employed by the other in the exercise of its governmental powers and functions.</p> <p>Same.— Official Bonds.—Congress has not power under the Constitution to impose a tax upon official bonds given to a state by its officers.</p> <p>Same.—Sheriff’s Bond.—Revenue Stamp.—The validity of a sheriff’s official bond executed September 23d, 1863, was not affected by the failure to affix a United States revenue stamp thereto.</p>

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

<p>Principal and Asent.—Personal Liability.—Agent of Government.—Ordinarily, an agent contracting in behalf of the government, or of the public, is not personally bound by the contract.</p> <p>Same.—Quartermaster.—A quartermaster in the army of the United States during the late rebellion employed a person as a clerk, put his name on the government pay-rolls, with the names of the other clerks of his department, and paid him $75 monthly out of the funds of the United States, said clerk signing the usual vouchers. Ho worked for the government, and performed no service whatever for the quartermaster individually. Their agreement was, that said clerk should have $75 for the first.month, and §125 per month thereafter.</p> <p>Held, that the quartermaster was not personally liable to such clerk.</p> <p>Interest.— Usury.—Remedy.—The law in force at the time the remedy is sought upon a contract governs as to questions of usury.</p> <p>Same.-—Statute Construed.—The provision of the interest law of 1867 (Acts 1867, p. 151), that “all interest exceeding the rate of ten per centum per annum.shall be deemed usurious and illegal, as to the excess only, and in any action upon a contract aifected by such usury, such excess may be recouped by the defendant, whenever it has been reserved or paid before the bringing of the suit,” embraces contracts made before, as well as those made after, the passage of said act.</p>

<p>APPEAL from the Marion Civil Circuit Court.</p> <p>This was an action upon an obligation executed by H. W. Daniels, as principal, and the other defendants as his sureties, to the plaintiff, as President of the United States Express Company, dated January 18th, 1860. The obligation was a joint and several one, and in the penal sum of twenty-five hundred dollars. It recited the appointment of Henry 'W. Daniels as agent at Indianapolis, of the express company, and was conditioned that he should faithfully perform his duties as such agent, so that no loss or damage should occur directly or indirectly to the company, in consequence of any act, omission, failure, laches, unfaith- ■ fulness, or dishonesty, on Ips part, in the discharge of his duties as agent.</p> <p>The complaint upon this bond charges,that II. W. Daniels retained in his hands, and refused to pay over, a balance of $251.45, belonging to the express company, being money received by him in the course of his agency, during the period covered by the bond, and that he refused to account.</p> <p>Issues were made, which, by agreement of the parties, were submitted to the court for trial, without a jury. The court made a special finding, which presents the questions discussed in the case, andu’enders a notice of the pleadings, subsequent to the complaint, unnecessary.</p> <p>The finding of the court is as follows :</p> <p>“Come the .-parties, and the court, now being sufficiently advised' finds -.specially as follows:</p> <p>“First. That all the several material averments in the complaint contained are substantially true, and that if no valid.matter, of defense appeared, the plaintiff would he entitled to recover of the defendants the sum of two hundred and fifty-one dollars and forty-five cents, with interest thereon since the 12th day of June, 1860.</p> <p>“Rut the court further find,</p> <p>“Second,. That the written obligation in the complaint mentioned was executed by the defendants to the plaintiff as president of, and for the use and benefit of, the United States Express Company, to secure the faithful performance by said Henry W. Daniels of his duties as agent of said express company in Marion county, Indiana.</p> <p>“Third. That saifi H. W. Daniels, upon the execution of said bond, entered upon the discharge of his duties as such agent; and that all the moneys in the complaint and bill of particuars mentioned, including the above balance of two hundred and fifty-one dollars and forty-five cents, were received by him after the execution of said bond, and in the course of his business and duties as such agent.</p> <p>“Fourth. That at all times since the 25th day of April, 1856, and covering the period of all the transactions in the complaint mentioned, the said United States Express Company was a company or association of persons doing business as express carriers, within the spirit and meaning of the act of the legislature, entitled “an act declaring express companies to be common carriers, and providing for the safety of articles intrusted to their care,” approved March 5th, 1855.</p> <p>“Fifth. That the written statement filed by said express company in the office of the recorder of said Marion county, and recorded therein June 6th, 1856, as and for a compliance with the provisions -of said act, was not and is not in substantial compliance with the requirements of said act, and, therefore,</p> <p>“Sixth. Because of the said insufficiency of said statement, the court finds for the defendants.”</p> <p>The following is the statement filed by the express company in the office of the recorder of Marion county, referred to in the finding of the court, viz.:</p> <p>“ Statement of the United States Express Company, State of Indiana, Marion county:</p> <p>“A statement respecting the affairs of the United States Express Company, made pursuant to an act of the Legislature of the State of Indiana, entitled ‘an act declaring express companies to be common carriers, .and providing for the safety of articles intrusted to their care,’ approved March 5th, 1855.</p> <p>“ The business of said company is managed and its property and effects are owned by five trustees, whose full names and proper places of residence aré as follows, viz.: Danford N. Barney and James McKay, both .of the city of New York; Elijah P. Williams, of the city of Buffalo, in the State of New York; and Ashbel H. Barney, of the city of Cleveland, in the State of Ohio; and one vacancy. The persons interested as cestui que trust are the stockholders of said company, who change from day to day, and of whom it is impossible to make an accurate statement, owing to the frequency of such changes.</p> <p>' “ The amount of capital employed in the business of said company, in the State of Indiana, is, as nearly as the sum can be ascertained, five thousand dollars.</p> <p>“And we, the subscribers, the trustees above named, do hereby agree that legal process served upon any authorized agent of said company, in said county, shall .be deemed and; taken as good service upon said company and on ourselves.</p> <p>“In witness whereof, we have hereunto subscribed our names, this 25th day of April, 1856.”</p> <p>'This statement was signed by the four trustees named, and was duly sworn to by them.</p> <p>A motion for a new trial was made and overruled, and the appellant excepted. Pinal judgment was then rendered for the defendants.</p>

<p>Tax.— U. S. Treasury Notes.—The United States treasury notes popularly known as “greenbacks” are not liable to state taxation.</p> <p>Same.—Power of Government to Exempt.—The foundation of the power of the government to exempt her treasury notes from taxation is, that their sole value depends upon the promise of the government to ultimately redeem them in gold.</p> <p>Same.—National Bank Currency.—The notes of national hanks, known as “national currency,” are not exempted from state taxation.</p> <p>Query whether Congress has power to make such exemption.</p> <p>Same.—Injunction.—Injunction will not lie to prevent the collection of a tax in part legal and in part illegal.</p>

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

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

This was an action, commenced February 20th, 1868, by the appellees, as assignees, against the appellants, on a promissory note, executed by the latter to one Samuel Little, on the 4th day of January, 1865, for seven hundred dollars, due one day after date. The note is indorsed as follows: “Home, December 9th, 1865, interest paid on the within note up to Nov. 9th, 1867, and the same not to be collected within that time, unless agreed upon by both parties.

<p>Contract.—Member of Family.—Liability for Board.—"Where a man lives in the family of his son-in-law, such marriage connection rebuts any presumption of an implied promise of the father-in-law to pay for board which would exist in the absence of such a relation between the parties.</p>

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

Suit by Delzell against The Indianapolis and Cincinnati Railroad Company, for the recovery of damages. The complaint is in two paragraphs.

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

<p>Circuit Court.—Adjourned Term.—Record.—The circuit court has full power to adjourn before the lapse of the time allowed by law for its term, to a day beyond such time and before the next regular term. The propriety of such adjournment is a question for that court alone, and its decision thereon cannot be reviewed by any other court; nor is it required that the reason for such adjournment be put on record.</p> <p>Criminal Law.—Indictment.—The faet that in an indictment consisting of several counts, in all of which the same felony is charged, some of the counts, charging the offense against the same persons charged in the others, include also another person as a defendant, does not render the whole indictment bad.</p> <p>Same.—False Pretenses.-—Bank Cheek.—A false representation by one person to another that the former owns a check on a bank, of a certain specified value, is, other material facts existing, a false pretense within our statute.</p> <p>Same.—Loan to Unable to Violate the Law.—It is no defense to a charge of obtaining money by false pretenses, that the money was loaned by the prosecuting witness for the purpose of enabling the defendant to violate the law by wagering with a third person.</p>

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

<p>Corporation.—Pleading.—In a suit under the statute, against the directors of the “Neal Manufacturing Company,” for falling to make a report of the amount of capital stock of the company, the amount of assessments thereon and. actually paid in, and the amount of existing debts of the company, ■ the complaint averred that the defendants were the directors and sole stockholder of the company; “that said Neal Manufacturing Company was organized April 10th, 1866, by articles of association filed and recorded in the Jefferson county recorder’s office on said day, a copy of which articles of association is filed herewith as part hereof; and said company carried on said business at said Madison.”</p> <p>Held, that this sufficiently showed that said company was a corporation.</p> <p>Same.—Statute Construed.—Section 15 of the act of May 20th, 1852 (1 (5. & H. 427), for the incorporation of manufacturing and mining companies was not repealed by the supplemental act of March 4th, 1863 (Acts 1863, p. 48).</p>

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

<p>City.—Street Commissioner.—Removal from Office.—Statute Construed.—The common council of a city incorporated under the general law for the incorporation of cities (Acts 1867, p. 33) may, by a majority vote, remove and dispense with the street commissioner and require the marshal to perform his duties. City of Madison v. Korbly, ante, p. 74, adhered to.</p>

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

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

<p>Sip arian -Owner.—Ohio River.—The'title of the reparian owner on the Ohio river extends te low-water ¡mark, subject only to the easement in the public of the right of navigation.</p> <p>¡Same.—Evansville.— Wharf.—The city of Evansville, nnder her charter, has the power, as a police regulation, to establish water lines and to make reasonable provisions for the protection of navigation, and for this purpose may prohibit the erection of buildings below high-water mark which would have a tendency to obstruct navigation; but this power does not extend to private wharfs above high-water mark.</p>

Complaint by the appellants against the appellee, in the usual form, on a promissory note, of which the following is a copy:— “$483.00 Madison, Ind., March 18th, 1868. Ninety days after date, we promise to pay to the order of Means, Kyle & Co., four hundred and eighty-three dollars, without any relief from valuation or appraisement laws. Value received. Payable at the Nat’l Branch Bank, Madison, Ind.

<p>Default.—Motion to Set Aside.—Affidavit.—Record.—An affidavit in support of a motion to set aside a default can be made a part of the record by a bill of exceptions only.</p> <p>Same.— Court of Common Pleas.—First Day of Term.—In a suit for an injunction in the court of common pleas, a default was taken, and final judgment was rendered, against the defendant, on the first day of the term.</p> <p>Meld, that this was error for which the default should have been set aside on motion.</p>

<p>Justice of the Peace—Motion to Set Off Judgments.—In a proceeding before a justice of the peace to set off against cacli other mutual judgments rendered by him, it is immaterial that execution on the judgment against the party making the motion has been stayed, or that the time for which such execution has been stayed has not expired; nor can the other party, being a resident householder, claim as such to have the judgment in his favor to enter satisfaction of which the motion is made, set apart to him as property exempt from execution.</p>

<p>Justice of tiie' Peace.—Change of Venue.-—Costs.—Appeal.—In an action of replevin before a justice of the peace, a change of venue was awarded to another justice, upon the application of the defendant, and the former justice omitted to certify his transcript to the latter, by whom, for this'reason, the cause was dismissed on the plaintiff’s motion, assigning that said latter justice had'no jurisdiction of the persons of the parties or the subject-matter of the action.</p> <p>Held, that the plaintiff was not entitled to costs against the defendant.</p> <p>Held, also, that an appeal lay to the circuit court, in such case, from a judgment against the defendant'for costs, though informal.</p>

<p>Peactice.—Justice of the Peace.—Appeal.—In an action before a justice of the peace, after trial, finding, and judgment, the defendant, -within the time ■ limited by statute; moved for a new trial, and the plaintiff, being present, consented thereto; whereupon the motion was granted. Pour days later, the defendant, by consent of the plaintiff, was permitted to withdraw said: motion, and the plaintiff appealed to the court of common pleas, where, on. the defendant’s motion, the appeal was dismissed, on the ground that there was no judgment from which an appeal could be taken (though the defendant had replevied and paid the judgment).</p> <p>Held, that the granting of the motion to dismiss the appeal was error.</p>

<p>'.Dbscekt.—Personal Status.—When a canon of descent makes the right of inheritance to depend on personal status, such status must be ascertained from the lex domicilii; but if a statute of descent directs the inheritance of land without regard to personal status, then the law of another state as to such ■■status can have no influence in determining upon whom .the descent.is cast.</p> <p>Same.—Statute Construed.—Section 123 of chapter 28, Revised Statues 1843, which provided, that ‘iif any man shall marry a woman who has,, previous to the marriage, borne an illegitimate child, and after marriage shall acknowledge such child as his own, such child shall be deemed legitimate to all intents and purposes,” did not merely or primarily declare the personal status of such child, but bestowed upon it the capacities of an heir; and as a provision governing the descent of lands in this State, it operated without regard to domicil.</p>

<p>APPEAL from the Porten Common, Pleas.</p> <p>Suit by tbe appellee against theappellant-,to recover certain personal property, specifically described in the complaint. Issues were formed and submitted for trial to- a jury, who» returned the following verdict: “We, the jury, find for the plaintiff; that at the time of the commencement of this-suit lie was. the owner, and, entitled-to.-the possession,of said property; that it was unlawfully detained by the defendant; that'it was of the value of seventy-five dollars; and that the plaintiff is damaged in the sum of $-by detention thereof.</p> <p>(Signed) William Stoddard, Foreman.”</p> <p>The appellant thei'eupon moved the court for a venire de novo, for the following reasons: “ 1. That the verdict does</p> <p>not describe the property which it says was unjustly detained. 2. That the verdict does not find any damages, as alleged in the complaint.” Which motion was overruled.</p> <p>A motion for a new trial was also made, and overruled. These rulings were severally excepted to, and judgment was rendered on the verdict.</p> <p>The errors assigned are:</p> <p>1. Overruling the appellant’s motion for a venire de novo.</p> <p>2. Overruling the appellant’s motion for a new trial.</p>

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

<p>Partnership.—Admissions.—In an action on account for goods sold by the plaintiff to the defendants, A. and B., where the question at issue before the jury was, whether A. and B. were partners at the date of such sale;</p> <p>Held, that the declaration of A. made to persons not parties, some months previous to the alleged sale, to the effect that such a partnership existed then, concealed from the public, in the business for the continuance of which the purchase in question was made, were admissible in evidence over the objection of A.</p> <p>Held, also, that evidence showing that, about the date of the sale in question, other persons than the plaintiff dealt with A. and B. as partners in such business, and showing the accompanying acts and declarations of A. to the effect that there was then such a partnership, was admissible over A.’s objection.</p> <p>■ Principal and Agent.—Declarations of Agent.—The declarations of an agent made, not in the course of his agency, but after the transaction to which they relate, in casual conversation with persons not parties to such transaction, are not binding on his principal.</p> <p>New Trial. — Newly Discovered, Evidence.—Motion for a new trial on the ground of newly discovered evidence overruled. The party making the motion swore that he did not know of the new evidence until after the trial, hut did not swear that he believed it to be true; and it was absolutely inconsistent with his own testimony, that he had never been a partner .of his co-defendant.</p> <p>Held, that the motion was properly overruled.</p>

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

<p>Limitations, Statute op.—Death from Wrongful-Act- or Omission.—A suit to recover, under section Í84. of the code, for the death of one, caused by the wrongful act or omission of another, must Be commenced within two years from such death. ,</p> <p>Same.—Pleading.—Demurrer.—This- limitation, which is descriptive of the right of action, and to which there is no exception, need not be set up in answer; the question is properly raised by demurrer to the complaint.</p>

dams Circuit Court- Suit by Sarah Ball, the widow of Vachael' Ball, deceased, 'ou a written agreement, executed in the lifetime of said decedent. The agreement, or contract, was made in March, 1862, between “ Blossom, of the first part, and Vachael Ball, of the second part,” and recites, that Vachael Ball had conveyed to Blossom certain lands, which are described, being the farm on which Ball resided.

<p>Pbactioe.— Change of Yenue.—•Circuit Judge Acting as Judge of the Court of Common Pleas.—In an action commenced in the court of common pleas, a change of venue was taken from.the judge before whom the action w'as pending, and the cause was .set down for trial before the judge of the circuit court of the same county on a certain day, when a trial was had which resulted in a finding for the plaintiff. A motion for a new trial was made, and the cause was continued until a specified day, when the judge failed to appear. On a subsequent day, the circuit judge, his court being in session, overruled the motion for a new trial and rendered judgment.</p> <p>Held, that the ruling upon the motion for a new trial was void.</p> <p>Held, also, that the cause was still pending upon that motion in the court of common pleas, and it was the duty of said judge thereof to appoint a judge to dispose of the motion.</p>

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

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

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

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

<p>Draining Association.—Articles.—Declaration of Objects,—Under the act to authorize the construction of levees and drains, 1 G-. & H. 303, it was necessary to the existence of a corporation thereby authorized, that the objects of the association should be specified in its articles with reasonable distinctness.</p> <p>Same.—Description of Drain.—Pleading.—In a complaint to enforce an assessment by a ditching association which it was attempted to organize under said act, the description of the drain, the construction of which was alleged as the object of the association, was so defective that it was impossible to determine therefrom whether it was the intention to construct one or two drains, or what lands would be affected thereby.</p> <p>Held, that the complaint was bad on demurrer.</p>

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

<p>Peactioe.—Supreme Court.—Assignment of Error.—An assignment of error, “that the court erred in finding for, and rendering judgment for, the defendant, when said finding and judgment should have been for the plaintiff," is too indefinite to present any question upon the record to the Supreme Court.</p> <p>Same.—New Trial.—.Where no written cause for a new trial appears by the record to have been filed by a party, no question is presented to the Supreme .Court by an assignment, that the court below erred in refusing, to grant such party a new trial.</p>

<p>Pleading.—Lost Mortgage.—Demand.—In a complaint to compel the re-execution of a mortgage and a note secured thereby, lost before they were stamped or the mortgage was recorded, while in the possession of the person to whom they had been executed and delivered, there was no direct averment of a demand, before commencement of the action, for the execution of a note and mortgage similar in form and substance to the missing ones; and copies of a note and mortgage alleged to have been prepared after the loss and tendered with a demand for their execution, filed with the complaint, provided for payment without relief from valuation or apappraisement laws, with attorney’s fees if collection should be enforced, but there was no allegation that the originals contained such provisions.</p> <p>Sold, that the complaint was bad on demurrer.</p> <p>Same.—Reference ¿a Other Paragraph.—A description of the mortgaged premises, in such case, as set out in one paragraph of the complaint, as to which paragraph the action has been dismissed, cannot be made a part of another paragraph by reference to the former.</p> <p>Judgment.—Semble, that a simple finding of the facts and declaring of the lion would be the extent to which equity could grant relief upon a sufficient complaint in such a case.</p>

<p>Witness.—Impeachment.— Contradictory Statements.—Criminal Law.—On the trial of a criminal canse, a witness for’ -the State, who had been charged with some crime, its nature not being disclosed, and there being nothing in the case tending to create a suspicion that he was an accomplice or guilty of any crime, was asked on cross-examination if on certain occasions he had not declared that he turned state’s evidence in the hope that it would be of advantage to him in his own case; and ho having answered in the negative, the court refused to allow him to be contradicted by other witnesses.</p> <p>Held, that such refusal was not error.</p>

This was a suit to foreclose a mortgage on certain real estate, executed hy John Shidler to Mary Imes, on the 20th of January, 1865, to secure a note of the same date for twelve hundred dollars, payable four years after date, with interest from date, payable annually.

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

<p>Contract.—Construction of.—Pleading.—Demand of Judgment.—An agreement between A. and B. stipulated, that A., in consideration of $300 then paid and $2,834 to be paid in one, two, and three years, agreed, upon full: payment being made, to convey to B., by warranty deed, certain land described ; that B. should pay the purchase-money with ten per cent, interest; that if B. failed to pay the full amount at the expiration of three years, then A. was to pay back to B. all the money B. had paid, with ten per cent, interest .from 'date of payment, A. having the right to retain an amount sufficient to pay him the reasonable rents, and the taxes, and $100; and that if B. failed to pay a sum sufficient to meet the rents and taxes, A. should have a lien on the crops for that amount. Suit by A. against B. on the agreement, the complaint alleging that B. had been in possession of the land since the date of the contract; the non-payment of $100 of the advance payment and of the entire residue of the purchase-money; that the annual rents were of the value of $300; and that B. was insolvent; and praying for rescission of the contract; for $1,500 damages; that B.’s interest in the lands be sold and the purchaser be put in possession; and for general relief. ‘</p> <p>Held that the complaint showed a good cause of action for the $100 of the advance payment remaining unpaid and a further sum sufficient to cover the rents.</p> <p>Meld, also, that the fact that the plaintiff asked»for more than he was entitled to was no- cause of demurrer.</p>

<p>Crimikai. Law.— Court of Common Pleas.-—-Jurisdiction of Felony.—A person having been committed to jail for want of bail on being found guilty before a mayor, on a charge of petit larceny, upon an affidavit which was defective in that it did not. allege to whom the stolen property belonged, and being still so confined, and the court of common pleas being in session, the attorney for the State was permitted by the court, over the objection of the prisoner, to file an affidavit charging the prisoner with the larceny, and alleging to whom the property belonged, and also an information thereon which, after charging the offense,, alleged,.that the defendant was then confined in the jail of the county upon said charge, and upon no other whatever, and that no indictment had been returned thereon by a grand jury.</p> <p>Held, that this ruling was not erroneous.</p> <p>Held, also, that it was a question of fact for the jury, whether the new affidavit and the information charged the same offense as that upon a charge of which the defendant was in custody, as was necessary in order to give the court jurisdiction.</p>

<p>APPEAL from the Grant Common Pleas.</p> <p>This was- a petition for the partition of real estate- by the appellants, William Duling and Matilda Duling; in person,, and James P. Wilson and William T. Wilson, by guardian, against the appellees, Hannah M. Johnson (formerly Wilson), Gabriel Johnson, Sarah B. Wilson, and Samuel A. Wilson.</p> <p>The complaint alleges, that John A. Wilson died,, the-owner in fee simple of certain lands described, in all about two hundred and sixty-seven, acres, leaving;as; his. only heirs-at-law said Matilda Duling (formerly Matilda "Wilson, who has intermarried with said William Duling), James P. Wilson, William T. Wilson, Sarah B. Wilson, and Samuel A. Wilson, his only children, and said Hannah M. Johnson (formerly Hannah M. Wilson, who has intermarried with said Gabriel Johnson), his widow; that said Hannah M. Johnson is the owner by descent from said John M. Wilson, deceased, and entitled to the undivided one-third of said real estate for life, with remainder over to said children of John M.; that each of said five children owns in fee the undivided one-fifth of the remaining two-thirds of said real estate; that said James P., William L., Sarah B., and Samuel A. are minors; that said Samuel A. and Sarah B. are the children of said decedent and said Hannah M., and said Matilda, James P., and William T. are the children of said decedent by a former wife; that said widow and children hold said lands as tenants in common; that the petitioners are desirous of holding their said interests in sevei’alty. Prayer for partition.</p> <p>The defendant Hannah M. answered, that before her marriage with the decedent he caused one James S. Wilson to purchase certain tracts of land in Grant county, describing them, which land was worth - thousand dollars, which her said husband caused to be conveyed to said James S. Wilson, who held the same in trust for her said husband, who afterwards, to defraud her of her part as his wife, caused the said land to be conveyed by said James S. Wilson to the decedent’s children by a former marriage, the plaintiffs, who still own the same; that said land was purchased with her said husband’s money, and was so held in trust for a long time after this defendant’s said marriage to said John M. And she demanded, that, in addition to her one-third of the lands described in the complaint, one-third of the lands so conveyed to said children should be set off’ to her, or an amount equal thereto of the lands in the complaint mentioned.</p> <p>Gabriel Johnson, husband of said Hannah M., answered, disclaiming any interest.</p> <p>Sarah B. Wilson and Samuel A. Wilson answered by guardian ad litem, alleging, in substance, that said John M. caused the lands so held by James S.WiJsonto be conveyed to said Matilda and William T., and caused certain other land to be conveyed to said James P.; and that by means of such conveyances to the plaintiffs, said Matilda had received, by way of advancement from the decedent, fifteen hundred dollars, said William T. one thousand dollars, and said James P. fourteen hundred dollars.</p> <p>The plaintiffs demurred to the answer of Hannah M. Johnson; the demurrer was overruled, and the plaintiffs excepted.</p> <p>The plaintiffs then replied to the answer of Hannah M., in two paragraphs, first, the general denial; second, that said decedent was not at any time during his marriage to Hannah M. seized in fee simple of the lands so conveyed by James S. Wilson to said children; and that said decedent at the time of his death had no equitable interest in said lands, but had caused the same to be conveyed to his said children upon a good and valid consideration.</p> <p>The plaintiffs also replied to- the answer of said, guardian ad litem, in two paragraphs, first, the general' denial;, second, that the several tracts of land' mentioned' in said answer were caused to be conveyed to plaintiffs, not as advancements, but as unconditional gifts, by their said father, and were so intended by him at the- time.</p> <p>The cause was tried by the court.</p> <p>The evidence is in the record.</p> <p>James S. Wilson testified, that his brother, John M. Wilson, the deceased, had been in Grant county, in this State, in 1834, and purchased' two tracts of land and returned home to Yirginia; that he wanted James S. to come west, and gave him two hundred dollars in money,,, and gave him the numbers of two pieces of land; that James S..came and found that one of the pieces was entered;., that he-got numbers and, with tbe money so given him, entered land in Ms own name; that he had to shave said, money to get land-office money; that this land he conveyed to said Matilda and William T., eighteen or nineteen months before the death of their father; that the land so conveyed to Matilda was worth fifteen or sixteen hundred dollars, and that conveyed to William one thousand dollars; that he paid -for shaving said money and expenses of entering the land about fifteen dollars of his own money; that he told his said brother that he would make him a deed for the land if he would repay said sum, but not otherwise, and his said brother never requested him to make such deed; that witness told his said brother that, if he would pay expenses, witness would make a deed for said land to said brother’s children, but said J ohn M. never told witness to do so-; that afterwards witness was told by his own wife that John wished him to convey the lands to William and Matilda, and he did so, to “ suit his own notion.”</p> <p>Hannah M. Johnson testified, that said John M. Wilson, her husband, purchased a tract of land during their marriage and had the conveyance made to James P. Wilson, his son by a former wife; that he paid about fourteen hundred dollars for it; that this was about four years after they were married; that she never joined in any conveyance of this land; that she and her said husband lived together twelve years; that she did not see money paid for this land, but received her information from her said husband, who received the rents of the land while he lived; and that James P. was thirteen years old when the deed was made to him.</p> <p>William T. Wilson testified, that he knew of the purchase of the land conveyed to James P., but did not remember when it was; that he heard his father say it was for James P. Wilson.</p> <p>Eveline Wilson testified, that John M. Wilson said to her that he wanted the land deeded to Matilda and William; that she told James S. Wilson about it; that she heard John say that the reason he had for giving the land to Matilda and "William was, that he thought their mother had worked very hard and never lived to enjoy it, and he wanted them to have it, over and above what the second set of children were to get.</p> <p>One Lucas testified, that John M. Wilson, on his death bed, about eighteen hours before he died, thinking he was about to die, said he was still getting worse; that he wished his brother James was there; that he wanted the boys to stay on the farm, and work, and take care of things as they had been doing, and give Hannah a good support while she lived; that he wanted the two youngest children and all of the children to go to school; that when Mrs. Wilson was done with the place, he wished William to have it, and he asked Mrs. Wilson if she would agrée to that, and she said she would, excepting to keep James P.; that he wished Sarah to have one thousand dollars when she should come of age, and the youngest boy eighty acres over the river, which, the witness said, was not one of the tracts deeded to the first set of children.</p> <p>The deeds to the eldest children were given in evidence.</p> <p>At the proper time, as appears by bill of exceptions, the plaintiffs objected to the admission of the statements made by John M. Wilson at the time mentioned by the witness Lucas, for the reason that they were made long after the lands were conveyed; but the objection was ovei’ruled, and the plaintiffs excepted; and the court allowed the witness to give said statements, only upon the ground that they were dying declarations.</p> <p>The court found, that Mrs. Johnson had no interest in the lands conveyed to the first set of children, but was entitled to one-third, in fee simple, of the lands mentioned in the complaint; that the lands so conveyed were advancements; that Matilda was thus chargeable with an advancement of fifteen hundred dollars, James P. with an advancement of fourteen hundred dollars; and William T. with an advancement of one thousand dollars; and partition of the land in the complaint described was decreed accordingly.</p> <p>The plaintiffs moved for a new trial. The motion was overruled, and the plaintiffs excepted.</p> <p>Commissioners were appointed, who, at a subsequent term, reported that they had set off' to Mrs. Johnson “ sixty-five acres on the east side of the north-west fractional quarter of section nineteen, township twenty-three, north of range nine east, to be cut off by a line parallel with the east line of said quarter; to Sarah B. Wilson the remainder of said quarter, except seven acres in the northern part, her portion. being seventy-five acres; to William T. Wilson seven acres out of the north-west quarter of section nineteen, and sixteen acres on the south end of the east half of the west half of the south-west quarter of section eighteen, in all to said William twenty-three acres; to. James P. Wilson the middle part of the east half of the west half of the south-west quarter of section eighteen, in all fifteen acres; to Matilda Duling the north end of said east half of the west half of the south-west quarter, being about ten acres; all in-township twenty-three, range nine east; to Samuel A. Wilson seventy-eight acres on the north end of the east half of the north-east quarter of section eleven, township twenty-three, range eight east; and the remainder of said tract wo divide equally among the older heirs, Matilda Du-ling, James P. Wilson, and William T. Wilson; which we respectfully submit to the court,” &c.</p> <p>The plaintiffs filed their written objection to the report, alleging, among the grounds of objection, that the report was too indefinite in the description of - the different shares set off..</p> <p>The court overruled the- objection, and the plaintiffs excepted.</p> <p>The plaintiffs moved for a new trial, and then in arrest of judgment, said motions being overruled in their order, to which rulings-the plaintiffs, excepted.</p>

Suit by Baugh against Smith, the appellant, and Boyd, on a promissory note executed by them to Baugh for four thousand five hundred dollars, on which a payment of two thousand dollars had been made. Smith, the appellant, filed a separate answer of four paragraphs. No question is presented in this court on the first and fourth.

<p>Draining Association.—Legislature.—Police Power.—The legislature has power to authorize the organization of companies for the purpose of draining swamp lands. This authority of the legislature is referable to the police power—the right of the legislature to require the owner of property to so use his own that his neighbor may have such reasonable enjoyment- in his own possessions as naturally adheres thereto.</p> <p>Same.—Abuse of Power.—The abuse of this power must be prevented by the courts, but its reasonable exercise cannot be denied.</p> <p>Same.— Act of 1869. — The act of 1869, “to authorize and encourage the construction of levees, dikes, and drains, and the reclamation of wet and ' overflowed lands by incorporated companies,” &c., Acts 1869, p. 82, is not an abuse of such police power.</p> <p>Same.—Articles of Association.—Description of Dram.—It is an essential prerequisite to the organization of a draining association under said act, that the lands to be affected by the proposed work must be described in the articles of association, or there must be such a plain description of the commencement, the line, and the termination of the ditch as will enable all persons to form, with reasonable certainty, an opinion regarding their personal interest in the corporation.</p>

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

<p>Practice.—Special Finding.—Where the issues of fact in a cause are tried by the court,' and it states the facts, in writing and the conclusions of law thereon, by request, under section 341 of the code, the questions of law involved are saved for review by the Supreme Court by excepting to the conclusions of law stated, and not by making a motion for a new trial.</p>

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

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

<p>Joint Owners.—Sale.—False Representations.— Warranty.-—-Where one of two joint owners of certain personal property had not authorized the other joint owner to sell the share of the former without consulting him, or to make any false representations, or to warrant such^share, and had not himself warranted such property or made any false representations concerning it to a certain third person;</p> <p>Held, that he could not he hound by false representations or a false warranty in the sale of such property to such third person by the other joint owner.</p>

<p>Estoppel.—Promissory Note.—Indorser.—Where one indorses the form of a promissory note, blank as to the date, time or place of payment, amount, or name of payee, or all these parts, and delivers it to the maker, and, in violation of instructions given by such indorser to the maker, there is afterwards written therein any stipulation usual to paper of the class indiicated by the blank form, such endorser will be liable on the note according to its terms in the hands of a bona fide holder.</p> <p>Same.—A person indorsed a form of a promissory note, blank as to all said parts, at the request of the maker and for his accommodation, stipulating verbally that the note when filled up should not be made payable at a bank, there being sufficient blank space for that purpose; and afterwards, without the knowledge or consent of such indorser, at the request of the payee, who had knowledge of such stipulation, the form was so filled as to make the note payable at a certain bank.</p> <p>jHeld, that such indorser was liable on the note in the possession of one who received it for value, before due, in the usual course of business, without notice.</p>

<p>Alteration of Written Instrument.-—i?i2i of Exchange.—Where a person signs, as drawer, a form of a bill of exchange, blank as to the names of the drawee and payee, the date, the amount, and the place where payable, and delivers it to another, at the request and for the accommodation of the latter, and it is afterwards filled up as a promissory note, without the knowledge or consent of such signer, he is released from liability as maker or surety upon the note in the hands of the person chargeable with such alteration.</p>

<p>Infobhatiox.— Unlawful Exercise of Franchise.—Statute Construed.—An information, under section 749 of the code, against a person for an unlawful exercise of a franchise by him, cannot be filed bya person (other than the prosecuting attorney), on his own relation, who has no interest in the franchise.</p>

<p>Attorney.—Motion ta Suspend.—Demurrer.—Where, in a proceeding to> suspend one from practice as an attorney, a demurrer is filed to the entire motion to suspend, and any one of the charges or specifications contains sufficient cause for the motion, the demurrer should he overruled.</p> <p>Same.— Withholding Money Collected.—One of the charges contained in a motion to suspend an attorney from practice alleged, that ho had in his hands, money belonging to. the party making the motion and another person, collected by him as their attorney in a certain cause, tried in the same court,, at a term specified, mentioning the amount so collected for each and thus, withheld, which said attorney refused to pay to them on demand orin any manner account for.</p> <p>Held, on demurrer, that this charge stated sufficient facts.</p> <p>Same.—Encouraging Litigation.—Another charge in said motion alleged, that the attorney was in the habit of encouraging the commencement and prosecution of actions, for the mere purpose of promoting his own personal ends, and interests, and stirring up and exciting disputes and lawsuits amongst his neighbors and the citizens of the county and neighborhood in which the party making the- motion lived.</p> <p>Meld, on demurrer, that this charge was not sufficiently definite.</p> <p>Meld, also, that the charge should have specified the particular case or cases in which the attorney had thus violated his duties as such.</p> <p>Same.—Trial by Jury.—The attorney against whom the motion to supend is¡ made is authorized by the statute to demand that the issues.formedi shall be tried by a jury.</p> <p>Same.—Judgment.—Under the code, upon such a motion, the attorney may be suspended, and a judgment may also be rendered against him for the amount of money so withheld by him.</p>

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

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

<p>Tax.— Change of County Boundary.—Where the boundary between two counties is changed, under the statute (I G-. & H. 192, sec. 2), after the assessors of the townships embracing the territory transferred have made their enlistments for the current year, and after the time for making and returning such enlistments has passed, the county from which such territory is detached, and not that to which it is transferred, is entitled to assess, collect, and retain the taxes for that year in such transferred territory.</p> <p>Same.—A majority of the legal voters residing -in certain territory constituting a part of the county of M., abutting upon the county of H., petitioned the board of commissioners of these counties for such chango in the boundaries thereof that said territory might be detached from M. and annexed to H. The order granting the change was made by the commissioners of M. on the 8th of June, 1868, and by the commissioners of H. on the 9th of the same month. The rate of taxation was fixed by the commissioners of M. on the 9th, and by the commissioners of H. on the 11th of said month. Prior to the making of any of said orders, the assessors of the townships of M. embracing the detached territory made their enlistments and returned their lists of taxables to the auditor of M. county, who placed all the persons and property on the tax duplicate for said year. At the proper time, this duplicate was placed in the hands of the treasurer of M. county, who proceeded to collect the tax thus assessed from the persons residing in said detached territory, under a claim of right on behalf of M. county.</p> <p>Held, that the county of H. had no cause of action against the county of M. Hew,.also, that if under the law the taxes in question did not belong to the county of M., then she, if liable to any one, Was liable to each person from whom sucli' taxes were so wrongfully collected.</p> <p>Held, also, that such taxes were properly assessed and collected by M. county.</p>

<p>Defavet.—Motion to Set Aside.—Affidavit.—Where judgment is taken by default against a defendant duly served with process, a motion to set aside the default and permit the defendant to plead to the action must be supported by affidavit in which the nature of the defense is stated.</p>

This was an action by the owners and the tenants of owners of lots fronting on a street in which is situated a market-house, against the individuals composing the mayor and common council of the city of Evansville, charging that the market-house is a nuisance, and seeking to recover damages for its maintenance and to enjoin the defendants from longer maintaining it.

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

This suit was instituted by the German Mutual Insurance Company of Indianapolis, the appellant here, against Louis Grim and Wendal Ritter and wife.

This was a suit to enjoin the appellee from .constructing a railroad switch, or side-track, upon and along Buckeye street, in the city of Kokomo, in front of certain lots belonging to the appellants.

This was an action by Gillison Maghee, surviving partner of John H. Maghee & Co., against Elisha Collins, the appellant, and 3 ohn W. Collins, on the following promissory note: “ $768T* “ Six months after date we, the 'Subscribers, residing in Marco, Greene county-, Staté of Indiana, promise to pay to the order of John H. Maghee & Co., seven hundred and sixty-eight TV (Signed) “ E. & W. Oollins.” John W. Collins, represented in the signature to the note . by “W.” Oollins,…

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

<p>Interest.— Usury.—Remedy.</p>

Suit by the appellant against the .appellee. The facts presented by the ¡complaint are, In substance, as follows- On the 3d of ^February, 1865, John Green, since deceased, ■conveyed to bis son George, the defendant, several tracts of land In Steuben county, containing in all about one hundred and seventy-five acres, and transferred to him all' bis, John’s, personal property, except notes, rights, accounts, chose's in action, and moneys» In consideration whereof ¡said George…

Suit by the appellee Joanna Morris against the appellee Thompson and the appellant, Bice.

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

<p>APPEAL from the Gibson Circuit Court.</p> <p>Suit by Meyer, the appellant, against Mary Yesser, for specific performance of a contract for the sale of land.</p> <p>The complaint alleges, that on the- 8th of September,. 1862, the plaintiff purchased of the defendant certain land, which is described, situate in said county of Gibson, for the sum of two hundred and fifty dollars, to be paid on or before the 2oth of December, 1868, with eight per-cent, interest per annum; that, in pursuance of said contract, the defendant delivered possession of said land to the plaintiff, who entered thereon and has- ever since held, and still holds, possession thereof, and has made valuable and lasting improvements thereon, to the value of five hundred dollars; that afterwards, on the 7th of September, 1863, the defendant, in confirmation of said contract of sale, executed and delivered to the plaintiff a bond, in the penal sum of seven hundred dollars, conditioned that upon the payment to her ■ of said sum of two hundred and fifty dollars, with interest ; at eight per cent, per annum, on or before the 25th of December, 1868, she would execute and deliver to the plaint-' iff a good warranty deed to said land. A copy of the bond was filed with the complaint. It is further averred in the complaint, that the plaintiff had punctually paid to the defendant the interest on said sum of two hundred and fifty dollars, at the rate of eight per cent, per annum, from the date of the purchase to the 25th of December, 1867; and on the 23d day of January, 1868, tendered and offered to pay to her the sum of $251.66f cents, the full amount of the purchase money and- 'the unpaid interest thei’eon to that date, and requested of the defendant a conveyance for the land; but the defendant refused, and still refuses, to receive the money or to execute to the plaintiff a conveyance ; that the plaintiff ever since the date of said tender has kept, and still keeps, the sum so tendered for the defendant, which he is ready and willing to pay her, on the execution of said conveyance.</p> <p>Prayer for a specific performance, &c.</p> <p>The defendant filed an answer in three paragraphs. The third paragraph was stricken out on motion.</p> <p>The first is a general denial.</p> <p>The second paragraph alleges, in substance, that prior to the time of the execution of the bond exhibited in the complaint, the defendant had agreed with the plaintiff’ to purchase for him five-seventh parts of the land described in the complaint, the plaintiff agreeing to pay her therefor two hundred and fifty dollars on or before the 25th of December, 1867; that the defendant is a German, unable to speak, read, or write the English language, and at the time of executing the bond she was sick, and the bond was not read to her; that the plaintiff falsely and fraudulently assured her that it correctly stated the agreement between them, and, relying on the honesty of the plaintiff, sh’e signed it; when, in truth, the plaintiff fraudulently had said bond drawn payable on or before the 25th of December, 1868, without the knowledge or consent of the defendant.</p> <p>The plaintiff demurred to the second paragraph of the answer. The demurrer was overruled, to which the plaintiff excepted; and, upon his refusal to reply to that paragraph, final judgment was rendered against him.</p>

<p>Mortgage.—Registry.—Effect of.—Only subsequent purchasers and incumbrancers in good faith and for value a,re protected against an unrecorded mortgage of real estate; as against all the world besides the registry imparts no virtue or force whatever to the instrument.</p> <p>Same.—Decedents' Estates.—An administrator of an insolvent estate, having no knowledge of the existence of an unrecorded mortgage on certain real estate executed by his intestate, sold the land under an order of court, to make assets; and the purchaser, who, also, was ignorant of the mortgage, paid the whole purchase-money, a full and fair price, and took a proper conveyance.</p> <p>Held., that the mortgagee was entitled to payment out of the proceeds of said real estate, in the hands of the administrator, in preference to general creditors.</p> <p>Same.—The administrator having paid the mortgagee a part of his claim out of the personal estate;</p> <p>Held, that the personal estate should be reimbursed out of said proceeds of the land; that the balance of such proceeds should be applied in satisfaction of the mortgage; and that the remainder of the claim not thus dis-< charged must be regarded as a “general debt.”</p>

<p>Contract.— Construction of.—Estoppel 'in Pais.—Certain land owned by A. was sold -on execution and purchased 'by Kis brother, B., in 1845, A. continuing in possession. He conducted a business in the same county from 1844 to the time of his death, in 1859, part of the time in the name of his said brother, who resided in another state, part of the time in the names of himself and said brother, and the residue of the time in the name of his own son. In 1846, B. executed to A. a title-bond for the conveyance of said land in fee simple by the former to the latter, on the payment of the purchase-money, eighteen ’hundred dollars of which was paid at the time, and for the balance, two hundred dollars, a note payable in four years was given. In 18E3, B. made a will, wherein he gave said land and all his real and personal estate to his wife. In 1856, he made a codicil, in which he gave said land to A., on condition that the latter would pay said wife of B. one thousand dollars, with interest from September 15th, 1846, and indemnify B.’s estate from all liabilities created in the conduct of said business, and execute a bond to secure the performance of these conditions. B. died in 1856, leaving his said wife surviving; and said will, with its said codicil, was probated the same year. An attorney, who had for several years been prosecuting suits In favor of one 0. and his creditors, 'to reach said land as the property of A., said suits being resisted on the.ground that the property belonged to B., in 1857, acting in the interest of 0. procured from the widow of B. a deed of conveyance without covenants, 'to himself, in fee simple, for all the lands and estate of every kind in the 'county wherein said land is situated or elsewhere-in this State, to which the grantor, as widow, heir, or devisee of said B., was in .any-way entitled; the grantor making the grantee her attorney in fact, with authority :in her name, or otherwise, to possess himself of the property so conveyed, and revoking all other appointments. In consideration of this deed, the grantee executed to the grantor an agreement (on which this suit was brought by said grant-tor against said grantee), stipulating, ithat in<case A. should not accept the provision of said will in his favor, .then said attorney‘Should, out of the proceeds of said property assignedand conveyed to him, pay said widow of B. one thousand dollars, with interest from September 15£b, 1846; and that said grantee would pay all costs and attorney’s fees growing out of the litigation aforesaid about the property conveyed, and indemnify the grantor against all liability growing out of the claims of'O. and his creditors. Afterwards, in the same year, said attorney, believing, as he testified in this action, that an inchoate right of dower of A.’s wife was the only incumbrance on the land, procured a deed of conveyance of said land from A. and his wife who were in possession, which they then delivered to said attorney; in which de.ed it was stated, that the object thereof was to convey and release to the grantee any and all claims, right, and interest, present or prospective, of the grantors or either of them, in said land, so that they nor either of them nor the heirs or assigns of either of them, should ever have or make any claim or title to said .land or any part thereof, against the grantee, his heirs or assigns. .In consideration of this conveyance, said attorney gave his note to A.’s wife, for .one thousand dollars, which was fully paid before October, 1858. 0. conveyed all his interest in said land to said attorney, who assumed to pay certain sums to O.’s creditors. In October, 1858, said attorney sold said land to'One D., at public auction, for four thousand six hundred dollars, of which three thousand two hundred and sixty-two dollars was paid at the time, and delivered possession to D., who was still in .possession at the commencement of this action. In 1855, said title-bond was assigned by A. to his-said son, who held it, and, though he knew all about said attorney’s purchase before the purchase-money was paid over, concealed the existence of the -bond, ’.until after the death of A., in 1859 or 1860. In 1861, D. purchased in said bond, .paying said son seven hundred dollars therefor, and instituted a suit thereon against said attorney, in which there was a decree by default ordering a conveyance, which was made by a commissioner.</p> <p>Held, that under these facts said widow of B. was entitled to recover on said agreement executed to her by said attorney.</p>

<p>Estopped isr 5?ais.—A party will be concluded from denying the truth of his own admissions, which were intended to influence the conduct of another and did so influence it, when such denial will operate to the' injury of the latter.</p> <p>•Same.—Principal and Surety.—Any act of the principal which estops him from setting up a defense personal to himself, operates equally against his surety.</p> <p>¡Same.—Promissory Nate.—Assignee.—Where the principal maker of a promissory note not governed "by the law merchant was informed by a person that the latter was about to purchase said note, and would do so if it was ■good and if there was no defense to it, and said principal thereupon informed said person that the note was good, that there was no defense to it, .and that it would be paid .to said person if he should purchase it, and, by Teason of said representations, said person thereafter purchased the note and the same was assigned to him;</p> <p>Held,, in a suit on the note by a subsequent assignee of such purchaser, that the principal and his sureties-were estopped from setting up a defense, personal to the principal, existing at the time of said representations.</p> <p>¡Practice.—Pleading StricJcen Out.—There is no error in striking out, on motion, a paragraph of an answer, where all the material allegations thereof are covered by the averments cf a remaining paragraph of the answer and ■every matter of defense alleged in the former can be given in evidence under the latter.</p>

<p>Estoppel.—Surety.—Where a surety signs an instrument apparently perfect and complete, and. hands it to his principal, to be finally delivered to the obligee, only when it shall have been executed by certain others as co-sureties, and the principal, without complying with the condition, delivers the instrument to the obligee, who has no notice, actual or constructive, of the condition, and takes the instrument in good faith, such surety will be bound.</p> <p>County Treasurer.— Official Bond.—Statute Construed.—The act of March. 6th, 1865 (Acts 1865, p. 62), providing that the bond of a county treasurer “shall be signed and acknowledged by said treasurer and his sureties in the presence of" the county commissioners, does not require an actual writing of the names in the presence of the commissioners; if a name has been previously written, even by a stranger, the adoption of it as the par- • ty’s signature is a signing then and there within the meaning of the statute.</p> <p>Same.—Directory Statute.—This provision of the statute is merely directory; though the commissioners may and should reject the bond if the provision be not complied with, yet such compliance is not essential to the validity of the bond as against the sureties.</p> <p>Same.—Alteration of Written Instrument.—Where a person executes a county treasurer’s official bond as surety, intending to be bound as co-surety with another who has before signed the bond, but who before delivery erases his name without the knowledge of the second surety, the latter is not bound.</p> <p>Same.—Evidence.—In a suit upon a county treasurer's official bond against the principal and his sureties, the defense of the sureties being, in effect, that the bond sued on was not their deed, the plaintiff, after proving the genuineness of the signatures of the defendants, offered the bond in evidence, but the court refused to admit it as against the sureties.</p> <p>Held, that this ruling was error.</p>

<p>■Bill of Exceptions.—Pleading Stricken Out.—Affidavit.—Interrogatories.— -A pleading stricken out on motion, an affidavit filed in support of suck motion, interrogatories propounded by a party to be answered under oath by •the adverse party, and the answers of the latter thereto, can be made a part of the record by bill of exceptions only.</p>

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

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

<p>City oe Evansville.—Annexation of Territory.—Constitutional Law.—Local and General Laws.—The act of March 6th, 1865 (Reg. Sess. p. 113), amending section 71 of “ an act.granting to the citizens of the -town of Evansville, in the county of Vanderburgh, a city charter,” &e., is not in conflict with section 23 of article 4 of the constitution 'O'f the State, and is within the express grant of power in -the constitution to the legislature to modify any former act of incorporation for'muhicipal purposes.</p> <p>Petition on Council.— Construction.—A .petition to the board of commissioners of Vanderburgh county, subscribed and sworn to by the mayor and members of the common council of the city of Evansville, purported to be the petition of the common council of said city, and alleged that “ it is the desire of said common council that certain .territory, hereinafter described, contiguous to said city, and platted, or laid off, should be annexed to said city in pursuance of the provisions of,” &c.</p> <p>Held, that this sufficiently showed that the city desired to annex the territory described.</p>

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

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

<p>Jurisdiction.—Appearance.—Pleading.—Where the record of a judgment shows an appearance for the defendant, the court’s jurisdiction of his person can only be controverted by proof of fraud, or that he was not a resident of the State or, during the pendency of the suit, within the jurisdiction of the court, and had no notice of the action and did not authorize the appearance, unless, he having been a resident of the State or within the court’s jurisdiction during the pendency of the suit, and not having received notice or authorized an appearance, a defense can be established on the merits. The general averment of fraud, without any statement of facts, constitutes no ground upon which to question the court’s jurisdiction.</p> <p>Principad and Surety.— Contribution.—A surety is not discharged from liability to his co-surety for contribution by the mere fact that the former signed at the request of the latter.</p>

This was an action for a malicious prosecution, brought by Butsch against Schenck in the Vanderburgh Circuit Court, and taken by change of venue to the Spencer Circuit Court.

<p>Waiver.—Where parties to an action have waived such objections as they may waive, judicial tribunals cannot ordinarily annul or disregard such waiver.</p> <p>Same.— Change of Venue.—After answer filed in a cause in the court of common pleas, the defendant moved to change the venue from the county, supporting his motion by proper affidavit; whereupon, by agreement, the venue was changed to the common pleas of an adjoining county and the third day of the succeeding term of that court was fixed for trial, on which day the parties appeared in the latter court, and the plaintiff filed a demurrer to the answer.</p> <p>Held, that the court to which the change was taken, it having jurisdiction of the subject-matter of the action, could not, on its own motion, over the objection of the defendant, strike the cause from its docket and remand it to the court granting the change, at the costs of the defendant, for the reason that it had been neglected to transmit the record and papers until within ten days before the first day of such term.</p>

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

Suit in the name of the State, on relation of the appellants, against Daugherty and his sureties on his official bond as sheriff of Delaware county.

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

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

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

<p>Pleading.—'Answer.—Promissory Note.—Suit on a note. Answer in two paragraphs, first, a denial of the execution of the note in manner and form as alleged (not sworn to); second, that said note was given wholly without consideration.</p> <p>Held, that the first paragraph was good so far as to require the production of the note, and the second was a good denial of any consideration for the note.</p> <p>Same.—Demurrer.—A demurrer which assigns no cause as required by the statute should be stricken from the files.</p>

<p>Practice.—Special Finding.—Where, on the trial of a cause hy the court, it finds generally, and, at the request of one of the parties finds the facts, without stating any conclusion of law thereon, an exception cannot be taken, under section 341 of the code, to the finding.</p> <p>PleadinCt.— Cornier Claim.—Complaint to set aside a conveyance of land made by the plaintiff to the defendant, for an alleged fraud. Answer, by way of cross complaint, alleging, that the defendant was the owner in fee simple, and entitled to the possession, of said land; that he purchased it in good faith and for a valuable consideration of the plaintiff, who still held possession thereof without right and for one year last past had unlawfully kept the defendant out of possession; and that plaintiff falsely claimed and pretended that the defendant had acquired the title to the land by unfair means. Prayer for a decree quieting defendant’s title and for possession.</p> <p>Held, on demurrer, that the cause of action set up in the answer was within the definition of a counter claim in the code.</p>

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

<p>Instructions to Jury.—Repetitions.—Where, in its instructions to the jury, the court repeated substantially the same instruction in different forms in favor of one party, while in stating the law in favor of the adverse party’s theory of the case, there was no such repetition;</p> <p>He Id, that this, though it might be bad taste, was no error.</p> <p>Same.—Irrelevant Instruction.—The Supreme Court will not reverse a judgment because an instruction given to the jury, by which the appellant could not have been injured, was irrelevant.</p> <p>Same.—Instruction as to Proof Required.—In an action in which the complaint set forth several distinct causes of action, each of which was sufficient, the court instructed the jury “that before the plaintiff would, in any event, be entitled to recover in this case, the jury must find from the evidence that the allegations and averments in the complaint are proved substantially as laid; that bis right to recover cannot be enlarged beyond the case made by his complaint; and if the jury believe that the plaintiff has failed to prove any one of the material averments in his complaint in its general scope, the jury must find for the defendant.”</p> <p>Held, that the instruction was erroneous.</p>

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

<p>Appeal.—From Justice of the Peace.— Costs.—Where a party against whom judgment has been rendered before a justice of the peace appeals to the court of common pleas and reduces said judgment five- dollars or more, he is not entitled to recover his costs in the court of common pleas, if he did not appear to the action before the justice of the peace.</p>

Suit by Lydia A. Bicknell againt Ringle, the appellant,., on a guaranty.

Suit by Spaugh agáinst Snyder and the appellant on a note for two hundred and twenty-five dollars, executed by the defendants to the plaintiff. Pending the suit, Sidener, the appellee, became the owner of the note by assignment from Spaugh and was substituted as plaintiff. Reed answered separately in three paragraphs, to all of which demurrers were sustained, and Reed excepted. The first and third paragraphs only, are presented in the abstract in this court.

<p>Promissory Note.— Want of Date.—Pleading.—A complaint on a note not dated, but made payable “nine months after date,” alleged, that the maker “ on,” Ac. (being less than nine months before the commencement of suit), “at," Ac., “by his note promised to pay,” Ac.; but did not state when the note became, due. '</p> <p>Held, that the complaint was bad on demurrer.</p>

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

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

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

<p>Attachment.— What Claims Allowable.—A proceeding in attachment was instituted against an absconding debtor, and his wife demanded and had set off to her, as exempt from the attachment, property to the amount of throe hundred dollars out of the property upon which the writ of attachment was levied. Pending said proceeding, the wife applied for and obtained a divorce, a decree for alimony, and an allowance for the children of the parties, for ■» cause which existed at the time the Writ of attachment was issued.</p> <p>27eld, that -said decree for alimony and said allowance to the children constituted. proper claims under the attachment proceeding, they having been filed thereunder before the final -adjustment of the suit.</p>

<p>CiuminaIi Law.—Indictment.—Malicious Trespass.—An indictment for malicious trespass in giving a quantity of arsenic to a number of horses and thereby causing their death, alleged, that the defendant, on, &c., at, &o., administered, &c., “ to six horses of the personal property of” J. M.</p> <p>Held, that this was a sufficiently certain allegation of the ownership of the property.</p> <p>Same.— Venue.—Evidence.—On the trial of a criminal action, it is not necessary that the venue bo directly proved, if the right venue is clearly inferrible from the entire evidence.</p> <p>Same.—Juror.— Challenge.— Waiver.—Where, in a criminal action, the jurors being all sworn to answer questions touching their competency as such, the • defendant, having full opportunity to examine them touching their competency generally, confined his examination to the question as to whether they had formed or expressed an opinion as to his guilt or innocence, and thereupon accepted the jury;</p> <p>Held, that the fact that one of said jurors, though resident in the county, was not a householder thereof, first ascertained by the defendant after verdict of guilty, did not entitle him to a new trial.</p> <p>Same.—Judgment.—Appraisement Laws.—A direction in a judgment in a, criminal action, that the fine and costs adjudged against the defendant be collected without appraisement, is erroneous.</p>

This was a suit commenced before a justice of the peace-by tbe State, on the relation of John D. Arnold, against Edward H. Madison,, a constable, and. the sureties on hi® official bond, the complaint alleging, that at the April election, 1866, said Madison was elected a constable in and for said county, and, on the 10th day of April; 1866, qualified by giving bond and taking the oath of office, a copy of said bond and of said oath being filed with the complaint; that on the…

This was an information filed by William H. Houston, John R. McCabe, Henry C. Veach, George Miller, and John King, for and in the name of the State, on their own relation, against Azariah T. Beckett, John Stoops, Achilles Backhouse, Matthias M. Moore, and Samuel Backhouse.

<p>Attachment.—Appeal.—Where final judgment has been rendered for the plaintiff in an action in which.a writ of attachment has been quashed, the plaintiff may appeal to the Supreme Court, assigning for error the ruling dismissing his proceeding in attachment. Abbott v. Zcigler, 9 Ind. 511, disapproved.</p> <p>Same.—Affidavit.—Nature of Claim.—An affidavit in attachment alleged, “that said defendant is justly-indebted to said plaintiff in the sum of,” &c., “a balance due on account for goods sold and delivered; that the claim is just; and that he believes he ought to recover the amount above stated.” Held, that this sufficiently showed “the nature of the plaintiff’s claim,” as required by section 159 of the code.</p>

<p>Liquor Law.—Information.—An information for retailing intoxicating liquor without license, after charging the sale by the defendant, on, &c., of a less quantity than a quart of intoxicating liquor for a certain sum, continued thus: “he, the said” defendant, “not then and there having a license to sell intoxicating liquors in a less quantity than a quart at a time,” &e.</p> <p>Held, that this sufficiently showed that the defendant, at the time of the sale, was not licensed, according to law, to make the sale charged.</p> <p>Same.—It is not necessary that such an information should state the particular kind of intoxicating liquor sold.</p> <p>Same.—Evidence.—On the trial of such an information, the evidence showed that the liquor sold was beer, but failed to show that it was intoxicating, and also failed to show in what year the sale was made.</p> <p>Held, that, for these failures, the evidence was insufficient.</p>

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

<p>Yendor and Purchaser. — Contract. — Specific Performance. — Damages.—A contract dissolving a partnership betiveen A. and B. stipulated that a tract of land, the equitable title of which was in the firm, should bo conveyed in fee to A. Afterwards, B. fraudulently combined with a third person, paid a certain amount of the purchase-money remaining unpaid at the date of said contract, and caused the conveyance to be made to said third person.</p> <p>Meld, that A. was not confined to a suit for specific performance, but might proceed against B. for damages.</p> <p>Arbitration and Award.—Pudgment on Award.—Practice.—No question is raised by merely objecting to a motion for judgment on. an award of arbitrators and excepting to the ruling sustaining such motion; the party desiring to oppose the rendition of judgment should show affirmatively why it should not be rendered.</p>

<p>Will.—Attestation.—It is not necessary that a testator should actually see the signing of the will by the attesting witnesses; it is only necessary that his situation and circumstances be such that he may see them subscribe.</p> <p>Same.—Whore a will having been read to the testator a$d signed by him in bed, in the presence of the attesting witnesses, was then taken to an adjoining room and there signed by the witnesses where the testator, remaining in bed, might have seen the signing through an open door-wav between the apartments;</p> <p>Meld, that the attestation was “ in the presence of” the testator.</p> <p>Same.—Probate.—Evidence.—Burden of Proof.—Instruction to Jury.—Where both parties to a contest of the probate of a will had introduced direct evidence on the question as to whether the testator, from the position he occupied at the time, could or could not have seen the attesting witnesses subscribe ;</p> <p>Meld, that it was not error for the court to refuse to instruct the jury, at the request of the contestant, that if they found that the will was attested in a room adjoining that in which the testator was at the time, and if the contestee had failed to prove by a preponderance of evidence that the subscribing witnesses could have been seen by the testator at the time they attested the will, they should find against the validity of the will.</p> <p>Same.—Pleading.— Verdict.—Where, in the contest of the probate of a will, it did not appear by the pleadings that either party to the contest had an interest in the subject-matter, but the contestant went to trial without objection, and the evidence showed that both parties were related to the testator and were devisees under the will;</p> <p>Meld, that after verdict the contestant could not object that the pleadings failed to show that the contestee had any interest. .</p> <p>Pbactice.— Verdict.— Venire Be Novo.—Interrogatory to Jury.—Where a verdict fully disposes of the issues and authorizes a final judgment, a venire de novo will not be awarded because of- the failure of the jury to return a definite answer to an interrogatory. If the question presented by the interrogatory be material, and the party at whose request it was propounded desires to insist on a definite answer, he should object, on the ground of such failure, to the receiving of the verdict or the discharge of the jury.;</p>

<p>Married Woman.— Contract.—Separate Property.—Where a note is executed by husband and wife jointly, the credit being given on account of the wife’s responsibility, for the purchase-money of lands conveyed to the husband, but which are afterwards sold and the proceeds thereof applied to the wife’s benefit; the wife is not liable on such note, nor can her lands or the profits thereof be charged therefor.</p>

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

<p>Pledge.— Of Promissory Note.—Where a person, being indebted to another on account, deposited with the latter as collateral security for such indebtedness a note and a mortgage-to secure the same, executed to the pledgor by a third person, the deposit being made upon the express condition that said note and mortgage should not be sued upon or foreclosed until every legal effort to collect said indebtedness had been made by the pledgee, who also agreed to return the note and mortgage upon payment of said indebtedness ;</p> <p>Held, in a.suit on said note by the pledgee against the maker, the pledgor being made a defendant to answer as to bis alleged assignment by delivery, that an answer setting forth these facts and alleging that the pledgor at the time, of said deposit and ever since had owned property sufficient to pay said indebtedness, and out of which the same might have been made, brft that no effort.had ever been made to collect said indebtedness, presented a a good defense for all the defendants.</p>

<p>Practice.—Demurrer.—Striking Out.—Where a demurrer has been properly overruled, and another fiemurrer for the same cause is filed to the same pleading, there is no available error in striking out the latter demurrer</p> <p>Same.—Reply.—Where the only objection to a paragraph of a reply is, that it amounts to the general denial already pleaded, there is no available error in refusing to strike it out or in overruling a demurrer thereto.</p> <p>Arbitration and Award.—Trial by Jury.—The right of trial by jury exists in an action on a common law award.</p> <p>Same.—Revocation.—Where a party to a common law submission to arbitrators attempts to make an express revocation of the submission, before the award is made, such attempted revocation, in order to be effectual, must be unconditional. An expression by a party, that unless certain evidence be received he will not submit to the award, is not a revocation.</p> <p>Same.—Where the matters submitted to arbitrators were matters of dispute between the parties growing out of their partnership transactions;</p> <p>Held, that it was competent for the arbitrators to determine what were and what were not partnership matters.</p> <p>Same.—Action on Award.— Questions of Law.—In an action on a cpmmon law award, decisions upon questions of law made by the arbitrators upon matters submitted to them, are conclusive.</p> <p>Instructions to Jury.—There is no error in. giving oral instructions'to the jury where a part of the instructions are in writing, if, the court is not requested to reduce the instructions to- writing.</p>

<p>APPEAL from the Tippecanoe Circuit Court.</p> <p>This was a suit by the appellee against the appellant Alvernus Jackson, on articles of partnership, Prances E. Jackson, wife of Alvernus, being made a party for the purpose of divesting her title to certain real estate alleged to have been purchased with partnership funds.</p> <p>The issues having been formed, the court, by agreement of the parties, referred the cause to a special master in chancery, who reported, in substance, that on the 18th of November, 1865, Crapp, Wortman, and Jackson entered into a copartnership in the house-carpentering, shingle-mill, and box-making business and any other business they might agree upon, in accordance with a written agreement, made a part of the complaint and given in evidence; that Wort-man and Crapp were each to pay into the concern one thous- and dollars, and Jackson was to pay five thousand dollars; that Wortman and Crapp were to devote their entire time to labor for the firm, to balance the extra capital furnished by Jackson; that they were to share equally in the profits and losses of the business; that Jackson was to do nothing by way of labor or in the management of the business, which was to be managed by the other two partners; that a division of profits and losses was to be made every six months, but that no such division was ever made; that they each paid into the firm the money and performed the labor according to the contract; that they continued in the business as originally commenced until the 10th of February, 1866, when the firm purchased an interest of one Jones in a certain patent right to a wheat separater and silent feeder for about five thousand five hundred dollars, paying two hundred and fifty dollars down and giving notes for the remainder; that thereupon, in addition to their former business, they commenced to make machines under their patent, and continued to do so for some time, until they had expended large sums of money, when they discovered that their machines were worthless, and until they had become indebted about three thousand dollars, exclusive of the Jones debt; that about the 1st of May, 1866, "Wortman became desirous of withdrawing from the firm; that thereupon, by agreement with Crapp and J ackson, he withdrew, Crapp and Jackson paying some small debts and releasing whatever sums he had withdrawn from the firm, except that he was to retain a one-third interest in the patent right and be liable on the Jones debt for his one-third share; that, after the withdrawal of "Wortman, Crapp and Jackson became the equal owners of Wortman’s interest and were to share equally the profits and losses of the business ; “ but as to whether or not they were to be the equal owners-of the property of the firm, the undersigned understands that he is not to decide;” that on the 5th of May, 1866, Crapp and Jackson made a pretended sale of most of the property of the firm to one- Burt, consisting of one old and one new shop, the machinery and tools therein, lots eighty and eighty-one in Orth’s addition to Lafayette, two horses, one spring wagon, and harness-; that there was other property, to wit, stock on hand, one old wagon, and some accounts; that after the sale to Burt, who was Jackson’s nephew, Jackson sold the new shop and machinery to one Kipp, receiving therefor two lots in Stockton’s addition to Lafayette, on which there were incumbrances, and one lot -in Beaumont’s addition to Lafayette, receiving a deed therefor in the name of Frances E. Jackson, his wife; fifteen hundred dollars; and a note on one Coons for about fourteen hundred dollars, which he sold for twelve hundred dollars; that Jackson took the two horses himself, sold the wagon to one Blair for sixty dollars, and sold the two lots in Orth’s addition, subject to a mortgage for twelve hundred dollars, to one Behm for six hundred dollars, and collected one hundred and twenty-eight dollars and seventy cents on account. “ The total amount for which I find that Jackson should be charged, on account-of property sold and retained and cash collected, is five thousand nine hundred and thirty-one dollars. He should be credited for moneys paid on debts of the firm, exclusive of the Jones debt, thrde thousand and twenty-one dollars. Balance in his hands, two thousand nine hundred and sixteen dollars. It further appears that Crapp has paid out twenty-six dollars more than he has collected, which add to Jackson’s account, to make them even,'two thousand nine hundred and forty-two dollars. If, therefore, J ackson is entitled to first draw from the firm four thousand dollars he would be entitled to one half of $4,000—$2,942=$529, from Crapp; but if Crapp is entitled to one half of the entire stock, then he is indebted to Crapp in the sum of one thousand four hundred and seventy-one dollars. This, however, is liable to a modification on account of the Jones note. It appears that Wort-man, Crapp, and Jackson were sued in the U. S. Court for five thousand two hundred dollars; that Jackson procured a compromise of the case by deeding back to Jones the patent and paying five hundred dollars; that he also ■ paid Behm six hundred dollars for legal services—in all eleven hundred dollars; that Jackson released Wortman from liability for some amount less than one-third of the entire cost; that Behm was acting as the attorney of Jackson, or, at any rate, it is denied by Crapp that he ever personally employed Behm or consented to his employment; that Crapp refused to pay anything to compromise the claim, he claiming that they could successfully defend the case; that Behm told Crapp that Jackson did not want him to pay anything; but it does not appear that Jackson authorized Behm to make such a statement. It is also objected by Crapp that this matter cannot be determined in this suit, as it relates to a matter in which another party is involved. Should it, however, be held that this can be settled in this suit, then the two amounts before found would be modified, so as to make the amount due Jackson, in one case, eight hundred and ninety-five dollars and sixty-six cents, and the amount due Crapp, in the other case, one thousand one hundred and four dollars and thirty-four Cents. I further find, at plaintiff’s request, that the labor of Wortman during the time he labored was worth three hundred and seventy-five dollars; and that the labor of Crapp during the time he labored was worth four hundred and fifty dollars.”</p> <p>The additional facts are sufficiently stated in the opinion.</p>

This was a suit by the appellee against the appellant, to recover the value of stock killed by a passing train of cars on defendant’s railroad.

<p>Real Property, Action to Recover.—Permanent Improvements.—In an action to recover possession of real property under a claim of absolute title, the defendant in possession cannot have the value of permanent improvements made by him on such real estate allowed, except that he may set off the value of such improvements against the damages he may be found in such action to have caused the plaintiff by withholding, or using, or injuring the property, to the extent of such damages. Beyond this, he must wait until the determination of the question of title and bring his action under the statute concerning occupying claimants.</p> <p>Vendor and Purchaser.—Lien.—Heirs.—Where a married woman, during her second marriage, executed to a bona fide purchaser a deed of conveyance of real estate which had come to her by descent from her first husband, there being children from said first marriage surviving;</p> <p>Held, that the fact that on the death of their mother said children received from her estate the consideration paid her • for said deed by the grantee, could create no lien on the land in favor of said grantee.</p>

This was a suit by the executor of the last will of Job Miller against the administrator of the estate of Sarah Hayes, for rent alleged to have become due to the testator in his lifetime from the defendant’s intestate, for money paid by said testator for the use of said intestate, and for the value of personal property sold by him to her.

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

<p>Execution-.—Levy.—Release of.—Where a joint judgment has been rendered! against persons not sureties as between- themselves, and each of’ them has-paid his proportionate part thereof, except one, upon whose property, sufficient to satisfy the balance, an execution on such judgment has been levied, and by direction of the judgment-plaintiff such levy is released and the execution returned, and the plaintiff causes an. alias- execution to issue on the judgment, he may direct sai'd- balance to-be made, upon such alias execution, out of the defendants who have so paid a part of'the judgment.</p>

<p>Contract.—Consideration.—Upon the dissolution of a firm, consisting of A., B., and C., of whom B. and C. also constituted another firm which continued after the dissolution of the former, it was agreed between A. and the firm of B. and C. that said continuing firm should pay a certain indebtedness on account against the firm so dissolved, and that A. should thereupon pay his portion thereof to the firm of B. and C. The creditor being advised of the arrangement, afterwards informed A. that it had been consummated by the giving of the note of the firm of B. and C. to said creditor for the amount of said indebtedness; and A. paid the firm of B. and C., according to said agreement.</p> <p>Held, in a suit by the creditor against all the members of the late firm, upon said account, that there was a sufficient consideration for the agreement of the creditor to accept the note of the continuing firm.</p>

<p>Principad and Agent.—Liability of Principal on Agents Contract.—An agent for the purchase of wheat for another on commission, at a certain place, bought a quantity of wheat, to be paid for on delivery, from a person who sold and delivered it to the agent as such, in good faith, and the agent received it, paid for it in part, and shipped it to his principal, and the seller waited several months without giving notice to the principal that the agent had not paid in full for the wheat, and in the meantime the principal settled with the agent and passed to his credit all the wheat shipped, by him to the principal.</p> <p>Held, that the principal was not released from liability to the seller for the residue of the price of the wheat.</p>

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

<p>Shemff’s Sam.—Parcels.—Order of Sale.—On a sale -of real estate, consisting of several parcels, by a sheriff, upon an order of sale issued on a decree of foreclosure of a mortgage executed by a man and his wife, ohe who has purchased at a sale by the administrator of the estate of such husband, deceased, such real estate, except the interest of the widow as against creditors, and has had his portion set off to him by partition, has the privilege of directing the order of sale of the portion owned by him; and if he does so in .a prudent manner, not prejudicial to the execution-plaintiff in the recovery of his debt, it is the duty of the sheriff to sell accordingly; and if, at the instance of the execution-plaintiff, the sheriff refuses to do so, and such owner is thereby prejudiced, the sale is void.</p> <p>Same.—Sale in Parcels.—On a sale of real estate by a sheriff, on execution, if the estate consists of several lots, tracts, or parcels, it is the imperative duty of the sheriff to offer each separately; and if a proper or reasonable bid be made (as two-thirds of the appraised value, where the sale is subject to the appraisement laws), it is his duty to sell the parcel, although the amount bid for it be not sufficient to satisfy the execution; and the fact that the sale of all the tracts may be necessary to satisfy the execution, cannot justify the sheriff in selling in solido.</p>

<p>Graved Road.—Assessments.—Tax Duplícate.—The auditor of state is the proper person to direct tho manner in' which assessments for plank, macadamized, and gravel roads, under tho act of March 11th, ÍSCÍ, should be added to the tax duplicate as directed by section three of that act; and this addition may, under his direction, consist of a separate volume, or papei', with the precept of the county auditor attached thereto.</p> <p>Injunction.—Taxes and Assessments.—Injunction will not lie to restrain the collection of taxes or assessments on account of informality or irregularity in.placing the same upon the duplicate, or in the conduct of the officers employed in their collection, where such taxes or assessments- are authorized and directed by law.</p>

<p>Corporation.—Organization of.—Pleading.—Evidence.—Snit commenced before a justice of the peace by a gravel road company upon a preliminary stock subscription, the complaint alleging the due organization of the company. Answer under oath, denying every material allegation of the complaint, including the execution of the instrument sued on. On the trial, the plaintiff failed to prove the organization of the company.</p> <p>Held, that this was a fatal omission. The language of Cicero Hygiene Draining Company v. Craighead, 28 Ind. 274, criticised as being too general.</p> <p>Handwriting.—Identification of.—Where the genuineness of handwriting is in issue, a witness, not an expert, called to testify thereto, must speak from his knowledge of having seen the party write, or from authentic papers received in the course of business; but an expert may give his opinion from mere comparison of the handwriting in question with other writings admitted to be genuine. Where other writings admitted to be genuine arc already in the case, the jury may, with or without the aid of experts, make the comparison; but if they are not papers in the case, the only evidence competent to go the jury is that of witnesses. The general rule said to be incorrectly stated in Clark v. Wyatt, 15 Ind. 271.</p> <p>Same.—In an action upon a stock subscription, the execution of the instrument sued on being in issue, witnesses not shown to be experts, who had never seen the defendant write, and who were not otherwise acquainted with his handwriting, were permitted to examine his signatures admitted to be genuine, and from a comparison thereof with the signature in question, to give their opinion as to the genuineness of the latter.</p> <p>Held, that this was error.</p> <p>Jury.—Taking Papers to Jury Room.—The jury were permitted, over the objection of the defendant, to take the instrument sued on with them in their retirement to consider of their verdict.</p> <p>Held, that this was error.</p> <p>Instructions to Jury.— Waiver of Written Instructions.—It is a waiver of the right to have the instructions to the jury reduced to writing, to fail to so request the court until the argument of the counsel has commenced. Witness.— Character.—Impeachment.—Residence.—Where a certain witness had resided in a distant state for two years before he testified, and witnesses who resided in this State and did not pretend to be acquainted with his character for truth in the neighborhood where he then resided, were called to impeach his character in this regard;</p> <p>Held, that their evidence was inadmissible.</p>

<p>Criminal Law.—Appeal.—Record.—On appeal to the Supreme Court in a criminal ease upon indictment, it is not necessary that the transcript should contain the record of the proceedings of the court below in impanelling and swearing the grand jury which returned the bill. Sawyer v. The State, 17 Ind. 435, and the cases following it—18 Ind. 428; 21 Ind. 171, 263, overruled.</p>

<p>Witness.—Impeachment.—Previous Contradictory Statements.— Code.—Where a witness in a criminal case testifies contrary to what the party calling him had the right to expect, he may be cross-examined by such party as to what he had stated in regard to the matter on former occasions, for the purpose of refreshing his memory and giving him an opportunity to sot the matter right, if he will, and to set the party introducing him right before the jury, but not for the purpose of discrediting the witness. Nor is such party allowed to prove such previous contradictory statements if denied by the witness. The provision of the code (section 244) authorizing such impeaching evidence in, civil cases does not apply to trials in criminal cases.</p>

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

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

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

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

<p>SupitEMH *ConRT.—Evidence.—-When the evidence is .conflicting, the finding upon the issues depending upon the credit due to the witnesses, the Supreme Court will not, upon the weight of evidence, disturb the finding.</p>

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

<p>New Trial.—Newly Discovered Evidence.—A motion for a new trial on account of newly discovered evidence must be supported by the' affidavits of the witnesses by whom the newly discovered facts are to be established, or the absence of such affidavits must be accounted for.</p>

This suit was originally brought by Eletcber, the appellant, against Holmes and others.