Volume 33 — Indiana Reports

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

<p>Wendok AndTurohaser. — Forfeiture.—Notice.—A contract for the sale arid conveyance of real estate contained a stipulation, that a pon-compliance with the terms of the contract, or any of them, by the vendee should work n, forfeiture of all right under the contract at the option of the vendor, but .-upon .previous notice, of a specified period, to the vendee, demanding - a fulfilment and specifying such feature or features as it should be deemed had not been complied -with.</p> <p>Held, in an action by the vendee, who had partly performed the contract on his part, against the vendor for wrongfully declaring a forfeiture and thereby putting it out of the power of the vendee to further carry out the contract according to its terms, that the stipulation for said notice was for the benefit of the vendee, and a strict compliance with-it by the vendor was necessary before declaring a forfeiture.</p> <p>Meld', also, that where the vendor, after giving to the vendee a notice not instribt compliance with said stipulation, and while the- contract was therefore in. full force, by declaring a forfeiture put it out of the power of ther vendee' to’ carry out his- part of the contract, the vendee was not required to perform or off-er to perform, but might have his action for being so prevented. ‘</p> <p>Same. — Measure of Damages. — Where after part performance of a contract for the conveyance of real estate, by the vendee, the improvements made by him being contemplated by the contract, the vendor- by his own wrongful acts puts it out of the power of the vendee to fully comply with the provisions of the contract, the measure of damages in an action by the vendee" against the vendor, for such breach, is the difference between the unpaid purchase-money and the actual' value of the lands at the time of the breach.</p>

<p>Process. — Publication.—Name.— Collateral Proceeding. — Attachment.—The introduction of a wrong initial letter between the Christian name and the surname of a plaintiff in the publication of notice of the pendency of a proceeding in attachment in a court of superior jurisdiction the introductory steps authorizing the publication having been properly taken, does not render itlie subsequent proceedings under such notice void, but simply erroneous,; .and (until reversed by an appellate court, the judgment and proceedings -under it are effective and conclusive between the parties.</p> <p>■'Same. — Data of T<¡rm. — Such a notice by publication stated that the term -of court was, to bo held “on the third Monday of August, 1887.”</p> <p>field, that the fact that the time of holding the court was fixed by law ■made this error of date unimportant.</p>

On the 22d day of April, 1867, the common council of the city of Lafayette, by a vote of over two-thirds of all its members, adopted an order for the improvement of Eifth street in said city, by grading, graveling, guttering, &c., from Romig street to Maiden Lane. On the 1st of July, 1867, the work was contracted to John R. O’Mara.

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

APPEAL froru the Wells Common Pleas. The facts necessary to the determination of this case are as follows: The appellant brought his suit upon two notes, and for a foreclosure of a mortgage given to secure the same. The notes were given for purchase-money of the mortgaged premises. The defendant paid five hundred dollars on the lands, and made some small improvements thereon.

<p>Draining .Association.- — •Assessment.—Suit by a ditching association, to enforce a lien for benefits assessed to the defendant’s land, the assessment on 'Which the suit was founded commencing thus: “A schedule of lands and • assessments of benefits to same caused by the construction of the ditch contemplated to be constructed by,” &c. Appended to the assessment was an affidavit of the appraisers, that the “ foregoing is a true and correct assessment of wet lands,” &c.</p> <p>Meld, that this sufficiently appeared to be an assessment of benefits.</p> <p>Same. — Description of Land. — The description of the defendant’s land in said assessment was by abbreviations and figures, as follows:Matthias Wagoner S. E. ¿ of N. W. i Sec. 18, T. 21, N. It. 1 E., 40 acres.”</p> <p>Deld, that this was a sufficient description,</p> <p>Samb.— Complaint. — Description of Drain. — In such an action 'the Complaint need not contain the articles of association'or allege their substance; nor is it-necessary (for the complaint or assessment to describe the ditch in any manner.</p>

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

<p>Pleading. — Evidence.—Error■ Cured. — Suit on a contract for the delivery by the 'defendant of a certain number of saw-logs to be- sawed by the plaintiff at a stipulated.price per hundred, feet, the breach alleged being the failure, of the defendant to deliver a portion of the logs. Answer, that the defendant delivered’ a certain number of logs, which the plaintiff sawed insuehanunworkmanlike-manner-that the lumber was worthless, and, the-plaintiff refusingrto sawproperhy, the defendant refused to deliver more logs. Reply, the general denial. On the trial, after the defendant had offered evidence tending to sustain said answer by proving that the lumber was-bad, the plaintiff offered evidence tending to show that the logs delivered were such that good lumber could not be-made from them. This evidence of the plaintiff was- rejected until an additional reply alleging the fact had. been filed, by leave, over the defendant’s objection,, when, a demurrer to the additional reply having been overruled, said evidence of the plaintiff was admitted and the trial proceeded,’ the jury not having been re«worn, and’ the defendant objecting.</p> <p>Eeld, that the evidence should have been admitted when first offered under the reply in denial; that the additional reply did not change the issue, and there was no necessity for reswearing the jury; that the demurrer to the. additional reply might properly have been sustained, or the paragraph to-which it was filed might have been stricken, out on. motion, or leave, to. file it should not have been given; yet that no wrong resulted from these proceedings.</p> <p>Contract. — Breach.—Damages.—A., contracted to saw into lumber for B., at a stipulated price per hundred feet, to be paid at certain periods, a certain number of logs to be furnished by B. at A.’s saw-mill.</p> <p>Meld, in a suit by A. against B. for the failure of the latter to deliver a portion of the logs as agreed, that the fact that the plaintiff sold his saw-mill after he had been notified by the defendant that the latter would pay for no more sawing and deliver no more logs, or that the plaintiff made a subcontract with a third person to saw the logs that might be delivered, could not affect the right of recovery or the measure of damages.</p> <p>Same. — Measure of Damages. — On the breach of such an executory contract, without sufficient cause, the measure of damages is the difference between the contract price of the entire work to be done and the reasonable cost of the work, at the ordinary prices, in labor, in wear and tear of machinery, in time of use of machinery, and in value of superintendence. The profits which have been realized by a sub-contract made with a third person to do the work, or which might have been realized by such a sub-contract if made, cannot be taken as evidence of such damages. This rule applies alike to public and private contracts, on a large or small scale. Dones v. Van Patten, 3 Ind., 10T, overruled.</p> <p>Same. — Reduction of Damages. — Burden of Proof. — In such a case, the burden rests upon the defendant of proving, in reduction of the damages estimated by such rule, that the plaintiff could have procured other work from which profits would have accrued.</p>

oni two -premium notes,, executed by him to said insurance company. The complaint is in two paragraphs.

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

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

<p>Trust.— Contract.— Construction of. — A contract executed and acknowledged by A. and duly recorded, recited, that B. had made a proposition to A. to invest money in lands, the title thereof to be vested in A., who was to convey to B. half the profits after deducting the capital of A. invested and interest, at the end of five or ten years, as most agreeable to A., which capital and interest was to be reimbursed to A. by sale or appraisement of the land, the expense of locating or purchasing the lands to be divided equally between A. and B.; that A. had accepted said proposition, and, in pursuance of the agreement so made, B. had invested divers sums and delivered to A. the evidences of title, in a satisfactory manner, of certain lands described; and . then the contract provided that, in consideration of the facts so recited and one dollar, received of B., A., binding his heirs and executors, covenanted and agreed with B. and his heirs and executors to hold said lands for the purpose mentioned in said recital for five years from the time the capital was invested (unless it should be mutually agreed by A. and B. to sell the same or any part thereof sooner); that whenever a certain sum with interest thereon from a certain date, with all sums paid for taxes, or improvements made by A. with B.’s consent, and interest thereon, should bo reimbursed by public sale or otherwise, one half of the surplus profit over and above said money expended and interest thereon should be paid to B. his heirs and executors; that if said capital and interest should be reimbursed by partial sales, the residue of lands should remain in the hands of A. and B. until the expiration of said ten years, unless sooner sold or divided; that B. was empowered and authorized to take the care and agency of said lands and do whatever should be necessary to protect and preserve them from waste or injury, and to make such betterment and improvements as should be agreed to by A. in writing; that B. was authorized and empowered to sell, deed, and convey the lands in A.’s name or to bargain them by article or agreement, but that no sale should be obligatory without A.’s consent in writing. Afterwards, within five years, sundry parcels of the lands were sold and conveyed, from the proceeds of which A. was reimbursed for all the investments secured to him by the contract, leaving a portion of the lands undisposed of.</p> <p>Held, that B. had under said contract an interest in said remaining lands as cestui ‘que trust, which could be enforced against A.</p>

<p>Court Room. — Repairing and Furnishing. — Courts of record, authorised to usé a seal, and having jurisdiction beyond that of justices of the peace, have power in this State to order the repairing and furnishing of their court rooms.</p>

This was an action by the appellee against the appellant, the complaint alleging, that in 1861, the board of commissioners of Vanderburgh county, at their December term, located a certain road, described in the complaint, and ordered it to be opened by the appellee to the width of twenty-five feet, on payment of damages assessed; that the damages assessed were paid, and said road was opened according to law; that on the —■ day of February, 1865, the appellant obstructed said…

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

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

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

The appellee sued the appellants on a promissory note executed by them to one Igo§, March 1st, 1867, for six hundred and thirty-five dollars, payable on the 1st of October, 1867, with interest at ten per cent, per annum, and assigned to the appellee.

<p>3üeisdiotio».— Circuit Court. — The circuit court has not jurisdiction to review the record and judgment of the court of common pleas in a proceeding upon an application of a guardian to sell real estate, for the purpose of correcting a misdescription of the premises intended to he sold.</p>

<p>Statute of Frauds. — Interest in Land. — The right to use, for the purpose of worship, a church edifice when not occupied by the church to which it belongs, is an interest in real estate, and a contract therefor, to be valid, must be in writing, signed by the party to be charged.</p>

<p>Will.— Construction of. — A will contained the following clauses: “'I give and devise to my beloved' wife the farm on- which we now reside, situate,” &c., “containing,” &c., “during her natural life, and all the stock, household goods, furniture, provisions, and other goods which may be thereon at the time of my decease, during her natural life, she, however, soiling so much thereof as may be sufficient to pay my just debts; — in case there is not a sufficiency of stock to pay my debts, then to dispose of so much of the land as will satisfy the balance; at the decease ef my wife the foregoing property to be equally divided between, our legal heirs. I authorize my executors, if it shall become necessary to pay my debts, to sell by private sale, or in such manner and upon such terms as they may think proper, any part . of my real estate sufficient to-paysaid debts.”</p> <p>At the time of the execution of the will, which was some years prior to the death of the testator, the value of his domestic animals on the farm exceeded the amount of his indebtedness, and he also owned a largo amount of other personal property. At the time of his death, without issue, the live stock owned by him was not sufficient to discharge the liabilities of his estate. Held, that, for the payment of debts, according to the will, the live stock waá first to be exhausted, and next the land was to be resorted to.</p>

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

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

<p>Peomissoby Note. — Pleading.—Assignment.—In a suit upon a promissory note by an assignee, the fact of the assignment being alleged in the complaint, a surety cannot object to the complaint because a copy of the assignment is not sot out.</p> <p>Same.— United States Revenue Stamp. — Suit on a promissory note executed November 20th, 1866. The complaint did not allege that the instrument was stamped, and no copy of a stamp was set out.</p> <p>Held, that this did not render the complaint insufficient.</p> <p>Same — Collateral Security. — Where a creditor has obtained a judgment, which is collectable, on a note held by him as collateral security, he will not be thereby prevented from availing himself, to the extent of his entire claim, of another note held by him as collateral security for the same claim.</p>

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

<p>Tax. — Bank Stock. — National Bank. — The capital stock of a National bank originally organized under the act of Congress of 1863, is not exempt from taxation under the act of our Legislature of March 15th, 1867 (Acts 1867, p. 216).</p> <p>Same. — Tax Duplicate. — Auditor and. Treasurer. — Where the assessment under said act of 1867 lias been omitted by the county auditor, and ho has delivered the tax duplicate to the treasurer, the latter should insert it, but if a correct assessment bo made by the auditor after such delivery and acted upon by the treasurer, i't is sufficient.</p> <p>Same. — Injunction.—Where the correctness of an assessment so made by the auditor, in the number of the shares and the amount of the tax, was not questioned;</p> <p>IT-del, that an injunction would not lie to restrain the collection of the tax because, the officers of the bank having failed to deliver to the auditor the statement provided for in the second section of the act of 1867, he did not summon them before him1 and obtain from, them such statement.</p> <p>Same. — Residence of Stockholder.^-The capital stock of a National bank, liable under the act of 1867 to taxation at the place where the bank is located, is not also liable under the general' law to taxation again at other places where the stockholders reside.</p> <p>Appeal. — Default.—Where a judgment has been taken against a defendant by default, on. a complaint which does not state facts.sufficient to constitiltc a cause of action, he may appeal to the Supreme Court, assigning the insufficiency of the complaint as error, without having made a motion for relief below.</p>

This was an action by Philip E. Sindlinger against Charles' Schreiber and Adam Kistner, to foreclose a mortgage executed on the 26th day of January, 1867, by Schreiber to Sindlinger, on an undivided half of lot seventy-four, “together with all the buildings appertaining thei’eto,” in Eletcher and McCarty’s addition to the town of Shelbyville.

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

<p>APPEAL from an order of the judge of the Knox Circuit Court, in vacation, granting a temporary injunction.</p>

<p>Supreme Court. — Evidence.—The Supreme Court will not interfere with a finding because it is contrary to the weight of conflicting evidence.</p> <p>Same. — Complaint.—Demand.— Verdict. — The Supreme Court will not reverse a judgment, in a cause in which there is an answer, because the amount of the finding is greater than the amount claimed in the complaint.</p>

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

Suit by the appellee against the appellant. The complaint was in two paragraphs. The defendant filed a separate demurrer to each, for want of sufficient facts, which the court overruled, and the defendant excepted.

<p>Measure of Damages.— Conversion. — Where one forcibly took possession of certain wheat as it stood in the field, driving the owner away, and harvested and sold it;</p> <p>Held, in an action for such taking and conversion, that the value of the wheat at the time of its sale, in the form in which it was sold, was the measure of damages, if the plaintiff was content therewith, though he was entitled to the highest price of the property at any time between the taking and the sale; and the defendant was not entitled to prove the value of his own labor in harvesting and threshing the crop, for the purpose of reducing the damages.</p>

<p>Decedents’Estates. — Administrator.— When Chargeable with Interest. — An administrator delayed some ten years in settling the estate, using the money of the trust in his own private speculations, and upon a reference of his accounts to a master, it did not appear that there was any reason for any unusual delay in the settlement, and the administrator refused to account to the master for the result of said speculations. The master in making his report charged interest, after the first year from the granting of administration, on balances in the hands of the administrator.</p> <p>Held, that there was no error of which the administrator could.avail himself, though the master should have charged compound interest, making annual rests in the accounts for that purpose.</p>

<p>APPEAR from', tbe Madison Circuit Court.</p>

This was an information under the statute, against th'e appellee, alleging that the appellee was a gravel Toad company organized in 1867, under the act authorizing the construction of plank, &c., roads, approved May 12th, 1852, and certain other acts in aid thereof; that said company having a subscription of eight hundred dollars per mile to construct Its road from Danville to North Salem, and not having a sufficient amount for the construction and completion of said road…

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

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

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

<p>Assignment op Error. — Partnership.—Admissions.—Evidence.</p>

<p>Pleading. — Evidence.—General Denial. — In an action to recover for goods alleged to liavo beensold and delivered to the defendant, he may show under-an answer of general denial, that they were sold and delivered to his wife, under such circumstances as not to bind him.</p> <p>Principal and Agent. — Notice to Agent. — In a suit for goods sold and delivered, it having appeared that they were sold and delivered to the defendant’s wife;</p> <p>Held, that the fact that one who was a salesman of the plaintiff at the date of the sale and assisted in the sale of a part of the goods, had been told by a disinterested person in an idle conversation some months before (it not appearing that said salesman was then in the employment of the plaintiff), that the defendant and his said wife were separated at that time, could not charge the plaintiff with notice of the fact so communicated.</p>

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

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

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

<p>Mandate.— City. — Street Improvement. — Where,the common council of a city incorporated under the general law of 1867 haying approved an estimate of Work done under a contract for grading a street of said city, duly made by the city engineer, according to the contract, and having ordered the payment thereof to the contractor by the adjacent property holders on said street, and some of said owners having refused to pay, the council after-' Wards rescinded its order approving said estimate and adopted and approved another estimate for a less amount than was due under the contract;</p> <p>field, that if the power of the council over the estimate was exhausted when it had first approved it and directed its payment, and said rescission was therefore void, the only relief the contractor could obtain by mandate would be to compel the council to issue a precept on said first estimate; and the complaint for a mandate must allege that an affidavit had been filed as required by section 71 of said act of 1867.</p> <p>field, also, that if the council had power to so revise its action, a mandate would not lie to direct what the decision of the question involved should be.</p>

<p>Criminal Law. — Indictment.—False Pretense. — Indictment for obtaining under false pretenses “twenty-five dollars in money of the personal goods and chatties of,” &c.</p> <p>Held, on motion to quash, that the property waa not described with sufficient particularity.</p> <p>Same. — Evidence.—An indictment for obtaining money under a false pretense set out, as the pretense, a bank check without date; and it was averred that a more particular description of the check could not be given, because it had been torn and partially destroyed by the defendant. On the trial, a check dated “Ja. 16, 1869,” was read in evidence, over the defendant’s objection.</p> <p>Held, that the admission of this evidence was error.</p>

The Monrovia and Belleville Gravel Road Company filed a petition before the board of commissioners of Hendricks county, under the act of March 11th, 1867 (Acts 1867, p. 167), for the appointment of three disinterested freeholders of the county, to assess the amount of benefits that would result from the construction of the road of said company to the lands within one mile and a half on either side of said road and within the like distance of the north end thereof (the south…

<p>'Evidence.— Opinion of Witness. — Where the value of property, real or personal, comes in question, a witness who 'has a -personal knowledge of the property and who possesses the necessary information to enable him to form a proper estimate of its value, will be permitted to give his opinion in reference to such value.</p> <p>?! ame.— Waste. — On the trial of an action 'for waste against one holding under a will till the youngest of the plaintiffs should come of age, a witness having testified that he knew the premises, a farm, its improvements and condition, when the defendant took possession, and also its condition at the commencement of the suit, and having described its condition at each of these periods;</p> <p>'Held, that there was no error in permitting said witness, over the defendant’s objection, to give his opinion as to the valu’e of the farm at the time the action was commenced, and also what it would then have been worth if ¡kept in ordinarily good repair and cultivated in a husbandlike manner, or .in permitting him to give his opinion as to the cost, in detail, of putting the farm in good condition and repair.</p>

<p>Cbihisal Law. — Information.—Rescue of Prisoner. — Assault and Battery.— Under an information for forcibly freeing a person from legal arrest, an assault and battery being sufficiently charged against the defendant also, as the means by which the rescue was accomplished, the defendant may bo convicted of the assault and battery and acquitted of the rescue.</p>

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

<p>APPEAL frrom the Clay Common Pleas,</p>

This was an action by Sarah A. Harding, the appellee, against the appellants, Herman Mousler and Nancy, his wife, for slandei’ous words spoken by said Nancy of the plaintiff. An answer was filed consisting of four paragraphs. The first was a general denial. The second and third were in mitigation of damages, upon which issues were foi’med.

<p>Execution. — Motion for After Ten Years. — Assignment of Error. — A proceeding to obtain leave of court to issue an execution on a judgment after the lapse of ten years from the entry thereof is a simple motion, to be heard by the court in a summary, way, the only question being whether the judgment or any part thereof remains unsatisfied and due. No pleadings are required or contemplated by the statute, and the action of the court in striking out pleadings filed cannot be the basis of an assignment of error in the Supreme Court. If the judgment-defendant has any equities, or cross action, he must resort to his remedy by suit.</p>

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

<p>Pleading. — Answer.— Consideration. — Suit on a promissory note. Answer, that the note was given by the defendant to the plaintiff, “without any consideration of any kind to this defendant."</p> <p>Held, that the answer was had on demurrer.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a verdict upon the weight of the evidence of witnesses who testified before the court below.</p>

<p>Pleading. — Bill of Particulars.-fWheve a complaint states, in the body of it, a good cause of action, specifying its nature, not upon a general account of several items, but upon one item alone, which is set out, it cannot, under the code, be objected to on demurrer, on the ground that no bill of particulars is made a part it. • ' •</p> <p>Corporation.— Contract of. — A corporation can make, no, valid contract except such as relates to the business and objects of the corporation; and all such contracts must be made either by the board of directors or by a duly authorized agent or attorney.</p> <p>Same. — Officer.—An individual officer of a corporation cannot by his acts bind the corporation, unless such acts are authorized or approved by the corporation.</p>

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

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

This was a suit by the appellant against the appellees for an injunction.

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

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

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

<p>County Commissioners. — Appeal.—A. contested the election of B. as county treasurer. The latter appealed from the decision of the county commissioners to the circuit court, and in proper time filed a bond, which contained no penalty, with the auditor, who failed to file a transcript and the papers in the cause in the office of the clerk of said court for more than fifty days after the bond was filed. In the circuit court, B. moved to dismiss the cause, pending which motion, A. moved to dismiss the appeal. The latter motion was sustained, after which B. tendered a proper bond and asked to have the appeal reinstated, which the court refused.</p> <p>Held,, that said motion to dismiss the appeal had precedence over said motion to dismiss the cause.</p> <p>Held, also that the failure of the auditor to file the transcript and papers in the clerk’s office within twenty days after the appeal was taken was no cause for the dismissal of the appeal.</p> <p>Held, also, that the fact that the appeal bond contained no penalty was good cause for dismissing the appeal.</p> <p>Held, also, that the offer to file a new bond, if allowable at any time, came too late after the appeal had been dismissed.</p>

<p>Criminal Court.— Of Jefferson County.— Constitutional Law. — There is no constitutional objection to such special legislation as that by which the Criminal Circuit Court of Jefferson County was created (Acts 1869, p. 49); and it was immaterial to the valid existence of said court whether said county had such a population as under other acts would have authorized the organization of the court.</p> <p>Same. — Grand Jury. — Said court had all the machinery of the circuit courts for the disposition of criminal causes, including a grand-jury.</p> <p>Same. — Jurisdiction.—Misdemeanors.—The criminal courts of this State have jurisdiction of misdemeanors.</p> <p>Same. — Indictments for Misdemeanors. — Misdemeanors may, in the criminal and circuit courts, be prosecuted upon indictment.</p> <p>Criminal Law. — Desecration of the Sabbath. — Indictment.—An indictment charged that the defendant, at, &c., “ being over fourteen years of age, on the 13th of June, 1869, being Sunday, was found unlawfully at common labor, engaged in his usual avocation, to wit, selling and delivering to ” J. O. “ two quarts of beer, and receiving from him twenty-five cents in payment therefor,” &c., the statutory exceptions being negatived.</p> <p>Held, on motion to quash, that the indictment sufficiently charged an act of common labor, within the meaning of the statute. Wetzler v. The State, 18 Ind. 416, criticised.</p>

<p>Ceihinaii Law. — Desecration of the Sabbath. — Evidence.—If, on the trial of an indictment for desecrating the Sabbath by selling an article, there is a reasonable doubt as to whether the transaction was a sale or- a gift,, there can ho no conviction.</p>

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

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

<p>Statute-oií Fbauds. — Sale of Land. — •Specific Performance. — In a suit to foreclose a-mortgage. on real estate by the (mortgagee against the mortgagor, the .wife-o'f the latter, on her application, became -a defendant, and filed an answer and cross complaint, averring, that when she married her co-defendant, she was entitled to the proceeds arising yearly from a certain sum of money during her life; that her said husband proposed that if she would sell said prospective income for a sum in hand and let him have said sum, he would let her have the lots -described in said mortgage and would convey them to her with their improvements and would make additional improvements-on them with said money, till they should be of a certain value; that she, to secure a home, in good faith, accepted said proposition, sold said yearly income at a sacrifice for a certain sum, and let her husband have a certain portion thereof on said agreement; that afterwards, her husband promised to make, and under her directions made, improvements on said real estate of certain value, by building thereon a house, he being enabled to-do so from the money so obtained from her, no part of which had been repaid to her; that he had not made improvements on the property sufficient to make it worth the sum so given him by her, and it was worth not more than the amount he had so agreed to make it worth; that the house so built was in her possession during its erection, and was afterwards occupied by her and her said husband as a family residence, but was under her ■control and considered by them as being in her possession from its erection till the commencement of this suit, since which time she had rented it to other persons; that at various times her said husband had promised to convey the property to her, hut neglected to do so; that long before the execution of said mortgage and before the creation of the debt secured thereby', the mortgagee had full notice of the equities of said wife.</p> <p>Held, that the facts shown by the answer and cross complaint were sufficient to'entitle the wife to specific performance.</p>

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

<p>Omminax. Law. — Sabbath.— Desecration of.— Constitutional Law. — That the “act for the protection of the Sabbath, and providing penalties ftr the desecration thereof” (2 G. & H. 481), is constitutional, must be regarded as settled.</p> <p>Same.— Indictment.— Evidence.— Variance. — An indictment for desecrating the Sabbath charged, that the defendant “ was found unlawfully at common labor and engaged in his usual avocation, to wit, then and there selling and delivering to William Dillon one cigar and receiving from him ten cents in payment therefor,” &c.</p> <p>Held, that the indictment alleged, substantially, that selling cigars was the defendant’s usual avocation.</p> <p>Held, also, that evidence that making and selling cigars was the defendant’s business, was admissible.</p> <p>Held, also, that proof that the sale’charged was made to William P. Dillon, was not a material variance.</p> <p>Same.— Opinion of Witness. — On the trial of an indictment for desecrating the Sabbath, a witness stated as his own opinion merely, that the defendant was over fourteen years of age, and testified that the defendant was keeping house, living with a woman as his wife, whom tho witness supposed to be the defendant’s wife; that they lived together as husband and wife; and that the defendant had a mustache.</p> <p>Meld, that this evidence was sufficient to justify a finding that the defendant, was at least fourteen years of age.</p>

<p>Appeal. — Recognizance.—Justice of the Peace. — A defendant in a prosecution before a justice of the peace for retailing intoxicating liquor without a license was fined, and within the time allowed by law appealed to the court of common pleas. Instead of entering into a recognizance in the form precribed by statute in such cases, he gave an appeal bond, conditioned as follows: “Now if the said” A. B. “shall prosecute his said appeal to effect and pay the judgment that shall bo rendered against him on said appeal in said common pleas court then his bond shall be void.” On motion of the .prosecuting attorney, the case was stricken from the docket, oyer the defendant’s objection.</p> <p>Held, that said bond was a substantial compliance with the law, and that the court erred in striking the case from the docket.</p>

<p>Ttonpikb.— County Commissioners.— Jurisdiction.— Information.— Where at any time before final action of the board of county commissioners upon, a petition, to organize a turnpike company under the act of 1865, a number of the petitioners, sufficient to reduce the quantity of land represented by the remaining petitioners to less than three-fifths of all the lands within three-fourths of a mile of the proposed road, file a written withdrawal of their names from the petition, and the commissioners, disregarding such withdrawal, entertain jurisdiction and grant permission to organize the company, an information will lie to impeach the legal corporate existence of the company organized under sufch authority.</p>

<p>Parties.— Promissory Note. — Agent.—'A promissory note payable to A. B., “agent of the Enterprise Insurance Company,” was executed for the use of said company in consideration of a policy of insurance underwritten by it.</p> <p>Held, in a suit on the note in the name of said company, that the action was brought by the proper party.</p> <p>Foreign Insurance Comp ant. — An answer to a suit by an insurance company on a promissory note executed to such company in consideration of a policy of insurance issued by it, alleging that the plaintiff is a foreign insurance company, and that the contract of insurance was entered into in this State through an agent resident therein, but not also showing a non-compliance with the requirements of the act of December 21st, 1865, regulating foreign insurance companies, &c., is bad on demurrer.</p>

Suit by the appellant, Garnier, against the appellees, Gebhard and Hauck, for the settlement of the-affairs of a. copartnership theretofore existing between said Garnier and Gebhard and the appointment of a receiver.

<p>Pleading. — Parties.—Set- Off. — Promissory Note. — Suit on a note by the payee against the maker. Answer, that the note was given in consideration of the sale of a certain number of sheep purchased by the defendant of a third person named, and for no other consideration; that it was made payable to the plaintiif at the request of said third person, who represented'that he desired it made payable to the plaintiif for the purpose of enabling him to place it in the plaintiff’s hands as his agent for collection, and for no other purpose; that at the time the note was given, said third person was indebted to the defendant in a certain sum, of which a bill of particulars was annexed; and the defendant offered to set off said indebtedness against the note.</p> <p>Held, that the answer was bad, for the reason that it did not allege that the plaintiff was not the owner of the note in his own right, or that said third person had any right thereto or beneficial interest therein.</p> <p>Same. — Trustee.—Suit by. — In a suit by a trustee, the defendant may set off a debt due him from the cestui que-trust.</p> <p>Same. — Suit on a note by the payee against the maker. Answer, by way of set-off, that the plaintiff was not the owner of the note and had no interest in it, but was merely the agent of a third person named, who procured the note to be made payable to the plaintiff, to enable the latter to collect it as such agent, and for no other reason; that the note was given for certain articles sold to the defendant by said third person; that at its date said third person was indebted and still continued to be indebted to defendant for goods sold and delivered by the latter to the former, of which a bill of particulars was filed, amounting to a certain sum, less than the amount of the note; that, by agreement of the parties, said note was made payable to the plaintiff for the purpose of enabling him to settle the same and receive from the defendant the excess over the amount of said indebtedness, which it was agreed, when the note was made and delivered, should be applied in part payment of the note.</p> <p>Held, that the answer, if true, made the plaintiff a trustee of an express trust, under the statute, and capable of maintaining the action in his own name.</p> <p>Held, also, that the answer was good on demurrer.</p>

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

This was an action of replevin brought by the appellant against the appellees, for certain wheat, then in cars at Indianapolis. Issues were formed, which were tried by the court. Finding and judgment for the defendants, for the return of the' wheat or the payment of the value, which was assessed at. twelve hundred and ninety-two dollars, and for one hundred and three dollars damages for the detention thereof.

Sait to recover the price of a number of sheep sold and delivered by the appellee to the appellant. Issues were formed, which were tried by a jury, who found for the' plaintiff, for whom judgment was rendered accordingly, a motion by the appellant for a new trial having been overruled. It is urged here that the instructions given to the j ury were erroneous.

This was an action by Roberts against The Harrison,. New Trenton, Rochester, and Brookville Turnpike Company and Lewis Riggs, to recover the possession ©f real estate. The complaint was in four paragraphs, but a demurrer was sustained to the second.

<p>City. — Lighting Streets. — Statute Construed. — In the sixty-eighth section of the act of 1867, for the incorporation of cities, the words, “for lighting such street according to the general plan of such improvement in said city,” embrace the street fixtures necessary for the purpose referred to, including the pipes and lamp posts; and in the twenty-eighth clause of the fifty-third section, the words, “ the expense of lighting any street,” refer only to the expense of lighting after the fixtures have been put up. In the former case, the expense cannot properly bo assessed upon real property in proportion to its appraised value.</p>

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

<p>Pleading.— Complaint. — Deceit.— Contract. — A complaint by A. against B. alleged, that on, &c., there was a litigation anticipated between the plaintiff and one C., arising out of an alleged case of bastardy; tliat the defendant having knowledge of said fact, reported to the plaintiff, that, for two hundred and fifty dollars, he could and would compromise and settle it and procure a release; that afterwards, the defendant informed the plaintiff that he had compromised it for two hundred dollars, and had taken a bond in the sum of one thousand dollars, from O., D., and E., not to institute suit against the plaintiff for said bastardy; that thereupon plaintiff executed to defendant two notes, one for one hundred dollars, and the other for one hundred and fifty dollars, the first of which was paid at maturity, but the other remained unpaid and was still in the possession of defendant; that after the payment of said first note, plaintiff was arrested on account of said alleged bastardy, and then first learned, and it was true, that ho had been deceived and imposed on by the defendant, who had never compromised the anticipated litigation, or attempted to do so; that said notes were executed in consideration of the false and fraudulent pretense and representation aforesaid, and for no other consideration; that in consequence of said false and fraudulent representation and pretense, by which his signature to the notes was obtained, “and the failue of defendant to comply with his said agreement,” the plaintiff had been damaged in, See.</p> <p>Held, that this was a complaint for deceit, and not on contract.</p>

<p>Practice, — Appeal.— Criminal Law. — In a criminal case, the defendant may appeal, only when the judgment below is against him.</p>

This was a suit by the appellee against the appellant to enfoi'ce an assessment on lands of the defendant, under the ditching law.

<p>Liquok Law. — License.— Change of Venue. — Appeal.—Where an appeal has been taken to the circuit court or court of common pleas from the decision of the board of county commissioners in a proceeding to obtain a license under the temperance act of 1859, resisted by remonstrance, a change of venue may be granted, as in other “ civil actions.” No appeal lies to the Supreme Court from the judgment of the court to which such change is taken.</p>

Suit by Rapp against Schneider, who is the appellant in this court. The complaint is in two paragraphs. The first is on a promissory note, alleged to have been executed .by Schneider to Rapp, for two hundred and ninety-two dollars and seventy-four cents, dated April 15th, 1867, and due five months after date.

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

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

Suit by the appellant on the official bond of the appellee, Parker, as trustee of said township, the breach alleged being, that Parker had appropriated to his own use certain moneys which had come into his hands as such trustee. Answer, the general denial. Trial by jury. Verdict for the appellant for twenty-four dollars. A motion by the appellant for a new trial was overruled, and the appellant excepted.

Suit by tbe appellants, Heeg and Keisler, against the'appellees, Weigand and Schrunk, on a promissory note for-four hundred dollars, executed September 13th, 1867, by the appellees to one Roberts, and by him assigned' to • the-appellants, without recourse.

<p>Coníkact.— Construction of. — A. and IS. made a written contract whereby the former agreed to let to the latter, for a certain period, the use of sufficient water to run a saw-mill, at a stipulated rental, Which B. agreed to pay, A. reserving to his own use the surplus water, and, in consideration of the letting, B. also covenanted “to- deepen the race at the saw-mill to bring, it to the depth as it is in the head-gate at said race, with a gradual descent to the-fiume of said mill, and not to be less at the bottom of said race than" a certain number of feet. The contract, in a subsequent part thereof, contained a stipulation that B. was to have said race to use to keep his saw-logs inland recited that it was also understood that ho “can make the said race wider and deeper if he sees proper,”</p> <p>Ilnld, that under these provisions construed together without extraneous circumstances, the lessee was bound to deepen and widen the race to a certain extent specified, and had the privilege of making it still deeper and wider if he wished to do so.</p>

Suit by Wilson, administrator of the estate of Davidi Matlock, deceased, against the appellant, on a promissory mote for eight hundred and éighty-nine dollars and seventy cents, executed by the appellant to- said Matlock. The appellant answered in four paragraphs-.

<p>Adjiinistbatoe. — Suit on Bond. — Complaint on an administrator’s bond by a creditor of the intestate, assigning, first, that the administrator had wholly failed and refused to make and exhibit to the court any account of the condition of his trust; second, that he had received personal assets belonging to the estate amounting to a certain sum, which he had converted to his own use, and had failed and refused to apply the same to the use of the estate and to the payment of the debts of the estate; third; that he had failed and refused to pay .the relator a certain sum, being the amount of a judgment recovered by the latter against the estate, though said administrator had had assets in his hands out of which the debt ought to have been paid.</p> <p>Held, that the making of such exhibit after the commencement of this action could not cure the first breach assigned; but the fact that the administrator had in his hands no assets which could be applied to the payment of the relator’s claim, was a good defense to the whole cause of action.</p>

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

<p>Pleading. — Promissory Note. — Harmless Error. — In a suit on a promissory note, the complaint alleged that the note was indorsed to the plaintiff by the payee, who appeared and answered, and judgment was rendered against him, though his name did not appear in the complaint as a defendant except in the title of the cause.</p> <p>Held, on demurrer by the maker, that the omission of the name of the payee as a defendant in the body of the complaint, if error, could not avail the maker.</p> <p>Same.— Copy of Assignment. — In a suit on a promissory note by an indorsee, the maker cannot avail himself of the failure of the complaint to set out a copy of the assignment, the fact of the assignment being averred.</p> <p>Bill oe Exceptions. — Pleading Stricken Out. — Where a paragraph of a plead- . ing is stricken out, the ruling will not bo examined by the Supreme Court if the paragraph be not brought into the record by a bill of exceptions.</p> <p>Same. — Motion for New Trial. — Recitals Therein. — Statements contained in a motion for a new trial as to.alleged errors committed by the court will not bo taken as true by the Supreme Court, unless the recitals be shown to be true by a bill of exceptions.</p>

<p>Criminal Law. — Keeping Gaming House. — Indictment.—Duplicity.—An indictment charged, that at, &c., the defendant “ unlawfully kept and suffered a certain building, room, and tenement to be used for gaming, and then and there unlawfully suffered ” A. B., C. D., “ and divers other persons to the grand jurors unknown, to play at a certain game commonly called billiards, for money and other articles of value.”</p> <p>Held, that the indictment was not bad for duplicity.</p> <p>Same. — Evidence.—On the trial of such an indictment for keeping a gaming house, the evidence showed that the defendant kept a billiard-room, in which players were charged a certain sum per game for the use of the tables, the loser paying such sum; and a witness testified that he had played a game and lost it, and paid the defendant_for the table; that he had seen the defendant in the saloon frequently, and had seen his clerk there; that he saw games played, and that the loser always paid for the table. lie could not swear positively that the defendant always knew the terms on which the games were played, but thought he had a good opportunity to know that the loser paid for the table.</p> <p>Held, that this evidence sufficiently showed that the defendant bad knowledge that his tables were used for gaming.</p>

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

<p>Corporation. — Manufacturing Company. — Directors.—Statute Construed. — Directors of an incorporated manufacturing company are officers, Tvithin the meaning of the fifteenth section of the act providing for the incorporation of such companies, 1 G. & H. 42T.</p> <p>Same. — Promissory Note. — A corporation known as 11 The Aurora Brewing: and Halting Company”' executed a note signed “ G. G. Kelsey, Ass’t Sec’y Aurora Brewing and Malting Company.”</p> <p>Held, that this was the’ note of the corporation;, and not ,that of C. C. Kelsey personally.</p>

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

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

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

<p>'Turnpike. — ActoflBQ'l.—Duty of Assessors. — Injunction.—Assessors appointed under the act .pf March 11th, 1S67 (Acts 1867, p. 1G7), authorizing .plank, macadamized, and gravel xoad companies to procure assessments on lands, to aid in the.construction of their roads, were required to make a list «of ««.the lands within one mile and a half on either side of the ¿proposed. road, and within the like distance of either terminus thereof; including those in cities incorporated under the general law for the incorporation of' cities, assessing those benefited, and" to. return said list and assessment to-the county auditor. An assessment made without compliance with: these requirements is void, and’ an injunction: will lie to-prevent its collection.</p>

This was a suit against the appellee, a draining association organized under the act of May 22d, 1869 (Acts 1869, Spec. Sess. p. 82), by the appellant, an owner of wet lands liable to be beneficially affected by the proposed drain, to enjoin said company from proceeding to assess and make a charge upon said lands the amount of benefit they would receive from the construction of said drain. The cause was tried upon an agreed statement of facts.

<p>Tgt.npike. — Right of Way. — Estoppel.—Recovery of Real Estate. — A proceeding was instituted before a justice of the peace, to condemn, the right of way for a turnpike under the act of May 12th, 1S52 (1 G-. & H. 475, sec 7); in which damages were assessed to the land owner, who appealed to the circuit court. After the appeal was taken, the turnpike company tendered the amount so assessed, and took possession of the land. The circuit court dismissed the cause, and rendered judgment for costs.</p> <p>Held, said judgment of the circuit court remaining in force, not appealed from, that it estopped the ’company from showing that the proceeding before the justice was regular, and the land owner was entitled to recover posses•sion <of the land.</p> <p>Same. — Appeal;—- Circv.il Cauri. — Jurisdiction.—On such an appeal to the cir■enit court, that court has jurisdiction to inquire Into the entire 'case, and not merely as t® the amount of damages.</p>

<p>Verdict. — Special Findings of Jury. — -When the special findings of a jury upon particular questions of fact are used to control the general verdict, all tho facts to authorize an adverse conclusion should appear by such special answers.</p> <p>Evidence. — Declaration of Agent or Servant. — In an action against a railroad company by an administrator, to recover damages for the death of his decedent occasioned by the collision of a locomotive and train of cars and a wagon in which said decedent was crossing the track of the defendant upon a public highway;</p> <p>Held, that the declarations of a fireman employed on the locomotive at the time of the collision, made upon the arrival of said train, bearing the body of the deceased, at a station one mile from the place of the accident, the train having been stopped at the scone of the accident, and the body having been placed upon it and carried thereon to said station, that the train was running between forty and sixty miles an hour; that he could not tell any difference between the signal and the collision; that the deceased was sitting with his back toward the train; that he did not think the deceased saw or heard the train or knew there was any train in reach of him; that the deceased never moved out of his position till he was struck; that there was no signal, were not admissible in evidence as part of the res gestee.</p> <p>Same. — Presumption as to Improper Evidence. — Where error has occurred in the admission of improper evidence material to the issue, it will be presumed that it worked injury, unless the contrary affirmatively appear; and the action of the court in overruling a motion for a new trial assigning such error for cause is not presumptive evidence that the error worked no injury.</p> <p>Negligence. — Railroad.—No neglect of duty on the part of a railroad company will excuse any person approaching on a highway a crossing of the track of said company from using the senses of sight and hearing, where these may be available; and injury to such person where the use of either of such faculties would have given sufficient warning to enable him to avoid the danger, conclusively proves negligence, and there can be no recovery for such injury, unless the railroad company has been guilty of such conduct as to imply an intent or willingness to cause the injury; and this can be attributed only where the company has notice of the particular emergency in time to avoid the collision by the use of ordinary diligence, the means being at hand. If the injured person had such warnings and opportunities of knowledge as would, with ordinary caution in such circumstances, have saved him from the danger, ho.will be held to have knowingly contributed to his own injury. The failure of a railroad train to give any signal when nearing a public crossing is not of itself negligence, in this State, unless the peculiar circumstances, the concealment of the train or the like, may render it necessary and , proper.</p>

This was an action by McEwen and Jones, bankers of' the city of Columbus, in Bartholomew county, against TheJeffersonville, Madison, and Indianapolis Railroad Company.. The complaint alleges, that on the 20th-day of August, 1867,.

<p>Special Verdict. — If a jury merely find the facta covering all the issues being tried, in' answer to interrogatories propounded by the court, this is substantially a special verdict.</p> <p>Commost Carrier.: — Place of Delivery. — Railroad.—Where a railroad company is employed by a person to transport his baggage for hire from A. to B., stations on said company's road, and does not deliver the goods to him at B., but carries them to C., another station on said road, and there stores-them in the company’s depot baggage-room,, the liability of the company as a common carrier is not thereby ended; and if the goods are stolen from, the company at C. and thereby lost to said owner, the company will be liable to him for the damage sustained by him by reason of the failure to deliver the goods at B'.</p> <p>Same. — Baggage.—-Articles for use as baggage at the end of a j ourney or during a temporary stay at a particular place, are as properly baggage as those actually used in the transit, and may include an opera glass, though the entire journey be made at night.</p>

Suit by the appellant against the appellees. The complaint consisted of two paragraphs.

<p>Tax. — Statute Construed. — The word “ demands ” in. the third clause of the twenty-third section of the act to provide for the valuation and assessment of real and personal property and the collection of taxes, &c., 1 G. & H. 68, relates only to such demands as the law will recognize and enforce; and no contract by which a liability is created after the first day of January can relate back so as to make the creditor liable to be taxed for that year foi such demand.</p>

<p>Title to Elective Office.— Contest.— Commission. — A person duly elected by popular vote to an office under the constitution and laws of this State has the right to the possession of- such- office at the commencement of the term for which he was- elected,' notwithstanding a contest of such election may be pending;, and a commission- issued to him after the termination of such-contest should be made for the term for which he was elected (commencing, not at the date of the termination of the contest, but at the date at which he was entitled to the possession of the office).</p>

<p>City of Evansville. — Charter.—Salaries of Officers. — The charter of the city of Evansville provides, that the mayor “ shall receive annually a salary, to be fixed by ordinance or by-law, and paid out of the city treasury by quarter-yearly instalments; and after the first ordinance fixing such salary shall take effect and be in force, no ordinance decreasing such salary shall take effect until the next regular election for mayor, or until the office of mayor shall become vacant.” The record of the proceedings of the common council shows that, at a certain date, “ on motion, the council proceeded to fix the following salaries, viz.: for” A. B., “mayor, per annum, three thousand dollars;” and A. B. was paid that amount while he remained mayor. After the election and qualification of his successor, the latter was also paid the same sum for a portion of his term of office, when the common council passed an ordinance which provided, “ that there shall bo allowed to the several officers of the city and appointees of the common council of the city, hereinafter mentioned, the following salaries to be paid monthly: to the mayor per year, two thousand dollars,” &c.</p> <p>Held, that said allowance of three thousand dollars was a fixing by by-law of the salary of mayor, and not simply an allowance to A. B.</p> <p>Held, also, that the ordinance so passed after the election and qualification of the successor of A. B., decreasing the salary of mayor, could not have any effect on the salary of said successor.</p>

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

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

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

<p>Parent and Child. — Legislative Control. — How far the interference of the legislature in its control of the relation of parent and child should extend, is a question, not of constitutional power for the courts, hut of expediency and propriety, which it is the sole province of the legislature to determine.</p> <p>Same. — Liquor Law. — Minor.—It is not a good defense to an indictment for selling intoxicating liquor to a person under the age of twenty-one years, that the father of the infant authorized the defendant to make the sale to the minor.</p>

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

The appellant, Nancy E. Clem, was indicted jointly with Silas TIartman and William J. Abrams, for murder in the first degree; tbe indictment charging that, on the 12th of September, 1868, said defendants did with force and arms, unlawfully, feloniously, purposely, and with premeditated malice, kill' and murder one Nancy Jane Young, by tbe use of guns and pistols-loaded with halls, shot, &e. Tbe defendants filed joint pleas in abatement, demurrers to which were sustained, and…

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

<p>EE-TKAiNiNaOiiDBU. — Judge qf Common Pleas. — The judge of the common pleas court may ¡grant a restraining order in vacation, without notice, upon emergency, in a cause pending in the circuit court.</p> <p>Same. — Such order may only be granted Until notice can begiven and a hearing had thereon; and where such an order was granted, to expire on the ¡second day of the next term of the circuit 'court, which would be a perioii of six months;</p> <p>Held, that the period was too long.</p> <p>City. — Street Improvement.-— Change qf Grade. — Statute Construed. — The provision of the twenty-seventh section of the act for the incorporation of cities (Acts 1867, p. 33), that when the grade of a street has been once established, it shall not be changed without first assessing and tendering the damages occasioned by the change, refers to damages as well to property outside of the city limits as to that inside.</p> <p>Same. — Injunction.—A hydraulic company operated a woollen mill propelled hy water supplied by an artificial race, the water from which was used also in coloring the goods manufactured, pure water being required for that purpose. A city incorporated under said act of 1867 was rapidly cutting a ditch for the draining .of its streets, to discharge into said race, which Would so contaminate the water thereof with filth as to make it unlit for coloring; and this Would be accomplished in two or three days, if not arrested; and It would also carry sand into said race, obstructing the flow of Water to the mill. Said city was making said ditch as a part of the work of grading a certain street according to a new and changed grade thereof, a different grade having been previously established, and the damages to said, company resulting from such change of grade had not been assessed or tendered. Said race at the point of intersection with the proposed ditch Was outside of the city, its margin being the boundary of the city.</p> <p>Held, that said company was entitled to an injunction to prevent the city from ■cutting said ditch into the race (the majority of the court basing this conclusion on said provision of section 27 of the act of 1867; Elliott, J., holding that the fact that the city was changing the grade of the street did not affect the question, hut that the city had no authority or right to conduct the drainage of its streets into the race, the private property of said company, and thereby destroy the use for which it Was constructed, nor could such power bo conferred except by the exercise of the right of eminent ■domain).</p>

<p>Criminal Law. — Indictment.—Receiving Stolen Goods. — An indictment for receiving stolen goods alleged a felonious larceny of said goods, on, &c., by certain persons named, other than defendant, and that the defendant after-wards, on, &c, “did then and there, unlawfully and feloniously, receive, conceal, and aid in concealing said goods, he then and there well knowing said goods to have been-so as aforesaid unlawfully and feloniously stolen, taken, and carried away,” &c.</p> <p>Held, that this was a sufficient allegation of a felonious intent in receiving said goods.</p> <p>Held, also, that it was sufficiently alleged that the defendant knew, at the time he received the goods, that they had been stolen.</p> <p>Same. — In an indictment for receiving stolen goods, knowing them to have been stolen, it is not necessary, under our existing statute, to charge the defendant with having received the goods with intent to defraud any person.</p> <p>Same. — Practice.—Trial on Several Counts. — An indictment contained•three counts, the first for unlawfully, feloniously, and burglariously breaking and entering a manufactory, in the night time, and stealing certain goods therefrom; the second for larceny; and the third for receiving stolen goods, knowing them to have been stolen; it being evident from the face of the indictment that all the counts were based upon the same larceny.</p> <p>Held, that the prosecuting attorney could not properly be compelled to elect upon which count he would first put the defendant on trial.</p> <p>Bill of Exceptions. — -Affidavit for Continuance. — An affidavit in support of a defendant’s motion for a continuance in a criminal action cannot be made a part of the record except by a bill of exceptions.</p>

Suit by the appellee against the appellant, the complaint alleging that the appellee is the owner in fee simple of a certain lot in the city of Attica, and entitled to the possession thereof, a deed of conveyance of which, with warranty, from Alonzo Chandler and Elizabeth Chandler to the appellee, dated March 16th, 1868, is made an exhibit of the complaint; and that the appellant claims title in fee simple to said real estate, adverse to the appellee.

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

<p>Vt'EhixsmiSiB,. — ^Defect of Fhrties. — The question of a defect of parties plaintiffs cannot be- raised by a demurrer to tbe complaint for failure to state sufficient facts.</p> <p>Trust. — Fraud.—Statute of Limitations. — Certain land mortgaged to the State to secure a loan from the sinking fund was sold by the State upon the failure of the mortgagor to pay interest. He was about to reinstate the mortgage within the time allowed therefor by law, when, he being largely in debt and insolvent, and intending to delay his other creditors, which intention was known to the purchaser, it was verbally agreed between the mortgagor and purchaser, for the purpose of such delay, that the former should not reinstate the mortgage (and he did not do so) ¡ that the latter should hold the land in trust for the mortgagor and permit him to redeem it whenever his relations with his creditors would allow him to do so with safety; and that ■the mortgagor should pay the purchaser whatever amount the latter might pay the State for interest, which he did for a time, when said purchaser paid the amount due the State, and received from it a deed.</p> <p>Meld, that this was an implied trust under the statute; and the conveyance to said purchaser was void as to said creditors, who were entitled to have the property applied to the payment iof their debts without offering to refund tho amount paid by said purchaser, who had no lion therefor on the proerty.</p> <p>Held, also, that the right of said creditors to have the fraudulent conveyance set aside, including prior judgment-creditors and one who held'a mortgage on said property executed prior to said conveyance, was limited to-six years from the date at which their canse of action accrued.</p>

<p>Judgment.— Collateral Proceeding. — Jurisdiction.—Where a judgment is rendered by a court of superior jurisdiction, having jurisdiction of the subject-matter, and having acquired jurisdiction of the parties, which, in the absence of a contrary showing, it will, in a collateral proceeding, be presumed to have done, such judgment, though rendered for the plaintiff upon an insufficient complaint, is binding upon a party thereto and conclusive of his rights therein adjudicated, until reversed or .otherwise set aside as to him.</p> <p>Same.— Withdrawal of Appearance. — Recovery of Real Estate. — A judgment of the circuit court against a defendant in an action commenced before a justice of the peace on a complaint to recover possession of land for nonpayment of rent, rendered after said defendant, having filed an answer denying the relation of landlord and tenant and claiming title to an estate ' for life in the premises in himself, withdrew his appearance, cannot bar a subsequent action by said judgment-defendstht as owner of said life estate to recover possession of the land from the judgment-plaintiff in said former action.</p>

<p>.Amendment oe Laws.— Constitutional Law. — Section 21 of article-4 of the-constitution of this State requires that in revising an act or amending a section, the act or section shall be set forth and published at full length as - revised or amended, but does not require that the old act or section shall be set forth and published; though, if this be done, it will not render - the revision or amendment invalid, but the old act or section will be regarded as surplusage.</p> <p>Same. — Court of Common Pleas. — Fifteenth District. — Times of Holding■ Court. — The act of March 9th, 1861 (Acts 1861, p. 66), amending the-fifteenth section of the act of March 5th, 1859 (Acts 1859, p. 84), and fixing-the times of holding the court of common pleas in the counties of Benton,. White, Carroll and Tippecanoe, is not in conflict with section 21 of article ■ 4 of the Constitution, and, by implication, repealed said fifteenth section.. The substitution in said act of 1861, of the word “while” instead of the-words “ as long as,” in attempting to recite said fifteenth section, does not affect the validity of the act.</p> <p>Same. — Act of May 31st, 1861. — The act of May 31st, 1861 (Spec. Sess. p. 38), attempting to amend said fifteenth section of said act of 1859, is invalid as an amendatory act, because it attempted to amend a section which had no existence. Nor is it valid as an original act.</p>

<p>Assignment oe Ereoe. — New Trial. — -All the causes specified in a motion for a new trial are presented to the Supremo Court by an assignment that the court below erred in overruling the motion for a new trial.</p> <p>Railroad. — Injury to Animals. — Pleading.—A complaint before a justice of the peace against a railroad company, for killing stock, alleged “that the defendant, on or about,” &e., “at and in said county of,” &c., “and State of Indiana, by its locomotive and train of cars then running on its railroad, at a point on its said road in said county whero its railroad track was not securely fenced, ran over and killed two hogs of the plaintiff of th® Value of fifty dollars; wherefore,’' &c.</p> <p>Held, that the complaint stated sufficient facts.</p> <p>Same. — Fences.^-A railroad company is liable for animals killed or injured by its train at a point where its road was not securely fenced, although the owner of such animals permitted them to run at large with knowledge of such defective condition of the. fence, unless it was unlawful or impracticable to fence at such point; and the fact that the railroad company owned the land, and was using it as a place in which to deposit wood, to be ■ removed as the exigencies of the .company might require, does not relieve the company from such liability.</p>

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

<p>Evidence. — Objection to. — Bill of Exceptions. — An exception to the admission of evidence cannot be made available where it is not shown by a bill of exceptions what the ground of objection was.</p> <p>.'Same.— Covenant Against Incumbrances. — Breach of. — Taxes.—On the trial of ;an action for breach of the covenant against incumbrances in a warranty deed, tto recover an amount which the grantee has been compelled to pay as taxes -constituting a prior incumbrance, there must be proper evidence of the listing and appraisement of the property, and of the action of the proper authorities in fixing the rate of taxation, where it is not fixed by law.</p>

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

<p>APPEAL from tbe Washington Circuit Court. ,</p>

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

<p>Injunction. — Notice.— Waiver. — Where the defendant in an application for a temporary injunction appeared by himself and attorney, and made no objection for want of notice;</p> <p>Neld, that any defect for want of notice was cured.</p> <p>Sake. — Evidence.—A temporary injunction may be granted without any other evidence than the' complaint and affidavit of the plaintiff.</p> <p>Paetnekship. — Execution against one Partner. — An execution against one of two partners constituting a firm, in favor of a third person, may be levied upon the interest of the execution-defendant in the partnership property, and such interest may be sold thereunder for his individual debt.</p>

<p>Escape. — Liability of Sheriff. — Bastardy:.—Where judgment ia rendered’ against the defendant in a prosecution for bastardy, and he is- committed to jail for failure to- pay or replevy said Judgment, and the sheriff permits him to escape without paying or replevying the same, the sheriff is liable-for the full amount of said judgment, notwithstanding the insolvency of' said defendant.</p>

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

<p>Town. — Prosecution for Violation of Ordinance. — Affidavit.—In a prosecution for a violation of a town ordinance prohibiting the sale of intoxicating liquors within the town, except for certain specified purposes, without a license from the board of trustees of the' town, the affidavit on which the prosecution was based did not state when the ordinance was passed, and did not aver that the sale charged was not made for either of the purposes so excepted.</p> <p>Held, that if the ordinance were valid, yet, because of said omissions in the affidavit, the cause was properly dismissed on motion of the defendant, no offer having been made to amend the affidavit in these particulars.</p> <p>Amendment op Laws.— Constitutional Law. — Under section 21 of article 4 of the constitution of Indiana, a section of a statute cannot be amended without setting forth and publishing at full length the whole section as amended, however long it may be, or into however many clauses it may be divided.</p> <p>Same. — Town.—The act of March 11th, 1867 (Acts 1867, p. 220), “to amend the seventh clause of section 22” of the “act for the incorporation of towns,” &e. (1 Gr. & H. 619), is not in conformity with section 21 of article 4 of the constitution.</p> <p>Town. — License to Sell Intoxicating Liquors. — The board of trustees of an incorporated town have no authority to pass an ordinance prohibiting the sale of intoxicating liquors within the limits of the corporation without a license obtained for such purpose by the seller from such board.</p>

<p>Promissory Note. — Patent Bight. — A promissory note executed in 1866, in this State, and made payable at a bank therein, contained the words, “this given for patent right.”</p> <p>He Id, that these words did not affect the character of the instrument as a promissory note governed by the law merchant.</p>

<p>TlbadinG. — Answer.—Party in Interest. — In .an action on a promissory note by an indorsee against the maker, an answer admitting the execution of the note and alleging that the plaintiff 'is not the real party in interest, that he has no interest whatever'in the note,.and that it belongs to a third person, but not stating facts authorizing such conclusions, is bad on demurrer.</p>

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

<p>Landlord and Tenant. — Repairs.— Custom. — Where a lease contains no cov- • enant on the part of the lessor to repair, he is not bound to do so; and if the lessee makes repairs, he cannot charge the lessor with the cost thereof.' Nor can a custom in the locality in which the premises are situated,' or in the State, contrary to this rule, be set up by the lessee. ¿</p> <p>Pleading. — Set-off.—Account.—An answer by way of set-off, based.upon an account for work and labor, money paid out, and materials furnished,' is bad on demurrer, if no account be filed therewith.</p>

<p>Assault and Battery. — Damages.—Agreement to Fight. — It is not a bar to an action for damages for an assault and battery, that the plaintiff and defendant fought with each other by agreement or mutual consent, and the injury complained of was inflicted in sudden heat arising in such fight Without previous malice; but such agreement or consent may be shown in mitigation of damages.</p>

<p>Change of Venue. — From County. — Where a change of venue is granted in a civil action in the circuit court or court of common pleas because of an objection to the county, under sections 207, 208, and 209 of the code, the cause may be sent on such change to a county in another judicial circuit or district.</p>

<p>APPEAL from the Monx-oe Common Pleas.</p>

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

<p>Jury. — Sow Impanelled. — In the criminal circuit court, a jury of bystanders was called, by order of the court, to try an indictment, there being thereon none of the jurors of the regular panel, they being engaged in deliberation upon another cause, which had been submitted to them. The defendant in said indictment objected to be tried by the jury thus called, and demanded to be tried by the regular panel, but his objection was overruled.</p> <p>Seld¡ that this was error.</p> <p>Criminal Law. — Larceny.—Mental Condition.— Use of Opium. — On the trial of an indictment for larceny, it having appeared in evidence that the defendant was addicted to the habitual and excessive use of opium in some of its forms, and that at the time of the supposed larceny he had been doprived of his accustomed supply of the drug, he sought to prove by competent testimony what effect such deprivation would have upon his mental condition.</p> <p>Seld, that the evidence so offered was admissible, as tending to show whether the defendant was in such a condition mentally as to be able to commit a larceny.</p>

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