Volume 34 — Indiana Reports

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

<p>Pleading.—Fratid.—Fraud cannot be pleaded without stating the facts constituting it.</p> <p>Principal and Surety.—"Where one is about to take a note, with surety, from a person whom he knows to be insolvent, the mere fact that the creditor does not, voluntarily and without solicitation, announce to the proposed surety the insolvency of the principal, will not release the surety.</p> <p>Same.—Misapplication of Promissory Note.—"Where one is induced to sign a note as surety, by the representation, made to him for the purpose of so inducing him by the payee, that the note is to be used in payment for goods to be furnished by the payee to the maker, and the note is used to pay a pre-existing debt of the maker to the payee, the person so signing is not bound as surety.</p> <p>Same.—Pleading.—Evidence.—Suit on a promissory note by the payee. Answer by surety, that prior to the execution of the note, the maker was the proprietor of a retail furniture store, which, including the stock, had been sold to him by this defendant, to whom the maker was indebted therefor in a certain sum, and that it had been agreed between said maker and this defendant that the latter should hold a lien on said stock and all additions thereto, to secure said indebtedness, and that said maker was to execute a mortgage on the same for that purpose; that the payee, who was a wholesale furniture dealer in the same place, knew of said indebtedness, and, intending to deceive this defendant and induce him to sign the note as surety, represented to him that said maker was doing a good business and getting along well, but needed more stock, and that the payee would furnish him some more goods, if this defendant would become surety on his note for the same; that this defendant, relying on said statements, and in consideration of the fact that said goods were to be added to the stock, thus augmenting his security, became surety on said note, believing at the time that the note was given for goods furnished by the payee to the maker as aforesaid, whereas the payee did not furnish the maker any goods, hut the whole consideration of the note on the part of the maker was a prior indebtedness of the maker to the payee, of which fact the surety was at the time ignorant; that the maker was at the time insolvent, and was not prospering in his business, as the payee well knew; that the maker had never paid his indebtedness to the surety, who never received any consideration for his signature to the note.</p> <p>Held,, that the allegations as to said indebtedness of the maker to the surety, and the agreement between them as to the lien and the execution of a mortgage, did not add anything to the legal effect of the other matters stated, and there was therefore no error in refusing to admit under this answer evidence in relation to the agreement to execute the mortgage.</p> <p>Held, also, that evidence as to the insolvency of the maker, at the time of the interview between the payee and the surety and the execution of the note, was not admissible under this answer.</p> <p>Held, also, that the facts set forth by the answer were sufficient to release the surety.</p> <p>Held, also, that if at the time the surety signed the note he was told by the maker that it was to be used in payment of a prior debt of the maker to the payee, and if it was so used, then the surety would be liable, notwithstanding the payee had represented to the surety that it was to he used in payment for goods, as alleged in said answer.</p>

<p>Practice.—Demurrer.—A demurrer to an entire pleading should be overruled if such pleading contain any good paragraph.</p> <p>PARTIES.—Trustee of Express Trust.—Suit by A. on a promissory note made payable to A. (for B.) or order.</p> <p>Held, that A. was the trustee of an express trust within the statutory definition, and the action was properly brought in his name.</p> <p>Supreme Court.—Rehearing.—-It is the settled practice of the Supreme Court not to consider on a petition for a rehearing a question not presented and considered on the original hearing of the cause.</p> <p>DEMURRER.—Contract Made on Sunday.—In a suit on a promissory note which appears on its face to have, been executed on Sunday, no question as to its invalidity by reason of its execution on that day can be raised by demurrer to the complaint.</p>

<p>CITY.—Street Improvement.—Estoppel.—Where an owner of property in a city sees a contractor go on .and make a street improvement adjoining said property. under a contract with the city, and makes no objection while the work is being done, he cannot, after the work is completed and accepted by the city as having been done according to the contract, enjoin the collection of the entire assessments made for such improvement, on the ground that the materials used and the work done were not strictly in accordance with the contract; in such case, a complaint for an injunction must show a tender, by the properly owner to the contractor, of the value of the improvement.</p>

<p>Appeal.—Effect of.—■Trial De Novo.—Where an appeal has been taken and perfected from the judgment or determination of an inferior court to a superior court (as from the board of county commissioners or a justice of the peace to the circuit court or the court of common pleas), and the cause or matter is to be tried in such superior court de novo, upon the original papers, this appeal operates to suspend further proceedings under said judgment or determination.</p> <p>Same.—Liquor Law.—License.—Where an appeal has been taken by remonstrants from an order of the board of county commissioners granting a license to a person to retail intoxicating liquors, and such person has received notice of that fact, the appeal thenceforward suspends said order and the right to sell under such license. Molihan v. The State, 30 Ind. 266, explained and criticised.</p>

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

<p>Railroad.-—Injury to Animals.—Damages.—"Where an animal is so badly injured by a passing train of cars upon a railroad track that it must soon die from the injury, and the railroad company is liable therefor to the owner of the animal by reason of its track not being securely fenced, and the owner kills the animal, but receives no benefit from it after the injury, evidence of the value of the animal after the injury is not admissible for the purpose of reducing the damages.</p>

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

<p>Assignment or Ebrors.—New Trial.—Exclusion of Evidence.^Nihgtz the overruling of a motion for a new trial is not assigned as error, the Supreme Court will not examine a question as to the exclusion of evidence.</p>

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

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

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

<p>APPEAL from the decision of the Judge of the Court of Common Pleas of the Seventeenth Judicial District.</p> <p>Proceedings on writ of habeas corpus.</p>

<p>Consideration.— Promissory Note.— Patent Right.—Evidence.— Suit on a promissory note given by the defendant to the plaintiff in consideration of the assignment of a patent right to the former by the latter.</p> <p>Held, that the fact that after the • date of said note another patent for the same invention was issued to another patentee, could not be shown under an-answer setting up want of consideration.</p> <p>Same.—Pleading.—Evidence.—An .answer of entire want of consideration will fail if it appear on the trial that there was any consideration, however small.</p>

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

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

<p>Judgment.—Jurisdiction.—Scire Facias.—Estoppel.—A declaration in debt was filed in the circuit court in 1840, on the back of which was a writing signed by the defendant and dated three days prior to the filing of the declaration, to the effect that he confessed the indebtedness mentioned in the declaration, to the amount of a certain sum, and desired that judgment be rendered against him for that amount. The record stated that upon the filing of said declaration the plaintiff proved to the satisfaction of the court by oath of a person named that said “ cognovit ” was duly executed by the defendant, and that he was still living. And thereupon judgment was entered against the defendant for said amount. In 1845 said defendant died, and in 1849 the judgment-plaintiff sued out a scire facias from said court against the administrator and heirs of said decedent, which was duly served upon them, requiring, them- to show cause, if any they had, why execution should not be issued upon said judgment, to be levied upon certain real estate owned by the judgment-defendant at his death. The administrator and heirs failed to appear or show any cause, and the court awarded execution on said judgment, to be levied on said real estate, and execution was accordingly issued, upon which said real estate was sold by the sheriff to the agent of the execution-plaintiff.</p> <p>Held, in a suit by said heirs to recover possession of said land from the grantee of the purchaser at said sheriff’s salé, that said original judgment, it being evident from the record thereof that there was neither service of process nor appearance of the defendant, in person or by attorney, was void; but,</p> <p>Held, also, that said heirs were estopped by the judgment on scire facias from controverting the validity of said original judgment.</p>

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

<p>Practice.—Interrogatories.—The answers made by a party under oath to interrogatories propounded by the opposite party, as provided by section 303 of the code (2 G. & PI. 189), cannot be used by the court on a motion to strike out a pleading as a sham which is good on its face. Such answers can be used only on the trial, and then only at the option of the party who has required them.</p>

<p>Vendor and Purchaser.— Title.—Mortgage.—Foreclosure.—In a suit on a note and to foreclose a mortgage on real estate executed to secure said note given for unpaid purchase-money of said real estate, an answer, pleaded in bar of the whole- cause of action, alleging ail entire want of title in the vendor, is bad on demurrer, such want of title being at least no defense to the foreclosure of the mortgage.</p> <p>Same.—Purchase-Money.—The fact that the vendor of real estate conveyed by warranty deed had a title to only a portion of said real estate at the time of said conveyance by him and' has not since acquired a title to the remainder, is not a good defense to an action against the vendee in possession under said deed, to recoverunpaid-purcíiase-money.</p> <p>Rescission.—An application for the rescission of a contract is addressed to the discretion of the court, and will not be granted when the parties cannot be placed in statu quo. When one seeking to rescind has derived benefit under the contract, he must reconvey, refund or give up to the other party all such benefit. If he has had the-valuable use of property, he must offer to account for this profit. And it must affirmatively appear that he has acted promptly in availing himself of his right to rescind.</p>

<p>Chattel Mortgage.— Vessel of United States.— Where before a vessel has been registered or enrolled as a vessel of thé United States, a mortgage is executed thereon and duly recorded according to the law of this State, it will be valid against a person purchasing such vessel, for value and without actual notice of the mortgage, after the vessel has been enrolled in the office of the surveyor of a port of delivery, although the mortgage be not recorded in said office.</p>

<p>Deposition.—Official Character of Officer Before Whom Taken.—A deposition taken in another state to be used in evidence in this State is invalid, and should be suppressed on motion, if taken before any other than an officer authorized by our laws to take depositions, whether the officer before whom it was taken was so authorized by the laws of such other state or not, and although the party making the motion had waived dedimus and certificate of the official character of the officer, and appeared at the taking and offered no objection then to the official character of the officer.</p> <p>SAME.—Notice to take depositions in another state, “ before some officer authorized to administer oaths'.” The party to whom notice was given waived dedimus and certificate of the official character of the officer before whom the depositions should be taken. The depositions were taken before one who certified that he was “ a commissioner in chancery for the circuit court,” &c.</p> <p>Held, on motion to suppress, that the depositions were void for want of authority in the officer who took them.</p> <p>Evidence.—Presumption as to Improper Evidence.—Where material evidence has been improperly admitted, it will be presumed that it influenced the verdict, unless the contrary clearly appear.</p>

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

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

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

<p>APPEAL from Putnam Common Pleas.</p>

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

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

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

<p>Evidence.—Admissions.—Evidence of admissions of a party should be received with great caution. The credibility of the witness, his testimony in proof of the admissions, and the force of the admissions when proved, are matters for the jury.</p> <p>New Trial.— Weight of Evidence.—When a verdict is not sustained by suffix dent evidence, it is the duty of the court trying the cause to grant a new trial upon motion assigning that cause; but the Supreme Court will not reverse the ruling of the court below in refusing to grant a new trial on such ground, unless it appears, not merely that the finding was contrary to the weight of the evidence, but that it was wrong beyond any question whatever.</p> <p>COSTS.—Administrator.—Where in an action by an administrator to recover damages for the death of his decedent caused by the wrongful act of the defendant, judgment is rendered against the plaintiff for costs, it is error to direct therein that, if there be no property of the decedent, the costs shall be levied of the property of the administrator.</p>

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

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

<p>City.—Street Improvement.— Change of Grade.—The common council of a city incorporated under the general act for the incorporation of cities may, by a two-thirds vote, without any petition, order the grade of a street which has been improved, such improvment having been paid for by the owners of the property bordering on such street, and is in good repair, to be changed, and cause the street to be reimproved with such change of grade, and pay the damages occasioned by the change out of the general revenue of the city, and assess the expense of the reimprovement against the owners of the adjoining property or cause such expense to be paid out of such general revenue.</p> <p>Same.—Extension of Time of Completion.—The mere extension by the common council of the time within which the contractors are to complete a street improvement will not constitute a ground for enjoining the collection of an assessment for such improvement. *</p> <p>Same.—Length of Improvement.—A street in a city incorporated'under the general act for the incorporation of cities may be improved by grading, &c., for a greater length than one whole square, or block, under one order and one contract.</p> <p>Same.—Estoppel.-—Where the owner of real estate in a city stands by and sees a street improved adjoining said property, on a contract made under an order of the common council, without attempting by injunction to prevent such improvement, he cannot, after the work is completed or nearly completed, refuse to pay for it.</p>

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

<p>Appeal.—Pleading Stricken Out.—Where a pleading has been erroneously stricken out, the error is not available on appeal if the same matter has been incorporated' in an amended pleading afterwards filed and not rejected.</p> <p>Waiver.—Demurrer.— Reply.—Where a defendant voluntarily goes to trial without having made any question as to the state of the pleadings, he thereby waives the decision of the court upon a demurrer filed to a paragraph of his answer and undecided, and waives a reply not filed which otherwise might have been required.</p>

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

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

<p>HIGHWAY.—Proceeding to Lay Out.—Damages.—A proceeding to lay out and establish a highway is not rendered erroneous by the fact that the damages, or a part thereof, assessed to a remonstrator, and ordered to' be paid to him out of the county treasuiy, have been shown, during the progress of the proceeding, .to have been paid into the treasury for the use of said remonstrator by a petitioner for such highway.</p> <p>Same.—Statute Construed.—It seems that the provision of the statute (l G. & H. 363, sec.' 16), that the viewers, in laying out or' changing a highway, shall not run “ through any person’s inclosure of one year’s standing, without the owner’s consent, unless, upon examination, a good way cannot otherwise be had,” is properly construed by adding thereto the words, withottt departing essentially 'from the rotitepetitionedfor.</p> <p>Same.—Remonstrance.— Waiver.—In a proceeding to lay out and establish a highway, a person filed with the board of county commissioners two remonstrances, the first relying upon the ground that the proposed highway was not of public utility; the second, upon the ground that it ran through his inclosed land, damaging him to the extent of a certain sum specified, and asking the appointment of reviewers to assess his damages; afid no additional defense was set up during the progress of the proceeding.</p> <p>Held, that these remonstrances raised no objection to the proposed highway on the ground that it would run through the remonstrator’s inclosure of one year’s standing, without his consent, and that a good way could otherwise be had; but, on the contrary, he thereby impliedly waived such objection.</p>

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

<p>Supreme Court.— Weight of Evidence.—The Supreme Court will not, upon the evidence, reverse a finding, where the evidence is conflicting, and consists .entirely of the testimony of witnesses who testified in the presence of the -court below.</p>

<p>Administrator.—Abatement.—The right of a plaintiff to sue as executor or administrator can be called in question only by answer in abatement sworn to.</p> <p>Same.—Mortgage,—Where a mortgage is executed to one to secure money to be paid to another, the latter, if alive, can maintain a suit to foreclose the mortgage, and if he be dead, the action is properly brought by his administrator.</p> <p>Same.—Minor,—Where a mortgage was made to one, the money secured thereby being payable to another, a minor, who afterwards died before reaching majority;</p> <p>Held, in a suit by the administrator of said minor to foreclose the mortgage, that the complaint was not bad for failing to allege that the minor accepted of and assented to the contract.</p> <p>Same.—Where a mortgage was given to secure the payment of money to one, at the time a minor, when he should arrive at the age of twenty-one years, and he died before reaching that age;</p> <p>Held, that an action on the mortgage could be maintained by the personal representative of said minor, commenced at the time when the- latter, if living, could have brought the suit.</p> <p>Foreclosure.—Pleading.—Description of Lands,—Suit to foreclose a mortgage, the complaint alleging, that on, &c., the defendant conveyed, warranted, and mortgaged to, &c., certain tracts of land accurately described, to secure a debt evidenced by said mortgage, a copy of which was filed, with the complaint, the only description of -the land contained in the mortgage being, “ ninety-nine acres and 76-100 this day deeded to him.” It was not further alleged that the land described in the complaint was the same as the land so described in the mortgage, or that it was the land described in the deed referred-to in the mortgage; nor was said deed set out; nor was the description contained in said deed shown.</p> <p>Held, on demurrer, that the complaint was bad for want of sufficient 'description of the land mortgaged.</p>

<p>Parent and Child. — Custody of Minor. — Indiana Soldiers and Seamen!s Home.—On the 6th of November, 1868, a minor, an orphan child of a deceased Indiana soldier, was received into the Indiana Soldiers and Seamen’s Home, upon a written instrument signed by the mother of said child, reciting, that she thereby surrendered said child “ to the care and guardianship ” of the trustees of said Home, t'o be under the control of said trustees, to do with said child as they might think best for the interest of the child, without specifying any time during which the child should so remain.</p> <p>Held, that in the absence of anything showing that the mother was not a suitable person to have the custody of the person of said minor, she was entitled to regain such custody at any time.</p>

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

<p>Contract.—Separate Instruments of Different Dates.—Suit on a bond conditioned in tbe alternative, that the principal obligor should, on a certain day, pay the plaintiff a certain sum, or in lieu thereof, at his own election, secure to the plaintiff on that day a clear title and the possession of certain real estate. Answer, setting up a written agreement alleged to have been made at the time of the making of the contract mentioned in the complaint and as a part thereof, but bearing a different date, whereby the plaintiff agreed that he Would, on, &c., being the day fixed in said bond for the performance of the condition thereof, convey a certain farm to said principal obligor, the answer alleging that the plaintiff had failed and refused to so convey said farm, &c.</p> <p>Held, that upon demurrer to said answer, the instrument therein set out should, notwithstanding the expressed date thereof, be regarded as having been executed at the same time that said bond was executed, and be considered as a part of the same contract.</p> <p>Held, also, that the failure of the plaintiff alleged in the answer constituted a bar to the suit on the bond.</p> <p>SAME.—Alternative Modes of Performance.—Under a bond so conditioned, the right of the obligor to elect between the alternative modes of performance ceases after the date fixed for performance by the bond. No mere notice given by the obligor to the obligee, of the mode in which the former elects to perform, is conclusive on the latter, and no demand by the obligee for a deed is necessary to entitle him to recover the money.</p> <p>PÍeading.—Tender.—An answer, pleaded in form in bar of an action generally, settingup a tender alleged to have been made after the filing of the plaintiff’s complaint, without expressly showing that the action had been commenced, though asking judgment for costs only from the time of making the tender, is bad on demurrer.</p>

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

<p>Constitutional Law.—Legislative Power.—"When the constitution of a state vests in the General Assembly all legislative power, as does ours (article 5, section 1), it is to be construed as a general grant of power, and as authorizing such legislature to pass any law within the ordinary functions of legislation, if not delegated to the federal government or prohibited by the state constitution.</p> <p>SAME.—Construction.—Constitutions and Statutes.—Constitutions are to receive a strict construction, and acts of the legislature are to be liberally construed.</p> <p>Same.—“Incorporated Company.”—The words “incorporated company” in section 6 of article 10 of the constitution of this State, refer to those associations which are created for public benefit, and to which the government delegates a portion of its sovereign power, to be exercised for public utility,—such as turnpike, bridge, canal, and railroad companies.</p> <p>Same.—Subscription for Railroad Stock by Cotinty.—By the general grant of legislative power, the General Assembly of this State is empowered to authorize counties to subscribe for stock in railroad companies, and section 6 of article 10 of the constitution recognizes this power, and so limits it as to prevent such subscription unless the stock be paid for in money at the time of the subscription. A county cannot subscribe for such stock without appropriate affirmative legislation authorizing it.</p> <p>Same.—Act of 1869.—The authority granted by the Act of May 12th, 1869 (Acts 1869, p. 92), to counties to subscribe for stock in railroad companies, to be paid for at the time of the subscription, is a legitimate exercise of the power conferred on the legislature by section 1 of article 5 and section 6 of article 10 of the constitution; and the means provided in said act to raise the money with which to pay for said stock are appropriate, plainly conducive to the end proposed, and not prohibited by the constitution or inconsistent with the letter or spirit thereof.</p> <p>Same.—“ Taking Effect.”—The fact that a vote of the people is necessary to carry the provisions of said act of 1869 into execution, does not render the talcing effect of the act dependent upon any authority other than the legislative power of the General Assembly, and therefore does not .render the act in conflict with section 25 of article I of the constitution.</p> <p>Same.—General and ¿ocal laws.—County Commissioners.—Said act is not in conflict with the constitutional restriction upon the enactment of local or special laws; and it is in accord with the provision of the constitution authorizing the legislature to confer upon county boards powers of a local administrative character.</p> <p>SAME.—Rate of Assessment and Taxation.—Said act is not in conflict with the constitutional requirement that “ the General Assembly shall provide by law for a uniform and equal rate of assessment and taxation,” the rate in each county in which an appropriation is made under said act being uniform and equal throughout such county.</p> <p>Election.—Change of Voting Places.—Inspectors Return.—Notice of Election.—An election under said act, resulting in favor of the making of an appropriation by a county in aid of the construction of a certain railroad, there being no fraud, no legal voter being prevented from -voting, and no illegal voter being permitted to vote, it was held, was not rendered illegal by the facts that the county commissioners changed the places of voting, in one of the townships, two days before such election, of which change no notice was given to the voters; that the inspectors in two of the townships made no return of the votes taken therein, where, if the whole number of votes in said townships had been cast against the appropriation, there would still have been a clear majority of all the votes cast in the county in favor of the appropriation; and that the question submitted to the voters of the county was for or against a subscription of stock in said railroad by said county, a resolution adopted by the commissioners when they ordered a vote to be taken being published in the election notice, to the effect that if the vote of the county should be in favor of an appropriation, they would subscribe for stock in said-railroad company, for and on behalf of said county, and the question of donating money to aid in the construction of said railroad not being submitted in said notice.</p>

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

<p>Pleading.—Mayor’s Court.—Complaint for Violation of Ordinance.—An action commenced before the mayor of 'a city incorporated under the general law for the incorporation of cities, to recover a penalty for the violation of a city ordinance, is a civil suit in which an appeal maybe taken under the same restrictions as if the action were commenced in a justice’s court; and the complaint, if it conform to the requirements of section nineteen of said general law, need not be more technical or full than in a civil suit commenced before a justice of the peace.</p>

<p>Vendor and Purchaser.—Injunction.—Where, the purchaser of real1 estate.' having taken from the vendor his agreement to convey the same to said', purchaser upon final'payment of the purchase-money, and having received1 possession of the land under the contract, and having given his. promissory notes governed by the law merchant to the vendor for the unpaid purchase-money, the vendor sells and assigns said notes before maturity,.said real estate ■ cannot be subjected to the paymant of a judgment rendered against the ven- ■ dór, retaining the legal title, after such assignment; and the sale of."the land under an execution issued on such judgment will be enjoined at the suit of. said purchaser.</p>

<p>Pleading.—Fraud.—Promissory Note.—Suit by the president and trustees of a university on promissory notes executed by the defendant to the plaintiff. Answer, that the notes were given upon the representation of the plaintiff’s agent to the defendant, that, by the execution of the notes, he would become entitled to a-perpetual scholarship in said university, and be entitled to send a scholar to said university free of further cost or charge of any kind; that the officers of said school were prepared to furnish employment to all pupils, by which they could pay their board and all other expenses; that the school was conducted on such a plan that the cost of the scholarship was all that was required to be paid by its patrons; that the school was the best in the State; that its professors and teachers were as competent as those of any other institution of learning in the State; that the school buildings were in good repair, and fitted up with a view to the health, comfort, and convenience of the scholars; that the society of the neighborhood was of the highest moral character; that the grounds and lands belonging to the school and adjoining its buildings were under a high state of cultivation and improvement; that the students were .constantly under the care and charge of the officers and teachers of the school, and furnished wiffi boarding on the premises; that the table of the boarding department was constantly supplied with a sufficient amount of wholesome and nutritious food; that every care was taken to preserve the health and elevate the morals of the students, and render their school life pleasant and homelike; and it was alleged that the school was organized and conducted under the control of a certain religious organization, of which said agent was a preacher and the defendant a member; that defendant could not read or write; that relying on the representations of said agent, and placing confidence in him as a minister of the gospel, and believing in his honesty and integrity, the defendant was induced by such representations to sign said notes, and did so solely in consequence thereof; and that said representations were false and fraudulent.</p> <p>Held, that the answer was good on demurrer.</p> <p>Held, also, that the facts that a certificate for the scholarship was to be issued to the maker of said notes, and that this had not been done, could not constitute a defense to a suit on the notes.</p> <p>Held, also, that an answer alleging that the plaintiff falsely and fraudulently represented to the defendant that he should not be required to pay the principal of the notes, but only the interest thereon, was bad on demurrer.</p> <p>Same.—Consideration.—It is a good answer to a suit on a promissory note, by the payee against the maker, that it was executed without any consideration.</p> <p>Same.—Corporation.—In a suit on a note executed to a corporation, the maker cannot deny the existence of the corporation at the time of the contract; and its continued existence will be presumed, unless it be shown to have terminated in some way known to the law.</p> <p>PRACTICE.—Production and Inspection of Writings.—There is no error in refus- ■ ing ta grant an order, at the request of a party, requiring the adverse party, a corporation, to produce its record books for inspection and use on the trial, where the books are at a considerable distance from the court, and it is not shown by affidavit that there are any entries in them which would afford material evidence, or that any request has been made for copies of such entries, if there be any such.</p>

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

<p>Bill of Exchange.—Accommodation Indorser.—Application of Paper to Particular Purpose.—A bill of exchange was indorsed for accommodation, to enable one to raise money, in the application of which the indorser had no interest ; and he for whose accommodation it was indorsed, instead of so using the bill, used it to pay a pre-existing debt.</p> <p>Held, that such appropriation of the bill did not release said indorser from liability on the bill in the hands of one who had received it with notice of these facts.</p> <p>Same.—Blanks.—Where a bill of exchange has been drawn, accepted, and indorsed, with blanks for the date, amount, and time, and in this condition delivered to one to whom the drawer was at the time indebted, or to whom the drawer and acceptor were indebted, to be used in renewal of paper formerly given for such indebtedness, with direction to such creditor to fill ’up said blanks with the proper date, amount, and time, when said former paper should become due, an accommodation indorser will not be released from liability on said bill by the fact that when said former paper became due and said blanks were thereupon filled by said creditor, said drawer and acceptor, solvent at the time the bill was drawn, accepted, and indorsed, had become insolvent, of which the creditor had notice when he filled said blanks.</p> <p>Practice.—Ojien and Close.—Whenever it devolves upon the plaintiff to make any proof as to the facts necessary to make out his case, or as to the amount which he ought to recover, he has the right to open and close the evidence and the argument.</p>

<p>Pleading.—Abatement.—Another Action Pending.—In a suit against the board of county commissioners for medical services rendered by the plaintiff to the poor of a certain township upon the employment of the township trustee, an answer setting up the fact that the plaintiff has presented said claim to said board for allowance and has appealed from the decision of the board thereon, and that the appeal is still pending, must show the perfecting of such appeal according to the statute. Such an answer, and also an answer that said claim has been presented by the plaintiff to said board for allowance and is still pending before the board, are answers in abatement, and must be verified by affidavit.</p> <p>Poor.—Where medical services are rendered by a physican to persons as poor persons of a township in pursuance of an employment by the proper township trustee, such employment, in the absence of fraud or collusion, is conclusive in a suit to enforce the collection of the claim against the county for such services, without regard to the question whether such persons were properly entitled to such services under the poor laws or not.</p>

<p>Jurisdiction.—Special Appearance.—The question whether jurisdiction of the person of the defendant in a civil action has been acquired by the court can be raised in such action, not by an attorney as amicus afrits, but only by a special appearance; and the better practice is to present it by plea in abatement.</p> <p>Same.—Divorce.—Custody of Children.—Where in a suit for a divorce, the court having jurisdiction of the subject matter and of the parties, an order has been made granting the custody of the children of the marriage to one of the parties until the further order of the court; afterwards, in an application to change said -order, the court retains its jurisdiction of the subject matter and of the parties, without reference to change of residence.</p>

<p>Mortgage.—Foreclosure.— Judgment Lien.—Redemption.—Act of r86r.— Where a mortgage on real estate Is foreclosed, and the property is sold under the decree, there being, at the commencement of the suit, a judgment lien ore said real estate junior to said mortgage, and the judgment creditor not being a party to the foreclosure suit, his rights are not affected by the foreclosure and sale, and the provisions of the redemption law of June 4th, 1861 (2 G. & H. 251), do not apply to him or affect him as to such sale j an execution issued on said judgment before the expiration of the statutory Hen of the same, and after the expiration of one year from said sale, the property not having been redeemed, and a deed therefore having been executed by the sheriff to the purchaser, may be levied upon said real estate, and the same may be sold; thereunder, subject to said mortgage as if it had not been foreclosed.</p> <p>Same.—Junior Mortgage.—Under circumstances similar to these, the rights of a junior mortgage creditor would be essentially the same as those of a junior judgment creditor.</p> <p>Statute Construed.—Redemption Law of 1861.—The redemption law of June 4th, 1861 (2 G. & H. 251), does not cut off or affect any right of redemption existing by the general principles of law and held by one not a party to the judgment, decree, or other judicial proceeding on which a sale of real estate has been made.</p>

<p>Vendor, and Purchaser.—Conveyance Without Warranty.—Title.—A purchaser of real estate took a quitclaim deed therefor, -with notice of a defect in the title, consisting of a misdescription of the land in prior conveyances thereof, and, there being no fraud in the transaction, the vendor, by a separate writing, promised and guaranteed that he would cause said defect to be rectified, without specifying any time within which it should be corrected; whereupon, at the request of the vendor, the vendee executed his promissory note to a third person for the purchase-money.</p> <p>Held, in a suit on said note, it not appearing that said purchaser had been evicted or had sustained any damage, that the continued existence of said defect constituted no bar to the action, or ground for enjoining its prosecution,</p>

<p>Bill of Exceptions.—Dismissing Appeal.—A ruling of the circuit court dismissing an appeal to that court from the decision of the board of county commissioners in a proceeding to change the location of a public highway cannot be presented to the Supreme Court except by a bill of exceptions.</p>

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

<p>Highway.—Proceeding to Establish.—Appeal.—In a proceeding to establish a highway, an order of the board of county commissioners refusing to pay out of the county treasury the damages assessed by" viewers to one through whose land the road would run, is a sufficiently final decision to authorize an appeal to the circuit court by the ^petitioners for the establishment of the highway. On such appeal the entire proceeding goes to the appellate court, which has full power to make a final disposition thereof} and if the appeal by said petitioners be taken in term, all the adverse parties before the commissioners must take notice of the appeal, and the omission of the name of one of the appellees in the title of the cause in the docket of the appellate court is unimportant.</p>

<p>Supreme COURT.—Conflicting Evidence.—The Supreme Court will not reverse a judgment on the evidence, where it is conflicting and consists of the testimony of witnesses who testified in the presence of the lower court. -</p>

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

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

<p>Partnership.—Sale of Partner's Interest to Ills Copartners.—Partnership Delis. One of a firm composed of two partners sold his interest in the partnership to his copartner, the contract of sale not containing any provision that the buyer should pay the debts of the firm, or that the seller should receive any certain sum, but it being stipulated in said contract that the seller was to be paid in notes and accounts belonging to the firm, and for any excess due him over and above said notes and accounts the buyer was to execute his promissory notes to the seller.</p> <p>Held, in an action by the seller against the buyer for the failure of the latter to perform his part of the contract, that the facts that, at the time of the sale, the firm was indebted in a sum greater than its entire assets, and that said indebtedness had been paid by the defendant, constituted a good defense.</p>

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

<p>PLEADING.—Railroad.—Injury to Animals.—A complaint in an action com- . menced before a justice of the peace against a railroad company, to recover for the killing or injuring of an animal by a passing train of cars, must either contain an allegation of negligence on the part of those in charge of the train, or aver that the road was not fenced, and must allege that the train belonged to said company or was being run over its road.</p>

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

<p>APPEAL from the Elkhart Common Plea,s.</p>

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

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

<p>APPEAL from the Ripley Circuit Court</p>

<p>Supreme Court.—New Trial.—Small Excess of Damages.—The Supreme ' Court will not reverse a judgment because of a very small excess of damages.</p> <p>Evidence.—Declarations of Agent.—The declarations of an agent are not admissible in evidence in favor of his principal, either before or after the death of the agent.</p> <p>SAME.—Admissions.—Contrary Declarations.—Where the statements of a party have been proved,' as admissions, and not with a view to impeach him as a witness, he will not for that reason be allowed to prove his own statements at other times, of an opposite character and in harmony with his own testimony.</p> <p>Principal and Surety.—Mutual Sureties.—Where a promissory note is executed by two persons, the consideration going one-half to each of them, as between themselves each may be treated as principal for one-half of the debt and surety of the other for the other half,</p>

<p>Decedents’ Estates.—Unclaimed Share.—Parties.—Pleading.—On final settlement of a decedent’s estate, in the court of common pleas, a sum of money was received by the clerk of said court as the share of said estate belonging to a nephew of the decedent, to be kept by said clerk till said nephew should call for it. Complaint by some of the heirs at law of said decedent against the administrator of the estate of said clerk, deceased, alleging the receipt of said sum by the clerk as above stated; that said clerk died without having been called upon for said money by said nephew, who had not been heard from for seven years; and that the plaintiffs, assuming his death, claimed his share in his uncle’s estate.</p> <p>Held, that the complaint was- bad on demurrer assigning as causes, that the plaintiffs had not legal capacity to sue, and that the complaint did not state facts sufficient, &c.</p> <p>Same.— Transfer of Settlement to Circuit Court.—Súfreme Court.—An objection to the.transfer of the settlement of a decedent’s estate from the court of common pleas to the circuit court cannot be made for the first time in the Supreme Court.</p> <p>Same.—Affidavit.—Where an affidavit upon which such a transfer has been made is not in the record, the Supreme Court will presume that the affidavit was properly made, under the statute.</p>

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

<p>Office and Officer.—Compensation of Public Officer.—The compensation of ■public officers is fixed and regulated by statute, and in the absence of a statute ^giving-compensation none can be recovered.</p> <p>SAME.—Prosecuting Attorney.—A county is not liable to pay a prosecuting attorney for services rendered by him as prosecuting attorney, at the request of the county commissioners made of him as such attorney, in prosecuting a suit and obtaining judgment against a defaulting officer and his sureties.</p>

<p>Supreme Court.—Evidence.—The Supreme Court will not reverse a judgment upon the evidence, where it is conflicting.</p>

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

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

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

<p>Promissory Note.—Attorney’s Fees.—Joinder of Causes.—Parties.—Where a promissory note provides for the payment of attorney’s fees if suit be instituted thereon, attorney’s fees may be recovered in an action on the note, by the person entitled to sue for the debt; and the attorney for whom such fees are claimed need not be made a party plaintiff, though the fees have not been paid before the institution of the suit.</p>

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

<p>Highway.—Location of.—Petition.—A petition to the board of county commissioners for the location of a public highway must give the names of the' owners and occupants or agents of all lands over which the proposed road is to > run; and it is not a sufficient designation of such owners to say that they are-the heirs of a person named. An objection to the petition because of its failure to give such names or a portion of them is not waived by the failure to make it before said commissioners, but may be raised by motion in arrest of. judgment on appeal to the circuit court.</p> <p>SAME.— Viewers.—Refort of.—In a proceeding before the board of county commissioners to locate a public highway, the report of the first viewers appointed' is insufficient if it do not show that they have laid out and marked the highway, and, when it runs upon the line dividing the lands of different proprietors,, that they have so laid it out that each adjoining owner shall give half of the road; and second viewers, appointed upon remonstrance being made, have no authority to lay out and mark the highway.</p> <p>Guardian and Ward.—Guardian Ad Litem.—Practice.—Where the guardian of a defendant appears and defends for his ward, it is unnecessary for the court to appoint a guardian ad litem.</p>

<p>Contract.—Custom.—Landlord and Tenant.—A stipulation in a lease of land for farming that the crop when harvested shall be divided according to the custom prevailing among the farmers of the neighborhood in which the land is situated, is valid.</p> <p>Bill of Exceftions.—Motion to Strike Out.—The action of the court in overruling a motion to strike out a paragraph of a pleading will not be reviewed by the Supreme Court, if the question be not presented by a bill of exceptions.</p> <p>SAME.—Objection to Evidence.—An exception to the admission of evidence over objection cannot be made available in the Supreme Court, if the bill of exceptions do not show that a ground of objection was stated to the court below and what the ground of objection was.</p>

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

<p>Judgment.—Effect of Granting New Trial.—Injunction.—The granting, unconditionally, of a new trial in a cause as effectually vacates a judgment previously rendered therein as if the judgment were set aside in express terms; and an injunction will lie to prevent the collection of such judgment.</p>

<p>Open and Close.—Where in an action on a promissory note the general denial is pleaded in answer, the plaintiff has the right to open and close.</p>

<p>Replevin.—Justice of the Peace.—Bond.—In an action of replevin commenced, before a justice of the peace, if the bond filed by the plaintiff, ¡be for a sum less than double the value of the goods as stated in the verified complaint, the justice has no jurisdiction of the action; and on appeal to the' court of common pleas such defect of the bond constitutes good ground for a motion by the defendant to dismiss the action, or to arrest the judgment.</p>

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

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

<p>Bastardy.—Evidence.—Where, in a prosecution for bastardy, the prosecuting witness testified that the child was begotten in a certain month or the next following month, and could not be any more definite as to the time, and it appeared in evidence that about the date at which the child was probably begotten, allowing the ordinary period of gestation, being about the first of the former month designated by her, she had sexual intercourse with several men, and it was not shown that there was anything peculiar in one of the connections or attending circumstances, which enabled her to determine that the child was begotten at that time;</p> <p>Held, that the evidence was not sufficient to authorize a finding that the defendant was the father of the child.</p>

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

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

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

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

<p>WILL.—Attestation.—It is not necessary to the due execution of a will that the testator should in any manner indicate to the witnesses who attest it that the instrument is the will of the person executing it.</p>

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

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

<p>Promissory Note.—Payable in Bank.—Indorsee.—In a suit on a promissory note made payable to order or bearer in a bank in tbis State, brought by an indorsee against the maker, the fact that the note was procured by fraud does not constitute a good defense; if the plaintiff purchased the note for a valuable consideration, in the usual course of business, before it was due, and without notice of the fraud.</p> <p>SAME.—Patent Right.—The words, “this note is given for patent right,” written on the margin of such a note will not authorize the jury in such action on said note to infer that any indorsee thereof had knowledge or notice that the patent for which the note was given was of no value, or that the note was procured by fraud.</p> <p>Same.—Purchaser with Notice.—"Where such a note has been procured of the maker by the fraud of the payee, by whom it has been indorsed to a third person, another person who has purchased the note of such indorsee with actual knowledge that it was so procured, or with notice of any facts indicating to a reasonably prudent man that it was so procured, cannot recover in a suit on the note against the maker, unless said third person of whom he purchased it was an innocent holder for value.</p> <p>Same.—Purchaser from Innocent Holder.—A person to whom a promissory note governed by the law merchant has been transferred or indorsed, for a valuable consideration, before it was due, by an innocent holder thereof for value, may recover on it against the maker, though he knew at the time he purchased it that it had been procured, of the maker by the fraud of the payee.</p> <p>Same.—Holder in Good Faith.—One who purchases a promissory note negotiable by the law merchant, for a valuable consideration, before maturity, without notice of any equities existing between the original .parties to the note, or of any fraud having been used to procure the execution of the note, is to be deemed a holder in good faith.</p> <p>Same.—Notice.—Inadequacy of Price.—Whether inadequacy of the price asked for a note offered for sale is a circumstance indicating to the purchaser that it was procured by fraud, is a question for the juiy.</p>

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

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

<p>Exceptions.—Form of.— Written and Oral Instructions.—On the trial of a cause, the court was requested, at the proper time, by the defendant, to charge the jury in writing, but disregarding the request, gave, with certain written instructions, certain verbal explanations thereof and verbal instructions. ' No. objection was made at the time the instructions and explanations were being given, but after they had been given, and the bailiff had been sworn to take charge of the jury, and hefore the juiy retired, the defendant’s attorney stated that he excepted to the instructions; and when asked to specify which instructions he excepted to, he said that he excepted to all, and that all included each.</p> <p>Held, that this exception was sufficiently specific to raise the question of the. giving of the verbal instructions and explanations in disregard of the defendant’s request.</p> <p>Held, also, that such disregard of the defendant’s request constituted a, good ground for a motion by him for a new trial.</p>

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

<p>Minor.—Suit for Services.—Set- Off.—In an action to recover for work and labor done by the plaintiff for the defendant at the request of the latter while the former was a minor, he may recover whatever such services were reasonably worth, not being bound by any special contract as to the time he was to work or the amount to be paid him for his services; and the defendant may set off against the amount so recovered the reasonable value of necessaries furnished the plaintiff during the period of such service, such as food, clothing, schooling, &c.</p> <p>Same.—Evidence.—On the trial of such an action, the value of clothing furnished by the defendant to the plaintiff being in issue, the defendant asked a witness the following question: “Are you acquainted with the cost of furnishing necessary clothing per year for a girl of the age and size of the plaintiff, during the years she resided at the defendant’s house?” And the court refused to allow the question to be answered.</p> <p>Held, that this was not error.</p> <p>Instructions to Jury.— Written.— Verbal Explanations.—Where, upon the trial of a cause by a jury, the court is requested, at the proper time, to instruct the jury in writing, if the court accompanies its instructions with any verbal explanations, comments, and remarks, though not inconsistent with the law as set forth in the written instructions and in no w§y rehearsing the evidence, this will constitute a good cause for granting a new trial, on the motion of the party making such request.</p>

<p>Assignment of Errors.—New Trial.—Where the overruling of a motion for a new trial is not assigned as error, the Supreme- Court will not consider any error properly constituting a cause for a new trial, though it be assigned as error.</p>

<p>Appeal.—Justice of the Peace.—Where a party against whom judgment has been rendered by a justice of the peace has been granted leave to appeal to tke court of common pleas after the expiration of thirty days, under section 68, 2 G. & H. 597, and he fails to perfect his appeal by having the order to the justice to certify up the case issued and served, and by causing the justice to make out a transcript of the proceedings and judgment before him and file it, with the original papers, in the office of the clerk of the common pleas, within a reasonable time, and until the case has been regularly called for trial, the appeal may be dismissed on motion of the adverse party.</p> <p>Witness.—Party.—Continuance—A continuance should not be granted on the ground that a party to the action is absent from the county, and his attorney does not know where he is, and that it appears he is needed as a witness on his side' of the case.</p>

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

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

<p>Practice.—Claim Against Decedent’s Estate.—Where a complaint shows on its face that the action is to recover a claim against the estate of decedent, and the proceeding has been commenced, not by filing a claim, but as an ordinary action, the suit should be dismissed on motion.</p>

<p>Principal and Surety.— Contract.—Pleading.—Evidence.—A promissory note was executed by A. and B., the latter' styling himself “collateral security.” Suit on the note by the payee against B., A. being deceased.</p> <p>Held, that a parol agreement between the payee and B. that the latter should pay the note only in case it could not be made of A., if contemporaneous with the making of the note, could not be shown in defense because of the rule against the admission of parol evidence to vary or contradict a written instrument, and if subsequent to the note, could not be sustained without a consideration therefor being shown.</p> <p>SAME.—Statute Construed.—The statute (2 G. & H. 308, sec. 674) which enables a surety to have an order of the court that execution shall be first levied upon the property of -his principal, is not applicable in- such an action brought against a single defendant.</p> <p>PLEADING.—Consideration.—To show a consideration for an agreement, in a pleading, it is not sufficient to allege that the agreement was for a valuable consideration; but the facts with reference to the consideration must be set out.</p> <p>Promissory Note.— Without Date.—In a suit on a promissory note without date, but having seven months from its execution to run, the complaint set forth the note and alleged that it was made at a certain date, being more than seven months prior to the commencement of the action.</p> <p>Held, that the complaint sufficiently showed that the note was due when the suit was commenced.</p>

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

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

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

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

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

<p>Information.— Court of Common Pleas.—Jurisdiction.—The court of common pleas has jurisdiction of an information in the nature of a quo warranto for usurping an office, filed in said court upon the relation of one claiming an interest in the office.</p> <p>Same.—Officer of City.—Contesting Election of.—The proper mode of attacking the validity of the election of a city officer is by information, there being no provision of law for contesting the election of such an officer.</p> <p>Election.—Mode of Condzuiing.—Directory Statutes.—Statutes regulating the mere mode of conducting elections are directory, and any departure from the prescribed mode will not vitiate an election, if the irregularity does not deprive any legal voter of his vote, or admit a disqualified voter to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it.</p> <p>SAME.—Statute Construed.—The reason and spirit of the statutory provision on the subject of contesting elections (l G. & H. 318, sec. 15), that “no irregularity or malconduct of any member or officer of a board of judges or canvassers shall set aside the election of any person, unless such irregularity or malconduct were such as to cause the contestee to be declared elected when he had not received the highest number of legal votes,” are applicable to an election to a city office as well as to a state, county, or township office; and said provision announces a principle of law which prevails independently of the statute.'</p>

<p>Jurisdiction.—Estoppel.—Suit before the mayor of a city for, rent, and an attachment thereunder, on which was seized the property of the defendant, who executed a delivery bond therefor with surety. Upon the defendant’s oral motion, on the ground that the title to real estate was involved, the cause was certified to the circuit court, in which the defendant appeared, and, after taking various steps in the cause, withdrew his appearance and was defaulted, and judgment was rendered against him for the debt, and an order was made for the sale of the attached property.</p> <p>Held, in a suit on said bond, that said defendant and the surety on said bond were estopped to deny the jurisdiction of the circuit court in said attachment proceeding.</p>

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

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

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

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

<p>Supreme Court.—Evidence.—Amount of Recovery.—The Supreme Court will not interfere with the action of the court below upon the question of the • amount of recovery, where such amount depends upon a calculation, the data for which, in the evidence, are uncertain and unreliable.</p>

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

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

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

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

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

<p>Contract.—Where by the terms of a contract between A. and B., the former was to deliver to the latter, on a railroad switch, at a certain place, within a specified time, certain lumber, which B. was to there receive and measure as it should be delivered, and for which he was to pay a stipulated price to A.;</p> <p>Held, that it was a sufficient defense to a suit by B. against A. to recover money advanced by the former to the latter under the contract, in excess of the price of the lumber delivered, and damages for the failure of A. to deliver a portion of said lumber, that A. was ready and willing to deliver the lumber according to the contract, of which fact he notified B., but that B. notified A. that he need not deliver the lumber at said place, unless he would permit B. to ship it to a certain other place and there to measure and receive it, and that A. had been at all times, and then was, ready and willing to deliver said lumber according to the terms of the contract, but that he had been prevented from so doing by the refusal of B. to measure and receive it according to the contract.</p> <p>OBJECTION to Evidence.—Bill of Exceptions.—Motion for New Trial.—An obj'ection to the admission of evidence cannot be made available in the Su- ' preme Court, where it does not appear by a bill of exceptions that the party obj ecting stated the ground of his objection to the court below, or where the question has not been presented to the court below as a cause in a motion for a new trial.</p> <p>INTERROGATORIES to Jdry.—Answers.— Signing by Foreman.—Answers to special interrogatories propounded to a jury by the court are in the nature of a special verdict and have the same force and effect, and they must be signed by the foreman, the better practice being for him to sign each answer.</p> <p>Same.—Either party has the right to demand that such interrogatories shall be fully answered, and that the answers shall be signed by the foreman; and upon such demand being made it is the duty of the court to keep the jury together until the demand be complied with.</p> <p>Verdict.—Sealed Verdict.—New Trial.—Where it was agreed by the parties to an action that the jury should be allowed to seal up their verdict and return it to the clerk of the court, and the jury so returned a general verdict for the defendant and answers to interrogatories, some of the interrogatories not being fully answered, and the answers returned not being signed by the foreman, and the court received the verdict in the absence of the jury and after it had been discharged and the jurors had dispersed;</p> <p>Held, that these facts constituted good cause for a new trial on the motion of the plaintiff.</p>

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

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

<p>Partnership.—Rights of Partners Between Themselves.—Shares of Stock.— Settlement upon Dissolution.—Pleading.—A., B., and C. became partners, under an agreement by which they were to contribute equally to the capital' stock, which was to be a certain amount. A. and B. contributed their full1 shares, and C. contributed one-half of his share and was to contribute the' other half in one year. The firm purchased real estate, machinery, and materials, and engaged in business. The partnership was dissolved before the; expiration of one year by the death of A., and, by consent of all the parties in interest, B. closed up the business, after the expiration of one year from the commencement of the partnership. The partnership liabilities were.all paid'1 out of the personal assets of the firm, without resort to said real estate. B.,. C., and the heir of A. sold said real estate, each separately selling one-third, thereof and receiving for himself the consideration of the sale of such interest. In a suit by B. against C. and the admintstrator of the estate of A., to compel an accounting and settlement of the partnership affairs, and to obtain distribution, C. not having paid in more than his said one-half of his. share, of the capital stock;</p> <p>Held\ that the complaint was not bad on demurrer for failing,to set forth and account for the purchase-money received by the partners upon their several sales of said real estate, or because the plaintiff did not therein offer to account for the consideration of his sale of one-third of said land.</p> <p>Held, also, that C. was not entitled to share equally with his copartners in the profits or assets of the partnership without contributing his full share of the capital stock, and that, therefore, in such adjustment the balance of capital stock unpaid by him should be accounted against him.</p>

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

<p>Evidence,—Pleading.—Promissory Note,—In a'suit on a promissory note, want of consideration, mistake, or the concurrent execution of an instrument that may modify or control the legal effect of the note, cannot properly be given in evidence by the defendant under an answer of payment, and if given in evidence, cannot establish such an answer.</p>

<p>City.—Street Improvement.—Appeal from Precept.—Appeal from a precept issued for the collection of an assessment for the construction of a plank walk in the city of Mt. Vernon, under a contract with said city. Answer, that the defendant was then, and for ten years past had been, the owner of a tract of land of more than ten acres in one body, lying within the limits of said city and used by him for agricultural purposes only, and that said tract of land had never been laid off into lots, and was not subject to be taxed for city purposes of any kind; that said city within the last ten years, without the consent of defendant, had laid out a street through and across said land; and that said sidewalk, caused to be laid down by the city, the cost of which is charged against the defendant and his property, is laid on the west side of said street where the same crosses the land of defendant.</p> <p>Held, that the answer was bad on demurrer.</p> <p>Same.—Presumption.—In such case it will be presumed that such street was legally laid out and opened, and that if the land-owner was damaged thereby, and claimed compensation, he received it.</p> <p>Same.—Tax.—Statute Construed.—The provision of section 58 of the general act of 1867 for the incorporation of cities, “that no more than five acres of fanning land shall be subject to taxation within such city,” does not apply to assessments for improvements of streets and sidewalks.</p> <p>SAME.—Judicial Notice.—Mt. Vernon.—It seems that perhaps the Supreme Court may judicially know that Mt, Vernon is a city of less than ten thous- and inhabitants.</p>

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

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

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

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

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

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

<p>Practice.—Default.—Motion to Set Aside.—Rule of Court.—Judgment having been rendered by the court of common pleas against the defendant in a suit on a promissory note, he moved that the default be set aside, and that he be allowed to- answer, on the ground (disclosed by his affidavit and that of his attorney) that the attorneys for the parties had agreed by parol, out of court, that there should be a judgment for the plaintiff, by default, but that it had been taken for a larger sum than that mentioned in said agreement. A rule of said court provided that admissions or agreements about the proceedings in a cause would not be enforced, or the time of the court be permitted to be used in discussing them, unless in writing, or made of record, or in presence of the court.</p> <p>Held, that under said rule and the statute, 2 G. & PI. 328, sec, 772, there was no error in overruling said motion.</p> <p>SAME.—Amendment.—Demand of fzidgment.—In said cause, at or after said default, the complaint was amended so as to claim a larger sum as the amount of the judgment. The amount of the judgment taken was authorized by the teims of the note in suit. Motion by the defendant, which was overruled, to strike out the larger sum and restore the smaller, the defendant’s attorney, in an affidavit filed by him in support of said motion, stating his belief that the alteration had been made without leave of court.</p> <p>Held, that it was immaterial in the Supreme Court whether said amendment was made or not in the court below.</p>

<p>Supreme Court.—Assignment of Errors.—There being no error assigned, upon an appeal to the Supreme Court, for any ruling of the court below on any pleading, or for the refusal to grant a new trial, the judgment was affirmed.</p> <p>Same.—Petition for Rehearing.—A petition for a rehearing signed by a person not a party, without any designation, prefix, or addition, to Indicate that he is an attorney for a party, is not entitled to consideration by the Supreme Court.</p>

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

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

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

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

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

<p>Supreme Court.—Assignment of Errors.—Names of Parties.—Rule of Cottrt. Where on appeal to the Supreme Court, the assignment of errors does not state the names of the parties, the appeal will be dismissed.</p>

<p>Supreme Court.— Transcript.—Clerk's Certificate.—Where, on appeal to the -Supreme Court, the certificate and seal of the clerk of the court below are wanting to the transcript, the appeal will be dismissed.</p>

<p>Criminal Courts.—Constitutional Law.—Section 7 of the act creating the twenty-fourth judicial circuit (Acts 1869, Reg. Sess. 14) and section 6 of the act creating the twenty-seventh judicial circuit (Acts 1869, Spec. Sess. 48) are invalid, the subject-matter thereof not being expressed in the titles of the acts of which they are parts.</p> <p>SAME.—Of Jefferson County.—Act Abolishing.—The act of 1871 abolishing the Jefferson Criminal Circuit Court is valid; and said court had no power, after the taking effect of said act, to rule upon a motion in arrest of judgment, or to render judgment in a cause pending before it.</p>

<p>Criminal Law.—Indictment.—Assault with Felonious Intent.—Since the talcing effect of. the act of December 2d, 1865 (3d Ind. Stat. 258), defining an assault, an indictment for an assault with intent to commit a felony must charge the assault by setting forth the facts constituting it according to said statutory definition.</p> <p>SAME.—Change of Venue.—Transcript.—Where in a criminal cause taken by a change of venue from one circuit court to another, no transcript, or an insufficient transcript, of the proceedings in the former court has been filed in the latter court, and the defendant has moved the court, for that reason, to quash the proceeding and dismiss him, it is not error for the court to permit the prosecuting attorney, on his motion, to place such transcript on file.</p> <p>Same.—Original Indictment.—Upon a change of venue in a criminal case from one circuit court to another the transcript of the proceeding in the former court should show the transfer of the original indictment to the latter court.</p>

<p>Decedents’ Estates.—Heir.—A., who was a soldier, being at home on furlough, deposited #175 with B., who thereupon executed a written instrument as follows: “Due” A. “$175, which I am to pay him when called on, and in case of his death, I am to pay it to his sister,” C., “or her guardian; and it is further agreed that I am not to pay any interest on the same, unless I should use it in my business; then I am to pay six per cent, for the time I use it, keeping an account of the length of time I use itdated, and signed by B. A. returned to the army, and there died, leaving said sister and a brother as his only heirs at law, and said sum was paid by B. to the guardian of C.</p> <p>Held, in a suit by said brother of A. against said sister and her guardian, to recover one-half of said sum, there having been no administration of the decedent’s estate, and there being no debts against it, that the plaintiff was not entitled to recover.</p>

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

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

<p>Assault and Battery.— Damages.—Mitigation—In an action to recover damages for an assault and battery, it having appeared in evidence that the injury complained of was inflicted immediately after a dispute between the parties concerning certain rent, one claiming that it was due, the other insisting that it had been paid, and each impeaching the other’s veracity, the defendant offered to prove, in mitigation, that what he had said about the rent was true, and that what the plaintiff had said was false.</p> <p>Held, that the offered evidence was properly excluded.</p>

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

<p>Turnpike.—Act of 1867.—Duties of Assessors.—Injunction.—Where assessors appointed under the act of March nth, 1867 (Acts 1867, p. 167), providing for assessments on lands to aid in the construction of plank, &c., roads, did not list, assess, or appraise the benefits to all the lands within one mile and a half of the beginning and end of the proposed road as located;</p> <p>Held, that an injunction would lie to prevent the collection of assessments made by such assessors.</p>

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