Volume 35 — Indiana Reports

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

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

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

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

<p>Pleading.—Demurrer Waived by Answer.—A party cannot, at the same time, demur to and answer a complaint. By answering, he waives his demurrer.</p> <p>Ferry.-—Franchise Lost by .Non- User.—The right of ferriage may be lost by non-user.</p> <p>Same.—Assignee.—A party who, by non-user, has lost his franchise, cannot transfer any right by conveyance or assignment.</p> <p>Wharf,-—Right of City to 'Construct.—Cities have- power to 'construct wharves and collect wharfage.</p> <p>Same.—Refair.—The voluntary expenditure of money by a stranger in repairing the wharf of a city will not create a liability against the city.</p> <p>Same.—Duty of City to Refair.—A city can be compelled to repair her wharves, and may be liable in damages for failure to do so.</p> <p>SAME.—Liability of Forties who Use the Wharves.—A party who uses the wharves of a city cannot defeat the city’s claim for wharfage by showing that the wharves are out of repair.</p> <p>Jurisdiction.—Claims for Wharfage.—The state courts have jurisdiction to enforce the collection of claims for wharfage.</p> <p>Same.—A claim for wharfage against a domestic vessel is not of admiralty jurisdiction.</p> <p>Practice,—Judgment.—Where the evidence is in the form of an agreed statement of facts, and there is no reason for another trial, the Supreme Court will pronounce judgment without remanding the case for trial.</p>

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

<p>Redemption.—Party.—To cut off the right of an owner of an equity of redemption to redeem, he must be made a party to the suit to foreclose. (Pettit, C. J. dissents, holding tkat the statute of June 4th,i86i, takes away all rights to redeem except as provided in that statute.)</p> <p>Estoppel.—To constitute an estoppel, it must appear that the party insisting upon it parted with some right or invested money upon the faith of the acts of the other party.</p> <p>Practice.—Judgment, Non Obstante Veredicto.—"Where a general denial is pleaded, it is error to sustain a plaintiff’s motion for judgment, non obstante veredicto.</p> <p>Same.—Of eft and Close.—The plaintiff is entitled to open and close in all cases where the defendant answers the general denial.</p>

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

<p>Misjoinder.—A cause cannot be reversed for error in overruling a demurrer for misjoinder of causes of action.</p> <p>Pleading.—In a suit against a common carrier, for failure to deliver goods, the complaint must show that after the carrier received the goods to be transported, a reasonable time had elapsed, in due course of transportation, for the delivery of the goods, before the demand was made; and also that the defendant’s reasonable freights and charges have been paid or tendered, or a reason given for not having done so.</p>

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

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

<p>Divorce.—Appeal.—The discretion vested in the circuit and common pleas courts by the seventh subdivision of the seventh section of the act concerning divorces is subject, upon appeal, to revision by the Supreme Court.</p> <p>Same.—Cause.—Where a man marries a woman whom he knows to be the wife of another, the courts will not relieve him from the consequences of,his act, by granting him a divorce.</p> <p>Marriage.— Void.—If either party to a marriage have a husband or wife living at the time of the marriage, the marriage is absolutely void.</p> <p>SAME.—Pleading.—A pleading, if it states a cause of action, may be good as a complaint to annul a marriage, although it be filed as a petition for divorce, and as such be bad.</p> <p>Same.—Marriage Declared Void.—A parly who innocently contracts a marriage with a woman who is the wife of another, believing her to be unmarried, may, by judicial decree, have the marriage declared void.</p> <p>Jurisdiction.—Power to Declare Marriage Void.—Independent of the provisions of the divorce law, the circuit courts of this State have jurisdiction to ■ declare a marriage void.</p>

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

<p>SPrACTICE.—-Neta Trial as of Right.—The filing of a motion and payment of costs within a year after a judgment for the recovery of real estate does not entitle a party to a new trial as a matter of right under section 601 of the code.</p> <p>SAME.—Power of Court in Vacation.—The court cannot grant a new trial in vacation.</p> <p>Same.—The party who seeks a new trial under section 601, must make his application, pay the costs, and obtain the order of the court granting a new trial, or its refusal to do so, within one year after the rendition of the judgment, or the ruling of the court upon the motion cannot be assigned for error.</p>

<p>Evidence.—Opinion.—Where damages are claimed fora breach of contract, by reason of the unskilful sowing of clover, it is not competent to ask a witness the amount of damages sustained by reason of the unskilful sowing. The witness should state the facts, from which the court or jury may determine the damages.</p> <p>Conversion.—Instruction to Jury.—Where a party is charged with having converted personal property in his possession to his own use, it is error to instruct the jury that the evidence of conversion must amount to more than a preponderance, for the reason that the charge involves the moral' turpitude of the crime of larceny, and that the evidence must satisfy the-jury of the truth of the charge beyond a reasonable doubt.</p> <p>QUESTION of Law Reserved.—When a question of law is reserved under section 347 of the code, and the evidence is not in the record,' this court cannot say that the verdict is sustained by the evidence, and'that the giving of an erroneous instruction, which in eifect excluded from the jury the .principal ground of defense, resulted in no injury.</p>

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

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

<p>Partition.—Jurisdiction.—In a proceeding for partition, the court has ample power to settle the rights of the parties interested in the land; and if it has to be sold, their rights are the same in the proceeds that they were in the land; and the court has power to adjust and secure their rights, whether legal or equitable, in the proceeds of such sale.</p> <p>Same.—Parties.—All persons interested in the land should be made parties.</p> <p>Same.—Liens.—Persons holding a lien on any undivided interest, by mortgage, judgment, or otherwise, if made parties to the suit, will be hound by the partition, and limited in their claims to the share set off to the party under whom they claim.</p> <p>Same.—A. and B. owned certain real estate as tenants in common. B. sold his undivided interest to C., and gave him a bond for a deed when paid for, and put him in possession; a part of the purchase-money was paid by C. and his notes given for the balance. A. then instituted proceedings for partition, making B. and C. parties defendants, and under the proceedings the land was sold by order of court.</p> <p>Held, that the contract of sale between B. and C. must be held to have-been made with reference to the legal incidents pertaining to the land; that C., when he contracted with B. for the purchase of an undivided interest in the land, knew that A. had the right at any time to compel partition, or in the event that a division could not be made, to have the land sold; and hence the sale of the land in the suit for partition was not a breach of the bond to convey, made by B. to C.; that after the sale B. was no longer bound to convey, and C was no longer in a condition to demand a conveyance.</p> <p>Held, also, that B. held the legal title only as security for the payment of the purchase-money, and he was entitled to have the residue of the purchase-money coming to him from C. paid out of the proceeds of the sale, if there was sufficient of it; if not sufficient, he had a right to retain the notes of C. as evidence of his right to collect the residue when it should become due.</p>

<p>County Commissioners.—Appeal—Attorney.—An appeal lies to the court of common pleas from a decision of the board of county commissioners on a claim for services as an attorney.</p> <p>Same.—Pleading.—In presenting a claim to the board of county commissioners, an account is all that is necessary, and on appeal a formal complaint need not he filed.</p> <p>Circuit Court.—Attorney.—The circuit court is authorized to appoint an attorney to defend a person charged with a crime, and also to fix the amount of compensation for services so rendered-</p>

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

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

<p>Evidence.—Criminal Law,—Murder,—On the trial of one for the murder of his wife, he offered to prove that the deceased had for a long time been having adulterous intercourse with one B. and others, and that he (the defendant) had for a long time been cognizant of the adulterous conduct of his wife.</p> <p>Held, that the evidence offered was incompetent in justification or palliation of the offense; that after the lapse of time sufficient for the passion to cool and for reason to assume her sway, the killing was as criminal and indefensible as if the deceased had never been guilty of conjugal infidelity.</p> <p>Same.—Insanity.—Said offered evidence, in the absence of evidence tending to show the actual insanity of the defendant, was incompetent as tending to show insanity.</p> <p>Same.—A jury is not authorized to find a man to be insane, without proof on the subject other than the fact that a cause existed that might tend to produce insanity.</p> <p>Instructions.—Argument of Counsel.—Where the whole case is fully and fairly 'placed before the jury in the series of instructions given, it is not error for the court to specially refer to and state the position assumed in the argument cf counsel, upon a question in the case made prominent by the argument.</p> <p>SAME.—Insanity.—Where the defense of insanity is interposed to a criminal prosecution, the court may direct the attention of the jury to the defense, and instruct them that the evidence relating to it should be carefully and intelligently scrutinized and considered.</p>

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

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

<p>Common Council.—Sewers.—The common council of the city of Columbus, under the provisions of the 43d subdivision of section 53 of the act for the incorporation of cities, approved March 14th, 1867, passed an ordinance in July, 1869, for the construction of a sewer, defining the route along which it should be constructed, the material to be used, and size of the sewer, declaring what real estate would be benefited by the construction of the same, and directing that the cost be assessed against the owners of the real estate benefited. In August thereafter, another ordinance was passed, to provide for the extension of the sewer, changing also the character of the material to be used, as well as the size of the sewer, but not declaring any change in the real estate benefited. The cost of the sewer was apportioned by the engineer among the owners of the lots designated as benefited in the first ordinance, and the owners required to pay the amounts assessed against them. Suit by the owners to enjoin the collection of the assessments.</p> <p>Held, that the common council could not change the character of the work and extend it over other portions of the street, and still charge its cost upon the same property which would have been benefited by the construction of the sewer provided for in the first ordinance.</p>

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

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

<p>Practice.—Bill of Exceptions.—Where there is an appearance to an action, the summons and return are no part of the record unless made so by a bill of exceptions.</p> <p>SAME.—Summons and Eehcrn.—Where there is no appearance to an action, the summons and return are properly a part of the record.</p>

<p>CRIMINAL Law.—Murder in Second Degree not Bailable.—-Where the proof is evident, or the presumption strong, murder in the second degree is not a bailable offense. ,</p>

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

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

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

<p>Constitutional Law.—Power to Declare War.—Congress alone has power to declare war; and the President of the United States has no power to declare war or conclude peace, except as empowered by Congress.</p> <p>Same.— Existence of Peace or War.—How Ascertained.— The existence of war and the restoration of peace are to be determined by the political department of the government; and such determination is conclusive upon the judiciary.</p> <p>Same.—Judicial Notice.—The courts will take judicial notice of the existence of war or the restoration of peace, when proclaimed by the President.</p> <p>War of the Rebellion.— When it became a Civil War.—The late' insurrection of the Southern states did not become a civil war, and was not governed by the rules of war, until after the proclamation of President Lincoln, issued August 16th, 1861, pursuant to an Act of Congress of July 13th, 1861.</p> <p>Civil War.—Rules of.—A civil war is governed by the same rules as a foreign war,</p> <p>Same.—Effects upon Inhabitants of States in Revolt.—The proclamation of August 16th, 1861, placed all the inhabitants of Louisiana in a state of insurrection, and they became the enemies of the United States, and all commercial intercourse between the citizens of that State and those of the loyal states during the continuance of the war was unlawful, except such as was specially permitted by the President.</p> <p>Contracts.—Between Citizens of Belligerent Powers.—All contracts made between the citizens of the rebellious states, on the one hand, and of the loyal states, on the'other, during the war, and not licensed by the President, were void.</p> <p>SAME.—Made Prior to the War.—Contracts made prior to the proclamation of August 16th, 1861, were valid; but during the war the debt and the remedy were suspended, and did not revive until the restoration of peace.</p> <p>Enemy.—Right to Sue.—During the existence of war an enemy cannot sue in any of the courts of the hostile belligerent power.</p> <p>Same.—Status of Inhabitant of Louisiana during the War.—An inhabitant of the State of Louisiana during the war of the rebellion'was an enemy of all the inhabitants of the State of Indiana, and could not maintain an action against any citizen of this State, in any of the courts of the United States.</p> <p>SAME.—Judicial Notice.—The courts will take judicial notice that all the inhabitants of the State of Louisiana were in insurrection, but they will not take judicial notice that any of such inhabitants maintained a loyal adherence to the United States, or that any part of said state was occupied by the military forces of the United States, or that any person had a license or permit from the President.</p> <p>Roles of War.— Occupation of New Orleans.-^-The legal effect of the occupation of the city of New Orleans was to permit commercial intercourse between the citizens of that city and such citizens of the United States as were licensed by the President under the Act of Congress of July 13th, 1861.</p> <p>Statute of Limitations.—Between Citizens of Different Belligerent Powers.. The statute of limitations does not run, during the existence of war, between the citizens of different belligerent powers.</p> <p>Same.—Restoration of Peace.—Upon the restoration of peace, the statute of limRations begins to run; for both the debt and remedy, which have been suspended during the war, revive.</p> <p>Same.—Although actual hostilities ceased in April, 1865, yet peace was not legally restored until the 20th of August, 1866, when the rebellion was declared completely suppressed, and peace restored, by the proclamation of President Johnson.</p> <p>Same.—Period Excluded frotil Operation of Statute.—In an action instituted ' by a citizen of Louisiana against a citizen of Indiana, the time that intervened between the 16th of August, 1861, and the 20th of August, 1866, is to he excluded, in detennining whether the action is barred by the statute of limitations.</p> <p>SAME.—Pleading.—Demurrer.—When a statute of limitations contains no exceptions, and it appears upon the face of the complaint that the action is barred, the bar can he taken advantage of by demurrer; but where there are exceptions, the statute must he pleaded by answer.</p> <p>SAME.—New Promise.—A letter written during the existence of the war of the rebellion, by a citizen of Indiana to a citizen of Louisiana, cannot take a case out of the operation of the statute of limitations.</p>

<p>Fraudulent Conveyance.—“Where at the time of the conveyance of certain real estate, a writ of attachment against the property of the grantor was in the hands of the sheriff, of the issuing of which the grantee had no knowledge, which writ was never levied, the attachment proceeding being afterwards dismissed;</p> <p>Held, that the conveyance was not rendered fraudulent by the attachment proceeding.</p> <p>Conveyance.—Consideration.—If there is in reality a valuable and sufficient consideration for a conveyance, it is immaterial whether the amount is specified in the deed or not.</p> <p>Same.—Where it is charged that a conveyance is fraudulent, the nature and amount of the consideration are important with reference to the good faith of the transaction.</p> <p>Same.—Suit Pending.—The fact that a suit is pending against a party does not prevent him from conveying his lands, if he does it in good faith.</p> <p>Same.—A person in embarrassed circumstances, but capable of contracting, may sell his property for the purpose, of discharging his debts, for such consideration as he may agree to accept; and if there be nothing illegal in the transaction, it will stand as against his creditors.</p>

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

<p>Pleading.—Complaint.—Complaint by A. against B., alleging that A. sold and delivered to B. a certain quantity of wheat, on the 31st day of August, 1867, and B. agreed to pay A. within twelve cents per bushel of the Cincinnati market price, to be determined by the Cincinnati papers at any time which A. might select, within one year from the delivery of the wheat; that on the 28th day of April, 1868, A. notified B. that he would on that day take the price of said wheat as per Cincinnati papers of that date; that wheat was worth in Cincinnati on that day $2.70 per bushel; and that A. fixed the price on that day and demanded the pay therefor, but B. refused, &c.</p> <p>Held, that the complaint was good.</p>

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

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

<p>Husband and Wife.—None of the disabilities imposed upon married women have attached to the condition of a married man, who is as free to receive the title to property, and dispose of it, after marriage as before, except that he cannot by his conveyance affect the inchoate right of his wife to his real estate.</p> <p>Same.—Conveyance by Husband to Wife.—A conveyance from a husband to his wife, without the intervention of a trustee, is void at law.</p> <p>Same.—Equity.—A direct conveyance from a husband to his wife will be sustained and upheld in equity in either of the following cases, namely: first, where the consideration of the transfer is a separate interest of the wife yielded up by her for the husband’s benefit, or that of their family, or which has been appropriated by him to his uses; second,twhere the husband is in a situation to make a gift to his wife, and distinctly separates the property given from the mass of his property, and sets it apart to the separate, sole, and exclusive use of his wife.</p> <p>SAME.—Where a wife advances money to her husband, or the husband is indebted to the wife upon any valid consideration, the wife stands as the creditor of her husband, and if á conveyance’ is made to pay or secure such liability, the wife will hold the property free from the claims of other creditors, where the transaction is unaffected by unfairness or fraud. .</p> <p>Same.—Contract between Husband and Wife.—Whenever a contract would be good at law if made by a husband with trustees for his wife, that contract will be sustained in equity, when made by the husband and wife without the intervention of trustees.</p> <p>SAME.—Conveyance to Wife.—Prior to the recent legislation in this State authorizing married women to hold real estate to their separate use, when a conveyance was made by a stranger to a married woman or .to a .trustee for her, it was necessaiy, in order to .give her a separate use in the property, that such conveyance should contain words clearly indicating such intention, but such words were unnecessary in a conveyance from a husband to his wife, for the law presumed that it was intended for her separate and exclusive use.</p> <p>Same.—Statute.—Section 5 of the act entitled “ an act touching the marriage relation and liabilities incident thereto” (approved May 31st, 1852), makes all lands held by a married woman at the time of her marriage, or acquired by her subsequently, hers absolutely, and enables her to use, enjoy, and control the same independently of her husband, and as her separate property; and since the passage of that act a conveyance of land to a married woman need not contain words indicating that she is to hold the property to Sier separate use.</p> <p>Same.—Cotweyanee to Wife.—Conveyances from a husband to his wife are not sustained in equity, if there is some feature in them impeaching their fairness and certainty, as that they are not in the nature of a provision for the wife, or where they interfere with the rights of creditors, or when the property given or granted is not distinctly separated from the mass of the husband’s, property.</p> <p>Same.—Husband.—In consequence of the absolute power which a man posses over his own property,he may make any disposition of it which does not interfere with the existing rights of others.</p> <p>Same.—Provision for Wife.—When a husband is free from debt, and has no. children, and conveys property, to his wife for a nominal consideration,, the law will presume that it was intended as a provision for his wife.</p> <p>Same.—A conveyance from a husband' to his wife which is good in equity vests, the title to the properly conveyed in the wife as fully, completely,and absolutely as though the deed had been made by a stranger-upon sc valuable considerations moving from the wife.</p>

<p>•Év-ibencb.—Exclusion of.—Bill of Exceptions.—No question in relation to the exclusion of evidence can be presented to the Supreme Court without a bill of exceptions showing an offer to introduce the excluded evidence.</p> <p>^K^S&t-^-Dcclarations of Co-defendanti—In a suit against several persons as partners or joint contractors, declarations -made by one defendant -to another, in the -absence of the plaintiff, as to the terms of the contract, are inadmissible in evidence for the defendants.</p> <p>Same.—Partnership.—Where several persons are sued as partners, and -there is &11 answer of general denial, the ^evidence must show -that 'the defendants weré partners.</p> <p>Same.—Joint Contractors.—Where several -are sued -as joint contractors, and the evidence shows that some are not liable, it is a failure of proof, and not a mere variance, and a finding against all is erroneous.</p> <p>Practice.—Judgment:—The provisions of -the code concerning -the rendition of judgment in favor of sortie and against'others of several defendants joined iu an action, applies only where there is -a finding or verdict in favor of some, and against 'others, of -the defendants, and not Where there is a finding of Verdict against all of them.</p> <p>Same?—Motion for -¿lew Trials-Where -the -evidence -does not justify a finding against one of several defendants, but'does against the others, and there is k finding against all, a motion fof a new trial by all -the defendants, alleging that the finding is not sustained by the evidence, is sufficiently specific.</p>

<p>Charitable Use.— Will'.—The residuai-y clause of a will was as follows»-. “•Item.. I give and bequeath the residue of my estate, after the foregoing bequests have been fully paid, to- the orthodox protestant clfcrgymen- of' Delphi and their successors, to be expended' in the education of colored' children, both male and female, in such way and manner as they may deem best,, of -which a majority of them shall determine; my object in> this bequest being, to,promote the moral' and religious- improvement and’welt being of’the colored race.?’</p> <p>No organized or corporate body known, as the orthodox protestant clergymen. of Delphi existed at the- time of the execution of the will* or afterwards.</p> <p>Meld, in a suit by the heirs at law of the- testator against his executors, that said) residuary clause was void at law for vagueness and' uncertainty, and incapable of judicial epforcement by a court of chancery possessing only the ordinary powers of a court of equity, and therefore could not be- sustained by the-courts, of this State.</p> <p>Charitable Uses.:—Cy Pres Power.—Prerogative*—The power possessed' by the court of chancery in England in reference to charitable uses, so far as • it differs, from, the power exercised, by that court in otb,er cases of. trust., does not belong to that court as a court of equity, nor is it a part of its judicial power and jurisdiction, but it is a branch of the prerogative power of the king as parens patria:, which he exercises by the chancellor.</p> <p>Same.—Prerogative Power.— Whence Derived.—Stahite of 43 Elizabeth.—This prerogative power was derived directly from the king under his sign- manual, and was not conferred on the court by the statute of 43 Elizabeth, commonly called the Statute of Uses, but was exercised by the court before the passage of that act, which created no new law or new objects of charity, but only provided anew remedy for existing rights, by ^creating a new and ancillary jurisdiction by commission, and which was local to the kingdom of Great Britain.</p> <p>Same.—Power of Courts of this State.—The courts of this State, possessing no prerogative power, and being incapable of administering and enforcing the remedy provided in England by the statute of 43 Elizabeth, have only judicial power, and can only exercise in reference to charitable uses and trusts such power and jurisdiction as was and is possessed and exercised by the court of chancery in England acting as a court of equity.</p> <p>Same.—The cy pres power, which constitutes the peculiar feature of the English system, and is exerted in determining gifts to charity, where the donor has failed to define them, and in framing schemes of approximation near to or remote from the donor’s true design, is unsuited to our institutions, and has no existence in the jurisprudence of this State on this subject.</p> <p>Same.—A devise or grant to a corporation capable of holding, or to a person or persons, either by name or so described that they can be readily ascertained, for a definite and specific use, is good at law; and the powers of a court of chancery are confined to the mere execution of the trust, to secure the faithful application of the fund or property to the use and object indicated in the deed or will; in other words, to carry out the intention of the grantor or testator as thus expressed.</p> <p>Same.—What Constituesa Chartitablc Use.—To constitute a charitable use, there must be a donor, a trustee competent to take, a use restricted to a charitable purpose, and a definite beneficiary. "Where, in case of a grant or devise, no party or parties are designated who can take the property, or where they are so uncertain that the court cannot direct intelligibly the execution of the trust, the property remains undisposed of and falls to the heir or next of kin. A court of chancery, always acting for the beneficiaries, stops the instant it ascertains that there are none, or that they are so uncertain that it will have to act in the dark when it sets about application of the trust.</p> <p>SAME.— When Court of Chancery will Interpose.—The jurisdiction-of the court of chancery is not to create a trust. Its powers in this country are merely to direct the execution of the donor’s intention, and to prevent the object from being deprived of the benefit intended. The court, in all of its doings, represents the persons, institutions, and classes who are to be benefitted. It interposes 'for the beneficiaries alone; and when invoked by the trustees it is only that they require the interposition of the court to effect the puipose and to secure to the beneficiaries tbecharity of which they should be the just recipients.</p> <p>Same.—Uncertain Beneficiaries.—A gift to charity is maintainable in this State, if made to a competent trustee, and so defined that it can be executed as made by the donor by a judicial decree, although the beneficiaries are not designated by name or specifically pointed out, if the trustee is invested with, full and ample discretion to select the beneficiaries of such charity from a class of persons named; but where the beneficiaries are described as the children, both male and female, of a certain race in the United States, and where that race consists within the United States of about four million persons, it is impracticable to ascertain the beneficiaries and to distribute the proportionate share of such fund to each of such beneficiaries; and where, in such case, the trustees have no discretionary power to select the beneficiaries from the class named, the gift is void for vagueness and uncertainty. -</p> <p>SAME.—There is no difference whether a devise or bequest be immediate to an indefinite object or to a trustee for the use and benefit of an indefinite object. If it be immediate to an indefinite object, it is void; and if it be a trust for an indefinite object, the property that is the subject of the trust is not disposed of, and the trust results to the benefit of those to whom the law gives the property in the absence of any other disposition of it by the testator or donor.</p> <p>Same.—Trustees with Discretion to Select Beneficiaries.—If the charity does not fix itself upon any particular object, but is general and indefinite, such as the promotion of the moral and intellectual condition of a race, or the relief of the poor, and no plan or scheme is prescribed, and no discretion is lodged by the testator in certain and ascertainable individuals, it does not admit of judicial administration. In such a case, in England, the administration of the charity is cast upon the king, to be executed cy pres, while in this country the property devised lapses to the next of kin. If, however, in such a case, certain and ascertainable trustees are appointed with full powers to select the beneficiaries and devise a scheme or plan of application of the funds appropriated to the charitable object, the court will, through the trustees, execute the charity.</p> <p>Same.—Supplying Trustees.—Where trustees capable of taking the' legal estate have been appointed originally, so that a valid usé has been in the first instance raised, and the case has been thus brought within the jurisdiction of the court of chancery, that court will supply any defect which may arise in consequence of the death or disability of the trustees or their refusal to act, by appointing new trustees in their place; but where no competent trustees have been in the first instance appointed, so that no legal estate has ever vested, no use has been raised, and the court of chancery has acquired no jurisdiction of the case.</p> <p>Will.—Construction.—It is a well settled rule, that all the parts of a will are to be construed together and in relation to each other, so as, if possible, to form one consistent whole; and that words and limitations maybe transposed, supplied, or rejected, where warranted by the immediate context or the general scheme of the will, but not merely on conjectural hypothesis of the testator’s intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument; and such a construction should be placed upon the will as to sustain and uphold it in all its parts, if this can be done consistently with the established rules of law and construction.</p> <p>Same.—Parol Evidence.—Mistake.—Ambiguity.—The general rule is, that parol evidence of the intention of a testator is inadmissible for the purpose of explaining, contradicting, or adding to the contents of a will, but that its language must be interpreted according to its proper signification, or with as near an approach thereto as the body of the instrument and the state of circumstances existing at the time of its execution will admit of. The doctrine in reference to mistakes in wills is, that courts of equity have jurisdiction to correct them when they are apparent upon the face of the will; but they must be so apparent, and must be such as may be made by a proper construction of the terms of the will; otherwise there can be no relief. Parol evidence, or evidence dehors the will, is not admissible to vary and control the terms of the will, although it is admissible to remove a latent ambiguity.</p> <p>Church.—Jurisdictio?i of Courts over.—Over the church, as such, the legal tribunals do not have, or profess to have, any jurisdition whatever, except to protect the civil rights of others and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatures to which such members have voluntarily subjected themselves. But the civil courts will interfere with churches and religious associations and determine upon questions of faith and practice of a church where rights of property and civil rights are involved.</p> <p>Cases Overruled.—Statute of 43 Elizabeth.—So far as the cases of M’Cord v. Ochiltree, 8 Blackf. 15; Sweeney v. Sampson, 5 Ind. 465; and The Common Council of Richmond v. The State, 5 Ind. 334, decide that the power and jurisdiction of the courts of this State have been enlarged by the statute of 43 Eliz., and that such statute can be executed in this State, they are overruled.</p>

<p>Contract.—B. received of A. in November, 1864, a certain number of sheep, ' on the following terms, set out in a written contract: B. to give annually one pound and a half of wool per head, sheared from said sheep and delivered by the 15th day of June, and pay, on or before the 1st day of July, 1868, four dollars and fifty cents per head for the sheep. If the annual amount of wool was not delivered, the principal sum, as well as the wool, should be due at the end of the year, and the above amount of wool should be paid yearly until the contract was fulfilled. Complaint by A. against B. on lije contract, alleging that B. in August, 1865, delivered on the contract a certain quantity of wool, being the amount that was due in June, 1865, and something over, and that no wool was delivered for the years 1866 or 1867, thereby rendering the contract due as to principal and wool. / The complaint cf A. was filed July 24th, 1867.</p> <p>B. answered, that .the sheep were affected with a contagious disease when he received them, and one half of them died of said disease, without his fault, before the shearing season in 1865, and the residue before the shearing season in 1866, and that the wool delivered was all that was ever sheared from the sheep.</p> <p>Held, that by the contract, the property in the sheep passed to B. and they were thenceforth at his visit:, and their death did not excuse him from delivering the wool; and on failure to deliver it, A. could maintain his suit for the price of the sheep and for the wool not delivered.</p> <p>Pleading.—Answer.— Warranty.—An answer setting up a warranty made by parol at the time of entering into a written contract for the sale of the property warranted, and alleging that it was also at the same lime agreed by parol that the warranty should not be inserted in the written contract, is bad.</p> <p>Evidence.—Evidence that at the time of the contract it was agreed that B. might sublet the sheep if he desired, upon the same terms, and when sublet he was to be credited for the same, and that he did thus sublet some of the sheep, is at variance with the written contract and inadmissible.</p> <p>Open and Close.—Notwithstanding no general denial is filed, if it is necessary for the plaintiff to introduce proof to entitle him to recover full damages, he will be entitled to open and close.</p>

<p>APPEAL from the Bartholomew Circuit Caurt,</p>

<p>Pleading.—Parties.—In a complaint to foreclose a mortgage, it is sufficient, in order to show that a person made a defendant isa properparty, to allege that he has, or claims to have, a lien on the mortgaged premises.</p> <p>Same.—Usury.—Usurious interest paid at a time when the interest law of 1865 was in force cannot he recovered back or constitute a defense in a suit for the principal.</p> <p>Same.—Mortgage.—A mortgage contained the following description of theproperly: “The following real estate in Carroll county, in the State of Indiana, to wit : lots 8, 13, and 14, in block 17, and lot 5 in block 18, together with all the privileges and appurtenances unto the same belonging, as also all the stock, implements, machinery and apparatus in and about the paper mill upon said premises situate.” In a complaint to foreclose the mortgage, it was alleged that by this description it was understood and intended by the parties that the mortgage should, and did, embrace certain property, more particularly described in the complaint, by location, section, township, and range, and that the mortgagor never owned any other lots in said county or elsewhere on which was a paper mill. B., who held a subsequent mortgage on the same property, was made a party, and answered that at the time he received his.mortgage, he examined the records, and saw a record of the plaintiff’s mortgage, and believing that the same did not embrace the property mortgaged to himself, he received his mortgage.</p> <p>Held, that the answer of B. was bad.</p> <p>Held, also, that the property was sufficiently described to identify it.</p> <p>Mortgage.—Fixtures.—Machinery put in a mill after the execution of a mortgage, to supply the place of old and worn out articles, becomes a part of the realty, and is subject to the lien of the mortgage.</p> <p>Attorney.—An attorney cannot appear for a party who has not retained him.</p>

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

<p>Pleading.—Complaint.—Evidence.—In a complaint by M. and B. upon a note, they alleged that they were doing business under the firm name and style of M. & B., and that the defendants were doing business under the name and style of N. & V., and that the defendants by their note, a copy of which was filed with the complaint, promised to pay the plaintiffs, &c.</p> <p>Held, that the note being set out, the allegations of the complaint were equivalent to a direct charge that the defendants, by the names of N. & V., by their note, promised to pay the plaintiffs by the names of M. & B. the sum mentioned in the note.</p> <p>Held, also, that the allegations in the complaint as to the partnership or firm name and style of the respective parties, was mere surplusage, and not necessary to be proved, and might bo regarded as stricken out; and the execution of the note not being denied under oath, no proof was necessary other than the note itself.</p>

<p>.PRACTICE.—Motion for New Trial.—A motion for a new trial, assigning as-reasons therefor, that “ the instructions given by the court to the jury are erroneous, in this, that the same are contrary to, and are not, the law,” and that, “the court erred in instructions given to the fury,” is sufficiently specific to raise the question of the correctness of any instruction given, the party making the motion having, at the proper time, excepted to all the instructions given.</p> <p>Attorney.—Action fir Services.—General Employment.—Suit to. recover for services rendered as an attorney. Upon the trial, the court gave the following instruction: “Where there is a general employment for an agreed sum, of an attorney, that employment extends until the final termination of the case in . the court of last resort, and no additional sum can he charged for services rendered, unless there is an express agreement to pay for the same.”</p> <p>Held, that this instruction was erroneous.</p>

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

<p>Practice.—Affidavits.—Bill of Exceptions.—Affidavits filed duringthe progress of a cause can only be made a part of the record by a bill of exceptions.</p>

<p>False Imprisonment.—Pleading.—An action for false imprisonment can bo maintained without alleging in the, complaint that the imprisonment was malicious and without probable cause.</p> <p>SAME.—Distinguished from Malicious Prosecution.—If an imprisonment is tinder legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extra-judicial, without legal process, it is false imprisonment.</p>

<p>Poor Person—Where one has been permitted to prosecute or defend as a poor person, the court must assign him an attorney and all other officers requisite for the prosecution or defense.</p> <p>Same.—Clerk..—If the clerk is not assigned as one of the officers requisite, he •will not be bound to furnish a transcript of the proceedings gratuitously.</p> <p>Same.—Ability to Labor.—Where a party is permitted to prosecute or defend as a poor person, the action of the court cannot be questioned by showing that the person is of sufficient physical ability to labor for and acquire the necessary means to defend or prosecute; if he has not the means, it is immaterial whether the want of means has arisen from one cause or another.</p> <p>Pleading.—Fraud.—To make a good charge of fraud, it must be shown in what the fraud consisted.</p>

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

<p>Pleading.—Abatement.—In a suit on a joint contract, all the makers thereof must be joined as parties defendants, and the failure of the plaintiff to join any one is cause of demurrer, if it appear on the face of tlie complaint; if it does not so appear, it may be taken advantage of by plea in abatement.</p> <p>Same.—Plea in Abatement.—It is not necessary that a plea in abatement should show in what manner a joint maker of a contract became a maker.</p>

<p>Practice.—Assignment of Error.—Motion to Strike Out.—The refusal of the court to strike out a portion of a paragraph of pleading cannot be assigned for error.</p> <p>Same.—Demurrer.—Where a demurrer is not set out in the record, no question with reference to a ruling upon it can be presented in the Supreme Court.</p> <p>Pleading—A judgment will not be reversed on account of the improper sustaining of a demurrer to a paragraph, or to several paragraphs, of an answer, when the same matter is admissible in evidence under the remaining paragraphs of the answer.</p> <p>Agent.—Commissions.—If an agent does not perform his duties, or is guilty of gross negligence, or gross misconduct, or gross unskilfulness, he not only becomes liable to his principal for the damages the latter may have sustained, but he also forfeits all claims to commissions.</p>

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

<p>Principal and Surety.—Discharge of Surety.—To discharge a surety on account of indulgence granted to the principal, the indulgence must be for a definite period of time, and foundéd upon a new consideration. There must be a new contract concluded between the creditor and the principal debtor, by which the hands of the former are tied for a definite period of time from suing the latter.</p> <p>SAME.—Consideration.—Agreement to Extend Time.—Where A. and B. had been partners, and B. made a note to A., with C. as his surety, in a suit upon the note by an assignee of A., C. answered that when the note became due, and before the assignment to the plaintiff, and without his knowledge or consent, it was agreed between A. and B. that in consideration that B. should apply certain money in his hands to the payment of outstanding partnership debts of A. and B., the time of the payment of the note of B. to A. should be extended.</p> <p>Held, that the agreement to apply the money in the hands of B. to the payment of the partnership debts of A. and B. was a sufficient consideration to support an agreement to extend the time of payment of the note; and a reply, that it was agreed between A. and B., at the time of the dissolution of the partnership, that B. should pay the debts, will not show the absence or want of consideration.</p> <p>PLEADING.—Demurrer.—On a demurrer to a reply, the plaintiff may attack the answer, or the defendant the complaint, where either shows a want of jurisdiction, or where the facts stated are not sufficient.</p>

<p>Special Finding.—Gaieral Verdict.—Where a general verdict is returned for the plaintiff, and answers to special interrogatories are also returned, and the answers exclude every conclusion that will authorize a recovery for the plaintiff, a judgment should be rendered for'the defendant, notwithstanding the general verdict</p> <p>Payment.—Application of Payments.—Where a purchaser of real estate encumbered by mortgages assumes the payment of a portion of the mortgage debts, as a part of the purchase-money, the amount so assumed becomes the personal debt of the purchaser; the residue is not the personal debt of the purchaser, although he may be compelled to pay the same to save his property; and in such case a general payment made by the purchaser on the mortgage debts, will be applied to the portion for which he is personally liable.</p>

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

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

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

<p>APPEAL, from the Wabash Common Pleas.</p>

<p>Executor.—Sale of Real Estate by Foreign Executor.—Bond.—In a proceeding for the sale of real estate in this State by a foreign executor, the sale is to be authorized in the same manner, and upon the same terms, as in the case of an executor appointed in this State, except that if it is shown that sufficient surety for the application of the proceeds has been given in the state or county where the executor was appointed, and a duly authenticated copy of such bond is filed in the court where the petition is made, no further bond will be required.</p> <p>Petition for Sale of Real Estate by Foreign Executor.—The petition must show: 1st. What amount of personal property, if any, has come to his hands; 2d. The amount of the debts outstanding against the estate of the deceased, so far as the same can be ascertained, and the insufficiency of the personal estate to pay the same; 3d. A description of the real estate of the deceased liable to be made assets, showing the state and county where the same is located; 4th. The names and ages of the heirs, legatees or devisees of the deceased; 5th. That the executor has filed in the court an authenticated copy of his appointment; 6th. That the will of the testator has been duly probated.</p> <p>Will..—Beqzicst for Life.—Heirs.—Children.—A testator bequeathed all his real and personal property to his wife, “ for her use and benefit during her natural life,” and after her death all that remained unconsumed was to be sold, and one thousand dollars paid to his daughter S., and the balance was to be divided among the heirs of his daughter S., share and share alike; the wife to have the right to sell and dispose of said property, both real and personal, as she wished.</p> <p>Held, that the wife took only a life estate.</p> <p>Lleld, also, that the evident intention of the testator was to secure his widow a competency, and if it was necessary that she should sell the land, she might do so; but the balance of the estate unconsumed at her death she could not devise.</p> <p>Held, also, that the word heirs, as used in the clause of the will-which gave the es-_ tate, except one thousand dollars, to the heirs of his daughter S., meant children.</p> <p>Held, also, that real estate purchased with the proceeds of thesaleof the real estate devised by the will to the wife for her life, after the death of the wife and the payment of the one thousand dollars to the daughter S., belonged to the children of S.</p>

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

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

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

<p>Demokrer.,—A demurrer assigning for cause, that the several paragraphs of a complaint “ are not good and sufficient in law,” presents no issue of law.</p> <p>Same.—For what Causes Allowed.—A demurrer must assign some one of the six causes enumerated hy the code. (2 G. & H. 77.)</p> <p>Practice.—Motion to Strike Out.—A paragraph of an answer which is equivalent to the general denial should be stricken out on motion, in a case where the general denial is pleaded elsewhere in the same answer.</p> <p>Fraud—False Representation in Sale of Real Estate.—A complaint alleged that defendant as agent of A. sold plaintiff certain real estate, on one acre of which stood a school house; that at the time of the sale, the defendant fraudulently and falsely represented that the school house and the land on which it stood had been abandoned and vacated by the school trustees, and that the trustees had erected another school house in the district, which was used for school purposes; that these representations were known by the defendant to be false; that the plaintiff relied upon them; and that they were false. The defendant answered, that the plaintiff was on the land at the time of the purchase; that he fully examined the same, and was fully apprised of the condition of the land and the said school house, and knew that the principal held the land, including the school house, by a general warranty deed duly recorded.</p> <p>Held, that the answer was bad.</p> <p>Practice.—Bill of Exceptions.—On the 8th of June, a cause was disposed of, and sixty days were given to file a bill of exceptions, and on the 27th of November following, a bill of exceptions was signed by the j udge. To the bill a certificate was appended by the judge, stating that it was presented and left on his desk in his necessary absence from home; and that he did not return until after the time for signing the same had expired.</p> <p>Held, that as it did not appear that the bill was presented within the time limited, it could not be regarded as part of the record.</p>

<p>Married Woman.—Liability on Contracts.—Where work is done and materials furnished at a husband’s request, for buildings erected on the real estate ■ of his wife, the latter is not liable, although she may have subsequently signed a promissory note for such work and materials.</p> <p>SAME. — Power to Charge her Separate Property. — A married woman may charge her separate property for the cost of such improvements as are necessary to a complete and full enjoyment thereof.</p> <p>SAME.—LIusband.—A husband has no power to charge, by his separate contract, the real estate of his wife.</p> <p>SAME.—Mechanic's Lien.—The contract of a husband cannot create a mechanic’s lien upon the real estate of his wife.</p> <p>Same.—Pleading.—To a complaint on a note given for work done and materials furnished in building a house on certain real estate, and to enforce a mechanic’s lien for such work and materials, an answer by a defendant that at the time the work was done and materials furnished, and the note given, said defendant was a married woman and said real estate was her separate property, is good on demurrer.</p> <p>SAME.—Pleading.—Reply.—To such an answer the plaintiff should reply that the work done and materials furnished were necessary to a full and complete enjoyment of the real estate.</p>

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

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

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

<p>Recognizance.—Form of.—In a criminal proceeding on appeal from a justice of the peace, a bond conditioned that the defendant “ shall prosecute his appeal to final judgment, and pay such judgment as maybe rendered against him on such appeal,” is a good recognizance, although imprisonment may be a part of the punishment provided.</p>

<p>Fugitive from Justice.—Bail.—Fugitives from justice returned to the county wherein the offense was committed, under the Act of May 27, 1852,- may be let to bail until an examination be had.</p> <p>SAME.—Recognizance—In such case, if the fugitive returned be taken before a judge in open court, such judge may recognize such fugitive to appear at the time fixed for an examination; and such recognizance may be entered on the order book, under section 37 of the criminal code, and is not invalid because not signed by the recognizors.</p>

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

<p>Pleading.—Cause of Action.—A. sued B. before a justice of the peace upon a promissory note made'by lb, payable to the order of C. There was no indorseiiifent of the'note'by C. to A.</p> <p>Held) that the filing of the note as the only cause of action was insufficient, and that the case was not one of a mere defect of parties.</p>

<p>Bastardy.— Verdict.—The verdict of a jury in a bastardy proceeding is sufficient, if it finds that the relator was delivered of a bastard child, and that the defendant is the father.</p> <p>SAME.—Jurisdiction.—Practice.—A justice of the peace possesses a discretionary power to recognize a defendant in a bastardy proceeding to either the circuit court or court of common pleas, and the exercise by the justice of such discretion, and the filing of the transcript and original papers in the clerk’s office, confer upon, and complete the jurisdiction in whichever of said courts to which the defendant may be recognized; and where a defendant is recognized to appear in tire common pleas court, and the clerk, by mistake, dockets the cause in the circuit court, this will not confer upon the latter court any jurisdiction, and the proper motion is to strike the eause from the docket of the circuit court.</p> <p>Saxe.—Court of Comtnon Pleas.—Jurisdiction.—The act of March 4th, 1853, (2 G. & H. 626) confers upon the court of common pleas concurrent jurisdiction with the circuit court hi'.all complaints for bastardy.</p>

<p>Practice.—Motion for New Trial.—Excessive Damages.—A question as to excessive damages can only be reached by a motion for a new trial.</p> <p>Same.—Judgment.—To present a question as to the kind of judgment rendered, there must have been an exception entered, or a motion made to set it aside, or to modify it, in-the court below.</p>

<p>Principal And Surety.—Release of Surety iy Extension of Time.—The questions in this case are the same as those decided in Menifee v. Clark, ante, p. 304-</p>

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

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

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

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

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

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

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

<p>Agency.—Where A. was the agent of B. for the sale of certain real estate, and C., knowing of the agency, came to A. and effected an exchange of his own real property for that of B.</p> <p>Held, that A. could not charge C. for his services.</p> <p>Same.—Where A. was the agent of B. to sell certain real property, and was em- * ployed by C. afterwards to dispose of certain real estate for him, and he effected an exchange of the property between B. and C.</p> <p>Held, that A. could not charge C. a commission for effecting the exchange.</p>

<p>Executor de son tort.—Liability.— Will.— Widow.—By the terms of a will the estate was given to the widow of the testator “ for her own use and benefit or maintenance during her natural life,” and at her death all of said property “not used for her maintenance during her natural life” was given to another person. A person acting under her direction sold a horse and some hogs belonging to the estate and paid some debts of the estate with part of the proceeds,1 purchased supplies for the use- of the widow with another part, and put the remainder at interest for her.</p> <p>Held, that the widow could not sell or authorize the sale of the property, and the person so acting under her direction became an executor de son tort.</p> <p>Same.—The executor, as well as a creditor, may sue an executor de son tort.</p> <p>Same.—An executor de son 'tort is entitled to credit for debts paid by him on account of the estate, where there are sufficient assets to pay all the debts ; otherwise, in proportion to the amount of the assets as compared with the debts of the estate.</p>

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

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

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

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

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

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

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

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

<p>Assignment of Errors.—Complaint.—Demurrer.— Waiver.—Supreme Court. The'objection that the court erred in rendering judgment for plaintiffs, because the complaint does not state facts sufficient .-to constitute a cause of action, is not waived by a failure to demur to the complaint, and answering it, but may be assigned for error in the Supreme Court.</p> <p>Witness.—Competency.—Husband and Wife.—On the trial of an action by husband and wife for injury to the wife, the husband is incompetent to be a witness. . ,</p> <p>Contributory Negligence.—Proximate Cause.—When negligence- is the issue, it must be unmixed negligence, to justify a recovery; and if both parties by their negligence immediately contributed to produce the injury, neither can recover. When plaintiff is the proximate cause of the injury he cannot recover.</p> <p>Same.—Complaint.—Obstmction of Highway.— Verdict.—Complaint, that plaintiffs were in a buggy drawn by' a horse, driving along a highway; that defendant obstructed the highway by then and there stopping with his wagon, drawn by two horses, in the middle of said highway; that plaintiffs requested defendant to remove, in order that they might freely pass along said highway; but defendant refused; and thereupon plaintiffs, in attempting to drive and pass around said obstruction, using due care and diligence without any fault or negligence on their part, by reason of said unlawful obstruction and by the said negligence and wrongful act of defendant, were overturned and cast upon the ground with great force and violence, whereby one of the plaintiffs, wife of her co-plaintiff, was injured; wherefore, &c. No demurrer to the complaint was filed in the court below, but, on assignment for error in the Supreme Court that the complaint did not state facts sufficient,</p> <p>Held, Pettit, J., that the complaint was insufficient on the error assigned, because it was the fault and negligence of plaintiffs in attempting to drive past defendant which occasioned the injury complained of; Worden, J., that the complaint would have been bad on demurrer, but was cured by verdict; Downey, C. J., and BüSKIRK, J., that the complaint was sufficient.</p>

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

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

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

<p>Conveyance.—Construction.—On the 8th of November, 1842, A., for a pecuniary consideration, made to B. and C., as trustees of D., daughter of A., a conveyance of real estate, the haiendwm whereof was as follows: “unto them, the said B. and C., as trustees for the said D., and for her sole and proper benefit and behoof, and for no other purpose whatever, during the natural life of the said D., and at her death to descend to the children of the said D., if any she have, and if not, to her assigns forever.”</p> <p>Held, that the instrument was a deed of bargain and sale.</p> <p>Held, also, that by the statute of uses, 27 Henry VIII., the legal title was vested in the trustees, and not in the cestui que use. What would be the effect of such an instrument if executed under the statue of 1843 or 1852 is not decided.</p> <p>Held, also, that the conveyance vested in D. an equitable title for her life only, which she could effectually convey.</p> <p>SAME.—Conveyance, to Trustee.—A conveyance to a trustee is commensurate with the estate conveyed to the cestui que trust, and is limited and qualified by the words of limitation applied to the estate of the cestui que trust.</p> <p>SAME.—“I-Ieirs”—Conveyances by deed, at common law, or to uses under tlte statute of uses, or creating powers of appointment, in order to transmit the fee, must contain the word heir or heirs.</p> <p>Tenants in Common.—Adverse Possession.—When one tenant in common is in possesion of the whole estate, claiming under a deed purporting to convey the entire estate, he will be deemed to have ousted his co-tenants.</p>

<p>Sheriff’s Sale.—Irregularities.—Evidence.—A. sued B. for the recovery of real estate and damages for its detention. The right of A. to recover depended on whether a sheriff’s sale and conveyance to him was valid, he not being the judgment-plaintiff or chargeable with notice of any irregularities in the sale. A. introduced the judgments, executions, and sheriff’s deed,, and proved payment of purchase-money and his damages, and rested. B. offered to prove that the sheriff omitted to post notices of the sale in the township where the real estate is situated, and that the property sold for only one half its cash value. The court refused to admit the evidence.</p> <p>Held, that the evidence was properly excluded.</p> <p>SAME.—Instruction.—The court charged the jury, “If you find that the judgments, and executions, and the sheriff’s deed are valid, and they are if nothing to the contrary appears, you ought to find for the plaintiff.”</p> <p>Held, that this instruction stated the law.</p>

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

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

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

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

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

<p>RAILROAD.— Death Caused ty Negligence.— Instruction.— Evidence,—In att action against a railroad company for negligently causing the death of A., it appeared from the evidence, that A. and others in the employment of a union railway company were at work at a certain point on the railroad track of said union company over which trains could pass at that point; that a train of cars owned and run by defendant was backing at the time; that the bell of the locomotive was ringing; that there were four or five cars in the train and no method of communicating with the engineer from the rear of the train; nor was there any brake in working order on the car farthest from the locomotive, although a brakeman was on the rear end of the car, the locomotive being at the other end of the train; nor was any person in advance of the train to warn others of its approach. The locomotive was in charge of the fireman, the engineer being absent to procure a drink. The other persons employed with B. at work on the track stepped off, and some one called to him, “ look out,” when B., instead of stepping back, stepped forward, and was struck and killed. The fireman and one brakeman were the only persons in charge of the train. This instruction was asked and refused: “If, at the time deceased was killed, it was his duty to be engaged upon the track at that place, and he might have seen the approach of the train by exercise of reasonable care, as by looking up, then the failure to do so, if he did so fail, was negligence on his part; and if such negligence contributed to his injury, then the jury should find for the defendant.”</p> <p>Held, that there was no error in this ruling.</p> <p>Held, also, that this evidence was sufficient to sustain a finding against the railway company.</p>

<p>Accord and Satisfaction.—Agreement.—The plea of accord and satisfaction must allege that the thing the creditor may have agreed to receive of the debtor in satisfaction of the debt was received.</p>

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

<p>Administrator.— Witness.—In a suit where judgment is sought against the administrator of an estate, and the answer brings the defense within the exception of the statute relating to a case where an action is brought by an heir upon a contract made with the ancestor, the plaintiff is not a competent witness, unless called by the administrator or the court.</p> <p>Evidence of Settlement.—Where a claim was filed against an estate for work and labor done, for money had and received by, and services and attendance upon, the deceased during his sickness; and the defense was that the work and labor and money and services were performed and paid under a valid contract; and under plea of set-off promissory notes were offered in evidence, given by the person presenting the claim to the decedent at various times during the period for which he demanded compensation for labor and attendance, it was the duty of the court to instruct the jury that these notes were prima facie evidence of a settlement between the claimant and the deceased.</p> <p>Witness.—Admissions.—The claimant was not a competent witness to disprove the making of admissions by him, testified to by a third party, that such a contract existed as was set out in the answer.</p>

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

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

<p>APPEAL from Marion Circuit Court,</p>

<p>Injunction.—Improvement of Streets of Town.—Petition, Ordinance, Contract, Jurisdiction of Board of Trustees.—Under section 8, 3 Ind. Stat. 128, the board of trustees of a town, 'have no jurisdiction, without the petition filed of a majority of all the resident owners of lots, &c.j and an ordinance passed and contract made for the improvement of the sidewalks of the town without such petition is void.</p> <p>Same.—Parties.—“Where the work in progress-under such void proceeding would be of no benefit, but a damage to the citizens of the town, a resident tax payer of the town may, for himself and others of like interest, enjoin the prosecution of the work.</p>

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

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

<p>Constitutional Law.—Subscriptions to Railroads.—Townships.—Taxes.— The State may make internal improvements, directly, or by a corporation,, and for that purpose, levy and collect taxes, or empower counties and townships to do so and subscribe and pay for stock in a railroad company.</p> <p>Same.—The act, approved May 12th, 1869, “to authorize aid to the construction of railroads, by counties and townships taking stock in,” See., contemplates a payment for stock at the time of subscription, and not the creation of a debt therefor, and is constitutional.</p>