Volume 36 — Indiana Reports

<p>Receiver.—Suit against Assignee.—Statute.—Action by a receiver against the assignee, under an assignment for the henefit of creditors, of a judgment debtor, to recover damages resulting to a judgment creditor for the failure of" the assignee to properly discharge his duty under the trust.</p> <p>Held, that the action could only be sustained at the suit of th'e party injured, or his assigns.</p> <p>Held, also, that the 205th section of the code (2 G. &. H." 153) only authorizes the court to empower the receiver to bring suit where the party whose effects he receives could have brought the action, save, perhaps, in exceptional cases. ---</p>

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

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

<p>Vendor’s Lien.—Purchase-Money.—Subrogation.—Defeasance.—A. and B. were the owners, as tenants in common, of real estate, for which B. had paid all the purchase-money; A. and B. united in a conveyance of said real estate by warranty deed, to a purchaser, C., who executed to each owner notes for one-half the price; B., at the time of the execution of said deed to C., notified C. that he had paid all the purchase-money for said real estate, and held a lien for the payment of one-half thereof on the half conveyed by said deed by A. to C., and would hold C. liable therefor; C., on the same day the deed and notes were executed, assigned the notes to D., and on the following day B. commenced suit against A. and C. and afterwards obtained judgment against A. for one-half the price of the land, and a decree as to A. and C., enforcing the lien of B. on the land; C. afterwards paid the judgment.</p> <p>Held, that said facts were not sufficient to bar an action by D. against C. on the notes made by him to A. and assigned to D.</p> <p>Held, also, that though B. might be subrogated to the rights of the vendor of himself and A. as to the unidivided half held by A., yet, as against his unconditional deed, in fee simple, of warranty, he could not reserve such lien.</p> <p>Held, also, that though B. and A. were also partners, and the real estate was owned by them as such, and B. would hold a lien thereon (as against A.) for the ultimate balance due him on a settlement of the partnership accounts, yet he could not set up such lien in opposition to said deed.</p> <p>Commencement of Actzon.—Summons.—Sheriff.—The issuing of summons is the commencement of an action, and a summons is not issued until it comes to the hands of the sheriff.</p> <p>PROMISSORY Note.—Assignee.—yudgment.—Parties.—Notice.—In an action by the assignee of notes given for purchase-money of real estate, against the maker, there cannot be given in evidence a judgment enforcing the lien of a former vendor, in a suit, commenced after the assignment of the notes, against the maker and his immediate vendor, to which the assignee was not a party.</p>

<p>Vendor, and Purchaser.—Sheriff’s Sale.—Trust.—Specific Performance.— A complaint to compel a conveyance of real estate based the right of the plaintiff to such relief upon two grounds: first, that A., whose executors, widow, and heirs were the defendants, having purchased said real estate at sheriff’s sale upon executions against the plaintiff, agreed with the plaintiff at the time of the sale to hold the land in trust for the plaintiff; second, that the plaintiff had re-purchased the land in dispute from A., and had been put in possession of Are same with an agreement that he should make improvements, and pay taxes, and repay purchase-money, and he had done such acts in part performance of the contract as entitled him to a decree for specific performance of the contract.</p> <p>Held, that there was no sufficient allegation of a trust.</p> <p>Held, also, that as a case for the spe'cific performance of a contract for the sale and purchase of real estate, it was a good cause of action.</p> <p>Statute of Frauds.—Continued Possession of Real Estate.—Upon the question, whether the continued possession of the property, the plaintiff having been in possession as owner up to the date of the contract for the re-purchase, was sufficient—together with valuable improvements made by him upon the land after such contract; making clearings and fencing ground, worth two hundred dollars ; building a barn, in value five hundred dollars; setting out fruit trees to the value of seventy-five dollars—to entitle him to a specific performance of the contract, the judges, remaining equally divided since the [last term, certified a division of opinion.</p>

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

<p>Assignment of Error.—Sufficiency ofCo7iiffiamt.—jurisdiction.—The want of sufficient facts in a complaint to constitute a cause of action, orthe fact that the complaint shows the court had no jurisdiction over the subject-matter of the action, may be assigned as error in the Supreme Court, although no demurrer was interposed in the lower court. ¡</p> <p>Same.—New Trial.—A cause for a new trial not presented in the court below cannot be considered in the Supreme Court.</p> <p>Estoppel.—Sunday.—Admissions which would otherwise operate as an estoppel, if acted upon, are not rendered inoperative because made on Sunday, no contract being then completed.</p> <p>Trial.— Witnesses.—Under our practice, the court ór jury may find the affirmative of an issue, notwithstanding there may be but one witness on each side, and the evidence be conflicting.</p> <p>Suretyship.—Issue.—"Where no pleading raises the question of suretyship, the court need not make an order for the levy of the execution first on the property of the principal.</p>

<p>Guardian’s Sale.—Judgment.—Sale on Execution.—Where, upon, the petit tion of his guardian, the court, on the 15th day of February, 1868, ordered the sale of the land ,pf a minor, and A. recovered a judgment, against the minor on the 19th day of February, 1868, and purchased the land at sheriff’s sale under said judgment on the nth day of April following; and seventeen days later B. purchased the land from the guardian, paying one-half the purchase-money and securing the remainder in one year, and the court approved the sale at the May term, 1868;</p> <p>Held, that the title to the property was in A.</p> <p>Held, also, that the order for the sale of the land did not operate in ¿resentí, and convert the land into assets in the hands of the guardian so as to prevent the judgment from operating as a lien on the land; nor did the title of the purchaser at guardian’s sale relate back to the order of sale, so as to prevent any intervening liens or rights being acquired.</p> <p>Lands of Infant.—Exectttion.—The lands of an infant may be sold on execution against him.</p>

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

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

<p>Town.—Street Improvements.—County Commissioners.—Appeal.—The contractor for the improvement of a street bordering on a public square in a town, upon receiving an estimate for work done, may present his claim therefor in the form of an account against the county, to the board of commissioners, who have the power to allow it; and if payment is refused, he may either appeal from the action of the board to the circuit court, or bring all action against the county.</p> <p>SAME.—Pleading.—Evidence.—It is not necessary that the account so presented .should state that all the steps required by law to make a valid assessment were taken, but evidence thereof can be introduced on the trial on appeal.</p> <p>Same.—Lowest Bidder.—Evidence.—The evidence, in such trial on appeal, is not insufficient, merely because it does not show the contract to have been given to the lowest bidder.</p> <p>Same.—Cojistruction of Statute.—Question of Fact.—Who is the lowest bidder, is a question of fact arising prior to the making of the contract, and, under the statute, cannot be inquired into on the trial of the action for work done.</p> <p>SAME.—Trustees of Town.—Petition.—Public Sqtiare.—To render a county liable for the improvement of a street around a public square, made by order of the board of trustees of a town, it is not necessary that a petition for such’ improvement be filed.</p>

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

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

<p>Justice of the Peace.—Contempt.—A constable, having executions in his hands, the return day of which had passed, and money having been collected upon some of them, was required by the justice of the peace who had issued them to return them, but declining to do so immediately, he was committed for contempt to the county jail by the justice, although the trial of no cause was in progress.</p> <p>Held, in a suit for this imprisonment, against the justice and the surety on his official bond, that the action could not be maintained against the surety, the act ' constituting no breach of the bond (Downey, C. J., dissenting).</p> <p>Held, also, that the executions with the returns thereon should have been admitted in evidence when offered by the defendants, to show the animus of the justice in what he did.</p>

<p>RAILROAD.—Injury io Animals.—Fences.—Cattle-Guards—The fencing of a railroad contemplated by the statute of March 4th, 1863, providing compensation to the owners' of animals - killed or injured by the cars, etc., of a railroad company, includes the putting in of proper cattle-guards to prevent animals from-.passing from streets and highways upon the railroad track on each side of said streets and highways.</p>

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

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

<p>Demurrer.— Verification of Complaint.—A demurrer assigning for cause that a complaint does not state facts sufficient to constitute a cause of action,, does not raise any question as to the verification of the complaint.</p> <p>Same.—Defect óf Parties.—A demurrer assigning for cause that the complaint does not state facts sufficient to constitute a cause of action does not present: the question of defect of parties.</p> <p>PRACTICE.— Verification of Pleadings by Infants.—The statute requiring the verification of pleadings does not apply to infants. A verification by the next friend is sufficient.</p> <p>Will.— Evidence.— Opinion of Witness as to Testamentary Capacity.—The naked opinion of a witness, not an expert, as to a testator’s soundness of mind is not competent evidence.</p> <p>Evidence.—Declarations of Deceased Husband.—The widow of a testator cannot give in evidence communications made to her by her husband during marriage.</p> <p>WILL.—Execution of.—It is not necessary that the testator should,'at the lime' of executing the will, inform the subscribing witnesses that the instrument which they are to sign is a will.</p> <p>SAME.—Subscribing Witnesses.—The testator need not see the witnesses subscribe their names to the will; it is sufficient if the instrument is subscribed in his presence. The witnesses must know that the paper which they have subscribed is the one which the testator signed.</p> <p>SAME.—Undue Influence.—The fact that a will made ten years prior to one being contested was procured by undue influence, should not be submitted to the jury as a circumstance against the will in controversy.</p> <p>PRACTICE.—Proceeding to Contest a Will.—Burden of Proof.—In a proceeding' to contest a will which has been admitted to probate, the burden of proof is. on the plaintiff.</p>

<p>Mandate.—Stipreme Court.—Jurisdiction.—The Supreme Court has no jurisdiction to award a writ of mandate where said writ is not necessary to the prQper discharge of the duties of said court as an appellate court.</p>

<p>Promissory Note.—Contract.—Defective Manufacture.— Waiver.—Settlement. Suit on a promissory note. Answer, first, that the consideration of the note was the manufacturing by the plaintiff for the defendant, of fifty fanning mills after a certain pattern mill furnished by the defendant to the plaintiff, the defendant to furnish certain materials, which was done, and to pay ten dollars for each mill, and one hundred dollars and fifty cents was so paid; that the mills were to be constructed in a workmanlike manner, according to the model; that the plaintiff failed to construct the mills in a workmanlike manner and according to model, stating defects; that defendant owned the right to make and sell mills of that model in this State, and expended three hundred dollars in attempting to sell the mills so furnished by the plaintiff, but the imperfect construction destroyed the sale; that he had received on the contract twenty-three taijjs only, and had contracted for the sale of fourteen thereof, and was ready to return the remaining nine to the plaintiff, as they were worthless; that he has expended four hundred and fifty dollars in materials required to be furnished by him; and that the defective workmanship of the plaintiff had destroyed the sale of all mills of that model ¡otherwise he could have sold all contracted for and a much larger number at thirty-five dollars each*; that the money expended in attempted sales and in material was lost, and the value of the patent destroyed, through the negligence of the plaintiff in the manufacture of the mills; wherefore he demanded judgment for fifteen hundred dollars.</p> <p>The second paragraph of answer was a general denial, and the third want of consideration. The’reply was, first a denial; and in the second paragraph, which was directed to the first and third paragraphs of answer, the plaintiff alleged that the mills were manufactured during the summer and fall of 1867, under the direction of A., the authorized agent of the defendant, who was satisfied with and received the mills, and sold twenty-three of them; and that afterward the defendant, after he had seen and examined them and knew the manner of the manufacture, executed the»note in question in settlement of the contract.</p> <p>Held, that the second paragraph of reply was sufficient.</p> <p>INSTRUCTION.— Waiver of Defects.—Agent.—The court, after instructing the jury that the reply was sufficient, proceeded: “If, therefore, you find from the evidence that the mills in question were built under the direction of the defendants’s agent, and that said agent knew, or might have known, the character of the workmanship, and the conformity or non-'conformity of said mills to the model, and received said mills for his principal, and sold part of them, and that defendant, after having seen and examined said mills, being fully advised as to the manner in which they were made, gave his note for the same, such acts of the principal and agent would be a waiver in law of any objection to the performance of said contract by the plaintiff.”</p> <p>Held, that this instruction was correct.</p> <p>Same.—Change of Contract,—The court also charged the jury: “If you believe, from the evidence that the defendant, through his agent, contracted with the piaintiff to construct fifty fanning mills, according to a model mill, each supplying part of the materials, and if you further find that said agent, in making said contract, stipulated with plaintiff to make certain changes in said manufactured machines, from the model mill, such acts would he within the scope of the agent’s authority and binding upon the defendant; and if you find from the evidence that said agent, in contracting With the plaintiff for the construction of said mills, directed changes to be made from-the -model mill, the defendant would be concluded by the act of the agent, and liable to pay the contract price, if the plaintiff constructed said mills to correspond with the model, except as to changes made by the direction of the defendant’s agent, if-such changes .were made to conform to the direction of the agent.”</p> <p>Held, that as, under the evidence, the charge, if technically wrong in the abstract, upon which point no opinion is expressed, could not have operated to the injury of the defendant, the judgment could not for such an error be reversed.</p> <p>Evidence.—Declaration of Agent.—On the trial, the plaintiff was permitted to state, that A., the agent, when he received the machines, declared “that he was satisfied, and that they were a smooth, nice job,” evidence having been given of the acceptance by the defendant of the machines and the execution of the note by him afterwards.</p> <p>Held, that there was sufficient foundation for the admission in evidence of said declaration of the agent.</p> <p>Same.—Letter of Agent.—The defendant offered a letter written by A. to him.</p> <p>Held, that it was not proper evidence, as the agent could not make evidence for his principal; or if not acting as his agent, still he could not bind the plaintiff, no proof being shown that he acted for him.</p>

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

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

<p>Turnpike.— Organization of.—Gravel road companies are organized under the act of May 12th, 1852, 1 G. & H. 474. The act of 1867 on the same subject was an amendment of the former law, and was repealed by the act of 1869, reserving, however, certain rights.</p> <p>Same.— Vote.—All persons who acquiesce in assessments and become thus liable to pay towards the construction of the road, are entitled equally with subscribers to vote, one vote for each portion of the amount assessed equal to a share of stock; nor is the payment of the assessment necessary to entitle the person ' assessed to vote. j</p> <p>■Same.—Ajfeal.—The party who appeals from an assessment cannot vote pending such appeal.</p>

<p>Resulting Trust.—Mortgage.—Merger.—'Where a third party pays the purchase-money to the grantor for the grantee of lands at the time of the conveyance, upon a parol agreement, without fraudulent intent, with the grantee, that the grantee shall hold the land in trust, as security for the repayment of such money to such third party, a resulting trust arises in favor of such third party and against the assignee of a judgment who is the purchaser of said land at sheriff’s sale on execution issued upon said judgment rendered against said grantee prior to the said conveyance and payment of money, and who before the assignment of the judgment had full knowledge of said agreement and payment of money. But if, after.. said payment by said third party and the agreement between him and the grantee, said third party receives the note of the grantee, and a mortgage on said land, as security for the purchase-money so paid by said third party, he thereby converts the equitable estate he held in the land, not into an express trust, but into a mere debt secured by mortgage, and subject to the lien of the prior judgment.</p> <p>Mortgage.—Deliveiy.—A mortgage takes effect from the time of its delivery.</p> <p>New Trial.—Motion to Strike Out.—Bill of Exceptions.—Error of the court in ruling on a motion to strike out is not a reason assignable for a new trial, and can only be reserved by bill of exceptions; a new trial is only a judicial re-examination of the issues of fact, and not of questions presented in arriving at the issues, whether those questions were raised by demurrer to a pleading, or by a motion to strike out.</p>

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

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

<p>Judgment.—Form of.—Against Heirs.—Where a widow who had been the second wife of her deceased husband, brought suit against the children by his first marriage, claiming an interest in certain real estate on the ground that her deceased husband had invested her money held by him as such in the property, which her labor and economy had assisted in improving;</p> <p>Held, that it was not proper that a personal judgment should be rendered against the children and heirs.</p> <p>Witness.—Widow.—In such a case, the widow cannot testify on the trial, unless required by the court or the opposite party, as to matters occurring prior to the death of the ancestor. Nor can she testify as to communications made to her by her husband during coverture.</p> <p>Same.—Statute.—The act of March 6th, 1865, on this subject was not changed by the act of March nth, 1867.</p>

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

<p> Divorce.—Pleading. </p>

<p>CONTRACT.—Assignment.—"Where a written promise was given to pay to a railroad corporation a certain sum of money, when its road should be'completed through a particular county; provide#, it should run through lands owned by A. in a designated locality;</p> <p>Held, that such contract was assignable without indorsement, and the purchaser might maintain an action thereon in his own name.</p> <p>Pleading.—Performance of Condition.—In a suit on such contract, an averment, “ that accepting and acting on said agreement and subscription, said company did construct and build such railroad, and that the same was so far completed in accordance with said contract and agreement that, on” etc., “ the same was ready for running cars thereon through said county,” was held not a sufficient averment of performance of the conditions of the contract to entitle the plaintiff to recover.</p> <p>Same.—Evidence.—"Where the maker of such written contract, in a suit against him for its enforcement, answered that his agreement contained other stipulations and conditions as set out in a conditional subscription paper made a part of the answer, executed by others, to which he was not a party; and that the plaintiff had not performed said stipulations and conditions;</p> <p>Held, that a demurrer was properly sustained to the answer, nor could such evidence be admitted on the trial.</p> <p>Held, also, that evidence that the road did run through the designated lands of A. could not be admitted under the averments of the complaint.</p>

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

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

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

<p>Pleading.—Redemption.—A bill to redeem is not good in equity unless it contain a formal offer to pay whatever sum may be found due upon talcing the account.</p>

<p>Real Estate,—Recovery of.— Uncertain Description.—Evidence.—In a suit to recover a part of ten acres of land off of the east side of the south-east quarter of section thirty-four in township thirty-six, north of range eleven east, in Ripley county, Indiana;</p> <p>Held, that the plaintiff should not be permitted to introduce in evidence to show his paper title a deed conveying “ ten acres off of the south east side ” of the quarter section described.</p> <p>Same.— Oral Evidence.—Where the plaintiff in a suit to recover real estate has "been permitted to give oral evidence of his possession and adverse title to the land, the same privilege should be accorded to the defendant.</p>

<p>Damages.—Measure of.—Contract.—The measure of damages for the failure to manufacture and deliver an article according to contract is the difference between the price to be paid for the article on delivery and its market value; and this rule applies although the market value may be enhanced by the fact that . the article is patented and the right to sell held exclusively by the party who contracted to have the article manufactured.</p>

<p>Turnpike Company,—Articles of Association.—The articles of association of a gravel road company were held to be not invalid because the amounts subscribed might be paid in instalments of one, two, and three years, commencing with the year 1868, either in money or labor and at such times in each year as the directors might determine.</p> <p>Demurrer.—Parties.—A demurrer for want of proper parties must point out or name the person who is not, but should be, made a party.</p>

<p>Practice.—Trial ly Coterl.—Motion for New Trial.—Judgment.—Where a jury has been waived and there has been a general finding, and an oral motion for a new trial has been made by the party against whom the finding has been made, the court cannot set aside the finding and enter a general finding for the other party and render judgment thereon.</p>

<p>License to Vend Foreign Merchandise.—Constitution of the United States. Non-Residents of this State.—The provision contained in “an act concerning licenses to vend foreign merchandise, to exhibit any caravan, menagerie, circus, rope and wire dancing, puppet show, and legerdemain,”,! G. & H. 424, which requires a license fee to be paid by travelling merchants and pedlers, who are not residents of this State, to vend foreign merchandise, is not in conflict with the clause of the constitution of the United States which declares that “ Congress shall have power to regulate commerce with foreign nations, and among the several states,” article 1, section 8, clause 3. It is not in conflict with the prohibition contained in clause 3, article 1, section 10, of that constitution declaring that “no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;” nor is it in conflict with the provision that “ the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” section 2, article 4.</p> <p>SAME.—Constitution of this State.—Citizens.—Non-Residents.—The provision, in the constitution of this State, that “ the general assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens,” section 23, article 1, has no •application to non-residents or persons who are not citizens of this State and who are doing business in the State.</p>

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

<p>•Criminal LAW.—Assault and Battery with Intent to Rob.—Declarations of Defendant.—Evidence of Intent.—Where evidence of an act done by a party is admissible, his declarations made at the same time, having a tendency to elucidate, explain, or give character to the act, are also admissible; accordingly, in a trial for assault and battery with intent to commit a robbery, witnesses for the State, in answer to questions put by the State having testified that while the assault and battery was being committed, the prisoner told the said witnesses, that three years before, the person upon whom he was then perpetrating the offense had assaulted him and drawn a pistol on him, and he, the prisoner, was now having his revenge for it, it was error for the court to instruct the jury, that the declaration of the defendant was not to be considered by them as evidence of the intent with which the assault was committed.</p> <p>Same.—Merger.—Trial for One Offense a Bar.—The offense of assault and battery with intent to rob is not merged in the crime of robbery. Both offenses are of the same grade, and if the doctrine of merger applies in this State, to criminal offenses, it certainly does not apply where both crimes are a felony. The State may elect which offense shall be prosecuted, where the evidence is sufficient to sustain a charge for either, and a trial for one will operate as a bar to a prosecution for the other.</p> <p>SAME.—Evidence.—Evidence that the party assaulted had no money in his pos-¡ V session, where the charge is assault and battery with intent to rob of a five dol-'. V lar bank note, is no defense.</p>

<p>Promissory Note.— Pleading.— Admission.— Estoppel.—Designation.—In a suit on a promissory note payable to the order of A., “ treasurer of the I. M. B. Co.,” the complaint alleged that the note was made to the treasurer of the Indianapolis machine brick company, and no denial was filed to the complaint;</p> <p>■ Held, that the averment must be treated as admitted; and that the defendant having contracted with the corporation was estopped to deny its existence.</p> <p>Held, also, that the word “ treasurer ” in such note was not simply a description of the person, but of the office he-held in the;corporation.</p> <p>Interrogatories to Jury.— Venire de Novo.—Where a general verdict is returned, and the answers to special interrogatories, also returned, are not signed by the foreman, and the jury is discharged without objection, it is too late for a motion for a venire de novo, for that omission.</p>

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

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

<p>Indian Reservation.—Taxation.—Statute.—The lands reserved by the treaty between the United States and the Miami Indians, in 1838, to the band of Ma-to-sin-ia and referred to in the treaty of 1840, in which the United States agreed to convey by patent said lands to Me-shing-go-me-sia, in trust for his band, and the personal property of said band, are not liable to taxation for state, county, and other purposes. Nor are these lands included in the ninth section of the act of June 21st, 1852, 1 G. & H. Jo.</p>

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

<p>Tax.—Railroad.—Notice.—Appropriation.—The notice given by the auditor of the county under the act of May I2th, 1869, authorizing counties and townships to aid in the construction of railroads, must specify the sum to be appropriated; otherwise the election and all subsequent proceedings will be void.</p>

<p>Slander.—Pleading.—Malice.—In an action for slanderous words spoken of the plaintiff, it is a sufficient charge of malice to aver that “the defendant spoke, uttered, and published the false, scandalous, malicious, and defamatory words following.”</p> <p>Same.—Actionable Words and Prefatory Matter.—Where the plaintiff lived near to and north of the defendant, and the defendant said in regard to some wheat stolen the night before, in answer to a question as to which way the wheat stolen went, “I think it went north. Tom McCall” (the plaintiff) “ was here twice the day before to get seed wheat. He enquired whether it was clean enough to sow without being cleaned again. Now I don’t want anything to go out from me, that I said that Tom McCall stole the wheat, for I don’t know who stole it, but it looks suspicious,” it was held that the words were actionable, taken with the prefatoiy matter. So also were the words, “ I saw the man steal my wheat, and saw the way he went, he went across the field north, and it was nobody but Tom McCall.”</p> <p>Same.—Where there had been a difficulty between the plaintiff and defendant,, that still caused ill feeling, and defendant said, “ The wheat did not go very, far. I would not doubt that it went across the field (nodding his' head towards plaintiff’s). It looks very suspicious that it went that way, for me and him are not very good friendsthe words were, with the extrinsic facts, hfeld' sufficient; also the words, “ Tom McCall is the man, and nobody else, that, stole my wheat. I saw the man who took it, and can’t he mistaken.”</p> <p>SAME.—Names.—Averments.—Where it was alleged that the plaintiff in that' neighborhood was known by all the community as “Walnuts ” and as “the ■ man who deals in walnuts,” and the words used were, “ I know the man who took my wheat; I know all about it. I saw him take it. You all know him. It is the man they call Walnuts;” and again these words: “The man who trades in walnuts stole my wheat;” and again these words: “ The man who trades in walnuts took my wheat,” and it was not alleged that the persons to whom the words were spoken knew the plaintiff by these names or that they lived in the neighborhood, but that they were “ divers good and worthy persons of the county,” the words, with the averments, were held not sufficient to sustain an action. *</p> <p>.Same.—Evidence.—Impression.—Under the allegation that the words,“me and .him aren’t very good friends,” were used, it was proper to introduce proof •of a difficulty between the parties, to identify the one of whom they were ■uttered. So a question to a hearer as to the impression made on his mind by -.the words was proper, to,obtain the opinion, understanding, or belief of the ■.witness as to the person of whom the words were spoken.</p>

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

<p>Street.—Dedication.—Evidence.—Intention.—The question whether a person intended to make a dedication of ground to the public for a street or other purpose, must be determined from his acts and statements explanatory thereof, in connection with all the circumstances surrounding and tin-owing light upon the subject, and not from what he may subsequently testify as to his real in. tent in relation to the matter.</p>

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

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

<p>Sinking Fund Mortgage.—Sale by Mortgagor after Property mas Bid in by the State.—Purchase from the Slate.—Adverse Possession.—Favored Purchaser.— Warrant for Possession.—Occupying Claimants.—Certain real estate was mortgaged to the Sinking Fund of the State of Indiana, in 1854, and on default in the payment of interest and principal, in 1862, was bid in by the State, and A., the mortgagor, subsequently sold the property to B. and executed a deed for the same on the 3d day of June, 1869, he and his assigns remaining in possession of the property to the present time; and on the 5th day of June, 1869, the Auditor of State sold and conveyed the property to C., who gave notice to B. to surrender the premises and, on his failure to do so, procured a warrant from the Auditor of State, directing the sheriff of the county, where the land was situated, to put C. in possession, andB. thereupon applied for an injunction, alleging that he had made valuable improvements on the land and had been in adverse possession of the same when the sale was made by the Auditor.</p> <p>Held, that the possession of the mortgagor and of his grantee was not adverse.</p> <p>Held, also, that the right of a grantee from the mortgagor to be favored in the purchase only continued for six months after the land was bid in by the State, and the decision of the Auditor among such applicants to purchase was final.</p> <p>Held, also, that the warrant issued by the auditor was authorized by law.</p> <p>Held, also, that the statute on the subject of “ occupying claimants” has no application to this case, and the mortgagor or his grantee can claim no benefit from the same.</p>

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

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

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

<p>'RAILROAD.—Injury io Animals.—Fence.—In an action to recover the value of a horse killed by the cars of a railroad company, the court instructed the jury that the company would be liable, if the horse was killed at a point on the road not securely fenced, and where it could have been fenced without interfering with the rights of the public.</p> <p>Held, that the instruction was not erroneous.</p> <p>Same.—Release.—Partition Fences,—The release of a right of way through his lands by the plaintiff in such an action, and the building of fences along the line of the railroad through the lands by the railroad company, and the use of the fields adjoining for pasturage by the plaintiff, relying on the fences for protection to his cattle, will not make the fences partition fences, which the plaintiff would be bound to keep up.</p> <p>Same.—A land-owner released to a railroad company the right of way through .his land, and further released and relinquished to the company “all damages and rights of damages, actions and causes of action, which .1 might sustain or be entitled to-by reason of anything connected with, or consequent upon, the location or construction of said work, or the repairing thereof when finally established or completed.”</p> <p>Held, that said release in no manner related to actions,for-damages for the injury or destruction of cattle by the running of cars along the railroad.</p>

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

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

<p>Costs.—Title to Real Estate.—Bill of Exceptions.—In an action in which under the pleadings, or under an agreement of the parties, evidence may be. introduced bringing in issue the title to real estate, and yet the suit may be determined without such evidence, the Supreme Court will look to the bill of exceptions to determine from the evidence whether that issue was before the jury, and will decide the question of costs between the parties accordingly.</p> <p>SAME.—Trial by Court.—Where the court tries a case, it takes the place of a jury, and the question of costs is no part of the finding, but of the judgment upon the finding, and the law as applied to it, and the character of the evidence upon which it is based.</p>

<p>APPEAR from the Madison Circuit Court,</p>

<p>Criminal LAW.—Marriage Between Whites and Negroes.—Fourteenth Amendment.—Civil Rights Bill.—Neither the Fourteenth Amendment to the Constitution of the United States nor the Civil Rights Bill passed by Congress has impaired or abrogated the laws of this State on the subject of the marriage of whites and negroes. Suclr a union between members of the different races is a criminal offense by the statutes of this State.</p>

<p>Criminal Law.—Indictment.—Embezzlement and Grand Larceny.—Trial.— Where a defendant is indicted in separate counts in the same indictment for embezzlement and grand larceny, it is not error for the court to refuse to require the State to elect on which count he shall be tried.</p> <p>SAME.—Plea of Guilty.—Motion to Withdraw Plea.—Where a plea of guilty had been accepted by the court, and sentence had been pronounced thereon;</p> <p>Held, that it was not error to refuse a request by the defendant, to withdraw the plea,- without any reason stated, made the next morning, and before the record of the proceedings was signed.</p> <p>Same.—Plea of Guilty.—Confession.—Judgment.—After a plea of guilty, or a confession of guilt in open court, no finding is necessary, but the judgment follows the plea or confession.</p>

<p>Husband and Wife.— Wife's Separate Real Estate,— Contract.—Certain goods were sold and delivered to a married woman, doing business in her own name and right, with her own separate estate, and with the consent of her husband, and owning in her own right certain real property; and suit was brought against her to charge her estate with the value of said goods.</p> <p>Held, that as there was no averment of an intent on the part of the married woman to contract with regard to her separate estate, or create a charge upon the income of her separate real estate, the action could not be sustained.</p>

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

<p>Mutual Insurance Company.—Receiver.—Assessment.—An action by a receiver of an insolvent mutual insurance company, to collect an assessment on a premium note, cannot be sustained where the complaint shows on its face that neither the receiver nor the court to which he reports his action has examined and determined upon the validity of the claims against the company, for the payment of which the assessment is made. The amount of claims which the receiver or the court will allow as just demands against the company, together with any indebtedness previously allowed by the directors of the company, as shown by their books, must-be ascertained, before an assessment can be made to pay such indebtedness.</p> <p>Same.—Assessment.—Complaint.—The complaint to collect an assessment upon a premium note given to a mutual insurance company must show the time covered by the policy for which the note was given, and that the losses for which the assessment was made occurred during the existence of the policy.</p>

<p>Railroad.—Freight.—Demurrer.—Parties.—In an action to recover from a railroad company the value of flour delivered to a combination of railroad companies, which divided freights pro rata among themselves, according to the length of each road, of which combination the railroad company sued was a member, and received the flour when it reached the line of its road, and transported the same to its destination, and refused to deliver it on demand to the plaintiff;</p> <p>Held, that a demurrer to the complaint for want, of sufficient facts did not present the question whether the other railroad companies united with it in the receipt and transportation of the flour and freight generally, were partners and proper parties with it as defendants to the action.</p> <p>Same.—Bill of Lading.—Loss.— Value.—The bill of lading stipulated that “ in the event of the loss of any property,” etc., “the value or cost of the same at the point and time of the shipment is to govern,” and that the company in such case was to have the benefit of any insurance on the property lost.</p> <p>Held, that the delivery of the flour at the point of destination to a wrong person, was not a loss within the intent of the bill of lading, and the proof of value was not therefore limited to the point of shipment.</p> <p>Deposition.—Motion to Suppress.—When evidence may be introduced on the trial, which may make the answers to certain interrogatories in a deposition admissible, it is proper that a motion to suppress should not be decided, until on the trial the court is informed whether or not such evidence will be offered.</p> <p>Trial.—Open and Close.—Where the plaintiff, under the issues, has anything to prove in the first instance,-in order to entitle him to recover; or where he is required to prove his damages in cases where the damages cannot be ascertained by mere computation, he is entitled to open and close*</p> <p>Evidence.—Proof of Writing.—Where an agency is sought to be established. by means of a letter purporting to be written by a party to the action, the genuineness of the letter must be first shown. '</p>

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

<p>Trespass to Land.—Railroad.—Appropriation.—Appeal.—In an action for trespass to land and for an injunction, the defendant answered, that he was acting in behalf of a railroad company that had filed her maps and surveys in the office of the clerk of the circuit court, and had afterwards filed in said office her instrument of appropriation and served a copy on the plaintiff and had applied to the circuit court for the appointment of appraisers, who had been so appointed and had appraised the damages to the land of the plaintiff through1 which the road passed; that the damages had beer, tendered to the plaintiff and afterwards paid into court; and that afterwards, within the ten days allowed by law, the plaintiff had filed his exceptions to the award of the appraisers which were still undetermined. On the application for a temporary injunction, the court granted the same, upon the affidavit of the plaintiff that no attempt had been made by the company to purchase from him. before condemning.</p> <p>Held, that the filing of the instrument of appropriation and service of a copy were jurisdictional facts which must have been passed upon in favor of the railroad company when the court assumed jurisdiction of the subject-matter, and its action coirld not thus be questioned collaterally.</p> <p>Held, also, that the plaintiff; having appeared to the proceedings to appropriate his property, and filed his exceptions; and taken his appeal, could not, while those proceeding were pending, seek another remedy by injunction or otherwise.</p>

<p>Railroad.— Trespass to Land.—Appropriation.—Where a railroad company has, without the consent of the owner and without color of title, entered upon land and occupied the same, building a depot and hotel thereon, and afterward seeks to appropriate the land under the authority of law, the value of the land at the time of the legal appropriation, with the improvement thereon, constitutes the amount for which the company is liable to the owner of the land.</p>

<p>Practice.— Demurrer.— Amendment.— Waiver.—The filing of an amended pleading, after a demurrer has been sustained to the original, is a waiver of any error in the ruling on the demurrer.</p> <p>County Clerk.—Record.—Costs.—The statute forbids the. clerk from, certifying any original pleading, after an amended pleading has been substituted; and the Supreme Court can only examine such papers for the purpose of determining the proper person to be taxed with the costs for a violation of the statute.</p>

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

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

<p>Record.— Clerk.—Where one pleading is substituted for another, the clerk should not copy the original into a transcript of the record. "Where the clerk is in doubt what papers form a part of the record, he should demand from the attorney for the appellant written directions and append the same to the record, to enable the Supreme Court to tax with costs the party liable for incumbering the transcript.</p> <p>Same.—Judgment on Default.—When the judgment is rendered upon default, the cleric should certify the summons and return, or the affidavit of non-residence and proof of publication. If the defendant appear, neither of these papers should be copied.</p> <p>Practice.— Withdrawal of Pleading.—When an answer has been filed and a demurrer sustained to one paragraph thereof, and a reply filed to other paragraphs, the plaintiff should take leave to withdraw his pleadings, before filing an amended complaint.</p> <p>Same.—Demurrer.— Waiver.—Transcript.—When a demurrer has been sustained to a pleading, an amendment thereof waives any error in the ruling on the demurrer, and the original pleading is not part of the transcript. A party, to render the ruling on the demurrer available, must stand on his pleading.</p> <p>Same.—Submission.—Issue of Law Undisposed of.—It is erroneous to submit a case for trial while a demurrer remains undisposed of, but the attention of the court must be called to the error by a motion for a new trial or in arrest of judgment.</p> <p>Same.-—.Wry Parties.—Bill of Exceptions.—After the submission of a case for trial, a motion to admit new parties cannot be granted until the submission is set aside; and the ruling on such a motion can only be presented in the Supreme Court by a bill of exceptions.</p> <p>Same.—Submission Set Aside.—After the submission of a cause, if it be discovered that an issue of law is undisposed of, the submission should be set aside.</p> <p>Same.—Rejection of Pleading.—Where, on motion, a reply is rejected, the ruling should be brought to this court by bill of exceptions, to avail the appellant.</p> <p>Same.—Re-submission.— Waiver.—Where parties by agreement submit _a cause, which is already under submission for trial, any error in not having the former submission set aside is waived.</p> <p>Same.—Defective Finding.—Judgment.—Where judgment is rendered on a finding which does not cover all the issues, and no exception is taken to the form and character of the judgment when announced, and no motion is made after judgment has been rendered and entered on the order book, to correct it or set it aside, no available error can be assigned thereon in this court.</p> <p>Same.—Affidavit.—Transcript.—Affidavits to set aside a submission are not part of the transcript, unless made so by bill of exceptions or order of court and directed to be certified.</p> <p>Same.—Judgment.—New Party.—After judgment, a new party cannot be made to the action except a new trial be granted.</p> <p>Same.—Bill of Exceptions.—A bill of exceptions may be general, embracing everything that has been made a part of the record by bill of exceptions; or it may embrace but one question. The complaint, answer, reply, demurrers, all proper entries made by the clerk, and the process, where there has been judgment on default, are parts of the record to be certified without a bill of exceptions. The record, when filed on leave of court within a time limited, must show a filing within the time given. The cleric should copy in their proper ■ order, the papers referred to where it is marked in the bill of exceptions “ (here insert.).” Where the bill of exceptions shows on its face that it does not contain all the evidence, where it should do so, it will not be considered upon the question of evidence.</p> <p>Same.—Assignment of Error.—Where it is assigned as error that the court overruled a motion for a new trial or in arrest of judgment, these assignments include all the reasons for a new trial or in arrest embraced in the motion. A ruling upon demurrer must be assigned for error. So, also, where there was no demurrer to the complaint, and the question as to its sufficiency .or as to the jurisdiction of the court is to be raised'in the Supreme Court, it must be done by assigning the error upon the record.</p>

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

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

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

<p>Criminal Law.—Indictment.—Perjury.—Where an indictment for perjury did not purport to set forth a copy of an affidavit in the making of which the perjury was charged to have been committed, or of any part thereof, or set out the tenor of such affidavit in whole or in part, but only set out the substance thereof;</p> <p>Held, that the indictment was, for this reason, fatally defective, and should have been quashed on motion.</p>

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

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

<p>GUARDIAN AND WARD.—Maintenance and Education.—Executors.—A guardian may sustain an action against the executors of an estate holding property to which his wards are heirs under the will, and in excess of any indebtedness of the estate, for a proper sum for the maintenance and education of his wards.</p>

<p>City.—Grading of Streets.—Consequential Damages.—"Where a-street, alley, or sidewalk is graded in a careful manner pursuant to an ordinance, or resolution, or motion duly passed by the proper vote of the city council, the owners of lots contiguous thereto have no right to compensation for consequential damages to such lots, unless such damages are expressly given by statute; and when thus given, compensation must be sought in the manner prescribed by statute.</p> <p>Same.—Obstruction of Sti-eet.—A city has the power to prevent improper obstruction of streets and sidewalks.</p>

<p>Habeas Corpus.—Jurisdiction.—A writ of habeas corpus must issue from a court of the county where the person applying for the writ is restrained of his liberty, except when the judge of said court is unable or incompetent to hear and determine the application.</p>

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

<p>Evidence.—Interpreter.—Evidence of what an interpreter testified as received by him in a foreign language from a witness, on a former trial, cannot be given by one who heard the evidence, unless the interpreter be dead, or insane, out of the júrisdiclion, or sick and unable to testify, or having been summoned, appears to have been kept away by the adverse party.</p>

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

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