Volume 37 — Indiana Reports

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

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

<p>Carrier.—Baggage.—Porter.—The price paid by a passenger on a steamboat usually includes the charge for the transportation of his baggage; and as the carrier must provide some one to care for it, that person is the agent of the carrier, ’although he be not one of the crew or paid by the carrier, but a p<pr- . ter, who receives his compensation from the passenger.</p> <p>Parties.—Minor.—A minor may, by’ his next friend, maintain an action against a carrier for the value of clothing or other property given to him by his parents or others, and lost by the defendant.</p>

<p>Libel.—Pleading.—Introductory Matter.—Colloquium.—Innuendo.—Where, in an action for libel,words alleged to have been published are not jberse actionable, there should be a prefatory allegation of such extrinsic matter, or of such special meaning of the words as renders them libellous, and the colloquium should connect therewith the using or publishing of the words complained of, the innuendo giving to the words the interpretation borne by them in relation to the extrinsic fact or special meaning.</p> <p>Same.—Justification.—Although the truth of the matter charged to be libellous may be shown in defence, yet an answeryin order to make it a good justification, must specifically point out the acts of which the plaintiff was guilty, that the court may see whether the defendant was justified in what he published.</p> <p>SAME.—Evidence.—Where the plaintiff, in- such action, has alleged the meaning of certain words, and to whom they referred, he may prove by witnesses what they understood by the words and of whom they were published.</p>

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

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

<p>Promissory Note.—Indorser.—Forged Indorsement.—The acceptance in good faith, from the maker, who is insolvent, of a note with a forged indorsement of the name of the payee, in discharge and payment of a note executed by the same maker, with the genuine indorsement of the same payee, known to the holder as an accommodation indorser, will not discharge such indorser on the original note.</p>

<p>Slander.—Charge of Forgery.—Attempt to Obtaiíi MoTtey hy False Pretestces. The plaintiff, having'executed a note to the defendant, November 30th, 1864, and paid one year’s interest, after a year had passed executed a mortgage to secure the payment of the note, and some four years later, on discharging the note and mortgage, which were surrendered to the plaintiff, the interest from the date of the note was, by mistake, included, and no credit given for the one year’s interest paid. The plaintiff called the attention of the defendant to the mistake afterward, and pointed out the words in the mortgage referring to the note, “ Interest paid to Nov. 30th, 1865.” The plaintiff filed a . complaint, which, after reciting these facts, and averring that the purpose of defendant was to cause it to be believed, and that the hearers so understood, that the plaintiff had been and was guilty of forgery, and of making use of false pretence, to obtain money, charged, with proper innuendo, that defendant had uttered and published of him the following false and slanderous words: “ You forged it, inserted it, put it in. You wrote that clause in it. I would swear that that line in the mortgage was not in the mortgage when I gave it to you yesterday, and you put it in. You altered the mortgage, changed the mortgage, put that line in the mortgage, inserted that line, put the credit in, and you are a forger and committed forgery;” and also: “ He committed forgery, is a forger, is guilty of forgery. There -is something here that I don’t understand; this line has been put here; or at least if I was called on to swear, I would swear that I read the whole of the mortgage over very carefully, and I did not read that. I let Hotchkiss” (the plaintiff) “have the mortgage once, and I never noticed that until after he brought it back. It is his handwriting. I told him so. I suppose he says he is going to sue me for it, but it is my belief. He can’t hurt a person for his belief. Hotchkiss is so slippery I have had to watch him. He cheated me out of some money, which he positively agreed to pay, and I am not going to let him cheat me any more. I am positive this was not here when I gave him the mortgage. He put it there; it is his handwriting; I told him so; he can’t hurt me for that. He can’t hurt a man for his opinion, unless he says he can prove it. I have never said I could prove it. He must have put that line in the mortgage. I am certain it was not there when I gave him the mortgage.”</p> <p>Held, that the entry charged, on the mortgage, had the force and effect of a receipt for so much money, and, although surrendered, was a valid instrument as such receipt, and capable of being forged, and the paragraph showed a charge by defendant against plaintiff of forgery. It did not state a charge of obtaining money by false pretences. The attempt charged was not a crime.</p> <p>SAME.—A second paragraph charged a conversation in respect to the same transaction, but it alleged the alteration was made before execution and delivery of the mortgage, and, therefore, no forgery could have been then committed.</p>

<p>School Fund.—Mortgage.—Title.—Redemption.—A purchaser under a sale by virtue of a mortgage to the school fund takes an absolute title, and there is no right of redemption by junior incumbrancers.</p>

<p>Specific Performance.—Pleading.—Performance by Plaintiff.—Suit by the widow and heirs of A. to enforce specific performance of a contract between A. and the defendant, for the conveyance by the latter to the former of certain real estate, on condition that A. should pay certain sums to the defendant at certain dates thereafter, and upon the further condition that A. should, at said dates, pay defendant any money that might then be due to the defendant' from A., and which might be advanced to A., or on his account, by the defendant, after the making of the contract. The complaint alleged the making of said contract and set it out, and alleged the death of -A., and that the plaintiffs were his widow and children, distinguishing which was the widow and which were the children, and alleged full payment and full' compliance by A., and that plaintiffs had demanded a deed, which defendant refused to execute.</p> <p>Held, that the complaint was good on demurrer.</p> <p>Master in Chancery.— Waiver of fury.—Oral Consent in Open Court.— Where the defendant was present by attorney atNthe reference by the court of the cause to a special master in chancery, to inquire and find the facts in the case, and report the same with his conclusions of facts thereon, and complied with an order of the court requiring him to furnish a bill of particulars with the items of account claimed in his answer, and was present also when the report was made and ordered to be spread of record, having entered no objection to the orders at any stage of the proceeding;</p> <p>Held, that it was too late for 'him to demand a jury trial, as the record of these facts disclosed such “ oral consent in open court,” as shown by the entries “ on the record,” as amounted to a waiver of a jury trial.</p> <p>Held, also, that the action of the court in overruling a motion for a trial by jury could only .be presented for review in the Supreme Court by a bill of exceptions.</p> <p>Bill of Exceptions.—Report of Master.—Exceptions to a report of a master must be presented on appeal by a bill of exceptions.</p> <p>Same.—New Trial.—Affidavit.—Affidavits filed in support of a motion for a new trial must be brought up on appeal by a bill of exceptions.</p> <p>Judgment.—Exceptions.— Waiver.—Although the report of a master does not authorize the judgment rendered, still, if no exception is taken, the error is waived. 1</p>

<p>Railroad.—Injttry to Animals.—Omts.—Where a railroad company seeks to shield itself from liability for stock killed where the road is not fenced, on the ground that it should not be fenced at that "point, the onus is on the company to establish that fact.</p> <p>Same.—Highway.—Non-User.—Fencing.—Where a highway has not been in a condition for use by the public, and has not been used for thirty-six years, the presumption of its abandonment is justified, and the right to its full use by the owner is restored, and the duty to fence is imposed on a railroad company using a portion of it for its track.</p> <p>Same.—Cotmty Commissioners.—Cattle at Large.—A railroad company is liable for cattle killed where it has not discharged its duty in fencing, although the county commissioners may not have made any order in regard to cattle running at large in the county.</p>

<p>Warranty.—Assignment of Account.—In a mere assignment of a claim or account there is no warranty of its value.</p> <p>Evidence.—Hearsay.—The declarations of a person upon whom an order for the delivery of goods is given are not evidence against the maker of the order.</p> <p>Deposition.— When Used.—When the deposition of a witness, who does not reside in the county of the trial, or in an adjoining county, has been taken by one party, the fact that the other party has had the witness present and has • examined him during the trial, does not prevent the reading of the deposition, if the witness be not present when it is offered, having been discharged by the party who procured his attendance.</p>

<p>Promissory Note.—Consideration Paid by Indorsee.—In an action on a promissory note brought by an indorsee against Ms indorser, the complaint alleging the insolvency of the maker and the non-payment of the note, it is not necessary to state the amount paid for the purchase of the note, ss,$rimafacie, the face of the note fixes the sum to be recovered. -</p> <p>Same.—Indorsement Witkozit Liability.—Mistake.—In such an action, an answer that the note was exchanged with the plaintiff for certain property delivered to the defendant, and that he delivered the note to the plaintiff, and then, at Ms request, and solely for the purpose of parting with any apparent title thereto, he indorsed the same, is no defence to the action, as it does not allege that the plaintiff agreed to take the note without indorsement. The additional averments, that it was expressly agreed that the plaintiff should accept the note under the contract, for the property delivered to the defendant, and should rely on the maker for payment, who was the owner of large property; and that the defendant, being ignorant of the law governing his liability, indorsed the note simply to transfer Ms ownership, and that it was no part of the agreement that he should be liable as an assignor thereof, and that the words “without recourse” were, by mistake, omitted in making said indorsement, are not sufficient to render the paragraph good, as they contradict the written contract of indorsement.</p>

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

<p>Turnpike.—Failure to Assess all Lands Liable.—A complaint for an injunction to restrain the collection of assessments on land within one and one-half miles-of a certain turnpike road, for benefits conferred by the construction' of the same, alleged that there were more than twenty thousand acres of land thus liable, and that only thirteen thousand acres had been returned on the list by the assessors.</p> <p>Held, that the complaint was- good on demurrer for want of sufficient facts.</p>

<p>Indemnifying Bond.—Fraudulent Representation.—Guarantee.—In an action ugon a bond given with surety by one partner to another to indemnify the latter against the partnership liabilities, false and fraudulent representations as to the amount of these liabilities, made to the surety for the purpose of inducing him to execute the bond, by the partner to Whom the bond was given, it was held, would constitute a good defence to the action against such surety. Such representations', without an averment of fraud, will not be sufficient in pleading. Nor will an answer that the party receiving the bond guaranteed that the firm liabilities should not exceed a certain, sum be sufficient, no guarantee being contained in the bond.</p>

<p>Sinking Fund.—Constitution.—Construction.—The word “invest;” as used in section 4 of article 8 of the constitution, in order to harmonize with section 6 of the same article, must he construed as broad enough to cover loans made by the counties, and that the fund may be intrusted to them for that purpose; and yet, while covering the loan of money, it does not restrict to that mode of investment.</p> <p>Same.—Statute.—Constitutionality.—The amendatory act of February 24th, 1871, in regard to the sinking fund, is not in conflict with section 4 of article 8 of the constitution.</p> <p>SAME.—Recital.—Certainty.—The act of 1871 is sufficiently certain in its recital of the act amended; and the date of the approval of that act is not necessary to be stated in die act amending it; and the court will take judicial notice that there is no other act with the title which is recited.</p> <p>Same.—Title.—The title of the amendatory act adds nothing to the title of the original act, and the title of the original act is valid, because it has a single subject sufficiently indicated or expressed; and it embraces the amendments as though they had been, at first, a part of the original act.</p> <p>Same.—Mistake.—Intention.—The use of the terms, “board of commissioners of the sinking fund,” and “board of sinking fund commissioners,” in the act, does not vitiate the statute, as it is plain what party was intended.</p> <p>Same.—Sixth Section.—Fourth Section.—The original sixth section of the act amended, and the entire amendment of 1871, are valid, with the exception of the fourth section of the amendment-, on which no conclusion was reached, as it was not involved in the decision.</p>

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

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

<p>Decedents’ Estates.—Creditor.—A creditor of a decedent’s estate must proceed to enforce his claim against the estate through an executor or administrator, and cannot sue the heirs, devisees, and legatees, where there has been no administration.</p> <p>Same.—Executor de Son Tort.—Liability.—If any one has, without an administration, though he be á legatee under a will, taken possession of any of the property of a decedent, he may be sued as an executor de son tort, by an unpaid creditor.</p>

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

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

<p>Judgment.—Correction.—Where a judgment by default has been entered for a sum too small, as appears on the face of the papers, through an error of the clerk, the judgment may be corrected, on motion, at a subsequent term, although the amount for which it has been erroneously entered has been paid.</p>

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

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

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

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

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

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

<p>Criminal Law.—Practice-—Bill of -Exceptions-—A bill of exceptions was signed and filed in a criminal case, after, the close of the term, without leave having been granted during the term for an extension of time.</p> <p>Pleld, that the bill of exceptions formed no'part of the record, even if time beyond the term in which to file the bill could have been given,</p>

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

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

<p>Attorney.—Set-off.—Agency.—An attorney, when sued for money collected for the plaintiff, may set off a note held by him, executed by the plaintiff. There is nothing in the doctrine of agency that forbids such a defence.</p>

<p>Mechanic’s Lien.—Action.—Necessary Parties.—In a suit to enforce a mechanic’s lien for the material furnished and labor performed in the erection of a building, where, subsequent to the contract for the work, the owner of the land has sold and conveyed it, he is not a necessary party.</p> <p>SAME.—Priority over Conveyances.—The lien of the mechanic relates to the time when the work commenced or the material began to be furnished, and takes priority as well over subsequent conveyances as over subsequent incumbrances.</p>

<p>Judgment.—Injunction.—Where a resident of this State is sued out of his county before a justice of the peace, and process by summons is served upon him, and judgment is rendered against him without an appearance, an in-, junction will lie to stay proceedings under the judgment.</p>

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

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

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

<p>Appeal.—License to sell Intoxicating Liquors,—Where ail appeal has been taken to the circuit court or court of common pleas from the action of a board of county commissioners in granting or refusing license to sell intoxicating liquors, the decision of such appellate court is final.</p>

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

<p>.PLEADING.':—Complaint Containing Defence and Reply.—It will not render a complaint subject to a demurrer for want of sufficient facts, that after stating a cause of action for goods sold and delivered at the request of and on account of the defendant, it proceeds to anticipate and avoid the defence to the action.</p> <p>Motion to Strike Out.—Bill of Exceptions.—A refusal to strike out part of a complaint must be presented as error by a bill of exceptions.</p> <p>Consideration.—Promise for Benefit of Third Person.—Where a complaint charged that a railroad company promised to pay for goods which should be furnished to a sub-contractor, an answer that the railroad company was not indebted to the sub-contractor was held no defence on demurrer. ’</p> <p>Practice.—Demurrer.—Where a demurrer is sustained to an answer which only amounts to the general denial, it will not be available error, if the general denial be also pleaded.</p> <p>Evidence.—Explanation of Delivery of Draft.—Evidence to explain under what circumstances a draft on one officer of a railroad company was accepted by another officer of the same company, and delivered to the plaintiff having an account against the company, is admissible, there being an averment in the complaint that the draft was not delivered or received as payment. Such evidence does not contradict the tenor of the draft.</p>

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

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

<p>Tax.—Municipal Purposes.—National Batiks.—A tax olr the capital stock of a national bank, for school purposes, or for a donation by a township to aid in building a railroad, is not a tax levied for municipal purposes, within the meaning of the ninth section of the act of March 15th, 1867, 3 Ind. Stat. 34.</p>

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

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

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

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

<p>Immaterial Error.—Where the action is to recover a money judgment, and there is a finding for the defendant, the case will not be reversed because an answer in set-off is defective, when the amount claimed in the set-off is so small that the finding for the defendant could not have been upon that answer.</p> <p>Practice.—Duplicity not Demurrable.—Duplicity in a pleading cannot be presented by a demurrer.</p> <p>Same.—Grounds for New Trial.—The rulings of a court upon matters of pleading are not causes for a new trial.</p> <p>Evidence.—Admissions.—The admissions of a party may be given in evidence . against him, whether connected with any act done or not. These declarations cannot be introduced in his favor.</p> <p>Same.—Proof in Part.—Where it is necessary for the defendant to show the payment of taxes by him, the admission of a tax receipt is proper, although it. does not show who paid the money, as this proof may be supplied by other, evidence.</p> <p>Executory Promise.— Consideration,—Advancement.—The promise of a-father to give up to his son certain notes executed by the latter to the former is a promise which natural love and affection is not a sufficient consideration to support. Nor can it be supported as an advancement of the sum for which the notes were taken from the son.</p> <p>•Evidence.—Admissions.—Admissions are not regarded as the strongest and most satisfactory evidence.</p> <p>Executory Promise.—Estoppel.—"When a father loans money to his son and takes his note for the same, his oral declaration that he will not collect the same, but let the son have it at his death, does not change the transaction into an advancement which the father cannot recall.</p> <p>Practice.—Interrogatories.—Interrogatories to a jury should be relevant to the matter in controversy.</p>

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

<p>Practice.—Assignment of Error.—The assignment of the reasons for a new trial as error presents no question in the Supreme Court. The overruling of the motion for a new trial should be assigned, simply. ■</p>

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

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

<p>Practice.—Appeal.—Notice to Co-Parties.—Where all co-parties do not join in an appeal to the Supreme Court, notice muál be served on those not joining, and proof thereof must be made, or the court will dismiss the appeal.</p>

<p>PRINCIPAL and Surety.—Release.—Where a surety on a promissory note, after his release from liability, by an extension of time given to the principal without his consent, receives an indemnity against his liability, without the knowledge of the holder, and subsequently surrenders the same to the principal, he may still avail himself of his discharge.</p> <p>Same.—Indemnity.—Return of.—The fact that the surety returned such indemnity, without the knowledge of the holder of the note, at a date anterior to a new extension of time being given without the consent of the surety, does not render the latter liable, where the holder of the note had no information in regard to the indemnity having been given to the surety when he extended the time of payment.</p>

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

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

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

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

<p>Pecedents’ .Estates.—Aj>ji>eal.—Section 189 of the act for the settlement of decedents’ estates is' in force, except so far as it authorizes a writ of error. The party aggrieved has his election to appeal from the common pleas court to the circuit court, in any matter connected with the decedent’s estate, or under section 550 of the code, to the Supreme Court. If appealed to the circuit court, the case is tried da novo, and if there are issues of fact, they may be tried by a jury.</p> <p>Same.—Trial.—Btirden of Issue.—Where the administrator had reported, and exceptions were taken to his report, and the administrator charged that the decedent had made unequal advancements to the heirs, and this was denied, and an appeal was taken to the circuit court;</p> <p>Held, that the administrator was entitled to have the open and close on the trial.</p> <p>Same.— Witness.—Evidence.—The administrator is a competent witness on such trial. The wife of one of the co-plaintiffs, the real party in interest, cannot be a witness. Nor can the declarations of the ancestor, made long after the supposed payment or advancements to his children, be proved for the purpose . of establishing the fact that such payments or advancements were made.</p>

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

<p>Justice of the Peace.—Jurisdiction.—Appearance.— Waiver.—Where a defendant appeared before a justice having jurisdiction of the subject-matter of the action, and agreed upon a day for the trial, and subsequently filed an affidavit before the justice for a change of venue, which was granted to a justice of another township;</p> <p>Held, that he could not plead to the jurisdiction of the justice to whom the cause was sent, over his person, on the ground that he was not a resident of the township in which the justice before whom the cause of action was brought exercised jurisdiction.</p>

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

<p>Trespass.—Damages.—Where a complaint for trespass upon real'estate avers a consequential injury to personal property, such averment will be taken only_ as a matter of aggravation of the damages.</p> <p>Jurisdiction.—Statiite Construed.—Section 28 of the code (2 G. & H. 56) is a statute defining jurisdiction, and not venue, and an action for injury to real property must be brought in the county' where the real estate is situated.</p> <p>: Stare Decisis.—Rule of Construction.—A long line of uniform decisions construing a statute, in the face of the fact that the legislature for a long series of years has acquiesced in such construction, cannot, with judicial propriety, be disregarded or lightly treated.</p> <p>Jurisdiction.—If a court has no jurisdiction, there is no trial, and the Supreme Court will not look to the record to see whether the merits of the .cause were fairly tried.</p> <p>Same.—Under section 54 of the code (2 G. & H. 81), an objection to the jurisdiction of the court over the subject-matter of the action is not waived by failing to demur or answer. (Frazer, J., dissented.)</p> <p>Same,—Arrest of Judgment.—Such objection may be raised on a motion in arrest of judgment.</p>

<p>Mortgage.— Widow,—Dinner.—Where a husband mortgaged land (,his wife not joining) on the rath day of January, 1853, and in 185& the mortgage was foreclosed, and the husband died in 1859,the wife had no interest in the land’, dower having been abolished after the execution of the mortgage, with no saving clause for this class of cases.</p>

<p>Pleading.—Demurrer.—Where a complaint .contains one good paragraph, a demurrer to the whole complaint should be overruled.</p> <p>Practice.—Instructions.—Exceptions.—Where an instruction asked by a party, is in writing, signed by the party or his attorney, it thereby becomes part of the record. An exception may be taken to the giving of such instruction or the refusing to give it by the words “given (or refused) and excepted to” being written after it and signed by the party excepting or his attorney. If such instruction be so made part of the record, and the exception be so entered, the instruction need not be authenticated by the signature of the judge or put into a bill of exceptions. Cross v. Pearson, 17 Ind. 612, overruled on this question.</p> <p>Same.—Record.—Where instructions are refused, it will be presumed, the evidence not being in the record, that they were refused because not applicable to the evidence.</p>

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

<p>Appeal. — County Commissioners. — One' who is not a party to proceedings before the board of county commissioners cannot appeal from a decision of such board, unless lie shall file in the office of the county auditor his affidavit, showing that he has an interest in the matter decided, and that he is aggrieved • by such decision. If such an affidavit has not been filed, the court may dismiss the appeal.</p> <p>Same.—Statute Construed.—The phrase, “a party to the proceeding" as used in' the statute, i G. & H. 253, section 31, embraces such persons only, as are parties in a legal sense, and who have been made or become such in some mode prescribed or recognized by the law, so that they are bound by the proceeding.</p>

<p>Evidence.—Admissions.—Attorney.—In a suit by an attorney for his services, it is proper for him to testify as a witness to admissions made by the defendants, as to the amount realized by his successful defence of the action in which be was employed by them.</p> <p>Same.— Opinions.—There is no error in excluding evidence of a witness as to the value of services rendered by an attorney in a case, from his knowledge of what the services were, when he has stated that he cannot say what a reasonable fee would be; nor is it error to exclude such testimony, when it has not been shown that the witness offered is competent to state such value, ©ther persons, having knowledge on the subject, are competent witnesses, as well as lawyers. But a mere opinion is not evidence. There must be knowledge of facts which will give value to the opinion.</p>

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

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

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

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

<p>County Auditor.—Delinquent List.—The county auditor was power to make a contract for the publication of the delinquent taxes; and where such contract is made, although the publication be not 'in time, yet if this results not from fault in the publisher, he is entitled' to recover from the county on his contract. • .</p>

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

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

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

<p>Pleading.—Denial.—Demzirrer.—Where there is a denial of a complaint, it is not error to sustain a demurrer to a paragraph of answer which states facts which simply amount to-a denial.</p> <p>PRACTICE.— Weight of Evidence.—That the finding is against the weight of evi- - dence, is no ground for reversing a judgment.</p> <p>.•Same.—Reasons for New Trial.—Too General.—That the court erred in giving or refusing instructions, or in receiving or rejecting evidence, are reasons . too -general in their statement to present any question on appeal. The instructions or the evidence should be pointed out.'</p> <p>Same.—Demurrer.—The ruling on a demurrer is no ground for a new trial.</p>

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

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

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

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

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

<p>County Clerk.—Fees and Salaries.—The cleric is entitled to tax and collect fees “ for indexing,” “ for jury fees,” and “ for docket fees,” under the fee and salary act of February 21st, 1871.</p>

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

<p>School Property.—Part of School Township and School Property Annexed to City.—Title to Property.—Where real estate is purchased and buildings erected for school purposes, by the trustees of a school township, with the proceeds of a special school tax, and subsequently the territory embracing such property is annexed to a city, leaving more than half the school township outside the city limits, the title to the school lots and buildings still remains in the trustees of the'school township, and the property may be sold by them. If an equitable division of the proceeds can be made afterward between the school trustees of the township and the city; Query, whether the Supreme Court will interfere to prevent such adjustment.</p>

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

<p>Draining Association.—Liability of Members.—Judgment.—Where the members of a draining corporation were sued, with the coiporation, for a liability incurred by the company, and the individual members composing the corporation demurred to the complaint, and the demurrer was overruled, and judgment was rendered against the defendants, to be first collected of the assets of the corporation;</p> <p>Held, that the members of the coiporation could not complain of the ruling, as they were not injured thereby, even if their liability was only contingent and secondary.</p> <p>Same.—Answer.—Execution.—Where the complaint alleged that the corporation had no assets subject to execution, an answer that it had a schedule of assessment of benefits upon land and real estate affected by the construction of its work, duly recorded, etc., exceeding the amount of its liability, was no defence, as such assessments are not subject to an ordinary execution.</p>

<p>Criminal Law.—Murder.—Manslaughter,—Use of Deadly Weapon.—Malice. Instruction.—On a trial for murder, where there were some circumstances strongly tending to the conclusion that the crime was murder, and not manslaughter merely; such as the use of a deadly weapon by the defendant, in a manner seemingly cruel and not justified by the danger of the supposed assault by the deceased, and the following the deceased and inflicting upon him a blow with a knife after he had turned and was retreating; and, on the other hand, there were some circumstances that tended in some degree to modify such conclusion; as that the defendant was smarting under indignities inflicted upon him by the deceased, who a short time before had assaulted and chased defendant with a stable fork through the public streets, until he took refuge; and the deceased had also applied to the accused degrading and humiliating epithets;</p> <p>Held, that a charge to the'jury, which, after defining manslaughter as an unlawful killing without malice express or implied, stated, that “ if a man use a deadly weapon in killing his adversary, the law implies malice from its use, except where the killing is excusable,” was in effect telling the jury, that there was no such thing as manslaughter where a deadly weapon was used, as the implied malice made it murder, if it was not excusable; and that the charge was erroneous. *</p> <p>Same.—Mortal Wozinds.—Malice.-—Where there was doubt as to which of the blows was mortal, this instruction should have-been given as requested: “If the blows which caused the death of” A.,the deceased, “were given in self-defence, and other blows were afterward given, which were not given in self-defence, not mortal, you should find the defendant not guilty.”</p>

<p>PRACTICE.—Defective Verdict.—If a jury find on special questions of fact, in answer to interrogatories, without a general verdict, the finding is of no force, and it is error for the court to dismiss the case thereon,.or render judgment thereon for the defendant.</p>

<p>Bastardy.—Compromise.—Admission of Record.—A compromise of a suit for bastardy made out of court, though ia the form of the statute, is no defence to the action, unless ratified and confirmed in court and entered of record with the consent of the prosecutrix.</p> <p>Same.—Evidence.—Where the prosecutrix refuses in courtto ratify such a compromise and have the same entered of record, she cannot be required to state her reasons for such refusal.</p> <p>Same.—Damages.—Excessive.—Unless the amount of the judgment in such a case show an abuse of discretion, this court will not interfere on the ground that the damages are excessive.</p>

<p>APPEAL from the St. Joseph Common Pleas,</p>

<p>Official Bond.—Demand Before Suit—In a suit on a constable’s bond for failure to pay over money collected by him, to a justice of the peace, within a month after he has collected the same, no demand on the constable need be alleged or proved.</p> <p>Same.—Evidence.—Authenticated Copy.—An authenticated copy, under section 283 of the code, of a constable’s bond, is admissible in evidence without proof of its execution, in a suit on the bond against the administrator of one of the sureties.</p> <p>Judgment.—Irregularity.—Collateral Proceeding.—In such an action, the officer or his surety cannot obj ect to the original j udgment or execution on which the money has been collected by the constable, on account of an irregularity, in that the names of the plaintiffs are given as a partnership.</p>

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

<p>Real Estate, Recovery of.—Pleading.—A complaint is sufficient in an action for the recovery of real estate, if it contain the substance required by the statute.</p> <p>Married Woman.—A married woman may, during coverture under her third marriage, maintain an action for the recovery of real estate which came to her on the death of her first husband, by descent from him, and which she attempted to cónvey during coverture under her second marriage.</p>

<p>Replevin.—Title to Property.—Suit on Bond.—Where property has been replevied from under a levy by virtue of an execution, and on the trial there has been a finding for the defendant on the issue of title to the property, and a judgment of return has been rendered, the plaintiff cannot afterward defend a suit on the bond, for a failure to deliver the property, by asserting a new title to the property, acquired after the bond in replevin was given and before judgment for a return.</p>

<p>APPEAL from tlie Warren Circuit Court. ,</p>

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

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

<p>City.—Railroad Crossing.—Mandate.—A mandate will lie to require a railroad company having its track upon, along, or across the streets and alleys of a city, to so build and erect the same, and level and grade the said streets and alleys, their full width, as to render the use of the streets and alleys and the crossing of the track convenient for the public.</p> <p>Practice.—Striking Ozit.—If a paragraph of an answer is properly struck out on motion, as amounting to the general denial, which has been filed, this ruling cannot be made erroneous by a subsequent withdrawal of the general denial.</p>

Suit by appellant against Maurice de St. Palais, Bishop of Vincennes, and the Trustees of the Catholic congregation of the city of Aurora. Complaint in two paragraphs.

<p>Promissory Note.—Assignment.—Evidence.—In. a suit on a promissory note against the maker, brought by one to whom it has beenassigned ill writing on the back thereof, an answer of general denial puts in issue such assignment, which must be shown in evidence.</p> <p>Same.—Attorneys’ Fees.—Proof of Value.—Where an agreement is contained in a promissory note, to pay attorneys’ fees on collection, there must be proof of the value of the attorney’s services, to authorize a finding therefer.</p>

<p>Real Estate, Recovery of.—Fraudulent Conveyance.—Dismissal.— New Trial, as of Right.—Demand of Judgment.—Reasons for New Trial.—A. purchased from the State a piece of land and received a certificate from the sinking fund commissioners, entitling him to a deed at the end of five years, on payment of interest yearly in advance, and the principal of the purchase-money at that date. A. assigned said certificate of purchase to B., executing and acknowledging an instrument reciting the assignment, and that he had also executed a note for a certain sum to B., payable in two years, and upon failure to pay the same at maturity, the title to the land described in the certificate was to vest in B. and become absolute. A. was to pay all taxes and the interest on the sum due the sinking fund. A. neglected to pay the interest, and the land was again sold by the sinking fund commissioners, and purchased, and a deed taken to A.’s wife, who had full knowledge of all the facts. B. filed a complaint against A. and wife. The first two paragraphs were to have the conveyance to the wife set aside as fraudulent and the lien enforced; the third paragraph was to quiet the plaintiff’s title to the land; and the fourth ■ was for its recovery. After the evidence was concluded and the charge of the court given to the j ury, but before they retired, the plaintiff dismissed as to the third and fourth paragraphs of the complaint. The finding was for the plaintiff.</p> <p>.Held, that the facts stated constituted a cause of action.</p> <p>.Held, also, that the plaintiff had a right to dismiss as to any paragraphs.</p> <p>.Held, also, that the defendant was not entitled to a new trial as a matter of right. Such new trial may be claimed in actions for quieting title, or for the recovery of real estate, but cannot be demanded in a trial to set aside a conveyance as fraudulent and subject the property to sale or in an action for the specific performance of a contract regarding real estate.</p> <p>.Held, also, that the prayer for relief under all the paragraphs could not enlarge the allegations of the complaint as left to the jury, and the court would grant the proper remedy.</p> <p>.'Held, also, that the reasons for a new trial urged in this court must correspond with the causes stated below.</p> <p>.Held, also, that the reasons for a new trial, that the court erred “in admitting evidence improperly, which was objected to by the defendants at the time,” and “in refusing evidence offered by defendants, which was excepted to at the timé,’’were too general.</p>

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

<p>Statute of Descent.—Sixth Section.—A. and his wife conveyed lands to B. and his wife, the consideration being natural love and affection, the wife of B. being llie daughter of the grantors. B. and wife had two children. The wife died; and B. married again, aftd had five children by his second wife; and B. died;</p> <p>Held, that, on the death of B., the seven children inherited equally.</p>

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

<p>Practice.—New Tripl—Statement of Ctmse.—In a criminal action, ike reason for a new trial, that “ the court erred in refusing to admit competent and proper evidence offered by the defendants,” is too vague and .indefinite. The reason should state the evidence offered'and refused, or by what witness it was proposed to introduce the evidence.</p>

<p>Promissory Note.—Pleading.—No Consideration.—In a suit on a promissory note, by an assignee against the maker, an answer that the note was executed without any consideration is good.</p> <p>Same.—Patent Right.—False Representation.—In such an action, an answer that the note was given for a patent right, and that the vendor, the payee, represented that the invention was a new.and useful one, and the purchaser, the maker, ignorant as to the truth, made the purchase, relying on said representations, and that the same were false, is a good defence.</p> <p>SAME.— Written Contract.—Parol Evidence.—Where a contract of purchase is reduced to writing, and contains no warranty, one cannot be proved by parol.</p>

<p>Promissory Note.—Pleading.—Presumptions of Law.—A complaint by A., the holder, against B,, the maker, on.a promissory note, payable at a bank in this State to C., or bearer, need not aver a demand at the bank where payable. Where such complaint shows that the plaintiff is the holder ef the note by averring the indorsement thereof to him by one to whom it was transferred, by delivery by the payee, the presumption of law, that every holder of negotiable paper is the owner, and that he took it for value, and before dishonor, and in the regular course of business, need not be avárred. An answer to such a complaint stating an equitable defence as against the maker is not good without an averment of notice to the plaintiff before he received the note.</p>

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

<p>Railroad.—Injury to Animals.—Fencing.—Instruction.—An instruction that when the owner of cattle turns them out, at a place where they must pass along a railway track, when trains are passing, he cannot recover for their injury, is erroneous as applied to a case where the road should be securely fenced, and is not so fenced.</p>

<p>Malicious Prosecution.—Defective Affidavit.—In an action for malicious prosecution, the complaint was held not defective, even if the affidavit on which the defendant caused the plaintiff’s arrest did not charge a crime, because in. that case the defendant was a trespasser in causing the warrant to issue.</p> <p>Practice.—Motion for New Trial.—A motion for a new trial must point out the instruction given or refused, or the evidence admitted or rejected, upon which error in the ruling of the court is assigned.</p>

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