Volume 38 — Indiana Reports

<p>Promissory Note.—Indorsement.—The indorsement of a promissory note is not required to be set out in the complaint in a suit by the indorsee against the maker.</p> <p>Practice.—Bill of Exceptions.—Where there is no proper bill of exceptions, no question on the evidence is presented on appeal, nor is a ruling on a motion for setting aside a continuance or a motion for taxing costs before the court for consideration.</p>

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

<p>Contract.—Executory.—Performance.—A contract in form, “ I have this day sold to” A. “two hundred and fifty bushels of prime clover seed of the new crop,” fixing the date of future delivery, is executory, and no particular seed passes by the agreement, but any merchantable article within the description will discharge the obligation.</p> <p>Same.—Demand.—Tender.—Purchase.—Where such a contract contained an agreement that bags should be furnished by the purchaser- for the seed;</p> <p>Held, that no obligation rested upon the seller, unless the bags were furnished within the time fixed for delivery of the seed; and that no demand for the bags was required. And the fact that the seller had not the seed on hand at any time did not excuse the tender of the bags; as he might have purchased the seed, and thus have discharged his contract.</p>

<p>Criminal Law.—Practice.—Bill of Exceptions.—A bill of exceptions in a criminal case must be made out and presented to tbe judge at the time of the trial, or within the time fixed, during the term, and signed by the judge and filed with the clerk.</p> <p>Assignment of Error.—“ The court erred in acquitting the defendant and rendering judgment of acquittal,” is not a proper assignment of error.</p>

<p>Promissory Note.—Statement of Consideration in Note.—The statement of the consideration for which it is given in a promissory note, otherwise negotiable under the law merchant, does not change the character of the note.</p>

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

<p>Criminal LAW.—Selling Share in Lottery Scheme.—Selling envelopes, some of which contain money, and others do not, and paying a sum of money when an empty envelope is purchased by chance, is a violation of section 32, 2 G. & H. 468.</p>

<p>Mutual Insurance Company,—Receiver.—The case of Embree v. Shideler, 36 Ind. 423, approved, and this case affirmed upon its authority.</p>

<p>Mutual Insurance Company.—Receiver.—The case of Embree v. Shideler, 36 Ind. 423, approved, and this case affirmed upon the authority of that case.</p>

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

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

<p>Town.—Incorporation.—A town cannot be incorporated until its officers and its board of trustees have been elected, and a president of tbe board designated. It is accordingly beld, that where all tbe preliminary steps have been taken, and a vote ordered by the board of county commissioners has resulted in favor of the incorporation of the town, but no report has been made by the inspectors of the election, and no further steps taken toward the organization, an action cannot be sustained in the name of the township, on relation of a number of the taxpayers, to enjoin the township trustee from proceeding to erect a school-house, with the funds of the township, within the limits designated as the town.</p> <p>Township.—Litigation.—No number of citizens of a township can be permitted, unofficially, to embark the township, at their pleasure, in litigation, on their relation, at the expense of the township treasury.</p>

<p>Practice.—Appeal.—Conflicting Evidence.—The Supreme Court cannot reverse a case where the evidence is conflicting, the witnesses being present before the jury.</p>

<p>Judgment.—Revivor.—Although our statute renders it unnecessary to revive a judgment in favor of a deceased person before execution can issue, yet it does not take away the right to have such judgment revived.</p> <p>Pleading.—Letters of Administration.—In a suit by an administrator, letters of administration need not be set out to show the right of the plaintiff to sue.</p> <p>SAME.—Judgment.—Copy.—A judgment which is the foundation of an action or defence need not be set out, nor any part thereof, in the pleading.</p>

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

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

<p>Practice.—Bill of Exceptions.—When time is given within which to file a bill of exceptions, and one is copied in the record without any evidence of being filed, it will not be regarded on appeal, and a question on the sufficiency of the evidence cannot be considered.</p>

<p>Landlord and Tenant.—Rent.— When Due.—A complaint for rent, alleging simply the sum agreed to be paid, the' entry on and enjoyment of the property, and that said sum remains unpaid, is insufficient. If there be no usage or agreement, rent is not due until the end of the term.</p>

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

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

<p>Criminal LAW.—Criminal Court.—Indictment.—All prosecutions for violations of the criminal law, whether felonies or misdemeanors, originating in the criminal court, must be by indictment.</p>

<p>Practice.—Motion for New Trial,—A motion for a new trial must point out the evidence admitted or.rejected, or the instruction given or refused, to present any question thereon upon appeal.</p> <p>Same.—Bill of Exceptions.—A bill of exceptions must show that it contains all the evidence, to enable this court to pass upon the giving or refusing of instructions.</p> <p>Pleading.—Set-Off.—In an action before a justice of the peace a set-off must be specially pleaded.</p> <p>Practice.—Assignment of Error.—A cause for a new trial not properly stated cannot be assigned as error.</p>

<p>Accord and Satisfaction.—A Power not Cotilled with an Interest.—Revocation.—In a suit upon an instrument, by which the defendant promised to pay a certain sum to A., B., and C., in trust, to be expended within a county named, in constructing a railroad within certain limits, the persons named to select the corporation which should have the benefit of the subscription, an answer that when the instrument was executed by the defendant, it was agreed that if the railroad was located through the farm of the defendant, he should have the choice of paying the five hundred dollars or giving the right of way to the corporation, and that he had given such right of way, which had been accepted by the company, was held a sufficient defence, as an accord and satisfaction. It was also held good on the ground that A., B., and C., held a power not coupled with an interest, and the power could he revoked before execution and the acceptance thereof hy the corporation.</p>

<p>CORPORATION. — Information for Forfeiture of Charter.—The provision in article 44, 2 G. & H. 322, that an information may be filed against a corporation for forfeiture of its charter, when it exercises powers not conferred by law, does not include the case of a trespass in constructing a road over lands without lawful authority.</p>

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

<p>Costs.—Recovery by Defendant.—In a suit in the circuit court for damages for the breach of a contract, where the recovery of the plaintiff is less than fifty dollars, the defendant recovers his costs from the plaintiff.</p>

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

<p>.Supreme Court.—Evidence.—Bill of Exceptions.—Where the only question before the Supreme Court is as to the sufficiency of the evidence, and a portion of the evidence is not before that court by bill of exceptions, the judgment will not be disturbed.</p>

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

<p>Appeal.—Preponderance of Evidence.—Where the burden of the issue was on the defendant, and his statement as a witness was confirmed by two other witnesses, and controverted by the plaintiff, who was supported by a memorandum made by the defendant, the Supreme Court refused to disturb the finding of the jury in favor of the plaintiff,on the ground of the preponderance of the evidence.</p>

<p>Judgment.—yoint Contract.—Promissory Note.—Merger.—A judgment against one of the makers'of a joint promissory note merges the note and is a harto an action on the same note, against the other makers, or all the makers. Promissory Note.—yoint.—A promissory note written, “ we promise to pay,” etc., and simply signed hy two or more makers, is a joint note.</p> <p>Justice of the Peace.—Pleading.—In a suit on a promissory note before a justice of the peace, the note is all the complaint necessary.</p> <p>SAME.—Confession of fudgment.—Where the record of a justice showed that “the defendant” (naming him) “appeared and confessed the followingnote ” , (setting out the note), “ and says that he is justly indebted for the same;” Held, that the record showed a sufficient confession by defendant for the justice to render judgment against him.</p> <p>Same.—Assent.—The record of a judgment recovered on a promissory note in favor of the payee as plaintiff shows prima facie that the judgment was taken with the consent or procurement of the payee.</p>

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

<p>Real Estate, Recovery of.—Pleading.—Description of Real Estate.—Where a complaint to recover the possession of real estate contains two different descriptions, each intended to apply to the same tract, words of a particular description will control more general terms of description, when both cannot stand together, and the particular description will be adopted and the general description rejected.</p> <p>Same.—Evidence.—Deed.—A deejl to the plaintiff in such case, in which the real estate is described in the general terms alleged in the complaint, and which does not contain the particular description in the complaint, .is not admissible in evidence. ’</p> <p>SAME.—Conveyance after Suit Brought.—In an action to recover the possession of real estate, a deed conveying the real estate in controversy to the plaintiff, executed after the commencement of the suit, will not enable the plaintiff to maintain his action.</p>

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

<p>Evidence.—Practice.—Improper evidence having been admitted on the trial of a cause by the court, to which exceptions were taken, the court, in announcing the finding, stated that the evidence so admitted had been entirely excluded from consideration;</p> <p>Held, that the admission of the improper evidence worked no injury.</p> <p>Same.—A court that has admitted improper evidence should, at the earliest moment after discovering the error, announce in open court that the evidence has been improperly admitted, and will be disregarded.</p> <p>Same.—Contract.—Where it has been contracted to deliver lumber “on the cars,” at a railroad station, and the evidence shows that the vendor had no lumber at the station or at his mill at the time it was to be delivered, he will not be injured by the court’s excluding evidence to show that the vendee did not furnish any cars at the station upon which to load the lumber.</p>

<p>Arbitration And Award.—Evidence.—“Where a cause is submitted to the arbitrament of three persons, and the award is only signed by two of them, parol evidence is admissible to show that the other arbitrator met with those signing the award, and heard the cause.</p> <p>Same.—Award.—“When parties submit a cause, under the statute, to-the arbitrament of three persons, it is understood that, the three having heard the cause, any two of them are sufficient to make an award, unless there is something in the submission that requires the concurrence of all.</p> <p>Same.—Where the evidence submitted to arbitrators is not in the record, it will be presumed that the award was justified by the evidence.</p>

<p>Injunction.—Pleading.—& complaint for an injunction which fails to allege that the defendant is doing, threatening, or about to do, the things ashed to be enjoined, is bad on demurrer.</p>

<p>Carrier.—Railroad.—Negligence.— Ticket.—If a passenger on a railway train, before entering the car, properly applies at the ticket office of the agent of the company for a ticket,'and, without fault on his part, but from either the wilfulness or the mistake or inadvertence of the ticket agent, is unable to procure one, he, when, according to the rules of the company, fare in addition to the price required to purchase a ticket is demanded of him by the conduct- or on the cars, may pay, under protest, the excess demanded, and afterward by suit recover it back; but he is not obliged to do so; on the contrary, he is entitled to be carried at the ticket rate without paying the excess demanded, and has the choice of paying the excess, or of insisting upon his right to be carried at the ticket rate and holding the company responsible in damages for a refusal to carry him.</p> <p>SAME.—Damages.—If, when insisting upon his right, in such case, to be carried at the ticket rate, the passenger is by the conductor of the train expelled from the car in a spirit of oppressive malice or wantonness, he is entitled to recover exemplary damages against the company, a verdict for which damages an appellate court will rarely set aside for excess merely.</p> <p>Same.—In such case, the passenger wrongfully expelled from the cars may be entitled to exemplary damages by reason of the time, place, circumstances, and manner of his expulsion, though no harsh or unnecessary means were resorted to in order to effect his expulsion.</p> <p>Agent.—Tortious Acts of.—Corporation.—A corporation is liable for the wilI ful acts and torts of its agents committed within the general scope of their employment, as well as for their acts of negligence, though such particular acts were not authorized or ratified.</p>

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

<p>Supreme Court.—Evidence.—Where the evidence is conflicting, the verdict depending upon the credibility of witnesses and the weight and consideration due their testimony, the Supreme Court will not reverse a judgment thereon.</p>

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

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

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

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

<p>Mortgage.—Subrogation.—Redemption.— Voluntary Payment.—A. mortgaged certain land to tlie State, and subsequently sold a part of the land to B., who assumed, the mortgage. A. sold another portion to C., who subsequently sold to D. with warranty, and D. applied the last payment due for purchase-money to discharge the mortgage,which B. had failed to discharge, B. having conveyed the land to E., who had notice of the facts.</p> <p>Held, that C. was entitled to enforce the payment of the lien against the land of E., who, at the commencement of suit therefor, was indebted to B. for purchase-money, in a sum greater than that paid by D. to the State on the mortgage; C. having, in effect, redeemed the land and become subrogated to the right of D., who had been substituted in the place of the State.</p> <p>Held, also, that the payment by D. in discharge of the mortgage was not a voluntary payment.</p> <p>Judgment.—Motion to Modify.—A personal judgment- having been rendered against B., it was held that, as no motion was made to modify the judgment, .no question could be raised thereon in the Supreme Court.</p>

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

<p>Appeal.—Supreme Court.—Parties.—Where one of several defendants appeals to the Supreme Court without serving notice of appeal upon the other defendants, perhaps the appeal should be dismissed.</p>

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

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

<p>Practice.—Answer.—Demurrer.—"Where the plaintiff demurs to several paragraphs of an answer, and his demurrer is overruled, and he abides by his demurrer and refuses to reply, the judgment will be affirmed on appeal, if either paragraph of the answer be sufficient.</p> <p>Promissory Note.—Executor.—Revocation of Letters.—In an action by A., as executor of the estate of B., on a promissory note payable to A., describing him as executor, etc., an answer alleging that the notes belonged to the estate, and that his letters testamentary have been revoked, is good.</p>

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

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

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

<p>Pleading.—Demurrer.—When a demurrer to a pleading states but one of the statutory causes of demurrer, it need not be numbered.</p> <p>SAME.—BUI of Particulars.—Where an action is on an account, the complaint must show that the account is filed.</p> <p>PRACTICE.—Bill of Particulars.—Demurrer.—If a party entitled to a bill of particulars prefers to ask for one, and not to raise the question by demurrer, he may do so, but the fact that the statute gives him the right to move for a bill of particulars will not prevent him from presenting the question by demurrer.</p> <p>Same.—A judgment will not be reversed for an error’in sustaining a demurrer to a paragraph of an answer, if all the evidence admissible under such paragraph was admissible under a remaining paragraph.</p> <p>Pleading.—Complaint.—A complaint showing the making of one or more contracts between the plaintiif and the defendant, and their violation by the defendant, and alleging the amount of damages resulting therefrom to the plaintiff, for which he asks judgment, contains the essential elements of a good cause of action ex contractu.</p> <p>Practice.—Error.—Where a cause has been tried upon issues joined upon a complaint containing two paragraphs, one defective, and the other good, a demurrer to the former having been overruled, the record not showing that the cause was tried, and the judgment rendered, exclusively on the good paragraph, the judgment will he reversed for error in overruling; the demurrer to the defective paragraph.</p>

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

<p>Contract.—Statute of Frauds.—Suit on the following instrument: “Ten days ■ after the completion of the Indianapolis and St. Louis Railroad from Indianapolis to the west line of Hendricks county, and the running of a train of cars thereon, I promise to pay to the order of said railroad company, at the First National Bank of Danville, Ind., the sum of one hundred dollars, without any relief whatever from valuation or appraisement laws. The consideration of this note is the construction of said road as aforesaid, within one-half mile of the town of Danville, and the promise and agreement of said company that by means of said road and its connections, the company will run trains through from Indianapolis to East St. Louis, within two years from the first day of January, 1869;” dated November 25th, 1868, and signed by the defendant. There was an averment in the complaint of performance within the time and in the manner mentioned.</p> <p>Held, tliat the contract, being capable of performance within one year, was not within the statute of frauds.</p> <p>Held, also, that if the contract had originally been within the statute, and therefore not binding on the plaintiff, yet after performance by the company, the maker could not defend on the ground that he alone had signed the instrument.</p>

<p>Practice.—Evidence.—A judgment will not be reversed on the evidence where there is a conflict in the testimony.</p>

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

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

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

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

<p>Complaint.—Bill of Particulars.—Acceptance.—A complaint for money had and received, a bill of particulars filed therewith being an unaccepted order drawn by a third person on his agent, the defendant, in favor of the plaintiff, not alleging an acceptance or a knowledge of the order by the defendant, is bad on demurrer.</p> <p>Same.—A bill of particulars filed with a complaint is part thereof.</p>

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

<p>School Funds, Interest on.—-SinkingFund.—Statute Construed.—The act. of February 24ft, 1871 (Acts 1871 p. 6), providing for the distribution of the .sinking fund to the several counties, and that all loans hereafter made by the auditors and treasurers of such counties shall be at the rate of eight per cent, per annum, does not apply to loans, of school funds other than the sinking fund;</p> <p>Same.—Title of Act.—The title of said act embraces only the subject of the sinking fund.</p>

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

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

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

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

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

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

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

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

<p>Judgment.—Practice.—Error in Calculation.—A judgment wilt not be reversed for a slight error in calculation of the amount thereof.</p> <p>Evidence.—A judgment will be reversed where the evidence, uncontradicted, is, on one material point, against the finding.</p>

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

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

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

<p>Special Agent.—Payment.—Where property is sold to"the special agent of an undisclosed principal, on the credit of the agent, the principal, in a suit against him by the seller to recover the price, may show payment in full to the agent as a defence.</p> <p>Same.—Sale on Credit.—'Where a special agent purchases on credit, without disclosing his agency and without authority to purchase on credit, the principal is not liable, after having paid the agent.</p>

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

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

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

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

<p>Practice.—Appeal.—Notice to Co-defendant.—-Where two of three defendants appeal to the Supreme Court without notice of their appeal to their co-defendant, the appeal will be dismissed on motion.</p>

<p>Practice.—Parties.—Demurrer.—A defendant cannot demur on the ground that a co-defendant has been improperly united with him in the action. Such a cause of demurrer is not equivalent to the statutory one, that several causes of action have been improperly united. There may be but one cause of action, and yet improper parties maybe joined therein; and there may be several distinct causes of action improperly united, and yet in respect to each cause the plaintiffs and defendants be proper parties. Virden v. Ellsworth, 15 Ind. 144, qualified.</p>

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

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

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

<p>CRIMINAL Law.—Continuance,—An affidavit for a continuance In a criminal action, which stated that certain witnesses, whose names and residences were given, and upon whom, it was stated, process had been served, would prove the absence of the defendant from the place where the State would attempt to prove the commission of the crime, at the alleged tune of its perpetration, and which contained an averment that the facts were true, and could not be so readily established by other evidence, and that the absence of the witnesses was not of his procurement, entitled the defendant to a continuance.</p>

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

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

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

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

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

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

<p>Practice.—Special Verdict.—Draft iy Counsel.—It is the duty of the court, whenever a special verdict is demanded, to give each of' the parties the privilege and time required to prepare, with care, the draft of a special verdict. If either of the parties should refuse to avail himself of this-right, he cannot complain of undue advantage gained by the other party in thus presenting his views of- the evidence to the jury.</p> <p>RAILROAD.—Injury to Employee.—Ordinary Care.—Where an employee of a railroad company is injured in running a train, and such injury is caused by the negligence of his co-employee, the company is only responsible for ordinary care.</p> <p>Evidence.—Negligence.—Specific Acts.—For the purpose of showing that the officers of a railroad corporation did not exercise due care, prudence, and caution in the employment of, or in retaining in service, careful, prudent, and skilful persons to manage and operate its road, and for the purpose of charging such corporation with notice of the incompetency of its employees, specific acts of negligence or unskilfulness of such employees may be proved, and it may be proved that such acts were known to such officers prior to the-employment of such persons, or that such employees were, retained in such service after notice of such" acts.</p> <p>Principal and Agent.—Notice to Corporation.—Notice- to an agent of a corporation relating to any matter of which he has the management and control, is notice to the corporation^</p> <p>Practice.—Petition for 'Rehearing.—Questions presented for the first time otra petition for a rehearing will not be considered by this court.</p>

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

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

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

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

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

<p>City.—Drainage.—Injury to Adjoining Property.—Where, by its system of drainage, a city has accumulated a large flow of water on a particular street, it is its duty to provide for the escape of the water without damage to adjoining property.</p> <p>Same.—Railroad.—If a city permit a railroad company to occupy and cross streets and alleys, and require it to construct culverts, and the city adopt them for its use, and they prove insufficient, or become out of repair, the city will be liable for injury resulting to adjoining property by reason of such insufficiency.</p> <p>Same.—"While the city will not be liable for injury resulting from defective sewers constructed for the exclusive use of the railroad company, still she cannot delegate her general power and adopt the work of the company as part of her general system without responsibility for defects in the work. Practice.—Demurrer to Evidence.—On a demurrer to the evidence, it is the duty of the court to take as true' the propositions of fact established by the evidence, and to infer from the evidence every conclusion which the jury could reasonably have drawn from it.</p> <p>Same.—Interrogatories to Jury.—Where there is a demurrer to the evidence, interrogatories should not be submitted to the jury in assessing damages.</p>

<p>ÁPPEAL from the Montgomery Common Pleas.</p>

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

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

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

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

<p>Pleading.—Draining Company.—Copy of Articles.—A copy of the articles of association of a draining company does not properly form a part of a complaint in an action by the company to collect an assessment; and where such copy is filed with the complaint, a demurrer to the complaint does not present the question of the sufficiency of the articles of association.</p>

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

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

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

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

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

<p>Statute of Limitations of Another State.—Where, in a suit upon a promissory note, the defendant answered that at the time of the execution of the note he .was, and ever since had been, a resident of the State of California, and that.a.law of that state limits the bringing of such actions to four years, a reply that the plaintiff was a resident of the State of Indiana when the note was executed to him, and that payment was to be made here, was held insufficient.</p> <p>Pleading.—Departure.—New Promise.—A reply of a new promise to an answer of the statute of limitations is not a departure.</p> <p>Same.—Lost Instrument.—Where an instrument should be filed or copied with a pleading, an averment of its loss, and proper search for it, excuses the failure to exhibit it.</p>

<p>Promissory Note. — Statute of Limitations of Another State.—Suit, commenced in 1867, by tbe payee against the maker, on a promissory note dated in 1S51. The answer was a statute of California limiting such actions to four years, and alleged that the defendant had resided in that state for more than .that time before suit, and still resided there. Reply that both plaintiff and defendant resided in this State when the note was made; that defendant had removed from the State in 1852, and was still a non-resident; and that proceedings were commenced by attaching his interest in lands within the county where suit was brought.</p> <p>Held, on demurrer that the reply was insufficient.</p>

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

<p>Replevin.—Damages.—In a suit in replevin, the plaintiff cannot recover for his time spent in commencing the action.</p> <p>Same.—Where the property has been delivered to the plaintiff under a writ in replevin, it is error to render judgment for the value of the property.</p> <p>Practice.—Affidavit.—Sill of Exceptions.—An affidavit of matters occurring on the trial, as a ground for a new trial, must be made part of the record by bill of exceptions.</p>

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

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

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

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

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

<p>Railroad.—Liability for Work.—Sub-contractor.—A railroad company is not liable to one employed by a sub-contractor; for work done in the construction of the road.</p> <p>Demurrer.—Defect of Parties.—A demurrer for defect of parties must point out the party omitted.</p>

<p>Vendor and Purchaser.—Unrecorded Deed.—A purchaser, for a valuable consideration and without .notice, will be protected against an unrecorded deed,</p>

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

<p>Practice.—Judge pro Tem.—Where a motion for a new trial is heard by one acting as judge pro tem., who did not hear the evidence, and a bill of exceptions is signed by him in vacation, no reason being shown why the regular judge who heard the evidence did not sign the same, the bill of exceptions will be disregarded.</p>

<p>RAILWAY.—Cattle.—Fence.—If cattle come upon a railroad where there should be a sufficient fence, but there is not, and wander upon the road to a point where the road is not fenced, and cannot lawfully be fenced, and are there injured, the company is liable, and an answer to an action for such injury, under the statute, must show that they did not thus enter upon the road.</p> <p>SAME.—City.—A railroad company is not excused from fencing through a large block of ground, not intersected with streets and alleys, simply because the same is within the limits of a city.</p>

<p>Gift.—Inter Vivos.— Causa Moi-tis.—One who had entered the military service during the late war, a short time before starling for the army, in which he died, said to a' friend, in regard to a gun which he had loaned to that friend, “ Well, if I never return, you may keep the gun as a present from me.” Upon a suit by his administrator for the recovery of the gun;</p> <p>Held, that the facts did not make a gift, either inter vivos or causa mortis.</p>

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

<p>Practice.—Discharge of Jziry.—Qualification.—Where a portion of the plaintiff’s evidence has been given, and it is discovered that the jury has not been sworn, it is not error for the court to discharge the jury, and to have the same jurors called to try the case; and the statement by such a juror that he had formed no opinion from the portion of the evidence heard, is sufficient to show his qualification in that respect to serve.</p> <p>Contract.—Performance in Full Impossible.—Where one was employed for a stipulated sum to serve as a substitute in the army for one year, and the war closed when three-fourths of the period had passed, and he was discharged accordingly, he was held to be entitled to the full sum contracted to be paid, and interest thereon.</p> <p>Same.—Payment to Officer.—Where the money was payable to the plaintiff at Indianapolis, on his being mustered into the service, his consent that the money should be sent by a government officer did not change his rights or release his employer on payment to the officer.</p>

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

<p>Replevin.—Practice.—Denial.—Proof.—In an action to recover the possession of personal property under »a claim of title, a denial requires the plaintiff tp make out title in himself, and authorizes the defendant to introduce proof of title in himself or a third person, whereupon the plaintiff may introduce evidence to overthrow this and establish his title.</p> <p>Practice.—Bill of Exceptions.—The question as to the regularity of the appointment of an elisor by whom process has been served must be presented by bill of exceptions stating the facts and the ruling of the court.</p> <p>Chattel Mortgage.—Recording.—A mortgage of personal property must be recorded within ten days, to be effective against third parties, and actual notice is of no avail.</p>

<p>Married Woman.—Mechanic's Lien.—A wife may have full knowledge that her husband is about building a house upon her ground, and she may consent thereto and approve thereof, but this gives the builder no right to acquire a lien upon the property. To render her property liable, she must have done what would have made her personally liable as a feme sole.</p>

<p>Township Trustee.—Pztblic Funds.—Where a township trustee deposits the public funds in a bank in his individual name, and overdraws his accpunt, and uses the money so obtained to replace public funds-which he has •.■misapplied, the bank has no claim against the township.</p> <p>SAME.—Liability of Sztreties.—Where a new township .trustee is elected and qualified, the former trustee is no longer an officer de jztre or de facto, and the sureties on his official bond are not liable for his act in giving an obligation to a bank as trustee, to repay the amount of his account overdrawn in his individual name.</p>

<p>TAX Title.—Statutory Action.—The purchaser of land at a tax sale, his heirs or assigns, on failure of title, may maintain an action for the purposes, and to the extent,named in sections 172,173,pp.'uo, III, I G.&IT. Only the last vendee of the tax title, from whom the land is recovered, or his heirs, can maintain such action; an intermediate holder cannot sue.</p>

<p>Justice of the Peace.—Law and Equity.—Justices of the peace, where they have jurisdiction of the subject-matter of an action, except where there is a special provision of law to the contrary, may apply thereto equitable as well as legal principles, in the same manner and to the same extent as judges apply them in higher courts.</p> <p>Same.—Jurisdiction in Foreclosure.—A justice of the peace has not jurisdiction to foreclose a mortgage of personalty.</p>

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

<p>APPEAL from the Dubois Common PJeas.</p>

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

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

<p>Parent and Child.—JBomity.—"Where a father had not forfeited his right to the custody and earnings of his son, who was but sixteen years of age, and not liable to military duty, he was entitled to a local bounty paid upon the son’s entering the military service.</p>

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

<p>Motion for New Trial.—Newly-Discovered Evidence.—Affidavit.— An application for a new trial, on the ground of newly-discovered evidence, is bad, if the affidavits of the witnesses whose evidence is sought to be obtained are not filed, or good reason shown why their affidavits have not been procured.</p> <p>Same.—'Where such witnesses reside in the town or city where the cause has been tried, the fact that the party seeking the new trial is in custody is not a sufficient excuse for not producing their affidavits.</p> <p>Same.—If there has not been time to procure the affidavits of the witnesses, time should be asked for that purpose.</p>

<p>Attachment.—Proceedings in attachment and garnishment are mere incidents to the main action, and depend upon it.</p> <p>Same.—jurisdiction.—Construction of Statute.—In an attachment proceeding, ■where the principal defendant is a resident of the State, the place of his residence determines the jurisdiction of the court. The provisions of section 162, 2 G. & H. 142, do not change the general rule which requires actions to be brought in the county where the defendant has his usual place of residence.</p>

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

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

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