Volume 39 — Indiana Reports

<p>Criminal Law.—Trial.—Construction of Statute.—The word “trial,” as used in section 120, 2 G. & H. 420, is not used in its limited and restricted sense, but in a general sense, and includes all the steps taken in a criminal action from the submission of the cause to the jury to the rendition of judgment.</p> <p>Same.—In a criminal action, until a motion for a new trial which has been filed is disposed of, the cause is pending in court, and the parties are presumed to be in court.</p> <p>Same.—Bill of Exceptions.—In the progress of the trial of a criminal action, a bill of exceptions was prepared and presented to the judge, but was not signed or filed with the clerk during that term, but was signed and filed at the second term thereafter, that being the term at which a motion for a new trial in the cause was determined and judgment rendered.</p> <p>Held, that the signing and filing were within the time prescribed by the statute.</p> <p>Same.—A bill of exceptions in a criminal cause cannot be signed and filed after the term at which judgment is rendered.</p> <p>Same.—Postponement of Trial.—While a cause was being tried on an indictment for murder, and before the defence had closed, a material and compel tent witness for the defendant, who had been served with process, became seriously ill and unable to appear and testify; whereupon it was agreed, in open court, between the defendant and his counsel and those engaged in the prosecution, that if the witness should be able to appear at any time before the cause was submitted to the jury, he should be allowed to testify; and if he should not be able to appear, then the defendant should have the same right to move for a postponement of the trial that he would have if the motion had been made before the close of the defence, and with like effect. With this agreement, the parties proceeded until the rebutting evidence on the part of the State was closed, whereupon, the defendant’s witness not yet being able to be present, a motion was made to postpone the trial for eight days, which motion was supported by affidavits showing the materiality of the facts expected to be proved by the witness, and that dining the trial he had been suddenly taken ill and could not, without great danger, leave his house, etc.</p> <p>Held, that it was error to refuse to postpone the trial.</p>

<p>Promissory Note and Mortgage.—Assignment and Additional Mortgage.—■ Subrogation.—B. executed to H. certain promissory- notes and a mortgage to secure their payment; H. afterward purchased lands of T., and in part payment transferred the notes and. mortgage of B., and with his wife executed a mortgage on the land purchased to secure the payment of these notes, and stipulated to pay them; T. transferred the notes and mortgage to E., who foreclosed the mortgage executed by B., and took personal judgment against him on the notes; W. became bail for the stay of execution on the judgment, and was compelled to pay the same, and received a transfer from E. of any interest he' held in the mortgage executed by PI. and wife. Suit by W. asking to be subrogated to tbe rights of E. in this mortgage, B. being insolvent..</p> <p>Held, that there was no equity in the case made, and a demurrer to the complaint setting up these facts was properly sustained.</p>

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

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

<p>Witness.—Statute.—Heirs.—Under the second proviso in the act of March nth, 1867, 3 Ind. Stat. 559, “defining who shall be competent witnesses,” etc., the word “heirs” includes all persons who take any portion of the es-late under the statute of descents, or who would have thus taken, did they not take by virtue of a will. A widow taking by will is an heir.</p> <p>SAME.—Chose in Action.—The words “other property,” in the proviso, do not apply to an action brought upon evidences of debt or things in action, which belonged to an ancestor and descended under the statute to an heir, or were bequeathed by a will to a person who would have inherited under the statute.</p> <p>Same.—Assignment of Claims.—Under the first proviso of said act regarding witnesses, the assignment of uncollected claims, when made in the mode prescribed for assigning such claims to heirs or legatees, does not restore the competency of witnesses, who would have been incompetent if the action had been brought by an administrator or executor.</p>

<p>Fees.—Criminal Law.—Under the present statute (Acts 1871, p. 26, sec. 5), on. an indictment or information against two or more, a separate docket fee is chargeable against each defendant who pleads guilty, or who is convicted on a plea of not guilty.</p>

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

<p>Board of County Commissioners.—Aid to Soldiers’ Families.—Appeal.—A., in March, 1869, filed her petition before the Board of Commissioners of Monroe County, alleging that she was the widow of a soldier who had served in the anny of the United States from. August, 1862, until the 26th day of June, 1865, when he was honorably discharged by reason of disability contracted in the service; that while in the service, he had a wife, the petitioner, and three children under twelve years of age; and that she was entitled to have and receive twelve month’s pay at the rate of fourteen dollars per month, out of the fund collected in said county on the levy made under the act of March 4th, 1865, for the relief of families of soldiers, seamen, etc. The board of commissioners disallowed the claim, and the petitioner appealed to the 'court of common pleas, and by that court the appeal was dismissed.</p> <p>Held, that as the later act of December 20th, 1865, in terms repealed the act of March 4th, 1865, and provided further, that all disbursements of the funds raised under the act repealed should ’cease on and after the 3d day of March, 1866, and as the claim of the petitioner was one to obtain a sum. claimed to be due under the act of March, 1865, as modified by that of December, 1865, and as the claim was not made until long after the 3d of March, 1866, when disbursements were to cease, it was wholly within the discretion of the board of commissioners to allow it or not, and no appeal lay to any other court from the -action of the board.</p> <p>SAME.—Case Overruled.—Under the provisions 'of said act of December, 1865, none of the persons enumerated in the repealed act can claim, as a matter of right, any portion of the fund, since the 3d day of March, 1S66. Board of Commissioners of Clinton County v. McDowell, 30 Ind. 87, overruled.</p> <p>Appeal.—Board of Commissioners.—There is no statute which authorizes an appeal from the action of the board of commissioners upon a matter involving no question of legal right, but simply a matter for the exercise of the discretion of the board.</p>

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

<p>Judgment.—Purchase Before Execution.—Although a judgment by confession has been obtained against a debtor, yet another creditor who purchases the personal property of the debtor without fraud, and to secure a precedence over the judgment, before an execution has been .issued thereon, Is entitled to the advantage obtained, although the debtor may have acted In bad faith toward his judgment creditor, the purchaser having ho notice thereof.</p>

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

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

<p>Criminal Law.—Affidavit,—Jtistice of the Peace,—Where an affidavit for an assault and battery is the basis of a prosecution before a justice of the peace, the defendant may be tried thereon on appeal without any information being filed. But such affidavit must enumerate and charge all the substantial elements that enter into the statutory description of the offence. Such an affidavit, that fails to charge the act to have been unlawful and done in a rude, insolent, and angry manner, or that does not contain an equivalent allegation, is defective.</p>

<p>■Statute.—Construction.—Rule of.—The rule of construction, that “words importing the singular number only, may also be applied to the plural of persons and things” (sec. 798 of the code), is only to be applied to the words of a statute or instrument when the plain and evident sense and meaning of the words, to be derived from the context, render such a construction necessary to give effect to the intention of the maker of the statute or instrument.</p> <p>Same.—Title of Act.—The title of a statute may be a guide to the intention of the law-makers, where the statute appears to be ambiguous or doubtful.</p> <p>SAME.—Railroads.—Aid by Counties to Railroad Companies.—Under the act of May 12th, 1869, “ to authorize aid to the construction of railroads by counties,” etc., it is not legal for the board of commissioners of a county to submit to the voters of the county a proposition to vote for or against an appropriation to two or more railroad companies at the same time, when the proposition is so submitted that the voters cannot vote for one and against the other, but must vote for both or against both.</p> <p>Saids.—The rights and powers conferred by said statute can only be exercised in strict conformity to, and by a rigid compliance with, the letter and spirit of the act.</p>

<p>Warranty.—Fraud.—A transaction cannot be sharacterized. as a warranty and a fraud at the same time. '</p> <p>Same.—Contract.—Tort.—A warranty rests upon contract; while fraud or fraudulent representations have no element of contract in them, but are essentially a tort.</p> <p>Same.—Parol Evidence.—If a suit is founded on a warranty in the sale of a patent right, then the contract of warranty must be in the deed by which the law requires these rights to be transferred; and if it does not so appear in the deed, it cannot be shown by parol.</p> <p>Fraudulent Representations.—The purchaser of a patent right may rely upon the representations of the seller as to what is covered by the patent.</p> <p>Same.—If there is no patent for a part of that which is exhibited by the seller to the buyer as an invention, there is fraud.</p> <p>Pleading.—Answer.—Fraud.—Rescission.—In a suit upon a promissory note given for a patent right, where the maker of the note defends on the ground of fraud in the sale of the patent, where the right has been conveyed to the maker, and he does not allege in his answer that he has made no profits out of its use or sale, or an offer to reconvey the right within a reasonable time after discovering the fraud, the answer is bad.</p> <p>Estoppel.—Where the maker of a promissory note is inquired of by a person proposing to take an assignment of the note, as to the validity thereof, and answers that he has no defence against it, he is estopped from setting up any defence against such person or his assignee.</p>

<p>Witness*—Note Assigned by Administrator.—In an action by an: assignee of the administratrix of an estate, on a promissory note executed to the decedent, and assigned under the statute to the plaintiff asan heir, the maker of the note is not a competent witness to prove payment of the note to the decedent.</p>

<p>Judgment.—Statute of Limitations.—A. contracted to do certain work in the improvement of a street of a city; B. was his surety on a bond for the performance of the work. Afterward,-In a suit of A. against B., it was adjudged that B. should pay and satisfy all indebtedness of A. on account of said improvement</p> <p>Held, that A., to whom certain claims for labor done in making said improvement had been assigned, could maintain a suit against B. on said claims.</p> <p>Held, also, that by the judgment in said suit óf A. against B., the claims assigned to A- became the debts of B., and no longer the debts of A.</p> <p>Held, also, that the action of A., on the claims assigned to him, against B., was upon the former judgment of A. against B., and was not, therefore, barred by thestatute of limitations, although the accounts for work and labor upon which the claims were based accrued more than six years before suit.</p>

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

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

<p>Married Woman.—Conveyance.—The separate deed of a married woman is void, and passes no title to her lands.</p> <p>Same.—A married woman holding real estate descended to her from a previous husband, cannot, with or without the consent of her husband, convey the real estate so held.</p> <p>Rent.— Void Contract of Purchase.—A person who takes possession of a tract of land under a contract of purchase that is absolutely and unconditionally void, is liable for the rent of the premises.</p> <p>Estoppel.—A party can never be estopped by an act that is illegal and void.</p> <p>Vendee.— Void Contract.—Lien.—One who has purchased real estate from a married woman who had no power to sell or convey has no lien on the land to secure the repayment of the purchase-money; nor has he any right to retain possession until he is repaid the amount paid upon the void contract of purchase.</p> <p>Equity.—A right in equity cannot grow out of an illegal and void transaction.</p> <p>Tenant in Common.—Conveyance.—One tenant in common, owning an undivided interest in real estate, cannot convey to a stranger a certain portion of the tract held in' common, and put the purchaser in possession of the portion conveyed.</p>

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

<p>Bank.—Deposit of Money.—When money is deposited with a banker, it is payable on demand at the bank, unless some other agreement has been made with reference to its payment.</p> <p>Same.—The banker may pay the money upon an oral order, or transfer it from one account to another, and such oral order will be a sufficient authority and justification for so doing; but the banker is under no-obligation to act upon such oral direction.</p> <p>Same.—By the usages of the banking business, the banker is entitled to some written evidence of the order for money upon payment thereof.</p> <p>Same.—A banker, it was peld, was not bound to pay money held for one on deposit, on a note held by a third person, upon the oral request of the depositor, when it was not shown that it was proposed to surrender the note to the banker, or to give any other evidence of the payment of the money.</p> <p>Pleading.—Complaint.—A complaint to recover money deposited with a banker should show that some form of written evidence of payment was offered.</p> <p>Bank.—Money Deposited.—Depositor.—A banker will always be justified in making payments upon the orders of the person who made the deposit, or upon orders of any person whom he designates as competent to control it, until he has notice that the ownership is claimed by somebody else, adversely to either of these parties.</p> <p>Same.—Any obligations which a bank voluntarily assumes on the strength of a depositor’s ownership, as by certification of checks or otherwise, or any obligation which has been imposed upon it by operation of law, as by process of garnishment, may be secured and discharged by retention in its possession of a sufficient sum from the fund on deposit to meet and acquit the same.</p>

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

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

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

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

<p>Pleading.—Complaint.—An. allegation in a’complaint, that the defendant is indebted to the plaintiff,” is sufficient to show that the debt is due and unpaid.'</p>

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

<p>Motion for New Trial.—Misconduct of fury.—Alleged misconduct of the jury, consisting of statements made by one or two jurors in the' jury room, that the defendant is “ a wealthy man,” if any reason for a new trial, is not sufficiently sustained by the oath of the defendant that he had been informed apd believed that such statements had been made in the jury room.</p>

<p>Mechanic’s Lien.—Remedy.—The remedy provided by section 649 of the code, for sub-contractors, journeymen, and laborers, employed in the construction or repair of a building, or furnishing materials therefor, is purely personal, while the remedy provided by section 650 is in rem.</p> <p>Same.—Notice.—Under said section 649, the notice need not describe the premises ; and a party is entitled to pursue the remedy provided by that section, although he may also have taken- the steps necessary to create a lien on the premises.</p> <p>Same.—Notice.—Description of Premises.—In a notice of intention to hold a mechanic’s lien, the premises were described as “ a certain building, three-story high, with the lower story finished off with a stone front, situated on the eighteen feet on the east side of town lot number fifty-eight, in Washington, formerly called Liverpool, in said county” (the county having previously been named in the notice).</p> <p>Held, that the description was sufficient.</p>

<p>Supreme Court.—Jurisdiction.—Divorce.—Allowance to Wife.—Oa an appeal from a judgment in a proceeding for a divorce, tlie Supreme Court cannot, on the application of the wife, originally made to that court, order an allowance to the wife, to be paid by the husband, for her support and the support of her children during the pendency of the appeal.</p>

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

<p>Pleading.—Exhibits.— Written Instruments.—A judgment is not a written instrument within the meaning of the statute requiring copies of written instruments which are the foundations of actions or defences to be set out in pleading.</p> <p>'Same.—Judgment.—In pleading a judgment, it is not necessary to allege, in addition to the statement of its recovery or rendition, that it still remains in full force, and has not been set aside, vacated, or reversed.</p> <p>Same.—Former Adjudications.—In an action to recover the possession of real estate, if the defendant pleads a former adjudication and judgment of title in the defendant, it is not necessary that he should further allege that he is still vested with the title. If the title has since become vested in the plaintiff, this may be set up in reply.</p> <p>Same.-*—To a complaint in two paragraphs, one for the possession of real estate, and the other to quiet the title of. the plaintiff, an answer of former adjudication and judgment of title in the defendant is good as to each paragraph.</p> <p>Same.—Answer.—To a complaint to recover the possession of real estate, and to quiet the title of the plaintiff, an answer alleging that in a former suit by the plaintiff against the defendant, the defendant was charged with having committed a trespass upon the real estate in question, by cutting and carrying away timber trees growing thereon, and that after issues were joined, the cause was tried, and the only question litigated in the trial was the title to the real estate, and that a finding and judgment was rendered therein in favor of the defendant, was held a good answer.</p>

<p>City.—Annexation of Territory. — Cotmty Commissioners.—Aj>j>eal.—No appeal lies from the decision of a board of county commissioners annexing contiguous territory to a city.</p>

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

<p>Action. — yudgtnent.—Foreclosure.—A mere judgment of foreclosure of a mortgage, without a personal judgment for the debt, or for the recovery'of -the residue after the mortgaged premises have been sold and the proceeds applied, cannot be made the foundation of an action for the purpose of collecting an unpaid balance of the debt secured by the mortgage.</p> <p>Pleading.—Joint Action.—Demurrer.—Where two or more plaintiffs join in an action, unless the complaint shows a right of action in favor of both or all of them, a demurrer will lie upon the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Pleading.—Fraud.—An allegation that a judgment debtor suffered certain mortgaged premises to be sold on execution, subject to incumbrances, for a nominal sum, is not sufficient to constitute a fraud on the part of the judgment debtor.</p> <p>Same.—In a complaint to subject real estate held by a wife to the payment of a debt of the husband, it must be clearly shown that the wife knew of the alleged fraudulent intent of the husband in causing the real estate to be conveyéd to her, and that she took the conveyance in order to cheat, delay, or defraud the creditors.</p>

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

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

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

<p>Divorce.—Order for Payment of Money.—Where, during the pendency of a proceeding for a divorce, the wife filed an affidavit that her husband was the owner of real estate of the value of six thousand dollars and personal property worth eight hundred dollars, and that she had no money or property to enable her to prepare her case for trial, it was proper for the court to order the payment by her husband into the cleric’s office of one hundred dollars for her use. On an appeal from such an interlocutory order, no question will be considered involving the sufficiency of the complaint for a divorce.</p>

<p>Soldier’s Widow.—Relief.—Since the 3¿t'of March, 1866, widows of soldiers who died of disease contracted in the military service of the United States cannot, under the statute of March 4th, 1865, as a matter of right, enforce any claim against a county on account of said services.</p>

<p>Constitutional Law.—Incorporated Company.—A county cannot, under section 6 of article 10 of the constitution, take stock in any incorporated company without paying the money down; and section 17 of the act of May 12th, 1869, for aiding railroads, does not conflict with this provision of the constitution.</p> <p>Stock in Incorporated Company.—County Commissioners.— Voters.—All the acts of county commissioners and the voters of a county, in taking steps to raise money to take stock in an incorporated company, are between themselves, one the principal, and the other the agent; there is no contract with the incorporated company, nor has she any right in, or control over, the matter, until the money is raised and the stock taken.</p> <p>SAME.—Mandate.—One or more of the voters might, in such case, maintain a suit for a mandate against the commissioners, to compel them to act, but the incorporated company cannot maintain such suit. ■</p> <p>Same.—Where money is raised for the purpose of taking stock in a railroad company, the company cannot have any of the money until she has fully constructed the road, so that cars shall pass over the same; and no one but a petitioner, or a tax-payer, can have a mandate to compel the payment of the money.</p>

<p>Mechanic’s Lien.—Recording Notice.—Notice of intention to hold a mechanic’s lien must be recorded in a book kept for that purpose. Recording the notice in the mortgage record is a nullity.</p> <p>Same.—Married Woman.—Where a married woman is the owner of real estate in her own right, and the proper steps have not been taken to create a mechanic’s lien, in the absence of any contract made by her for the making of improvements thereon, and in the’absence of evidence showing that the improvements made were necessaiy to the full and complete enjoyment of her separate property, neither she nor her real estate can be held liable for the making of such improvements.</p>

<p>PRACTICE.—Assignment of Error.—An assignment that the court erred in excluding the evidence of a certain witness raises no question, where there is no general assignment that the court erred in overruling a motion for a new trial, and there is an assignment of error in refusing to grant a new trial placed on other specific grounds only; although the exclusion of the evidence was mentioned in the motion as a reason for a new trial.</p> <p>Motion for. New Trial.—Misconduct of Jury.—A motion for a new trial on the ground of misconduct of the jury, if not supported by affidavit, is properly disregarded.</p>

<p>Recognizance.—Suit on.—Criminal Courts.—An action cannot be commenced against the bail upon a forfeited recognizance, until after the adjournment of the term of court at which the forfeiture occurred; and this rule applies to criminal courts, that hold but two terms in each year.</p>

<p>Pleading.—Answer.—Demurrer.—An answer which assumes to answer the-entire cause of action, but which answers only a part, is bad.</p>

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

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

<p>Evidence.—Stamp.—An objection to the introduction in evidence of a ■written contract, on the ground that the United States revenue stamp required by law . affixed thereto was cancelled only with the initials of the party signing the Contract, without the date, was properly overruled.</p>

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

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

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

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

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

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

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

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

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

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

<p>Pleading.—Exhibit.—Set- Off.—Promissory Note.—An answer offering to set off a note must be accompanied by the note or a copy thereof, or must show a reason why this is not done.</p> <p>Executor.—Assignment of Note.—An executor may transfer, by assignment, a note due his testator, so as to vest the title in the assignee.</p>

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

<p>¡Practice.—Finding.—Where the finding is not clearly wrong, upon the evidence, although it may not be clearly right, this court will not, upon the evidence, disturb the judgment.</p> <p>:SAme.—Motion for New Trial.—Surf rise.—An affidavit pointing out the particulars in which the plaintiff was surprised by the evidence of the defendants, who were examined as witnesses on the trial, and naming witnesses by whom 'he could prove the opposite of what was testified to, it was held, was not ground for a new trial.</p> <p>'Same.—Cumulative Evidence.—Where the plaintiff had already testified on the point, such evidence would be only cumulative, and therefore no ground for a new trial.</p> <p>'Same.—Exceftion to Judgment.—Conceding that the noting of an exception 'to a judgment, in the record, by the clerk, sufficiently saves the exception, without a bill of exceptions, still there, must be some pointing out of the objection to the judgment as rendered.</p>

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

<p>Practice.—Demurrer.—A demurrer assigning no cause of demurrer should be overruled.</p> <p>Same.—Joint Demurrer.—A demurrer to several paragraphs jointly, one of which is good, should be overruled.</p>

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

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

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

<p>Replevin.—Dismissal.—Judgment for Return of Property.—There can be no judgment for the return of the property, where the plaintiff in an action 6f replevin dismisses his action before a finding is announced by the court or a verdict is returned by the jury. (Downey, J., dissented.)</p> <p>Same.—Failure to. Prosecute.—Liability of Sureties.—Such dismissal of the action will render the sureties on the replevin bond, liable for a failure of their principal to prosecute the action with effect.</p> <p>Same.—Pleading.—Answer of Property in Plaintiff.—An answer to an action on the bond, of property in the plaintiff in the action of replevin, constitutes no defence to the action, but the fact goes in mitigation of damages.</p> <p>Statute.—Certificate of Clerk to Record.—Section 283 of the code is to be construed in connection with section 4 of the act providing for the election of clerks and prescribing some of their duties, in determining the sufficiency of the certificate of a clerk to a record. Accordingly, a certificate enumerating certain papers is not sufficient, if it does not show that the papers named are “complete copies of all the papers;” nor does a certificate that “the record entries of same in the above entitled cause, now on file and of record in said office,” cover and embrace “ all the entries of such cause.”</p> <p>Replevin Bond.—Recital of Value.—The recital, in a replevin bond, of the value of the property is sufficient evidence of the value, in an action on the bond, and estops the plaintiff and his sureties from denying the same.</p>

<p>Contract.—Speculative Damages.—Profits.—Suit for work and labor in the construction of a gravel road. A counter claim was filed, claiming damages for the failure to complete the road at the date contracted, and an item specified was “ the loss of tolls she might have received.” This item was struck out on motion.</p> <p>Held, that the ruling was correct, as the damages were too vague and uncertain to be ascertained.</p>

<p>CRIMINAL Law'.—Carrying off JProdttds of Soil.—License.—Revocation.—The defendant, in a prosecution for entering on land and carrying away products of soil, had sold hay to the prosecuting witness, on condition that he might enter, in the fall, into her corn-fifeld, and' gather and remove a sufficient amount of corn to pay for the hay. He entered to gather the corn, and she forbade him to gather. He proceeded to gather a quantity of a value less than that of the hay. The court, on the trial, instructed the jury, that a “license may be granted by parol; and as long as a party is acting under such license, he will not be a trespasser; but such license may be revoked at any time. If the defendant entered upon the lands of the prosecuting witness, under a parol license, and before he gathered any corn she forbade his gathering, and the defendant, after being forbidden, did gather and remove the said corn from the premises, without the consent of the prosecuting witness, the act was unlawful, and the defendant was liable.”</p> <p>Held, that the charge was erroneous, as a license cannot be revoked, where it is coupled with an interest and supjaanjgd by a valid consideration.</p>

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

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

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

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

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

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

<p>County Commissioners. — Appeal.—No appeal lies from the decision of a board of county commissioners upon an application of a turnpike company for leave to construct its road along a public highway.</p>

<p>Receiver.—Insurance Company.—Complaint.—In a suit by a receiver of a mutual insurance company, against a member of the company, for his proportion of losses, the complaint must show that the losses which are to be paid with the money to be collected from the assessments occurred during the time the defendant was a policy holder and member of the company.</p>

<p>New Trial.—Cause.—That the court erred in sustaining a demurrer to an answer, is not a cause for granting a new trial.</p> <p>Corporation.—Estofflel.—A party who contracts with a corporation, as such, is precluded from questioning the organization of the corporation.</p>

<p>Practice.—Motion for New Trial.—Reasons.—“ That the court erred on said trial in the rejection of evidence offered by the defendant, which ought to have been received,” and “ that the court erred in receiving evidence on the part of the plaintiff, which was objected to by'the defendant, and which ought to have been rejected,” as statements of reasons for a new trial, are too vague and indefinite to be considered on appeal.</p>

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

<p>Judgment by Default.—Practice.—Appeal.—Where a judgment has been taken by default, the defendants having been personalty served, a motion to set aside the default, showing merits in the defence, or proceedings for relief from the judgment, or to review it, must be made in the court below, before appeal.</p> <p>Practice.—Pleading.—Misnomer.—Amendment.—A complaint upon a promissory note, containing a misnomer or an omission to set out the full name, where the summons contains the full name and has been duly served, may be amended to correspond with the summons; and on appeal, this court will consider the amendment as made.</p>

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

<p>Witness.—Administrator.—Where suit was brought on an official bond against the principal and a surety and the administrator of a deceased surety, and the process was returned, as to the administrator, “ not found,” and no steps were taken to have the cause continued as to such administrator for further process, and the plaintiff proceeded to trial as to the other defendants, the suit abated as to the administrator, and he was not afterward a party, if he was so before, and the plaintiff could testify as a witness in his own behalf.</p> <p>Ratification.—Liability as Surety.—Where the surety denied that he executed the bond, and there was evidence that he afterward assented to his ñaméis remaining on the bond, the jury were authorized to find him liable on the bond for money received by his principal after such assent, and not paid over.</p>

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

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

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

<p>Pleading.—False Imprisonment.—A complaint for arrest and false imprisonment need not aver that the acts complained of were done illegally, or wrongfully, or without competent authority.</p> <p>Same.—Answer.—An answer which attempts to justify the arrest and imprisonment must identify the trespass justified with that complained of, or it'will be bad on demurrer.</p>

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

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

<p>PLEADING.—Account Stated.—Promise to Pay.—In a paragraph of a complaint on an account stated, the allegations were, “ that on the 1st day of January, 1870, the defendant was indebted to the plaintiff in the sum of one thousand and seven dollars and eighty-four cents, for money found due from said defendant to the plaintiff upon an account then stated between them; which said sum, together with the legal interest thereon, remains unpaid, for which he demands judgment.”</p> <p>Held, that the promise to pay was impliedly included in the allegations of said paragraph.</p> <p>Same.—The stating of the account was not conclusive, but errors might be shown and corrected under the general denial.</p> <p>Practice.—Demtirrer.—The sustaining of a demurrer to a pleading is not available .error, when the same evidence may be introduced under another pleading in the cause.</p> <p>Pleading.—Answer in Part.—A pleading which, professing to answer an ■entire .paragraph, only answers as to a part thereof, is bad.</p> <p>Practice.— Waiver of Objections.—This court declined to consider any question as to the right of a temporary judge to hold a court, where all objections thereto were waived of record by the parties.</p> <p>New Trial.— Verification of Reasons.—Improper conduct of the jury, in that they added up the amount of defendant’s accounts and divided by the figure 2 for the purpose of arriving at a verdict, as a cause for a new trial, must be supported by affidavit, if sufficient otherwise; and so, also, an allegation of accident or surprise which the party making the motion could not have guarded against.</p> <p>Partial Account Stated.—Not Conclusive.—A partial statement of the accounts by the parties, without arriving, at any balance, is not binding upon them as an account stated.</p>

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

<p>Soldiers.—Bounty.—An order was passed by the board of commissioners of Monroe County, that they “ agree and do give to each volunteer from Monroe county, under the present call for,” etc., a certain sum to be paid in cash or county orders, “ upon the full quota being made up and mustered into the ser.vice of the United States.” This order was amended, “so that each man volunteering, and being legally mustered into the service of the United States shall be entitled to and receive a warrant on the treasury of Monroe county for one hundred dollars; said warrant to be issued whenever satisfactory proof is made to the auditor that said volunteer has been duly mustered into the service of the' United States.”</p> <p>Held, that the first order entitled the volunteer who complied with the order to the bounty, upon the full quota of the county being made up. The amended order did not take away the right to the bounty given in the original order, but left out the condition as to making up the quota in full. It authorized the auditor to issue the warrant on satisfactory proof made before him; but this did not make the furnishing of such proof to the auditor a condition precedent to the right of the volunteer to receive the bounty, or to his right of action to recover it.</p> <p>Held, also, that where a citizen of Monroe county volunteered while these orders were in force, and was mustered into service and credited to Monroe county, the right to the bounty was made out.</p> <p>Same.—Repeal of Order.—On March nth, 1864, these orders were repealed, and it was “ directed that no order or warrant be issued to any person who shall volunteer in the service of the United States, or who shall be mustered into said service after this date.”</p> <p>Held, that the repealing order could not defeat any right acquired by a volunteer under the repealed orders prior to the date of the repeal.</p>

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

<p>Court.—Adjournment and Adjourned Term.—It is not necessary for a court to assign reasons for an adjournment and the holding of an adjourned term.</p> <p>Practice.—Reasons for New Trial.—“ Error of the court during the trial in excluding the evidence of the defendant,” is not sufficiently definite as a reason for a new trial. —</p>

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

<p>Liquor Law.—Indictment.—An indictment for selling intoxicating liquor need not state the kind of liquor sold.</p> <p>SAME.—“Barter and Sell.”—An allegation that defendant “did barter and sell,” with an averment that the liquor was sold for twenty cents, is good, the word barter being regarded as mere surplusage.</p> <p>Same.—Allegation.— Proof.—An allegation that the liquor was sold to be drank in the house, out-house, stable, yard, and garden where sold, does not vitiate the indictment, but may enlarge the proof to be made by the State. Fees and Salaries.—Constitutional Law.—The fee and salary act of 1871, so far as it fixes fees, is constitutional.</p>

<p>Draining Association.—Suit on Assessment.—Defect in Articles of Association.—In a suit by a draining association to compel the payment of an assessment made upon the lands of the defendant, the articles of association are not properly part of the complaint, and if it be attempted to make them a part thereof, advantage cannot be taken of a defect in them by demurrer.</p>

<p>Election.—Ballot.—Distinguishing Marks.—The words “ Republican Ticket,” or“Republican County Ticket,” or “Republican Township Ticket,” upon the face of a ballot do not authorize the rejection of the ballot, under the 23d section of the registry act of 1.B67.</p>

<p>Contract.—Garnishee.—Warranty.—A contract recited that certain personal property was sold by A. to B., with a warranty that the value was a certain amount; and that the goods were to be paid for by C., who accepted thé contract and agreed to comply with its terms.</p> <p>Held, in an action by D. against A., in which process of garnishment was taken against C., that the latter might set up, as a defence to a note given by him to A. under said contract, the failure of consideration, in that the property was not of the value warranted, although the property had been delivered to B.</p>

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

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

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

<p>Contract.— Termination by Notice.— Damages.—Suit against a city for damages for violating a contract employing -the plaintiff for one year to light the street lamps, and authorizing the defendant to terminate the contract by giving one month’s notice in writing. The contract was terminated by.the defendant without such written notice.</p> <p>Held, that the following charge was correctly given: -“It is of the.contract between plaintiff and defendant that the defendant should Vhave'the fight'to declare'the contract at an end after giving the plaintiff one month’s notice in writing of such fact; and it is for you to find from the evidence whether such notice was given; then, after one month from the time when such notice was given, the defendant was no longer liable to plaintiff. But if such notice was not given, then the plaintiff is entitled to such damages as necessarily resulted from the refusal, if any, of the defendant to allow plaintiff to fulfil his contract in lighting the lamps, which may be for such loss as the plaintiff actually suffered by being thrown out of employment during the time, or any part thereof, he was employed under the contract. Such notice must have been given by the city. A notice by a councilman, without authority of the common council, is not such notice.- But a notice given by the city clerk, thereunto ordered by the common council, is sufficient.”</p>

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

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

<p>APPEAL from the Tipton- Circuit Court.</p>

<p>Railroad.—Appropriation of Real Estate.—Appraisers.— Qualification of furors.—The first-appraisers appointed under section 15 of the railroad act (1 G. & H. SP9, 510) must be freeholders; and if the court, upon exceptions, order a new appraisement, the appraisers must possess the same qualification; but if either of the parties excepting to the first appraisement insists upon a jury trial, the jurors need only be reputable householders. It is otherwise, if the proceedings are under the act relating to-the writ for the assessment of damages.</p> <p>Practice.—Number of Witnesses.—Taxation of Costs.—On an appeal to the Supreme Court, it will not examine the general bill of exceptions and compare the statements of the witnesses, to determine whether more than three witnesses testified to the same fact, in order to decide a question of the taxation of costs.</p> <p>Same.—Summons for Witnesses.—Costs.—On a motion to tax costs, it cannot be held that more than one summons cannot be issued, for witnesses of the same party, to the same county, at the same term of the court.</p>

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

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

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

<p>Proceeding Supplementary to Execution.—Section 519 of the Code.—The complaint in a proceeding supplementary to execution, under section 519 of the code, must state that the execution debtor Has property which he unjustly refuses to apply toward the satisfaction of the judgment.</p> <p>Same.—Section 518 of the Code.—Execution Against Part Only of Judgment Defendants.—If the language of section 518 would seem to contemplate the issuing of an execution against part only of the judgment defendants, it must be held to apply to cases where by statute for any cause such separate execution may issue. The execution should issue not only against the execution * defendant, but also against the replevin bail, to authorize proceedings supplementary to execution.</p>

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

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

<p>Pleading.—Mandate.—Treancrer of State.— Warrant.—To sustain a mandate against the treasurer of state, requiring him to pay a warrant drawn by the auditor of state, July 13th, 1859, on the swamp land fund, and presented for payment September 25th, 1869, it was not sufficient that it was alleged, that there was money in the treasury applicable to the payment when the warrant was drawn, but it should also have been averred that there were sufficient funds in the treasury proper to be so applied when the warrant was presented.</p>

<p>Contract.—Specific Performance.—Statute of Frauds. — Where a father induced his daughter, her husband and children, to break up their residence and move a long journey, at considerable expense, to a place near his home, that he might enjoy their companionship, by a promise to convey land to the daughter, and he, accordingly, purchased and placed them in possession of land upon which they made valuable improvements, and of which he made a deed, but had not delivered it to his daughter when she died;</p> <p>Held, in an action by the husband and children (after the death of the daughter), against the father, for specific performance of the contract, that there was a good and valuable consideration for the contract, it was not within the statute of frauds, and must be enforced in their favor.</p> <p>Same.—Demand.—The father wholly denying any obligation to perform said equitable contract, a demand of him for a deed was not necessary to entitle the husband and children to maintain said action.</p>

<p>Street Railroad.—Contributions.—Damages.—Where contributions are made to secure the building of a street railroad, and the regular running of Cars thereon a specified number of daily trips, the company receiving such contributions may stipulate that the damages for a failure to comply with these conditions shall be the sum contributed and interest thereon from the date of failure.</p> <p>SAME.—Contract.—Mutuality.—Consideration.—Signing.—Such a stipulation, it was held, was not void for want of mutuality, or of consideration, though not signed by the party making the subscription, the obligation on his part being evidenced by his promissory note, previously executed, which was paid by him upon the execution by the company of the instrument containing said stipulation, the company having verbally .agreed, at the time of the execution óf said note, that the maker, who was interested in the maintenance of the ,-road, should have some security for its permanent working, and the instruiment containing said stipulation purporting to be made in consummation of said .verbal agreement.</p>

<p>License.—Spirituous Liquors.—City Ordinance.—Constitutional Law.—A city ordinance, passed under the authority of the statute (3 Ind. Stat. 63), requiring dealers of intoxicating liquors within the city to procure a license to retail and to pay therefor, is not unconstitutional.</p> <p>SAME.—Taxes.—The State may, for revenue purposes, impose a license for the carrying on of particular brandies of business, and may confer tlie right upon a city, though the payment of the license fee operate incidentally as a tax upon the dealer or consumer.</p> <p>Same.—General Law.—That the same license fee, as a tax, is not required by all the cities in the State, is no valid objection to the law conferring the power on the common council to pass such ordinance, or to the ordinance itself; for, though taxes must be uniform throughout the city levying them, they need not be the same throughout different cities.</p> <p>Same.—Amount of License Fee.—The exaction, by a city, of license money in the sum of five hundred dollars of each retail dealer of intoxicating liquors, cannot be considei'ed, as a matter of law, unreasonable or objectionably prohibitory.</p>

<p>Turnpike.—Completed Road.—Assessment.—The fact that a gravel road had been completed, except one-fourth of a mile, prior to the act of May 14th, 1869 (Acts 1869, Spec. Sess. 73), is not a sufficient reason for enjoining the collection of an assessment to complete the same. That act, as well as the act on the same subject approved March Ilth, 1867, was intended for the relief of roads which had been partly constructed before its passage, as well as for those which should be wholly constructed after its passage.</p> <p>SAME.—Subscribers.—Assessment.—Where a portion of the persons assessed have subscribed and paid toward the construction of a gravel road, they are entitled to credits on their assessments, as the same fall due, equal to the amounts so paid, and are not required to pay their assessments until other persons assessed, not subscribers, have paid as much, in proportion, on their assessments, as such subscribers have paid on their subscriptions.</p>

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

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

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

<p>Practice.—Special Finding Without ¿Request.—A. special finding will not be regarded as having been made under section 34* °f the code, unless it appear to have been made at the request of one of the parties to the action, and it will be treated as nothing more than a general finding.</p> <p>Contract.—Rescission.—Where personal property is sold, and notes of a firm in which the vendor is a partner surrendered to him in payment, and by a subsequent contract between the vendohand his firm, the notes are cancelled, and afterward, the partnership having become bankrupt, the contract of sale js rescinded, and also the contract between the vendor and the firm, and the purchaser under the contract of sale agrees to file a claim against the estate of the bankrupt partnership, which one partner agrees to see paid if he lives, the rescission of the contract of sale is complete, although the notes delivered by the purchaser have not been returned to him, they having been destroyed.</p>

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

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

<p>Set-Off.—Promissory Note.—Assignment.—Mutuality.—In an action by the assignee of a note, not payable in bank, the defendant may set off a joint note made by the payee of the note sued on, as principal, for his individual debt, and by another as his surety, and held by the defendant as assignee thereof before notice of the assignment of the note sued on.</p>

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

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

<p>Bill of Exceptions.—Affidavit.—Record.—Affidavits for continuance can only become of record by bill of exceptions; and when they are only copied into the transcript as are the other proceedings, they will not be deemed part of the record by the Supreme Court.</p> <p>Same.—Time.—Where by the record it appears that a certain time was given by the court below, within which to file a bill of exceptions, it is not sufficient that the cleric certify that the filing of the bill was within the time given by the court, but he must certify the date of filing, so that the Supreme Court may determine whether it was within the time given.</p>

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

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

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

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

<p>Practice.—New Trial.—Assignment of Errors.—The reasons embraced within the statutory cases in which a new trial may be granted must be assigned as reasons for a new trial in the court below, and are not properly assignable as error in the Supreme Court.</p> <p>Same.—The assignment as error of the action of the court below upon a motion for a new trial renders it unnecessary to assign as error any of the reasons properly .embraced in the motion for a new trial.</p> <p>Same.—Errors of law occurring prior to the commencement of the trial need not be assigned as reasons for a new trial, but must be assigned as error in the Supreme Court.</p> <p>Same.—Errors of law occurring during the progress of the trial must be assigned .as reasons for a new trial in the court below, to entitle them to review in the Supreme Court.</p> <p>Will..—-Evidence.—Experts.—Witnesses, other than medical experts, are competent to give an opinion, from the facts testified of by them, as to the sanity or insanity tf a testator at the time of the execution of his will.</p> <p>SAME. — Widow. — Election.—In the absence of an avowed election by the widow, with full knowledge of the provisions of the will, no time for such election being fixed by the statute, the widow will be entitled to take under the statute.</p> <p>SAME.—Where a will is adjudged void for want of mental capacity in the testator, it is void as to the widow who may have elected to take under the will.</p>

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

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

<p>Pleading.—Draining Association.—Board of Commissioners.—A complaint to enforce a lien for the assessment of benefits under the act entitled “ An act to enable the owners of wet lands to drain and reclaim them,” etc., (3 Ind. Stat. 228) need not allege that, at the time when application was made' to the board of commissioners for the appointment of appraisers, there had been made, by an engineer, a survey and estimate.of the cost of construction of the proposed ditch; nor need it state the estimated cost of the work.</p>

<p>New Trial.—Reasons For.—“ Error of law, which occurred at the trial, and was excepted to at the time by the defendant,” is too general and indefinite to be assigned by a defendant as a reason for a new trial.</p> <p>Railroad.—Tickets.—Damages.—A passenger on a railroad train gave to the conductor his ticket from C. to N., but the "conductor gave him no check in return; before reaching N,, there was a change of conductors, and the new conductor expelled the passenger for want of a ticket or check.</p> <p>Held, that the railroad company was liable in damages to the passenger, and that the Supreme Court could not disturb a verdict for five hundred dollars, in such, a case, on the ground that the damages were excessive.</p>

<p>New Trial.—As of Right.—Costs.—In ejectment, the payment of the costs by the losing party within a year after judgment is a condition precedent to the granting of a new trial as of right.</p> <p>Same.—The court cannot limit the time within one year after judgment, given by statute, for the granting of a new trial upon payment of costs.</p> <p>"Same.—A new trial cannot be demanded or granted, as of right, under the - statute, until after judgment has been rendered.</p> <p>SAME.—After judgment in ejectment, and until a new trial has been granted, there is nothing to try in that action, and the party then making costs must ■ pay them.</p> <p>Same.—Notice.—The party applying for a new trial as of right, in ejectment, need not notify the opposite party of his intention to do so.</p> <p>Same.—Where a party, against whom a judgment in ejectment is rendered, pays the costs, applies for and obtains a new trial at the same term at which the judgment is rendered, he need not notify the other party or parties, as they are then required to take notice of the order vacating the judgment and ordering the new trial; but, if a new trial is applied for and obtained at a term subsequent to the rendition of the judgment, then the party to whom the new trial is granted is required to serve notice, that he has obtained a new trial, on the other party or parties, ten days before the first day of the next term of the court, at which the action stands for trial.</p>

<p>Supreme Court.—Record.—Agreement.—As a general rule, counsel cannot, by agreeing to a change of the record on appeal, present to the Supreme Court a question different from that which appears by the record to have been decided in the court below.</p> <p>Practice.—Inspection of Boohs and Papers,—Section 306, 2 G. & H. 191, relates simply to obtaining, by rule or order of court, inspection and copy of a book or paper in the hands of a party, without any reference to its production in court.</p> <p>Same.—Production of Books and Papers in Court.—Under section 305, 2 G. & H. 191, to justify an order for the production of a book or paper, it should be shown to be in the hands of the party against whom such order is asked.</p> <p>Same.'—• Order of Cotirt.—An order for the inspection or production of a book or paper in the hands of a party should specify and designate with reasonable certainty the book or paper, that such party may know what book or paper is to be inspected or produced.</p> <p>Same.—An order to inspect or produce books or papers should not be made in such terms as to license the party obtaining it to search the books and papers of his adversary at pleasure; nor should an order be.made to produce books or papers which may be of no use when produced.</p> <p>Same.—Motion.—Upon a motion to produce in court certain books and papers, the court cannot order generally all the books and papers of a corporation to be produced.</p> <p>Same.—Copies of Documents.—If a copy of books or papers, or the parts thereof shown to be material, be furnished under order of court, with consent to its use as evidence, the court need not, except for special reasons, compel the production of the originals.</p> <p>Same.—Dismissal of Action.—The court may dismiss the action of a party refusing to obey an order to produce a book or paper.</p>

<p>Railroad.—Appropriation to by County.—Time.—Good Faith.—Tbe eighteenth section of the act, entitled “ An act to authorize aid to the construction of railroads by counties and townships taking stock in and making donations to railroad companies,” 3 Ind. Stat. 389, requires the railroad company to which an appropriation has been made by a county to commence work upon the railroad in such county, in good faith, within one year from the time of the levy of the tax therefor, unless time has been given.</p> <p>Same.—Tax.—When the railroad company fails to commence work in good faith upon the railroad within one year from the levy of the tax, the tax-payer is discharged from his obligation to pay the tax, and no proceeding will lie to require the auditor to place the tax upon the duplicate or take any other steps to collect the same.</p> <p>Same.—Board of Commissioners.—The board of commissioners can levy a tax in aid of the construction of a railroad at their June session only.</p> <p>Same.—Time of Levy.—The tax is levied when the board of commissioners orders that the tax specified be levied, and not when the tax thus levied is placed upon the tax duplicate by the auditor.</p> <p>Same,—The time within which the railroad company must commence work upon the railroad in the county, in order to avail itself of an appropriation by the county, commences from the time when the order levying the tax is made by the board of county commissioners and not from the time when the levy is placed on the tax duplicate.</p> <p>SAME.—“ Commencing Work.”—Right of Way.—Letting Contract.—By acquiring the right of way or letting contracts for the construction of a railroad, a railroad company does not “ commence work upon the railroad.”</p> <p>Same.—Constitutional Lazo.—Buskirk, C. J., concurring, held, further, that the aid to be furnished to incorporated companies by counties is limited to the taking of stock, by section 6, article io, of-the constitution of the State.</p> <p>SAME.—Electioit.—Board of Commissioners— Downey, J., concurring, held, further, that under the statute authorizing aid to the construction of railroads, the question whether a county shall aid the construction of a railroad by donation of money or by talcing stock of the railroad company, cannot be submitted to the election of the voters, but is for the board of county commissioners only to decide, after the money has been collected by taxation.</p>

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

<p>Jurisdiction.—Circuit Court.—Court of Common Pleas.—The circuit court has the power and jurisdiction to set aside and declare void, as fraudulent, a ■judgment recovered in the court of common pleas, upon the complaint of a creditor of the judgment defendant, such creditor not being a party to said judgment.</p>

<p>Appeal.—Board of County Commissioners.—A proceeding before a board of county commissioners to relocate a county seat is a special proceeding, for a special purpose, based upon a special statute which gives no right of appeal; and such proceeding, being special, cannot be governed by the general statute granting appeals (l G. & H. 253, sec. 31); and, therefore, no appeal lies from the decision of the board of county commissioners therein. Hanna v. The Board, etc., 29 Ind. 170,. and Wright v. Harris, 29 Ind. 438, criticised.</p>

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

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

<p>Judge.—Circuit Court.—Criminal Circuit Court.—Change of Venue. — The act of December 20th, 1865 (3 Ind. Stat. 172), making Marion county the sixteenth judicial circuit, and establishing therein “ a criminal circuit court,” to be governed by the law in regard to circuit courts, and the 77th section of the criminal code, as amended on the same day (3 Ind. Stat. 548), providing that, on an application for change of venue, where the objection is to the judge of the circuit court, any other circuit judge may hold the court and try the cause, must be construed together, and the judge of the criminal circuit court be considered a circuit judge within the intent and meaning of said section as amended.</p>

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

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

<p>APPEAL from, the Parke Circuit Court.</p>

<p>Pleading.—Compaint.—A complaint which, purporting to be upon a promissory note, alleges a promise by defendant, on a day in blank, to pay blank dollars and blank cents, and with which no note or copy thereof is filed, is insufficient.</p>

<p>Mortgage.—Foreclosure of.—Practice.—Where a mortgagee, whose debt, secured by the mortgage, is not due, is made a defendant in a suit to foreclose a subsequent mortgage, securing a debt which is due, and files a cross complaint setting up such prior mortgage, and asking its foreclosure, the court may decree the foreclosure of the subsequent mortgage, and order a sale of the property mortgaged, subject to the lien of the prior mortgage, but cannot foreclose the prior mortgage or order a sale to satisfy it.</p> <p>Same.—It is error to sustain a motion to strike out an answer to said cross complaint alleging that the debt secured by such prior mortgage is not due.</p> <p>Payment.—Extension of Time of.—Consideration.—The giving of additional security by a person, not a party to a promissory note, is a valuable consideration for an agreement by the payee to extend the time of payment of such note.</p> <p>Same.—Pleading.—An agreement by the payee to extend the time of payment of a note secured by mortgage, in consideration of the execution to him, by a person not a party to such note and mortgage of a mortgage, as additional security for the payment of said note, is a good answer to an action commenced by said payee before the expiration of such extension, for the foreclosure of both mortgages.</p> <p>Supreme Court.—Constitutional Law.—Unless waived by a party, the Supreme Court is required to give a statement in writing of each question arising in the record of a case, and the decision of the court thereon, as provided in section 5, article 7, of the constitution of the State (1 G. & H. 46). A question arises in the record when it is fully and clearly stated in the transcript, and is embraced in an assignment of errors and the decision thereof is necessary to the final determination of the cause.</p> <p>Assignment of Error.— Waiver of.—An assignment of error may be waived by an entry on the record, or by express waiver in a brief or oral argument, or by a concession incompatible with the error assigned ; but the mere failure of counsel to argue a question “ arising in the record” cannot be regarded as a waiver of the error.</p>

<p>Injury to Person.—Negligence.—Proximate Cause.—Railroad.—In an action against a railroad company for damages for an injury to a person, resulting * in death, caused by the negligence of the servants of said company, where the instructions given by the court required the jury to find whether or not the death of the deceased was caused by the act of defendant;</p> <p>Held, that it was not error for the court to refuse to instruct that they should find whether or not the act of defendant was the proximate cause of the death of defendant.</p> <p>SAME.—In such an action, it is not error in the court to refuse to instruct the jury that the injury complained of cannot be regarded as the proximate cause of death, if the deceased had a tendency to insanity and disease, and the injury received by him, producing his death, would not have produced the death of a well person.</p> <p>SAME.—Railroad.—Passenger.—It is not necessary that a person should be on the train of a railroad in order to be regarded as a passenger. As a passenger, he has the right to stand or walk on the platforms provided at stations for the convenience of passengers while the train is stopping for refreshments, and in a street along-side of the track and platforms; and the servants of the railroad company are bound to exercise the care of a reasonable and prudent man in the discharge of their duties on said platforms and street, and have no right to throw sticks of wood from the train upon such platforms or street, without first ascertaining whether such action would endanger any passenger standing or walking there.</p> <p>Same.—Degrees of Care.—A railroad company owes a higher degree of cave and watchfulness to its passengers than to mere strangers.</p> <p>Practice.—New Trial.—Evidence.—Appeal.—The action of the court in improperly sustaining or overruling a motion to suppress a deposition, or a part thereof, is cause for a new trial, and must be stated as a reason for a new trial in the court below to entitle it to the consideration of the Supreme Court.</p> <p>Same.—Evidence.—It is not error to exclude evidence, admissible for one purpose, when offered for another specific purpose for which it is inadmissible.</p> <p>Evidence.— Witness.—The conviction of a person of a felony, which by the Revised Statutes of 1843 rendered him incompetent to give evidence in a court, under the Revised Statutes of 1852 may be shown for the purpose of affecting his credibility.</p> <p>Same.—The refusal to admit, as evidence, an ex parte affidavit and proceedings thereunder, not 'in the nature of an inquisition, to procure the admission of a person to the insane asylum; was held not erroneous, in an action by the administratrix of an estate of such person, deceased, against a railway company for damages for injuries resulting in' his death, the same fact having been shown by other evidence.</p> <p>New Trial.—Evidence.—Appeal.—When tne reason for a new trial is stated simply as the error of the- court in the admission of.incompetent and irrelevant evidence in the testimony of a certain witness, and the objection is not made more specific in the brief, the Supreme Court cannot know upon what to decide.</p> <p>Damages.—Damages in the sum of two thousand three hundred and thirty-three dollars and thirty-five cents were held not to be excessive in this case for an injury to a person resulting in death. -</p>

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

<p>Appeal.—Parties.—Personal Representative.—Heir.—Where both a personal judgment and a decree of foreclosure of a mortgage have been rendered in an action, and the judgment defendant has afterward died, upon an appeal from such judgment to the Supreme Court, the personal representative and the heir should unite as appellants.</p> <p>Trustee.—Successor in Trust.—If the deceased held the mortgaged land as trustee, and some one else has succeeded to the estate as succeeding trustee, that person should be a party to the appeal as the representative of the ownership of the real estate.</p> <p>Refusal to Join.—Query.—If, where both the personal representative and the heir ought to join in the appeal, either should decline, query whether notice may not be given to the party refusing to join, under section 551, p. 270, 2 G. & H.</p>

<p>Supreme Court.—Evidence.—The Supreme Court will not weigh the evidence given on the trial below, in order to determine the preponderance.</p>

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

<p>Railroad.—Appropriation to.—Petition.—Notice.—A petition to the board of commissioners of a county to make an appropriation of money, by levying a special tax, to aid in the construction of a railroad, and the notices of election on the subj ect of the proposed appropriation, must specify the amount of money to be appropriated.</p> <p>Same.—Per Centtim of Taxables.—A certain per cent, on the taxable property of the county is not a specific amount. Worden, J., dissented.</p> <p>Same.—Time of Levy.—The statute (3 Ind. Stat. 389) providing that the board of commissioner shall levy a special tax to aid in the construction of a railroad, at their regular June session, is mandatory, and a levy at any other time is void.</p> <p>Same.—Forfeiture.—Said statute provided that “ a failure on the part of the railroad company to commence work upon the railroad in said county within one year from the levying of such special tax,” etc., “ shall forfeit the rights of such company to such donation.”</p> <p>Held, that the railroad company must commence work in good faith, with the honest purpose of constructing the road within a reasonable time, taking into consideration the extent and character of the work to be done; and, that to do work manifestly to evade forfeiture, is not “to commence work” within the meaning of the statute.</p> <p>Same.—Election.-—-Registry Law.—Refeal of Statute.—Where the statute under which an election was held provided, that the last preceding registry of voters should govern, and prior to the day of election, the law requiring a registry was repealed;</p> <p>Held, said election being held without regard to said registry, that it was a valid election.</p> <p>' Same.—Ballot.—Where the statute prescribed that the ballots used in voting upon the question of an appropriation by a county or township, to aid in the i- construction of a railroad, should contain the words, “for the railroad appropriation;” and, at the election, a large portion of the ballots cast and counted contained only the words “ for the railroad;”</p> <p>Held, that the casting and counting of such ballots was an irregularity which would not affect the validity of the election.</p> <p>Same.—Notice.—Evidence.—Sheriff’s Return.—The certificate of the sheriff that he has posted notices of election in ten public places in the township, is not defective for not specifying the places, and such certificate is fr^nafade evidence that notices have been posted in ten public places in said township. If, in fact, notices of an election be nkt posted in ten public places, as prescribed by the statute, the election will be invalid.</p>