Volume 40 — Indiana Reports

<p>Promissory Note.—Failure of Consideration.—When it is shown that a promissory note was given for an article that has proved to be wholly without value, this will sustain a plea of no consideration, as well as a plea of total failure of consideration.</p> <p>Motion for A New Trial.—Evidence.—In a motion for a new trial on account of the admission or exclusion of improper evidence, the attention of the court must be called to the particular evidence admitted or excluded.</p> <p>Same.—That a general verdict for the defendant is contrary to, or in conflict with, special findings, or that special findings do not support the allegations of the answer, or are in conflict with the same, or are inconsistent with the general verdict, is not a reason for a new trial.</p>

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

<p>Criminal Law.—Former Conviction.—Affray.—Assault and Battery.—A person, after having been convicted of an affray, before a court of competent jurisdiction, cannot, for the same act that gave rise to such prosecution, be convicted of an assault and battery; and this rule applies, although the affidavit upon which the conviction for the affray was had may have been defective.</p> <p>Same.—Where the State prosecutes and convicts for the affray, she assumes that the act or acts committed constituted that offence; and having had the conviction, she cannot be heard to say that the same act or acts constituted another and different misdemeanor, and obtain another conviction therefor.</p>

<p>Practice.—Assignvient of Error.—Where an amended complaint has been filed, an assignment of error based on a ruling upon a demurrer to the original complaint presents no question for review.</p> <p>Malicious Prosecution.—Evidence.—In an action for malicious prosecution, it is incompetent for the defendant, for the purpose of showing probable cause, to prove by one of the grand jurors who investigated the charge preferred (for which the accused was, at the time of such investigation, under recognizance), that the grand jury, after investigating the case, deliberated for some time before agreeing to return “no bill,” and that eight of the jurors were in favor of finding an indictment.</p> <p>Same.—Advice of Counsel.—In 'order for the advice of counsel to afford protection against an action for malicious prosecution, it must be given upon a full and true statement of the facts within the knowledge of the person seeking the advice, and it must be acted on in good faith, for an honest purpose; and if the person seeking such advice purposely, or carelessly and negligently, fails to give such full statement, the advice of counsel will not afford protection. It is not necessary that the person seeking such advice should be grossly negligent in his statement of facts to render him liable.</p> <p>Same.— Want of Probable Cause.—Pleading. — In an action for malicious prosecution, an allegation of the “falsity of the charge” is not equivalent to an allegation of “ the want of probable cause.” The guilt or innocence of the party is not the gist of the action. Probable cause may exist in the absence of guilt, and the material allegation in sustaining the action .is “the want of probable cause.”</p>

<p>Highway.—Supervisor¡—A supervisor may enter upon laud adjoining a highway in his road district, and remove therefrom material for the repair of the highway.</p> <p>Same.—Constitutional Law.—Section 16 of the law relating to road supervisors, I G. & H. 591, is constitutional. The talcing of private property therein provided for is a taking by the State, within the meaning of the constitution, and the damages of the aggrieved party need not be first assessed or tendered; and the statute provides a reasonably convenient opportunity to obtain compensation for the injury.</p>

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

<p>Turnpike.—Assessment.—Injunction.—Persons owning land that has been illegally assessed for the purpose of constructing a turnpike cannot enjoin the turnpike company from constructing the road on the ground that the assessment is void.</p> <p>Same.—Estoppel.—As a turnpike company has a right to construct her road, and to collect tolls thereon, without making any assessments, the owners of lands illegally assessed are not estopped from resisting the collection of illegal assessments, by standing by and seeing the road constructed, or by using it after it has been constructed.</p> <p>SAME.—When illegal assessments are attempted to be enforced by colléction, the persons assessed have a right to enjoin the same; and until that time, they are not called upon to take any action in the matter.</p> <p>Pleading.—Abatement.—Where an answer in abatement was filed, together with other answers in bar, and the cause was tried, and finding and judgment were rendered in bar, and not that the action abate;</p> <p>Held, that it appeared affirmatively that the finding and judgment were not based upon the answer in abatement.</p> <p>SAME.— Turnpike Assessment.—Injunction.—In a complaint to enjoin the collection of an assessment for the construction of a turnpike, it is not necessary to set out a copy of the articles of association of the turnpike company, or of the assessments, or any of the proceedings that brought them into existence.</p> <p>Turnpike.—Assessment.—An assessment for the construction of a turnpike is void, when the assessors do not view and examine all the lands within one and one-half miles of the road and of the termini thereof.</p>

<p>Pleading.—Real Estate.—Fixtures.—An allegation 'that a person owns real estate implies that he owns the buildings erected thereon.</p> <p>Venue.—Change of.—The venue in a civil action may be changed to a county in a different circuit or district.</p> <p>Evidence.—Lease.—Where A. seeks to recover of B. the possession of real estate, and B. claims possession under a lease from A. to C., and by C. assigned to B., the lease is competent evidence on the part of A., to show that the time for which the premises were leased has expired.</p> <p>Practice.—Trial.—Jury.—In an action to recover the possession of real estate, and for damages for buildings removed from the same, where it was admitted by the pleadings, and by the defendants after the evidence was closed, that the plaintiff was the owner of the real estate, and that the buildings were removed at a time when the defendants had no legal right to occupy the premises;</p> <p>Held, that it was unnecessary for the court to submit to the jury any questions of fact, except the assessment of the amount of damages sustained by the plaintiff.</p> <p>Landlord and Tenant.—Fixtures.—A tenant, who, for the better use or enjoyment of leased premises, erects buildings thereon, may, at any time before his right of enjoyment expires, remove the buildings. If he omit to remove them until his right of enjoyment ceases, and his possession and right to use or occupy the premises become wrongful, such omission is to be deemed an abandonment of his right, and the buildings become a part of the real estate; and. if the tenant afterward sever them, he becomes a trespasser.</p>

<p>Board of County Commissoners,—Appeal.—Relocation of County Seai.—hxi appeal cannot be taken from an order-of the board of county commissioners changing or relocating the county seat.</p>

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

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

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

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

<p>Statute of Limitations.—New Promise.—No acknowledgment of, or promise to pay, a debt barred by the statute of limitations is sufficient to take the case out of the operation of the statute, unless the same is contained in some writing signed by the party to be charged thereby.</p> <p>Same.—Part Payment.— Witness.—Administrator.—In an action by an administrator, where the statute of limitations is pleaded, and an acknowledgment of the debt by a part payment is replied, the administrator is a competent witness to testify as to payment made to such administrator, but not as to matters relating to the original contract.</p> <p>Same.—Evidence.—In such case, testimony showing a parol acknowledgment of the debt, and a promise by parol to pay the same, not connected with part payment of the debt, is incompetent.</p> <p>Same.—Administrator De Bonis Non.—A part payment made to one who is afterward appointed administrator de bonis non of the estate of the creditor, is not a payment sufficient to taire the debt out of the operation of the statute of limitations. The payment must be made to the creditor, or to some one lawfully acting in his behalf.</p>

<p>F>evise.—Condition Subsequent.—A. devised certain real estate to his wife, during her widowhood, and after her death to their son, " provided-he talies care of her during her natural life;”</p> <p>Held, that the son took a vested freehold interest in the real estate, to commence at the death of his mother; and that the condition that he should take care of her during her natural life was a subsequent condition.</p> <p>Same.— Waiver.—The performance of a condition subsequent may be waived by the party for whose benefit it has been made.</p> <p>Same.—If the son did all in the way of taking care of his mother that the circumstances seemed to require, and all in that direction that she required or would permit him to do, she waived any further care, and the estate of the son was not forfeited.</p>

<p>Fraud.—Misrepresentation.—Fraud cannot be held to have been perpetrated by misrepresentations, when the party who claims to have been defrauded believed the opposite of what was represented.</p> <p>Same.—Compromise.—Where a party believes that a claim upon which an action has been commenced has already been paid, but because he is afraid he cannot prove the payment, and to avoid trouble and litigation, he pays a part of it, he cannot recover back the amount so paid, on the ground of fraud based upon statements of the claimant that tire debt had not been paid.</p>

<p>Practice.—Assignment of Error.—That a complaint does not state facts sufficient to constitute a cause of action, may be assigned for error in the Supreme Court, though the objection be not raised by demurrer in the court below.</p> <p>Pleading.—Complaint.—Copies of Instruments.—In a complaint to have satisfaction entered of a mortgage on real estate, and to quiet title thereto, where it is alleged that the mortgage debt has been paid, it is not necessary to set out a copy of the mortgage and notes secured thereby, or copies of deeds of conveyance and a decree of partition mentioned in the complaint as constituting the title of the plaintiff.</p>

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

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

<p>Draining Association.—Recording Articles,—Condition Precedent.—The recording of the articles of association of a draining company, in the recorder’s office of the county where the work is contemplated, is a condition precedent to the investment of corporate powers upon the company, and must he averred in a complaint to enforce an assessment.</p>

<p>Special Findings of Jury.—If special- findings of the jujy in answer to in- • , terrogatories are inconsistent with the general verdict, they control the general verdict, and judgment should be given on the special findings, and noton the general verdict.</p>

<p>Contract.—Support of Child.—Pleading.—A complaint alleged that defendant agreed that if plaintiff would receive into his family a certain child, and provide for it, defendant would pay plaintiff therefor a sum named, or a reasonable sum, and alleged that plaintiff had so received the child and provided for it, and defendant had failed and refused to pay therefor. ■</p> <p>Held, that the' complaint stated a good cause of action.</p>

<p>Practice.—Motion in Arrest.—A motion in arrest of judgment must be made before judgment is rendered.</p>

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

<p>Practice.—Change of Venue.—Second Application.—After one change of venue has been taken on affidavit against the county and the judge, another change cannot be taken by the same party. '</p>

<p>Slander.—Pleading.—Complaint.—In an action for slander, a complaint that fails to allege the speaking of the slanderous words by the defendant is bad.</p>

<p>Demurrer.—New Trial.—An erroneous ruling upon a demurrer to a pleading is no ground for a motion for a new trial.</p> <p>Witness.—Decedents' Estates.—On the trial of a claim against an estate, an agent of the claimant, who transacted the business with the deceased out of which the claim arose, is a competent witness.</p> <p>Same.—The executor of the estate is not a competent witness to testify as to transactions between the deceased and the claimant.</p> <p>Judgment.—Special Finding.—Where a complaint contains two paragraphs,, and there is a special finding of facts by the court, and the facts found support all the material allegations of rare of the paragraphs, but not of the other, judgment must be rendered as upon the paragraph that is supported by the finding, and it cannot be for an amount greater than is claimed therein to be due.</p> <p>Contract.—Novation.—Promise to One for Benefit of Another.—-Statute of Frauds.—A., being indebted to B. on certain notes secured by a mortgage of real estate, sold the real estate to C., and C., in consideration of the sale and conveyance of the real estate, promised to pay B. the amount due him from A. Held, that the conveyance of the real estate was a sufficient consideration to support the promise of C., and that his agreement was not within the statute of frauds.</p> <p>Held, also, that the contract between A. and C. being for the benefit of B., he could avail himself thereof by suing C. thereon.</p>

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

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

<p>Pleading.—Real Estate, Recovery of.—Description.— Uncertainty.—In .a complaint to recover the possession of real estate, the land was described as “ part of the south-west quarter of section ——, township nineteen, range four west, containing one hundred and fourteen and sixty-five hundredths acres.”</p> <p>Held, that the description was uncertain.</p> <p>Justice of the Peace.—Jurisdiction.—To give a justice of the peace jurisdiction in an action to recover the possession of real estate, the land must lie in the county where the action is brought; and the evidence must show that the land is situated in such county.</p> <p>Same.—Preszimption.—Courts of justices of the peace are courts of limited jurisdiction, and presumptions are not indulged in favor of the jurisdiction of such courts, as they are, in some cases, in favor of courts of general jurisdiction.</p> <p>Same.—Appeal.—-If a justice of the peace has no jurisdiction, an appellate court to which a cause is appealed from the justice of the peace has no jurisdiction.</p>

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

<p>Landlord and Tenant.—Trade Fixtures.—A tenant who has put trade fixtures into a building has a right to remove them, if it can be done without permanent injury to the freehold, provided the right is exercised within proper time.</p> <p>Same.—The right to remove such fixtures must be exercised during the term of the lease, as fixed by the contract, or during such further period as the tenant may lawfully and rightfully remain in possession; and they can be removed, after a voluntary surrender of the premises, or lawful eviction from the same, only with the assent of the landlord.</p>

<p>P.LEading.—Complaint.—Covenant.—In a suit upon a promissory note and to foreclose a mortgage, given for the purchase-money of real estate, an answer attempting to set up a failure of title, but not setting out the deed or any covenants therein, or alleging fraud, is bad.</p>

<p>Turnpike.—Assessors.—Assessors appointed under the act of March nth, 1867, to assess the benefits of a proposed turnpike, can only view, list, and assess the lands in the county where they are appointed.</p> <p>SAME.—Pleading.—Injunction.—Where it is shown, in a complaint to enjoin the collection of turnpike assessments, on the ground of failure to assess all the lands within the limits provided by statute, that the turnpike extends into two or more counties, it must also be shown that the lands omitted are situated within the county where the injunction is sought, and that the lands omitted were liable to be assessed.</p> <p>SAME.—County Commissioners.—Record.—Presumption.—It is not necessary that it’Should appear by the record of the board of commissioners that a turnpike company, for which assessments have been made under said act of 1867, had a subscription of eight hundred dollars per mile, or that the company was organized under the act of May 12th, 1852. It will be presumed that the commissioners were satisfied of the existence of these facts before proceeding to act upon-the petition.</p>

<p>Practice.—Failure to Reply,—A defendant, by consenting to go to trial without a reply, waives any objection, and cannot afterward be heard to complain of the irregularity.</p> <p>Promissory Note.—Principal and Surety.—Decedents' Estates.—A promissory note was made by one as principal and another as surety. The principal died, and his estate was solvent and was settled. The payee of the note did not file it as a claim against the estate of the principal.</p> <p>Held, that his failure to file the note as a claim against the estate of the principal did not defeat his right of action against the surety.</p> <p>INFANCY.—Suretyship.—A contract of suretyship made by an infant is voidable only, and may be affirmed by the infant when he arrives at his legal maj ority; and if so affirmed, it can be enforced.</p> <p>Same.—Affirmance of Contract.—To affirm or ratify such contract, there must not only be an acknowledgment of liability, but an express promise, voluntarily and deliberately made, after arriving at majority, and with the knowledge that he is not legally liable.</p> <p>Same.—Pleading.—Evidence.—In a suit upon a promissory note, if the defendant pleads infancy at the time of the execution of the note, and there is no reply that after the defendant arrived at full age he ratified the contract, evidence of such ratification is inadmissible.</p>

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

<p>Pleading.—Replevin.—In an action to recover tlie possession of personal property, an answer of property in a stranger, or in the defendant, in effect, denies the property or ownership of the plaintiff, and is a good plea in har, and completes the issue without a reply. '</p> <p>Same.—A reply to sueb an answer is not required or authorized, and may be struck out on motion.</p> <p>Same.—Demurrer.—Sustaining a demurrer to such reply does not injure the plaintiff.</p>

<p>Amendment.—Supreme Court.—The Supreme Court has power to review the action of an inferior court in the exercise of its discretion to permit pleadings to be amended, and revise, reverse, or affirm the same.</p> <p>Same.—Where leave is asked, before the trial of a cause has commenced, to amend an answer, and to file additional paragraphs, and it is shown by affidavit that the answer filed does not truly set out the facts relied on in defence, leave should be granted to amend.</p>

<p>• Parent and Child.—Custody of Minor Child.—The father of a minor child, unless good reason to the contrary be shown, is entitled to its custody.</p> <p>Same.—Poverty furnishes no legal ground for depriving the father of the custody of his minor child.</p> <p>Same.—Habeas Corpus.—Appeal.—A judgment rendered in a proceeding by habeas corpus, awarding the custody of a minor child, “ until the further order of the court,” is final, and an appeal will lie therefrom.</p>

<p>Removal of Suit to U. S. Court.—Appeal.—An order made by a court of this State, removing a cause commenced, by a citizen of another state, against a citizen of this State, to a court of the United States, on an application made for that purpose under the acts of Congress, puts an end to the cause so far as the state court is concerned, if the order is allowed to remain in force and be carried out; and such an order or judgment is so far final as to authorize an appeal to the Supreme Court of the State. The City of Aurora v. West, 25 Ind. 148, overruled on this point.</p> <p>Same.—If such an order is applied for and refused by the state court, the refusal is in no sense a final order or judgment, and no appeal will lie until the cause is finally disposed of by the state court; then, if the question is properly reserved, it can be presented for review.</p> <p>Same.—Stay of Proceedings.—When an order has been made by a state court for the removal of a cause to a United States court, and an appeal has been taken from that order to the Supreme Court, and the proper steps have been taken to stay proceedings, as in other cases of appeal, further proceedings on the order or judgment for the removal of the cause are at once suspended.</p> <p>Same.—Time of Making Application.—After a trial of a cause in a state court, which has resulted in a disagreement of the jury, and at any time before the commencement of another trial, an application to have the cause removed to a United States court may be made, and granted at the instance of either party.</p> <p>Same.—Constitutional Law.—The provision of the act of Congress authorizing such transfer at the instance of a plaintiff who has elected to bring, and Las brought, his action in a state court, is constitutional.</p>

<p>Chattel Mortgage.—Date ofExecution.~Recording.~h complaint to foreclose a chattel mortgage alleged that, by mistake of the scrivener, an error of two years wasnnade in the date and acknowledgment of the instrument, by which, although the mortgage was in fact recorded within ten days after its execution, yet its record appeared to have been made more than two years thereafter; and alleged also that two of the defendants had purchased the property and refused to surrender the same. A demurrer on behalf of the purchasers was sustained to the complaint.</p> <p>Held, that this was erroneous, as the date of the instrument was only prima facie evidence of the time of its execution, and the true date could be shown; and the parties purchasing the property, an unsatisfied mortgage thereof being on record, did so at their peril.</p>

<p>Pleading.—Complaint.—Mutual Insurance Company.—In a suit upon a premium note given to a mutual insurance company, the complaint must show that the losses which are to be paid by the money arising from the assessments occurred during the time covered by the policy issued as the consideration of the note.</p> <p>Same.—Demurrer.—Answer.—It is not error to overrule a demurrer to a bad answer, if the complaint is also bad.</p>

<p>Tax.—Statute.—Indebtedness.—A tax-payer canuot, under the proviso to section 23 of the assessment law of 1869, 3 Ind. Stat. 511, deduct his indebtedness out of the amount of his “money at interest, either within or without this State,” as required to be given under the second head of the first or sworn statement provided for by said section.</p>

<p>Evidence.—Entries in a Book.—In a suit upon a promissory note, where the defendant denies its execution, it is competent for a witness, whose deposition is taken, to testify as to the handwriting of the defendant in an account book, and to insert in his deposition a copy of an account, showing that the defendant, in his own book, and in his own handwriting, has stated the account between the parties, and the amount of indebtedness to the plaintiff, and that the note sued on was given to settle the account.</p> <p>Supreme Court.—A judgment will not be reversed by the Supreme Court where the merits of the cause have been fairly tried in the court below.</p>

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

<p>Supreme Court.—Assignment of Error.—Insufficient Complaint.—An assignment of error in the Supreme Court, that the complaint does not state facts sufficient to constitute a cause of action, presents this question, although no demurrer was filed below.</p> <p>Witness.—Husband and Wife.—Slander.—The husband of a woman charged, as defendant in an action for slander, with having used the slanderous words, cannot testify as a witness as to the words used. Mbusler v. Harding, 33 Ind. 176, overruled on this point.</p>

<p>Fraud.—Execution of Instrument.—Where a different instrument from that which a party supposes he is executing is fraudulently substituted by the other party to it, it constitutes a fraud which will prevent a recovery on the instrument executed.</p> <p>Contract.—Pleading.—Evidence.—In a suit upon a promissory note, given in pursuance of a contract appointing the maker of the note an agent for the sale of a patented article, and agreeing, that he should have the right to order and receive such articles of a certain manufacturer, at a certain price, to be paid by said agent, an answer alleging that the patent right was of no value, but was a cheat and a fraud, and that there was no consideration for the note, did not authorize proof that said manufacturer refused to deliver the articles unless paid for in advance.</p>

<p>Demurrer.—Argumentative General Denial.—A ruling upon a demurrer to paragraphs of an answer that are no more than an argumentative general denial (the general denial being on file) cannot be made available as error.</p> <p>Promissory Note.—Relation of Parties to Each Other.—Suit by A. against B. and C., as makers, and D. and E., as indorsers, of a promissory note payable to D. In a cross complaint C. alleged that he, and D. and E., were sureties for B. D. and E., in a cross complaint, alleged that they were accommodation indorsers for B. and C. Issues were joined on the cross complaints.</p> <p>Held, that the relation of the parties on the note to each other was a proper subject of inquiry under the issues joined.</p> <p>Held, also, under the evidence, that C. was the surety oí B., and as between himself and D. and E., he was liable for the payment of the note prior to D. and E.</p> <p>SAME.— Waiver of Demand and Notice.—A waiver of demand of payment^ and notice of non-payment, contained on the face of a promissory note, does not change the relative rights and liabilities of the parties as to each other.</p>

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

<p>Judgment.—Surety.—Replevin Bail.—Fraud.—A complaint alleged that A. recovered a judgment against B., and the defendant, and the court found that the defendant was the surety of B. and ordered that the property of B. should be first exhausted, and that the judgment should not be replevied unless the replevin bail would undertake to discharge the judgment if it could not be made from the property of B.; that B. was then insolvent and left the state, and an execution issued, and the defendant requested the plaintiff to become his replevin bail; that plaintiff offered to loan him the money, but the defendant declined, alleging that he desired to delay the execution plaintiff; and the plaintiff, then, in ignorance of the special order in the case, became replevin bail,hnd relying upon the fraudulent representations of the defendant, did not read the instrument, believing it to be the ordinary obligation of a surety; that an execution was afterward issued, and he.was compelled to pay the judgment; and he demanded judgment for the amount against the defendant. Held, that the complaint was good.</p> <p>Same.—Irregular Order of Court.—It was shown on the trial, by the record, that judgment was taken, in the case against B. and the defendant, by default, and no issue of suretyship was made, nor was there objection to bail being given. ,.</p> <p>Held, that the finding of the court and order as to execution and replevin bail were irregular.</p>

<p>County Auditor.—Appeal Bond.—The county auditor is not bound to approve an appeal bond in a case where no appeal lies from the action of the board of county commissioners.</p> <p>STATUTE.—Removal of County Seat.—Erection of Court-House.—The proviso of the first section of the act of Februaiy 24th, 1869, 3 Ind. Stat. 171, “that no such relocation of a county seat shall be made unless it shall be removed at least three miles,” does not intend three miles from the public buildings, but from the city or town in which such public buildings are located; and a building of the court-house on other grounds in the same town is not a removal under this proviso.</p> <p>Same.—Appeal.—Such an order and contract of the board, for the erection of a court-house, is not a decision within the meaning of the section authorizing appeals. No appeal lies from such order.</p>

<p>Practice.—Relief Against Judgment on Default.—On an application to set aside a judgment obtained by default, affidavits in support of the motion and in opposition thereto are admissible from either party, as well as oral testimoney or depositions. But counter evidence will not be heard in any form as to the matters alleged as constituting a meritorious defence to the original action.</p>

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

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

<p>Promissory Note.—Pleading.—Breach of Covenant.—Where the defence to a suit upon a promissory note, given for a conveyance of land, rests upon a breach of a covenant in the deed, a copy of the deed must be filed with the answer.</p>

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

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

<p>Proceeding Supplementary to Execution.—Parties.—Notice.—Lien.—In a proceeding supplementary to execution, botli the person indebted to the execution defendant and the execution defendant himself are necessary parties, in order to reach the debt due from such debtor to such defendant; and if after service of the notice of the proceeding upon such debtor, but before service upon the defendant himself, the latter assign the claim held by him, no lien is acquired thereon by the proceeding.</p> <p>Same.—Bankruptcy.—If such lien has been acquired, the plaintiff waives it by proving his claim in a bankrupt court.</p>

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

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

<p>PLEADING.—Default.—Assignment of Error.—A complaint by A., as guardian, alleged that the defendant on, etc., by bis note, “of that date,” promised to pay B., “ the successor of plaintiff,” seven months after the date thereof, the sum of, etc., which remained unpaid. A copy of the note payable to B., by name, without further designation, was given. Judgment was taken by default. An appeal was taken to the Supreme Court, and error was assigned, that the complaint did not state facts sufficient to constitute a cause of, action.</p> <p>Held, that the error was properly assigned for this cause in the Supreme Court, without any motion to set aside the default; and that the complaint was insufficient.</p>

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

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

<p>Pleading.—Mortgage.—Answer.—When a mortgage is set out by copy in a complaint, and is referred to in an answer or cross complaint, a copy thereof need not be given again in such answer or cross complaint.</p> <p>Suretyship.—Practice.—A proceeding to establish the fact of suretyship set up in an answer cannot affect the proceeding of the plaintiff.</p> <p>Practice.—Failure to Reply.— Waiver.—There is no error in going to trial without a reply, in the absence of any proper objection; the reply is waived.</p> <p>Same.—Cross Complaint.—Summons.—A summons need not issue where the matters set up in the answer or cross complaint are apparent on the face of the original complaint, and the defendants thereto have been served with process in the original action; and if they have already been defaulted on the complaint, no new default heed be taken on the answer or cross complaint.</p> <p>Same.—Judgment Too Large.—The objection that the judgment is for too large a sum must be first made in the court below.</p>

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

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

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

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

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

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

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

<p>JUSTICE OF THE Peace.—Replevin Bail.—Exectition.—Levy.—Injunction.—A complaint to enjoin the levy of an execution, issued upon a judgment of a justice of the peace, upon the property of the replevin hail, on the ground that there is sufficient personal property of the judgment defendant to satisfy (he judgment, and that the officer threatens to levy on the property of the replevin bail, is sufficient.</p> <p>Same.—A replevin bail, under the provisions of the act in relation to justices of the peace, is not liable as a judgment debtor, but as a surety; and section 428 of the code applies to and governs the rights of such replevin bail before a justice of the peace.</p> <p>Same.—A replevin bail is a surety within the meaning of section 82 of the act in relation to justices of the peace. 2 G. & H. 602.</p> <p>Married Woman.—Estojpel.—When a married woman fails to interpose the defence of coverture to a suit, she is estopped from availing herself of such fact after judgment, to avoid a levy of execution.</p> <p>Execution.—Injunction.—To make a case for an injunction, it is not sufficient to prove that the execution is in the hands of the officer, but there must be proóf that he is about to levy, or threatens to levy, illegally.</p>

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

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

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

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

<p>Practice.—Motion for Judgment on Special Findings.—Motion in this form: “ The plaintiff moves the court for a judgment on the special findings of the jury, for the reason the parol contract referred to in said findings contradicts the record under which the defendant claims title to the land in controversy.”</p> <p>Held, that this was not a motion for judgment on the special findings, notwithstanding the general verdict, as contemplated by section 337, 2 G. & H. 206.</p>

<p>Pleading.— Warranty.—To7-t.—Misjoinder of Causes of Action.—Where the first paragraph of a complaint alleged that the defendant sold to the plaintiff seventeen head of beef cattle, which the defendant represented and warranted to be sound, healthy, and merchantable, and one of them proved to be diseased and unfit for beef, and not marketable, to the plaintiff’s damage, etc.; and the second paragraph alleged the sale, and that defendant represented that the cattle were sound and merchantable, whereby plaintiff was induced to purchase them; whereas one was diseased and unfit for market, which was known by defendant and fraudulently concealed by him from plaintiff, to his damage, etc.; it was held, on separate demurrers to each paragraph, for want of sufficient facts, that each was sufficient, the first as an action on a warranty, and the second for a tort; and no demurrer having been filed for misjoinder of causes, the question of such misjoinder was not presented in the court below, and could in ho event have been successfully presented on appeal.</p>

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

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

<p>City.—Street Improvement.—Where property has been assessed for a street improvement in a city, for the exact amount for which it is liable under the estimate, the owner cannot resist the payment of the assessment, on the ground of an omission to assess other property for the amount for which it is liable.</p>

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

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

<p>Promissory Note.—Indorser.—Surety.—Pleading.—Where a complaint on a promissory note alleged that a defendant, whose name appeared upon the back of the note, “ signed the note at its date and before delivery, as surety for the maker, by indorsing his name on the back of said note, with the understanding and agreement that he was surety on said note for said maker;”</p> <p>Held, that the averments were sufficient to charge the indorser as surety.</p> <p>Same.— Venue.—An action on a promissory note may be brought in the county where either of the defendants liable in the action resides.</p>

<p>New Trial.—As of Sight.—Costs.—The payment of costs is a condition precedent to a new trial as a matter of right under section 601 of the code.</p> <p>Record.—Correction.—Motion.—Pleading.—There is no available error in sustaining a demurrer to a complaint to correct an entry in a record of proceedings in court. This application is a mere motion, and requires no pleading.</p> <p>Judgment.—Exception.—An exception to a judgment of refusal to amend the record will present the question of the correctness of that ruling.</p>

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

<p>Promissory Note.—Allegation of Assignment.—Where a complaint on a promissory note, payable to one not a party, fails to allege any indorsement or assignment of the note to the plaintiff, it is insufficient.</p> <p>Same.—Joint Note.—Judgment.—A judgment on a joint note against part of the makers is a bar to an action against the others.</p>

<p>New Trial.—Newly-Discovered Evidmce.—Affidavit.—An affidavit in support of a motion for a new trial, on the ground of newly-discovered evidence, is defective, if it does not disclose the name of the witness for whose testimony the new trial is asked, or allege that the name is unknown, and show that diligence has been used to procure the evidence on the trial.</p> <p>SAME.—To justify the granting of a new trial on the ground of newly-discovered evidence, it must be such as could not have been obtained on the trial, by reasonable diligence, and must not be merely-cumulative or for the purpose of impeachment.</p>

<p>Tax.—Lien of.—Where land was sold and conveyed on the 30th day of December, 1867, and a mortgage was taken to secure the purchase-money, and the mortgage was foreclosed, and the property was sold by the sheriff to the mortgagee, June 6th, 1870, and a deed was made June 6th, 1871, the land not having been redeemed;</p> <p>Held, that the land was liable for the personal taxes assessed against the mortgagor, he being insolvent, during all the time he was in possession of the land as owner.</p>

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

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

<p>Mistake.—Reforming Deed.—To entitle a party to have a deed reformed 011 the ground of mistake, it must be shown that the intention and agreement of both parties to the deed were by mistake misrepresented by the terms of the deed.</p> <p>SAME.—Mistake of Law.—Where it is sought to refonn a written instrument on the ground of mistake, and it is not shown but that the instrument speaks just as the parties desired it should, the mistake is a mistake of law as to the legal effect of the terms of the instrument; and for mistake of law, except in cases of peculiar character, no relief can be granted.</p>

<p>Turnpike.—Assessment.—Articles of Association.—Name.—Piper v. Rhodes, 30 Ind. 309, reviewed and adhered to.</p> <p>Same.—County Commissioners.—Estoppel.—An application by a turnpike company for the appointment of appraisers to assess benefits to lands, under the act of March nth, 1867, can only be made by a company organized under the act of May 12th, 1852, and the county commissioners are not required, when such application is made, to ascertain and determine, as a jurisdictional fact, whether the company has been duly and legally organized; and, consequently, persons whose lands have been assessed are not concluded by such • finding if made.</p>

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

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

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

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

<p>Practice.—Joint Promisors.—Judgment.—After a judgment has been recovered against one or more persons jointly indebted, as provided in section 41 of the code, the plaintiff may proceed, under section 641 of the code, to have the other joint parties summoned,-to show cause why they should not be bound by the judgment; although the parties against whom the judgment has been taken have appealed to the Supreme Court, and the cause against them is pending in that court, and a supersedeas has been granted.</p> <p>Same.—Joint Promissory Note.—The joint nature of a joint promissory note, or the joint liability of the makers, is not changed by the rendition of a judgment against a part only of the makers. Such judgment either releases the makers not included in the j udgment, or leaves them liable, under the provisions of section 641 of the code, to be made bound by the judgment.</p> <p>Same.—Jurisdiction.—In a proceeding under section 641 of the code, a parly who is one of the joint makers of a promissory note may be summoned to show . cause why he should not be bound by a judgment rendered against the other joint makers, though he does not reside in the county where the judgment has been taken; and the court where the judgment has been taken will have juris- . diction to hear and determine the matter.</p> <p>Same.—Statute Construed.—Section 42 of the code only requires that the return of “ not found ” be suggested on the record, not that the return of the sheriff should be entered on the record.</p> <p>Same.—Statute and Common Law.—Section 41 of the code has not changed the rule as it existed at common law, that where the obligation is joint, the action must.be against all who are jointly liable, whether as makers or indorsers; nor does it change the rule that a judgment against one promisor upon a joint obligation is a bar to a suit subsequently brought upon such obligation against another joint promisor.</p> <p>Same.—Judgment.—The first clause of section 41 of the code does not contemplate .that after the plaintiff has taken judgment against the joint makers who are served, he may have process against those not served, and when such process has been served, take another judgment upon such joint obligation. There can be but one judgment on a joint obligation.</p> <p>Same.—Joint and Several Promise.—Under the provisions of the third clause of section 41.of the code, it is only when an obligation is several, or joint and several, that a part or all of the makers may be sued, and judgment taken against either or all of the defendants. The plaintiff may, where the liability is several, or joint and several, under the provisions of section 42 of the code, take judgment against those served, and suggest on the record “ not found as to" those not served, and may continue the cause for process as to them, and at a subsequent term take a separate judgment against them; or the plaintiff may dismiss the action as to any of the defendants, whether served or not served, and may afterward commence another action against them, and take another judgment. No such remedy has been provided where the liabil- . ity is joint. Downey, J., dissented.</p> <p>Same.—Joint Promise.—Remedy.—The remedy provided by section 641 of the code, in case of joint liability, did not exist at common law, and is in entire harmony with section 41 of the code, and the two- sections should be cons'xued together.</p> <p>Same.—The principles of common law applicable to joint obligations have not been changed, but a new and more efficient remedy against those not summoned has been provided.</p> <p>Same.—Practice.—When the holder of a joint obligation proceeds under section 41 of the code, and talcos judgment against those served, and suggests upon the record the return of “not found” as to those not summoned, he may proceed under section 641, and have such persons bound by the judgment in the same manner as if they had been originally summoned. When such persons are made bound by the judgment, it becomes a joint judgment against all the makers, and in this manner their joint liability is preserved.</p>

<p>PRACTICE.—Injunction.—Assignment of Error.—Bill of Exceptions.—Where a complaint aslced affirmative relief .from an order of court, and also a temporary injunction restraining proceedings under the order, and thereupon a temporary injunction was granted; and afterward, on sustaining a demurrer to the complaint, and after granting leave to amend the complaint, the injunction was dissolved; and an appeal was taken from the order dissolving the injunction;</p> <p>Held, that the sustaining of the demurrer to the complaint could not be assigned for error on the appeal.</p> <p>Held, also, that if the sustaining of the demurrer did not of itself make it proper for the court to order a dissolution of the injunction, still, there being no bill of exceptions in the record showing upon what ground the court acted in making the order dissolving the injunction, this court could not decide whether any error was committed or not.</p>

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

<p>Pleading.—Draining Association.—Articles of Association.—In a suit to enforce the collection of a ditching assessment, filing a copy of the articles of association with the complaint does not malee them a part of the complaint, and consequently, on demurrer to the complaint, no question is raised as to the sufficiency of the articles of association or the description of the work proposed to he done.</p> <p>Same.—Although it may appear by such complaint that there had been a previous assessment, the complaint will not be bad for that reason. As the statute authorizes a reassessment, it will be presumed, in the absence of a showing to the contrary, that it has been properly made.</p> <p>SAME.—Survey and Estimate of Cost.—A complaint to enforce the collection of a ditching assessment must allege a survey and estimate of the cost, and show that the estimated, cost will not exceed the aggregate amount of the assessments.</p> <p>Same.—Double Assessment.—When it appears upon the face of the schedule of assessments filed with such complaint, that certain tracts of land have been twice assessed to different persons, and at different sums, the double assessments cannot be regarded as an “informality, irregularity, or omission,” within the meaning of section fifteen of the act providing for the making of such assessments.</p> <p>Same.—The amount of the assessment is not “ clearly set forth in the appraisers’ schedule,” when it appears upon the face of such schedule that four tracts of land have been twice assessed, being assessed to different persons and at different sums.</p> <p>SAME.—Appeal.—Estoppel.—An appeal may be taken from an assessment to the circuit court or court of common pleas, but a failure to appeal will not deprive a party whose land has been assessed from objecting to the legality of an assessment on account of a double assessment of lands.</p> <p>SAME.—Before the collection of an assessment can be enforced, the corporation must show a valid and legal assessment.</p> <p>SAME.—Correcting Assessment.—A double assessment may be corrected by a reassessment; and it will not be necessary to make an entirely new assessment, but only so far as may be necessary to correct mistakes.</p>

<p>Set-off.—Tort.—In an action for a breach of-duty and negligence, no set-off is allowed.</p> <p>Negligence.—Where a person was engaged in threshing wheat with a steam threshing machine, under a contract therefor with, the-owner of the wheat, and said owner temporarily left the field, and while he-was absent the wind increased so that there was danger of firing the stacks of wheat, if the work was continued, and it would so appear to an ordinarily prudent man, it was-the duty of said person running the machine to stop, and it was such carelessness in him not to do so, as to render him liable for the burning of the stacks, if the burning resulted from continuing to run the machine.</p> <p>Verdict.—Where there is evidence to support a verdict, the Supreme Court will not, upon the evidence, disturb it.</p>

<p>CONTRACT.—Married Woman.—Agreement for Benefit of Estate.—Coverture. Suit by husband, and wife for damages for failure of the defendant to convey a house and lot to the wife within a time limited by a written contract, payment having been made by the wife; and the complaint further alleged that the property had been sold on judgment and execution against the defendant, and that the plaintiffs had been evicted by the purchaser. A second paragraph was for money had and received. Answer, a subsequent agreement between the parties, by which the land was to be purchased by a friend of the plaintiffs, under the judgment and execution, and the purchase-money paid therefor to be repaid the purchaser by the wife, and credited by the defendant on a note held by him against the husband; that the land was so purchased; that the purchaser had always been ready to convey the land to the wife, but the plaintiffs had refused to repay him, and had voluntarily delivered possession to him; that defendant had always been ready and willing to perform on his part, and his deed was tendered with the answer. Reply, coverture when the contract was made. A demurrer to this reply was overruled.</p> <p>Held, that the reply was good. If there was any consideration shown for the subsequent contract, and if it was concerning the estate of the wife, still it was not so fair and so beneficial to the wife as to bring the case within the rule recognized in Kantrowitz v. Prather, 31 Ind. 92.</p> <p>ShME.—Statute of Limitations.—Another paragraph of the answer, directed to the second paragraph of the complaint, relied upon the statute of limitations of six years. The reply was the coverture of the wife. A demurrrer to this reply was overruled.</p> <p>Held, that the demurrer was correctly overruled.</p> <p>Practice.—Motion for New Trial.—A motion for a new trial, on the ground that the court refused to receive proper and competent evidence offered by the defendant, is too general. The evidence which the court excluded should'be pointed out.</p>

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

<p>Bill of Exceptions.—Motion to Strike Out.—A motion to strike out part of a pleading can only be made a part of the record by being embodied in a bill of exceptions.</p> <p>Same.—If a bill of exceptions shows that such motion was filed, and points out a place for its insertion by the words “ (here insert),” this will authorize the clerk to insert the motion in the bill.</p> <p>Same.—Such motion cannot he made apart of the record by the clerk’s filling the blank in the bill of exceptions with a reference to a page of the transcript where it may be found. The motion must be copied into the hill of exceptions signed by the judge, and certified by the clerk to be a full, true, and complete copy of the original on file in his office.</p> <p>Same.—The bill of exceptions must show what ruling was made upon the motion, and whether exception was taken to the ruling! Recitals of the clerk upon these points cannot be regarded.</p> <p>Demurrer.—Defect of Parties.—A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action does not raise any question as to the parties to the action.</p> <p>Motion to Separate Causes of Action.—Defect of Parties.—A motion to require causes of action to be separated, where there are several parties, each having a right of action, does not present any question of the misjoinder of parties plaintiffs.</p> <p>Joinder of Parties.—Injunction.—Turnfilee Assessment.—Separate owners of lands, which have been separately assessed for the construction of a turnpike, may unite in an action to enjoin the collection of illegal assessments.</p> <p>Turnpike Assessments.—Injunction.—Omission to Assess Lands.—If assessors appointed under the act providing for the assessment of lands to aid in the construction of turnpikes omit, in the list returned by them, any land within one mile and a half from the proposed road, the entire assessment will be void, and an injunction will lie to prevent the collection of such assessment.</p> <p>SAME.—Estoppel.—Parties whose lands have been assessed to aid in the construction of a turnpike are not estopped from disputing the validity of such assessment, on account of the fact that lands liable to be assessed have been omitted from the assessment, by reason of having acted as officers or members of the turnpike company in procuring the assessment to be made, letting contracts for the construction of the road, and incurring indebtedness on the part of the company, having stood by and seen the road constructed, etc.; unless at the time they so acted, they knew that lands liable to be assessed had been omitted, and the party relying on the estoppel was ignorant of such omission.</p>

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

<p>Change of Venue.—Bill of Exceptions.—Where the granting of a change of venue is not shown to have been excepted to, and the grounds of the objection to the change are not pointed out, by bill of exceptions, no question is presented for review.</p> <p>SAME.—A party who applies for a change of venue cannot object to the granting of the change.</p> <p>Assignment of Error.—Complaint.—It may be assigned as error that a complaint does not state facts sufficient to constitute a cause of action, although no demurrer was filed and overruled in the court below.</p> <p>Same.—On a complaint upon a promissory note providing for attorney’s fees, an assignment of error, “ that the complaint does not state facts sufficient to constitute a demand for attorney’s fees assessed by the court,” is not a good assignment.</p> <p>Practice.—Evidence.—In such case, if the complaint does not sufficiently state the claim for attorney’s fees, the proper mode of getting the objection upon the record is to object to the introduction of evidence in support of that part of the cause of action.</p>

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

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

<p>Town.—License to Retail Liquors.—Incorporated towns have no authority to require a license of any person for retailing intoxicating liquors within their limits.</p> <p>Same.—Liquor Law.—Section sixteen of the- liquor law, I G. & H. 618, does not confer such authority. '</p> <p>Legislative Interpretation.—Courts.—The courts must construe the law; and legislative interpretation, .though entitled to great respect, cannot control . tfieir judgment.</p>

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

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

<p>Promissory Note.—Indorsement.— Pleading. — Complaint alleging that A. made his promissory note to B., and that B.; at the instance and request of A., then placed his name on the note, and thereby agreed to, and did, become a maker of said note and surety for A., and then delivered the note to A., who then brought the same to the plaintiff, and the plaintiff then loaned A. the money thereon, and further averring that at the time of the indorsement it was the intention and design of B., and he then agreed, to become a maker of the note, and assume the same liability thereon as A., and that the note was made to give A. credit with the plaintiff, and to enable him to borrow money of the plaintiff.</p> <p>Held, that the complaint was bad.</p> <p>Same.—Evidence.—Where a promissory note is indorsed by the payee, whose name is followed upon the back of .the note by other names in blank, parol evidence will not be permitted to vary the legal effect of the indorsements thus appearing on the note. But where a party places his name on the back of a note, creating a liability in favor of the payee, the presumption is that he intended to assume the liability of an indorser, and nothing more. This presumption, however, may be controlled by parol evidence showing that he intended to assume the liability of a maker, in which case he will be regarded as a joint maker.</p> <p>Judicial Notice.—Term of Court.—The Supreme Court will take judicial notice of the commencement of terms of courts of this State.</p> <p>Promissory Note.—Assignee.—Excuse for not Suing Maker.—To excuse the assignee of a promissory note for not suing the maker, it must be alleged and proved that the maker was openly and notoriously insolvent at the time when judgment might have been obtained by the use of due diligence.</p> <p>Same.—Before the assignee of a promissory note can recover of the assignor, he must aver and prove that he has used due diligence, by process of law, to collect the note of the maker, or show that by the use of such diligence no part of the debt could have been collected.</p> <p>Same.—The facts relied upon to show that due diligence has been used must be set out. Whether due diligence has been used in such case is a question of law for the court to determine from the facts of the case.</p> <p>Same.—To constitute due diligence to collect by process of law, the action must be brought against the maker in the first term of the court having jurisdiction, when there is time, between the maturity of the note and the com- . mencement of such term, to obtain process.</p> <p>Same.—This rule applies; though such action be thereby required to be brought the day next after the maturity of the note, unless it is shown that the action could not have been commenced and service obtained.</p> <p>SAME.—That the maker of the note was possessed of large and valuable property, and was reputed to be entirely solvent at the time suit should have been commenced, is no excuse for not suing.</p>

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

<p>Practice.—Failure to Demur.—Assignment of Error.—A failure to demur to a paragraph of a complaint does not waive the question of the sufficiency . thereof, but an assignment of error will present this question on appeal.</p> <p>Same.—Indebitatus Assumpsit.—Action Upon an Account.—A paragraph at common law, in indebitatus assumpsit, for the price of land sold and conveyed, or what is under the code an action upon an account, will be sufficient under our practice.</p> <p>Vendor and Purchaser; — Voidable Sale. — Part Performance.—A parol agreement for the sale of lands is voidable, and not void. When the land is sold and conveyed, and the purchaser accepts the deed, and by virtue thereof enters into and retains possession of the property, the payment of the price can be enforced.</p> <p>SAME.—Pleading.—A paragraph alleging that the defendant is indebted to the plaintiff in the sum of three thousand dollars for real estate described, sold and conveyed, is sufficient.</p> <p>Pleading.—Set-off.—Reply.—A set-off may be replied to an answer of set-off.</p> <p>Same.—The sufficiency of a pleading setting up a counter-claim or set-off is not to be tested by the technical rules of the common law. An answer of set-off which assumes to answer the whole complaint, but only answers a part, is not bad on demurrer. A set-off is not strictly a defence.</p>

<p>Highway.—Damages.—Payment.—When the amount of damages which will result from the opening of a highway is ordered to be paid out of the county treasury, the county commissioners may treat the case as one where the amount is deposited in the county treasury for the use of the parties entitled' to the same, and may proceed to order the road to be opened and kept in repair.</p> <p>Same.—Parties.—No one except the parties entitled to receive the amount of the damages can maintain any form of action requiring the payment thereof.</p>

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

<p>PRACTICE.—Jurisdiction.—Motion.—Bill of Exceptions. — If the question of want of jurisdiction can be raised by a motion to transfer a cause for that reason, still the motion must be made a part of the record by bill of exceptions.</p> <p>SAME.— Waiver.—Demzirrer.—Assignment of Error.—Although a want of jurisdiction is not waived by failure to demur, still it must be assigned as error upon the record on appeal.</p> <p>Guardian.—Improvement of Wife's Land by Husband.—Improvement by Co-Tenant and by Guardian.—Purchase by Guardian.—Where a father had himself appointed guardian of the persons and estates of his children, after the death of their mother, and filed a claim for improvements made upon their lands, and the improvements were appraised by persons appointed by the court, and their value allowed without other proof, and the land was ordered to be sold upon a defective application, at private sale without notice, to pay for such improvements, and was purchased by the surety on the bond of the guardian, and subsequently a bond was given by him to convey the property to the guardian, and in a proceeding to have the sale set aside, it was proved that much of the improvements were made during the lifetime of the children’s mother, who was the owner of the land and the wife of the guardian, and when the other improvements were made, the guardian was the owner of an undivided, eighth part thereof, and a tenant in common with his’ children and wards;</p> <p>Held\ that if the husband expended money on the grounds belonging to his wife, while he occupied them, it must be presumed that he improved for her benefit, and he could not recover therefor, nor could he improve the property and charge his co-tenants or his wards with the expense.</p> <p>Held, also, that as the proof showed the sale and purchase to have been made for the benefit of the guardian, it was fraudulent and void.</p>

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

<p>Widow.—Sale of Land.—Suhsegzcent Marriage.— Conveyance. — Statute of Descents.—Where a widow receives land by descent from her husband, and sells the same, and receives part of the consideration, and executes a bond to convey on full payment, and marries again before the time for the conveyance has arrived, and afterward, with her husband, executes a deed of conveyance, to the purchaser, the latter acquires a valid title, and he cannot treat the contract as rescinded and recover the money paid. A valid sale of the land by the widow while a feme sole cannot be affected by her subsequent marriage; and her conveyance after such marriage, in fulfilment of her contract before marriage, is not an alienation within the intent of section eighteen of the statute of descents.</p>

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

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

<p>Corporation.—Mining Company.—Sale of Stock Free of Incumbrances.— Breach of Contract.—A complaint upon a contract to transfer fifty shares of stock in a mining corporation “ so as to vest the clear title in him” (the plaintiff), “ and that the same is to be and shall be free and clear of all incumbrances, debts, or liabilities,” alleged as a breach, that the corporation, at the time of the contract, was indebted in the sum of ten thousand dollars, and that subsequent to said contract and transfer of stock, judgment was obtained and the assets of > the company sold in satisfaction of only a part of the judgment.</p> <p>Held, that assuming, as most favorable to the plaintiif, that the contract meant that the title to the stock was to be free and clear of all incumbrances or liabilities that could attach to the stock itself, or to the purchaser personally in consequence of becoming the owner thereof and invested with the title thereto, • still there was no breach of the contract. A warranty that stock transferred, or the title thereto, is free and clear of all incumbrances, debts, or liabilities, is in no sense a warranty that the corporation itself is free from indebtedness.</p> <p>Same.—Statute.—Individual Liability.—The eleventh section of the act for the incorporation of manufacturing and mining companies (1 G. & H. 425) pro- . vides, that “ the stockholders of such company shall be individually liable, jointly and severally, for all debts due and owing laborers, servants, and apprentices, for services rendered; and, to other creditors of the company they shall be liable to an amount equal to the stock held by them respectively.” Theperson holding stock at the time a debt is contracted is the person who is liable under the latter clause of this section, to an amount equal to the stock held by him, and a subsequent holder is not liable. There was no averment in the complaint that the indebtedness of the corporation was to the first class of creditors.</p> <p>Held, that the stock and the title thereto were therefore free and clear of incumbrances, according to the terms of the contract.</p>

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

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

<p>Vendor and Purchaser.—Specific Performance.—Contract for Purchase of Land.—Meastire of Damages.—While a vendor may, by an action for the specific performance of a contract against the vendee, compel the acceptance of the conveyance of the land sold and the payment of the purchase-money, yet when the suit is for damages against the vendee, for a breach of the contract in refusing to accept the deed and pay the purchase-money, the measure of damages is the difference between the contract price and the value of the land at the time when the deed should have been accepted, if at that time there was any decrease in such value.</p>

<p>Practice.—Motion to Strike Out.—Bill of Exceptions.—Where a motion to strike out a paragraph of a pleading is overruled, this ruling must be reserved by bill of exceptions, to be available on appeal.</p> <p>Slander.—Justification.—Pleading.—In an action for slanderous words spoken by the defendant, he justified, on the ground that he was the pastor of the church of which the plaintiff was a member; that by the rules and regulations of the church the ruling elders composed the session of the church, and the pastor was the moderator thereof; and that if said words were spoken, they were used in the course of church discipline, to the session, in the progress of the investigation of certain rumors against the chastity of the plaintiff, a certain rule of the church, of which a copy was set out, authorizing the investigation of charges of crimes, and were spoken without malice, and in good faith. In a second paragraph of answer it was alleged that the words, if spoken, were spoken to a member of the session who had not attended a meeting of the session, and in communicating to him the charges, etc., which defendant did by direction of the session, without malice.</p> <p>Held, that it was not necessary to set out with the paragraphs of answer the rules constituting the elders a session and the pastor the moderator thereof.</p> <p>Held, also, that it was no objection to the paragraphs that they neither denied nor admitted in terms the speaking of the words, as the statute provides that what is not specifically denied shall be taken as true in the pleading.</p> <p>Held, also, that the paragraphs of the answer were good, and that the word “ crimes,” in the rules, was not confined to statutory crimes, but included a violation of the moral law or of duty as a member of the church. Written charges were not necessary to authorize the investigation. Pettit, C. J., dissented.</p>

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

<p>Will.—Devise to Husband and Wife and Heirs.—7'enancy by Entireties.— The following clause in a will: “To my son, Algernon R. Jones, his wife, and his heirs, seven-thirtieths (7-30) of all my estate,” created an estate by entirety in Jones and his wife, and he could not alienate it, nor could it be sold on execution against him to her prejudice.</p>

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