Volume 41 — Indiana Reports

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

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

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

<p>Practice.—Agreed Statement of Facts in Part, and Finding of fury in Part. Conclasiveness of Finding.—Where there is an agreed statement of facts as to part of the matters in controversy, and the disputed matters of fact are by agreement submitted to a jury to find specially, and the evidence is not in the record, but only the agreed statement and the finding of the jury upon the disputed facts, the finding will be, upon appeal, as conclusive upon the parties as though the facts found were agreed upon.</p> <p>Vendor’s Lien.—Novation.—Transfer of Debt and Lien.—A. sold and conveyed certain land to B., who thereby became indebted for purchase-money, one thousand two hundred and sixty-seven dollars; A. was indebted to C. one thousand two hundred and seventy-five dollars for certain other lands by C. sold to A., which indebtedness was secured by notes and mortgage on the lands; all the parties met and a complete novation took place. A. transferred to C. the amount that B. owed A.; B., instead of giving his notes to A., gave them to C., who surrendered his claim on A. B. failed to pay his notes to C., who brought suit and obtained a decree enforcing his vendor’s lien, and purchased under such decree the land so conveyed by A. to B.</p> <p>Held, in a suit for possession by C. against D., who claimed title through one E., who had taken a mortgage with full notice of all the rights and equities of C., that the assignment of the debt itself, without the assignment of the evidence of the debt, carried with it the vendor’s lien on the land; and C. was entitled to recover; that it is the unpaid purchase-money which creates the vendor’s lien, and it is immaterial to whom the acknowledgment of the debt is made, if it be so made by direction of the vendor.</p>

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

<p>Practice.—Rules of Ccmrt.—Security for Costs.—New Corporation Succeeding Old.—-Liabilities.—Statute of Limitations.—Wliere a rule of court requires “ an application for security for costs to be made before answering to the complaint, unless answer is made in ignorance of the non-residence, or the plaintiff has become a non-resident since answering,” an application on an affidavit which does not disclose the existence of either exception is properly overruled, when the application is first made after the cause has been once tried. Such a rule of court is not repugnant to the laws of this State, unjust, or unreasonable, and is therefore valid. Where a new trial has been granted, and a new corporation, having succeeded to the rights and liabilities of an old one, is substituted as defendant, the rule will apply to the new corporation, and prevent it from making such application, on the re-trial of the cause, although new issues have been formed. The new corporation is liable as the old, and can make no defence that the old one could not make. If the statute of limitations could not bar the action for the old corporation, it cannot avail the new company.</p> <p>Same.—Amendment.—Motion to Strike Out.—Where an amendment to a complaint is made, the question whether the amendment makes a new cause of action, which is barred by the statute of limitations, cannot be raised by motion to strike out the amendment.</p> <p>Complaint.—Amendment.—New Cause of Action.—Statute of Limitations.— Where a cause of action by an administrator against a railroad company, as stated in the complaint, was the death of the plaintiff’s intestate, caused by the wrongful act or omission of the company, without the fault of the deceased, the particular means or manner of her death not being stated, on a demurrer’s being sustained to the complaint, because it did not appear that the injury producing death was not caused by the contributing fault of the deceased, it was not stating a new cause of action, liable to objection as not being brought within the time limited by the statute, to amend the complaint so as to allege the facts of the accident more particularly. It would be a new cause of action, if the amendment contained a recital of facts connected with some other and different accident and date. The cause of action was the wrongful act of the company and the question of fact was what the wrongful act consisted of.</p> <p>Practice.—Identical Paragraphs.—Motion to Strike Out.—Harmless Error.— If two paragraphs of a complaint are identical, it is a harmless error for the court to refuse to strike out one of the paragraphs on motion, for that reason.</p> <p>Railroad.—Injury to Passenger.—Fault of Passenger.—Negligence of Pail-road Company.—A paragraph of the complaint in such an action, which alleged that the injury was caused by “ defendant not having stopped the motion of the cars a sufficient length of time to allow the deceased to safely and; securely leave the cars, but having so far checked the motion thereof that she could safely leave the same, while she was in the act of leaving, suddenly-started the train again without giving her a reasonable time to get off, and( without want of ordinary care on her part she was thrown violently from the-train of cars, and the platform of the depot was so negligently constructed that the foot of said deceased was caught in a hole thereof, and she was run over by the said train,” etc., was not liable to the objection that it did not show that the deceased was free from negligence, but did affirmatively show that she was. guilty of contributing to the injury received. The allegation that the injury occurred “without want of ordinary care on the part of the decedent,” was. equivalent to an averment that the injury occurred “ without the fault or negligence of the plaintiff.” The additional averment was made, “ that the defendant was not present in person or by her servants or agents to assist the-deceased from the cars.” These averments of the paragraph showed that the deceased was without fault in attempting to leave the train. She had a right to expect the cars to remain stationary long enough for her to step from the train, and to expect the servants of the defendant to be present to assist her.</p> <p>Same.-—Statute.—Non-Residents.—Constitutional Law.—Section 784, 2 G. & H. 330, was intended to provide a remedy, not only for the resident citizens of this State, but for the citizens of the several states while passing through or residing within this State. Section 2, article 4, of the constitution of the j United States, would secure the benefit of this section to citizens of other states, if refused by our law.</p> <p>SAME.—Foreign Administrator.—Action by.— Trust for Benefit of Widow and. Children.—A foreign administrator can maintain an action in this State against a defendant for having wrongfully caused the death of a person. The administrator will hold the money recovered, in trust for the benefit of the widow and children of the deceased. Osborn, J., dissented from the conclusion that a foreign administrator-may bring the suit.</p> <p>Same.— Widow and Children.—Averment in Complaint.—It is sufficient to allege in the complaint and prove on the trial, that there are persons who are entitled under the statute to the damages. It is not necessary to name the persons or to amend the complaint so as to state the fact, in the event of the death of any of those persons, leaving heirs, after suit brought.</p>

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

<p>Vendor and Purchaser.—Quitclaim Deed.—Parol Contract.—Where one conveys land by quitclaim deed, and agrees by parol to pay the taxes already charged against the land, and fails to make such payment, and his vendee thereupon pays the taxes, the vendor is not liable to an action for money paid for his use and at his request. Osborn, J., was not prepared to say that the action might not be sustained, treating the promise to pay the taxes already due as part of the consideration for the purchase.</p>

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

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

<p>Life Insurance.—Insurable Interest.—Assignment to one not Having Interest. A person cannot purchase and hold for his own benefit, as a matter of mere speculation, a policy of insurance on the life of one in whose life he has no sort of insurable interest.</p> <p>Although a policy be issued to one who holds an insurable interest in the life, and be therefore valid in its inception, its assignment to one holding no such interest will not sustain an action in favor of the assignee upon the death of the person whose life is insured.</p>

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

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

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

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

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

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

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

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

<p>City.—Nuisance.—A city of this State incorporated under a charter authorizing the common council “ to regulate all wharves on the shore of the Ohio river, adjoining said city,” cannot by ordinance define the line of high-water mark, and declai'e the erection of buildings below said line a nuisance, and impose a fine upon persons erecting such buildings on their own land.</p>

<p>Appeal.—Superior Court.—Injury to Person.—Administrator.—Where a judgment, recovered at a. special term of the superior court, by a plaintiff, for an injury to his person, is reversed at a general term of said court, and remanded to special term for a new trial, and thereafter, the plaintiff dies, no appeal lies from such reversal to the Supreme Court, in favor of the administrator of the deceased.</p>

<p>Turnpike.—Articles of Association,.—Corporation.—Construction of Statute. The statute (l G. & H. 474) requiring that the articles of association of a gravel road company shall set forth the amount of capital stock, etc., contemplates a statement of the amount of the capital stock in the body of the articles of association; and the defect caused by the omission of such statement is not cured by the fact that certain amounts are subscribed to the articles.</p>

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

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

<p>Promissory Note.—Blanle.—The execution of a note, on its face payable at a bank, the place for the name of which is left blank, at a town named, authorizes the payee, before the maturity of the note, to insert the name of a particular bank at such town in the blank space, so that, whatever limitation of authority may have been imposed by the maker on the payee, the note will be negotiable and governed by the law merchant in the hands of a bona fide indorsee.</p>

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

<p>Pleading.—Damages.—Contract.—Tn an action by the seller for damages for a breach of a contract for the purchase of a certain number of hogs at a specified price, of a minimum weight, at a fixed time and place, where the complaint alleged that the plaintiff had the hogs at the place and time fixed, ready for delivery, and the defendant failed and refused to receive and pay for them j Held, after verdict and judgment for the plaintiff, that it was not necessary to further aver that the hogs were weighed and set apart for the defendant.</p>

<p>Pleading.—Answer.—Infancy.—Statute of Limitations.—Where a plaintiff in her complaint alleged that she was a minor, under the age of twenty-one year's, and sued by her next friend;</p> <p>Held, that an answer pleading simply the statute of limitations admitted her infancy, and was bad on demurrer.</p>

<p>PLEADING,—Complaint.—Turnpike,—Where, in an action on a subscription of stock to a gravel road company, the complaint alleges all the facts material, under the statute, of the organization of the company and subscriptions of stock, it is not insufficient because the copy of the articles of association filed with it shows only the name and amount subscribed by the defendant.</p> <p>Assignment of Error.—An assignment of error, that the judgment should have been for the defendant instead of for the plaintiff is too general.</p> <p>Practice.—Judgment.—Change of Venue.—On change of venue, one court sent a cause to, another, which improperly struck it from the docket, with costs against the plaintiff, remanding the cause to the former court; and thereupon the former court tried the cause, and upon appeal the Supreme Court reversed the judgment and ordered the cause back to the court to which the venue had been changed, for trial;</p> <p>Held, that under said reversal and order, the said judgment for costs against the plaintiff was reversed, and a motion to tax said costs against him by reason of said judgment was correctly overruled.</p> <p>Held, also, that a demurrer to an answer setting up said judgment striking the cause from the docket and for costs against plaintiff was correctly sustained.</p>

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

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

<p>Criminal Law.—Justice of the Peace.—Constable.—Jurisdiction.—Pugitive. Arrest.— Warrant.—A warrant issued by a justice of the peace for the arrest of a person duly charged before him with the commission of a crime or misdemeanor, and who has left the county in which, the offence was committed, and where the warrant was issued, may be served by a constable of said county in any other county where the defendant may be found, upon attaching a certificate of the clerk of the said county where such warrant was issued, setting forth that the justice signing the warrant is duly commissioned and qualified as such, and that his signature is genuine.</p>

<p>Vendor. And* Purchaser.—Defence to Action for Purchase-Money.—Failure of Title.—In the absence of covenants and fraud, a failure of title is no defence to an action for the purchase-money of real estate.</p> <p>Same.—Injunction.—A purchaser of land sold as school land, while he is in the undisturbed possession thereof, cannot enjoin the'auditor of the county from' selling the land under a mortgage to secure the purchase-money, on the ground that the title to the land was not in the inhabitants of the county.</p>

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

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

<p>Pleading.—Answer.-—Payment.—Accord and Satisfaction.—To a complaint by an executor upon a due-bill, the defendant answered that he had paid the deceased the full amount of principal and interest due, “ and the sum of money was paid in goods, wares, and merchandise, and was paid in full satisfaction of said note, and was so received by the deceased in his lifetime.” Held, that the answer was good, and in form a plea of payment Held, also, that it was substantially a good answer of accord and satisfaction.</p> <p>Same.—Certainty.—Want of eertainty in a pleading is not good ground of demurrer.</p> <p>Payment.—Payment may be made in anything that the creditor will receive as payment.</p>

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

<p>Motion for New Trial.—Sttrprise.—Newly-Discovered Evidence.—Presump'tion.—'Where a plaintiff’s motion for a new trial, on the ground of surprise at the evidence delivered by the defendant, and on the ground of newly-discovered evidence, by which the evidence that operated as a surprise can be disproved, is supported by an affidavit of the plaintiff’s attorney, and is overruled, and a continuance to enable the affidavit 'of the plaintiff to be produced is refused, if the evidence is not in the record, the presumption is in favor of the ruling of the court below.</p> <p>Evidence.—Agreement as to Admission-'of.—Where it is agreed between the plaintiff and the defendant, and entered of record, that all evidence may be given under the general issue, or general denial, it is necessarily and conclusively implied that a proper finding and judgment shall be rendered on the evidence thus introduced.</p> <p>Same.—By such agreement the parties waive the right to have the proper pleadings put upon file in the case, and cannot afterward complain that it was not done.</p>

<p>Bill of Exceptions.—Demurrer.—Striking Out.—If a demurrer to a paragraph of a complaint is overruled, and the paragraph is afterward struck out on motion, and not again put into the record by a bill of exceptions, it is not a part of the record, and the overruling of the demurrer to it cannot be assigned as error.</p> <p>Same.—A question arising upon the action of a court in striking out a paragraph of a pleading can only be reserved by a bill of exceptions.</p> <p>Interrogatories to Jury.—Imperfect Answers.—Where the answers to interrogatories propounded to a jury are not full, if obj ection is urged to the discharge of the jury without a full finding, or if the court is asked to require the jury to find fully in answer to the interrogatories, the court should require such finding. But an objection to the finding cannot be made in the Supreme Court for the first time.</p> <p>Collateral Security.—Payment.—-The mere delivery of choses in action as collateral security for a debt cannot be pleaded as a payment of the debt.</p> <p>Same.—Diligence to Collect Collaterals.—The holder of such collaterals is answerable for reasonable, but not extraordinary, diligence in their collection.</p> <p>Same.—If collaterals are lost for want of reasonable diligence, the creditor holding them must account for the amount, but such loss cannot be presumed from the mere fact of their remaining uncollected.</p> <p>Same.—If collaterals are held to secure the payment of a note, and, before judgment on the note, there has been payment of the collaterals, or such want of diligence in collecting the same as to make the holder responsible for the amount of them, this will constitute a defence to an action on the note, and it cannot be set up afterward as a payment of the judgment on the note. Motion for New Trial.—Instructions to Jury.—A motion for a new trial, on the ground of error in refusing or giving instructions, must specify the instructions alleged to have been given, which were incorrect, and those refused, which should have been given.</p> <p>Same.—Evidence.—A motion for a new trial on the ground of the improper admission of evidence must point out the evidence improperly admitted.</p> <p>Same.—•Demurrer.—The overruling of a demurrer to a pleading is not a reason for a new trial.</p>

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

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

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

<p>Surprise.—Motion for a New Trial.—Except in particular cases, a party cannot be heard to say that he was surprised at the giving of evidence warranted under issues formed and tendered by himself.</p> <p>Same.—Affidavit of Stranger.—An affidavit made by onelwho is not an agent or attorney of a party, or in any way connected with the case, wherein the affiant says he is informed and has reason to believe that a party has been surprised at evidence given, is bad.</p> <p>Evidence.—Immaterial Variance.—Failure of Proof.—In a suit upon a promissory note, where it appeared by the copy of the note filed with the complaint that .it was due “one day after date,” and the note introduced in evidence without objection commenced “ one-after date</p> <p>Held, that it was not a failure of proof, as contemplated by section g6 of the code, but an immaterial variance, fully provided for by sections 94,95, 101, and 580 of the code.</p>

<p>Practice.—Bill of Exceptions.—Motion to JOistniss.—To present any question on a motion to dismiss an appeal from a precept issued for the collection of an assessment for a street improvement, it must be properly reserved by a bill of exceptions.</p> <p>Same.—Motion for Judgment.—To present -any question on the refusal of a court to render judgment on the sustaining of a demurrer to the transcript, on such appeal, the record must show a request for such judgment, and an exception to the refusal of the court to render the same.</p> <p>Same.—Amendment.—Where the record does not show an objection to the filing of an amendment to a complaint, and the proper exception to the ruling thereon, no question as to the filing of the amendment is reserved for review.</p> <p>City.—Appeal from Precept.—Transcript.—On an appeal from a precept issued for the collection of an assessment for a street improvement, if it appears from an amended transcript that the precept was issued on an imperfect final estimate, and that the perfected final estimate was filed after the appeal was taken, and after a demurrer was sustained to the original transcript, the amended complaint or transcript will be bad on demurrer.</p> <p>Same.—Precept.—Common Council.—The common council has no right to issue a precept on an improper assessment.</p> <p>Same.—Correcting Final Estimate and Assessment.—The making of a correct assessment, after a precept has issued on an incorrect one, cannot relate back so as to make the precept good and defeat an appeal from the precept.</p> <p>Same.—Amendment of Transcript.—Where an act has been properly done, and the transcript does not show such act, and for that reason a demurrer is sustained to the transcript, an amendment may be made to the transcript, showing that such act was done.</p>

<p>City.—Final Assessment for Street Improvement.—Common Council.—The final estímate and'assessment for a street improvement in a city may be amended or corrected by the common council.</p> <p>SAME .—Assessment for Street Improvement.—Married Woman.—Coverture is no reason why real estate belonging to a person under such disability should not be assessed for its share of the cost of a street improvement.</p> <p>Same.—Appeal from Precept.— General Denial.—Evidence.—On an appeal from a precept issued for the collection of an assessment for a street improvement, under the general denial, the contractor must prove that the proceedings of the officers subsequent to the order directing the work to be done have been regular, that a contract was made, that the work has been done in whole or in part, according to the contract, and that the estimate has been properly made thereon.</p> <p>Motion for. New Trial.—Evidence.—A motion for a new trial on the ground of the improper admission or exclusion of evidence should specify the evidence claimed to have been improperly admitted or rejected. It should name the document or the testimony, specifying the witness, which was improperly received or disallowed.</p>

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

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

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

<p>Practice.—Finding of Facts and Conclusions of Law.—Motion for New Trial\ Exception to Conclusions of Law.—Assignment of Error.—Where a cause is submitted to the court for trial, and the court is requested by one of the parties to find the facts, and then the conclusions of law upon them, two things are to be done, x. The court must state the facts, which of necessity involves the finding of the facts. 2. The court must state the conclusions of law upon the facts.</p> <p>If in finding the facts the court has erred, a motion for a new ferial is the proper remedy, and the assignment on appeal of the overruling of such motion presents all questions properly set forth in the motion. If the court has erred in the conclusions of law, the error is reached by excepting to the conclusions of law and assigning the error on the record on appeal. A motion for a new trial on the ground of error in the conclusions of law, and the assignment of the overruling of the motion as error will present no question to the Supreme Court.</p> <p>Turnpike.—Appropriation of Land. — Damages.—In a proceeding to appropriate land for a gravel rpad, the cost of material for a fence on each side of the road, where it runs through the land of which a portion is condemned, is a proper element of damages.</p>

<p>Pleading.—Negligence.—Railroad.—A complaint seeking a recovery from a railroad company on the ground of negligence in running a train of cars, whereby the plaintiff has been injured, must expressly allege that the injury occurred without the fault or negligence of the plaintiff, or it must clearly appear from the facts which are alleged that such must have been the case.</p>

<p>Draining Association. — Appraisers. — Schedule. — Lands not liable to be affected at all, either beneficially or injuriously, along the line of a proposed drain, are not required to be returned by the appraisers appointed to make a schedule; and if no lands are injured, the appraisers may so declare in their return, and if in such case the schedule returned contain all the lands benefittted it will be sufficient.</p> <p>Same.—Notice, Informal or Irregular.—Recording.—If the notice of the time and place, when and where the appraisers will begin the examination of the lands, be informal or irregular, still it does not invalidate the assessment, when the amount thereof is clearly set forth in the appraisers’ schedule, which is properly recorded, due notice thereof being given.</p>

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

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

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

<p>Practice.—Appealby Part of Defendants.—Where'only part of several co-defendants against whom a judgment or decree has been rendered appeal, without notice of the appeal to the others as required by statute, the appeal will be dismissed.</p>

<p>Bastardy.—Imprisonment.—Constitutional Law.—Statute.—The provision of the bastardy act which authorizes'the court to require the defendant to replevy the judgment by good freehold surety, or in default thereof to commit such defendant- to jail until such security be given, is not in conflict with the latter clause of the twenty-second section of article one of the constitution of Indiana.</p>

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

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

<p>County Commissioners.—Allowance to Clerk for Extra Services. — Before county commissioners can make an allowance to a clerk, under the provisions of the act of 1861 (2 G. & H. 652), the clerk must take and subscribe an oath or affirmation to the truth of his charges. Subscribing his name t9 the charges is in no sense subscribing to the oath or affirmation.</p> <p>Same.—A certificate of the auditor, that the claim so subscribed has been “ subscribed and sworn to in open court,” is not sufficient; it does not show that the clerk has subscribed and sworn to the truth of the charges.</p>

<p>Criminal Law.—Abortion, Attempt to Produce.—Stattite.—The statute makes an attempt to produce miscarriage a criminal act, unless the miscarriage is necessary to save the life of the woman.</p> <p>Same.—Indictment. — An indictment for an attempt to procure an abortion charged that an instrument was used to produce a miscarriage, “the employment of said instrument not being necessary to preserve the life of the woman,” without alleging that the miscarriage was not necessary to save the life of the woman.</p> <p>Held, that the indictment should have been quashed on motion.</p>

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

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

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

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

<p>Railroad.—Injury to Animals.—To render a railroad company liable, under the statute, for animals killed or injured by its cars, locomotives, or other carriages, there must be actual collision of the cars, locomotives, or other car- . riages with such animals.</p> <p>Same.—A railroad company is not liable, under the statute, for an injury to an animal, where a train caused the animal to take fright, and the injury was the result of the fright. Thus, the company is not liable, where a colt, frightened by a train, ran from an adjoining field upon the railroad track, which was not properly fenced, and there broke its leg between the bars of a cow-pit.</p>

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

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

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

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

<p>Attorney.—Suspension of.—The provisions of the statute for the suspension of an attorney from practice are penal in their nature, and should be strictly construed.</p> <p>Same.—Partnership.—An attorney cannot be suspended from the practice by the default of his partner in collecting and converting the money of a client without his knowledge or consent.</p> <p>Same.—Appeal.—Notice of.—Where a judgment was rendered for money, and also suspending two partners, attorneys, from practice, one appealed from the judgment of suspension.</p> <p>•Held, that the judgment of suspension was personal only to the appellant, and section 551 of the code (2 G. & H. 270), requiring notice of appeal to be served on co-parties, did not apply.</p>

<p>Pleading.—Mortgage.—Foreclosure.—Description.—The complaint for a foreclosure of a mortgage should so describe the premises that, if a sale is ordered, the officer may know on what to execute the order.</p> <p>Same.—The complaint fbr a foreclosure of a mortgage is fatally defective where, without containing a sufficient description of the premises mortgaged, it refers to the mortgage made a part thereof, which contains no sufficient description, but itself refers therefor to another instrument.</p>

<p>Statute of Limitations.—Fratid.—Conveyance Treated as Mortgage.—Complaint against an administrator, alleging that a deed of conveyance of land to his decedent, absolute on its face, was a mortgage; that the decedent, as the attorney of the plaintiff, was guilty of gross fraud and violation of duty in procuring his client, the plaintiff, to execute a deed instead of a mortgage to secure liabilities incurred by the attorney in becoming bail for him, and for fees due the attorney; and that, to defraud the plaintiff, the decedent had conveyed the land to another; and asking that the estate of the decedent pay to the plaintiff the value of the land, less the amount due from the plaintiff to the decedent on account of such liabilities and fees. The administrator answered that the cause of action did not accrue within six years next before the commencement of the action, and, also, that more than eighteen months elapsed after the death of the decedent before the action was commenced.</p> <p>Held, on demurrer to the answer, that whether the action was for relief against fraud, or to recover money, the answer was good.</p>

<p>Executor.—Sale of Real Estate.—Report of Sale.—Remote Damages.—To a complaint by an executor upon a promissory note, the defendant answered, that he gave the note for the payment in part of the purchase-money of land bought from the plaintiff as executor, and that said purchase was made, as the plaintiff well knew, for the purpose of selling a portion of the same to a certain railroad company, to erect a depot thereon, but that the plaintiff neglected to report said sale to the court and have the same confirmed and a deed made at the April term of the common pleas court, and until the September term thereof, whereby the sale thereof to the railroad company was lost, and the enhanced value of said land which would have resulted from the erection of said depot was lost, to the damage of the defendant five hundred dollars, which sum he offered as a counter-claim. It was not alleged that the defendant did not know that the plaintiff would not report said sale; nor was it averred that the defendant moved the court to require such report, or that the plaintiff agreed to make such report at said term, or that the defendant had made a valid contract with the railroad company.</p> <p>Held that the damages were too remote.</p>

<p>Partition.'—■ Conveyance by Husband and Wife to Defraud Creditors.—Deed Set Aside.—A complaint for partition alleged that the husband of the plaintiff died seized of the land in question, and that the plaintiff, as his widow, was the owner of one-third thereof, and her children, made defendants, of the other two-thirds; that before the death of her husband, he, with the plaintiff, conveyed the land to one M.; that after the death of the plaintiff’s husband, the administrator of his estate procured an order of court setting aside the deed and directing the sale of two-thirds of said land to pay debts of said estate; that before the said decree setting aside said deed, the said M. reconveyed the land to the plaintiff; and she charged that the defendant L. claimed some interest in said land. The defendant L. answered, that the conveyance to M. was made to hinder and delay the creditors of the plaintiff’s husband, and that the plaintiff knew the purpose and joined in the fraud; that she was made a party defendant to the suit to set aside the conveyance, and she answered therein denying any interest in said land, and asserting that it was the property of said M., and the court in said proceeding found and adjudged said deed to be fraudulent and void, and set it aside as to two-thirds of the land, and directed the same to be sold to pay the debts of the deceased, and adjudged costs against the plaintiff herein and said M., and under an execution issued thereon and levied upon the interest of M. in said land, the same was sold and was purchased by the defendant L.; that at said sale the said plaintiff represented to the public, and to this defendant, that she had no interest in said land, but that it was the property of the said M.; and that the deed from the said M. was void, never having been delivered to her. A demurrer to this answer was overruled.</p> <p>The plaintiff replied, alleging that the defendant L. had full notice of the title of the plaintiff, and that before he purchased said land at the sale upon execution, under the said judgment for costs against M., the plaintiff in his presence made the proper demand on the sheriff to have the said one-third of said land set off to her, as the head of a family, under the law authorizing three hundred dollars to be thus set off. A demurrer was sustained to this reply, and the trial resulted in a finding for the defendant L.</p> <p>Held, that admitting the complaint to be sufficient, and that the reply was bad, neither of which questions was decided, yet the proof having failed to show that the plaintiff had filed any answer denying her interest in said land, in the action to set aside the deed, and having also failed to show that she had informed the defendant L. at the sale that she had no title to the land, and the court having only ordered the two-thirds of the land to be sold to pay debts, the finding for the defendant was not sustained by the evidence.</p>

<p>Interlocutory Orders.—Appeals.—Supersedeas.—Attachment.—The section of the code authorizing appeals from interlocutory orders, which requires an appeal bond to be filed when the appeal is taken, does not require any additional bond in order to suspend the proceedings for thirty days; but an appeal from an order of injunction does not allow a party to do an act, which by the injunction he is forbidden to do. The stay of proceedings upon the appeal is peculiarly applicable to other classes of eases mentioned in the section. The arrest of a party for disoDeying an order of injunction, within thirty days after appeal, and after the issuing of an ordinary supersedeas, is not an act in disregard of the authority of the Supreme Court. An ordinary supersedeas is not appropriate in such a case,</p>

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

<p>Set-Off.—Judgments.—The fact that judgments are rendered in difíérenl Courts does not prevent either party from having the one set off against the other.</p> <p>Same.—Judgment Against Principal.—There must he mutuality in the claims, in order that they may he set off against each other; hut where a judgment has been obtained on the relation of A. against B. and his sureties on a constable's bond, B. may have a judgment obtained by him against A. set off against the judgment on the bond.</p> <p>Pleading.— Written Instrument.—Judgment.—A judgment is not a written instrument within the meaning of the statute requiring copies of written instruments in pleading.</p> <p>Set-Off.—Appeal.—The fact that an appeal has been taken to the Supreme Court from the overruling of an application to allow an appeal from a justice of the peace, after the time limited, does not prevent the judgment from being satisfied by setting off another judgment against it, unless a stay of proceedings he had on the appeal.</p> <p>Same.—Equitable and Legal Title.—Although an equitable title to the judgment has been acquired by a stranger before the motion is made by the judgment defendant to have it satisfied by being set off against another judgment, yet the legal title will control the equity and authorize the satisfaction.</p> <p>Same.— Motion.— Pleading.— Practice.—A motion to satisfy judgments, by-setting them off one against another, does not require a complaint or pleading.</p>

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

<p>Practice.—Partition.—Appeal.—An appeal will not lie from an order of partition and the appointment of commissioners to make such partition, until after the return and confirmation of the report.</p>

<p>Mortgage.—Foreclosure.—Redemption.—Statute.—L. held a mortgage on certain real estate to secure the payment of four promissory notes, payable in one, two, three, and four years, executed by B. The first note was paid when due, and L. assigned the second to G. When that note became due, G. instituted suit to foreclose the mortgage and collect the note, making L. and certain other junior incumbrancers parties as defendants. L. filed a cross complaint setting up his notes and uniting with G. in the request for the foreclosure of the mortgage. The decree declared the rights of G., L., and other junior incumbrancers. The order of sale was issued at the instance of G., and the property was purchased by him 'for a sum only sufficient to pay his judgment, and he received the sheriff’s certificate. Within the year, L. paid to the clerk the amount of the bid of G., with ten per cent, interest, for the purpose of redeeming. The clerk made the entry showing the redemption, which, however, G. refused to recognize.</p> <p>Held, in a proceeding instituted by L. to establish and enforce his right to redeem, that L. was entitled to redeem the premises under the statutory provision.</p>

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

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

<p>PRACTICE.—Superior Court.—Appeal.—Assignment of Errors.—Whatever errors are assigned on appeal from the superior court in general term to the Supreme Court must be predicated upon the assignment of errors in the general term and the action of that court in such term thereon.</p> <p>SAMs..-—Sufficiency of Complaint.—Unless the question of the sufficiency of the complaint lias been raised in the general term, it cannot be assigned as error in the Supreme Court. PETTIT, C. J., and BOSKIRK, J., dissented.</p> <p>Same.—Motion for New Trial.—On such an appeal to the Supreme Court, the assignment as error of the overruling of a motion for a new trial, it was held, presented no question, as the court in general term did not overrale such motion.</p> <p>Same.—Proper Assignment of Error.—It is suggested that probably an assignment, that the superior court in general term erred in affirming or reversing the judgment of the court at special term, would present for the consideration of the Supreme Court on appeal all the questions that were properly presented to that court in general term.</p>

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

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

<p>Practice.—Interrogatory to Jury.—Objection.— Waiver.—An objection to the propounding of an interrogatory to a jury must be made when the interrogatory is submitted, that the court may modify or refuse the same; if the objection is withheld until the. interrogatory is answered, it will be too late to be available.</p> <p>Same.—Reasons for New Trial.—Indefinite.—A statement of a reason for a new trial, “that the court misdirected the juty,” does not include a refusal to direct the jury as requested; and the statement is too vague and indefinite,</p>

<p>Pleading.—Copy of Written Contract.—Demurrer to Reply to Bad Answer. Suit on a promissory note, secured by a chattel mortgage upon a portable sawmill. Answer that the note was given in consideration of the sale of the portable saw-mill, which sale was made upon a written agreement, executed by the plaintiff to the defendant, warranting the mill to be in good and complete running order; that there was a breach of said warranty, etc. There was no copy of the written contract filed with the answer. To this there was a reply, that the written contract was simply preliminary to an examination of the mill by the defendant, and that such examination had been made, and the note thereupon executed, and the written contract surrendered up. A demurrer to this reply was overruled.</p> <p>Held, that the reply was good, and that if bad the demurrer should have been sustained to the answer for the failure to file therewith a copy of the written agreement.</p>

<p>Married Woman.—Subsequent Marriage.—Prohibition of Alienation. — A married woman is prohibited from alienating, whether for life or in fee, absolutely or contingently, any real estate which she has acquired by virtue of a previous marriage, and it is immaterial whether there be children by such previous marriage or not; and a mortgage of such real estate is within the prohibition of the statute.</p> <p>Evidence.—Record of Deed.—A record of a deed is proper evidence, and neither the original deed nor a certified copy thereof is required.</p> <p>Marriage.—Proof—In civil suits, except for criminal conversation, cohabitation and reputation are sufficient evidence of marriage.</p>

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

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

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

<p>Clerk.— Criminal Prosecution.—Appeal.—Transcript.—Costs.—The clerk of the court, in a criminal prosecution, on conviction of the defendant, is required by law, when the defendant appeals to the Supreme Court, to make out and deliver to him a transcript of the papers, proceedings, and judgment, without the previous payment of his fees therefor.</p> <p>Same.—Constitutional Law.—The clerk takes his office with its burdens, and the constitutional provision touching services without compensation does not apply to him.</p> <p>Same.—Civil Code.—Sections 15 and 16.—Poor Persons.—Sections fifteen and sixteen of the civil code, referring to the prosecútion and defence of actions by poor persons, have no application to the defence of criminal prosecutions.</p> <p>Same.—Section 558.—Section five hundred and fifty-eight of the civil code, 2 G. & H. 273, has 'no reference to criminal cases.</p> <p>Same.—Criminal Code.—Appeal.—Appeals in criminal actions are taken in the manner, and in the cases, prescribed in article fourteen of the criminal code, 2 G. & H. 425, section 149, and are not governed by the civil code.</p>

<p>Promissory Note and Mortgage.— Cmdition.— Tender.—A mortgage to secure a note'for one thousand dollars contained the following clause: “We, the mortgagors, expressly agree to pay the sum of money above secured, without any relief from valuation or appraisement laws; reserving to themselves the right, and this note and mortgage is given upon that expressed condition, to pay the mortgage within the period of twenty days from the date hereof, the sum of nine hundred dollars, eight hundred cash and one hundred dollars in a promissory note payable one day after date, which he agrees to accept in consideration of the above mortgage debt and cause the same to be entered of record.” On the trial of an action to foreclose said mortgage, there was a special finding, that one of the mortgagors had offered to pay the eight hundred dollars and deliver the note for one hundred dollars, within the twenty days, on condition that the mortgagee would assign and transfer the note for one thousand dollars and the mortgage to a third person.</p> <p>Held, that the offer did not amount to a tender within the above clause of the mortgage; and it was not important what reason the mortgagee gave for his refusal to accept the offer.</p> <p>Pleading.—Reply.—Failtire to Reply.—Where there are separate paragraphs of an answer filed by different defendants, a reply in these words, “ The plaintiff for reply to defendant’s answer, says that he denies each and every allegation to the answer,” may be taken to be a reply to each paragraph of the answer. At all events, a defendant going to trial without objection waives a reply to his answer, and the same will be regarded as controverted.</p>

<p>Fraud.—Consideration.—The question of fraudulent intent in the conveyance of property is a question of fact, and want of consideration for the conveyance alone will not establish such intent, as against creditors.</p> <p>Same.—Deed to Vest Legal Title in Equitable Owner.—Where property has been conveyed to a husband, the consideration paid therefor being the property of his wife, and a note of the husband has been given for the remaining purchase-money, being one-third of the entire consideration, said note being secured by mortgage on the property conveyed, it is not fraudulent for the husband and wife, such note being still unpaid, to convey the property to a third person, and for such person to reconvey to the wife, in order to vest the title in her, she never having consented to the title’s being vested in her husband.</p>

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

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

<p>Contempt.—Practice.—In a proceeding for an alleged constructive contempt, except, perhaps, where it is to enforc® a civil remedy, if the person charged fully answers all the charges against him, he will be discharged as to the attachment, and the court cannot afterward hear evidence to impeach or contradict him.</p>

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

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

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

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

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

<p>Proceeding Supplementary to Execution.—Parties.—Residence.—Where in a proceeding supplementary to execution, the defendant resided in the county where the judgment was obtained and the supplementary proceeding was had;</p> <p>I-Ield, that a national hank situated in another county might be made a party and required to answer as to funds of the defendant held by it, under section 33 of the code.</p> <p>Bill of Exceptions.—All the Evidence.—The words, “this is all the testimony given in the cause,” in a bill of exceptions, were held sufficient to show that all the evidence given in the cause was contained therein.</p> <p>Pledge.—A person cannot he deprived of the benefit of collaterals or their proceeds, deposited to secure indebtedness to him, except upon a discharge of the indebtedness.</p>

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

<p>Railroad.—Freight Train.—Passenger.—Where a person was travelling on a railroad, in a caboose car, in charge of his stock and furniture, and an entry in reference to him had been made on the way-bill by the assistant superintendent, thus: “ a man in charge,” he was a passenger, and was entitled to all the rights and remedies of a passenger, though perhaps not entitled to the use by the company of all the appliances for the safety of passengers that would be used on passenger trains, But in whatever class of cars a railroad company undertakes to convey its passengers, its duty is to so manage such train that passengers shall not by its own carelessness be killed or injured.</p> <p>Same.—Freight Train Carrying Passengers.—Duty of Company.—Where a railroad company carries for hire, in a caboose car on a freight train, all passengers that apply, it becomes to some extent a passenger train, and the company is bound to use such safeguards for the protection of its passengers as science and skill have devised, and such as experience has proved to be efficacious in accomplishing their object on such a train. Slight care is not sufficient. It is bound to employ all the means reasonably in its power to prevent accidents and protect passengers.</p> <p>SAME.—Instruction to Jury.—Ptiblic Policy.—In an action against a railroad company for an injury to the plaintiff while a passenger, resulting from the negligence of the defendant, an instruction, that public policy demands that the law should be applied as rigidly to railroad companies as to any other species of common carriers, is not calculated to mislead the jury.</p> <p>SAME.—Evidence.—Negligence.—Accident.—Instructions.—In such an action, the court instructed the jury, that the plaintiff was not bound to prove more than enough to raise a presumption of negligence on the part of the defendant and resulting injury to himself; and the court also instructed that it was incumbent on the plaintiff to show to the satisfaction of the jury, by a preponderance of the evidence, some carelessness or neglect on the part of the railroad company, which resulted in the injury of the plaintiff; that if, the injury was the result of an accident which ordinary prudence could not have prevented, the defendant was not liable to the plaintiff for anything.</p> <p>Held, that if there was any error in these instructions, it was fully corrected by one giyen at the instance of the defendant, that the railroad company was only bound to exercise ordinary prudence to prevent the injury; and that if the jury believed from the evidence that the defendant was not guilty of negligence, the plaintiff could not recover; and that negligence consisted in not doing those things which a reasonable man in managing his own property would have done, under the circumstances shown in the evidence, or in doing those things which a reasonable man would not have done in managing his own property, under the circumstances shown in the evidence.</p> <p>Practice.—Reason For New Trial.—A statement of a reason for a new trial, that the court erred in admitting evidence in behalf of the plaintiff over the defendant’s objection, is too general.</p>

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

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

<p>Practice.—Amendment.—Name.—Where the Christian name of a plaintiff is incorrectly stated in the complaint, but properly given in the summons, it is not error in ‘the court to permit the amendment.</p> <p>Complaint.—Demurrer.—A complaint that charged that the defendant, as the agent of the plaintiff, had sold certain real estate and received the money therefor and failed to account, and also charged him with a balance due for personal property sold to him, was held good on demurrer for want of sufficient facts.</p> <p>Answer.—Statute of Frauds.—Answer in Full.—An answer to this complaint, that as to the sale of the land, it was a charge of the plaintiff against the defendant upon a contract for the sale of land, and that the contract was not in writing, was not a good defence. The complaint was not upon a contract for the sale of land to the defendant. Nor did the paragraph answer the entire complaint.</p> <p>Practice.—General Denial.—Paragraph Stricken Ottt.—A paragraph alleging that the land was, at the time of the sale, the property of the defendant, was properly stricken out, the general denial being also pleaded in answer.</p> <p>Pleading.—Statute of Limitations.—Part Payment.—To an answer of the statute of limitations, a reply that the defendant, within six years, paid on the claim mentioned fifty-one dollars as a part payment, was sufficient.</p> <p>Practice.—Affidavit for Continuance,— Time to Prepare Affidavit.—A party is not entitled, as a matter of right, to time to prepare an affidavit for continuance. Unless a reason be shown for claiming such time for preparation, the action of the court in refusing it will be affirmed.</p> <p>Amendment.—Description of Land.—An error in the description of the land sold, which was not shown to have misled the defendant, was properly corrected on motion when the error appeared by the evidence.</p> <p>Practice.—Reasons for New Trial.—Too General.—Irregularityintlieproceedings of the court, and error of law occurring at the trial, when thus vaguely stated as causes in a motion for a new trial, will not be noticed on appeal.</p>

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

<p>Practice.'—■Motion for New Trial.—Evidence.—Where it is alleged as a cause in a motion for a new trial, that the court erred in admitting evidence against the plaintiff, the particular evidence objected to should be pointed out.</p> <p>Same.—Supreme Court.—If there be evidence in support of the finding, this court will not disturb the finding on the weight of evidence.</p> <p>Same.—Demurrer.—The ruling upon a demurrer is not a ground for a new trial.</p>

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

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

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

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

<p>Decedents’ Estates.—Petition to Sell Lands in Two Cotmties.—Publication of Notice.—Where lands situated in Ripley county were sold in the course of administration, on petition of the administrator in Decatur county to sell other lands lying in Decatur county, with the lands situated in Ripley county, it was not necessary that the notice of the petition to sell should be published in Ripley county, the administration beiug in Decatur county, where publication was made.</p> <p>Same.—Jurisdiction of Common Pleas to Try Title.—Conchisiveness of Judgment.—Where, after the land had been struck off, but before confirmation of the sale, an heir of the deceased, against whom publication had been made appeared and contested the title of the estate to one undivided half interest in the property in Ripley county, alleging that he had conveyed to the deceased one undivided half interest only in said land, and that the deed had been fraudulently altered so as to convey the entire interest therein, and thereupon an issue was formed and tried, resulting in a finding that the deed had not been altered, and the sale was confirmed;</p> <p>Held, that the court of common pleas had jurisdiction to try the title, and that the finding was conclusive on the heir, and could not be attacked in a proceeding in the circuit court against the purchaser.</p> <p>Same.—The record of a domestic court of general jurisdiction need not'show affirmatively jurisdiction over the persons oí the parties, to authorize its introduction in evidence in a collatteral proceeding. An applicaiion to sell land in the course of administration stands upon the footing of an ordinary adversary judicial proceeding in a court of superior jurisdiction, and where jurisdiction has once been acquired, subsequent errors will not subject the proceeding to collateral attack.</p> <p>Same.—Appearance.—Collateral Proceeding.—The heir having appeared after the sale and made his objection in hostility to the title of his ancestor, and that objection having been overruled,.and the sale confirmed, and the pttrbnasemoney paid, he was concluded by that j udgment, as long as it stood unreversed, and he could not be heard to make other objections to the proceedings afterward.</p> <p>Evidence.—Judgment.—Estoppel.—Where a judgment is given in evidence, it is as conclusive in its effect as if it were specially pleaded by way of estoppel. The conclusiveness of a judgment rests not upon the doctrine of estoppel, but upon the ground that the whole community have an interest in holding the parties conclusively bound by the results of their own litigation.</p>

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

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

<p>Election.—Ineligible Candidate.—Candidates for Different Offices.—Ballots Counted for the Office for which they are Cast.—Where a majority of the ballots at an election are given to a candidate who is not eligible to the office, the ballots so cast are not to be counted for any purpose. They cannot elect the ineligible candidate or defeat the election of the opposing candidate by showing that he did not receive the majority of the votes cast at such election. It follows that the eligible candidate will receive the office, although less than a majority of the votes are cast for him. But this rule does not apply where two or more persons are candidates for different offices. Accordingly, although the office of one prison director is the same as that of another prison director, except it may be with reference to the time of election and the term for which he is to serve, still when one has been elected to succeed a designated person in such office, he cannot act as the successor of another in the same body, on the ground that the person who has been elected to succeed the other is ineligible.</p>

<p>Township Tax.—Incorporated Town.—A tax for township purposes can be legally collected upon property within an incorporated town situated in the township where the tax has been levied.</p>

<p>Will.—Executor Named Acting by Consent Without Qualifying.—Where a will has been duly probated, and one of the heirs, legatees, or devisees under the will named therein as executor, has by mutual consent and understanding of all the persons interested in the estate as such heirs, legatees, or devisees, acted as such executor and proceeded to make distribution of the personal property, without qualifying as executor, the husbands of a part of the heirs cannot, without notice to the person so acting as executor, on application to the clerk, have a stranger appointed as administrator with the will annexed, after the time for the person named as executor in the will to qualify has expired. The heirs having consented that the person named as executor should act without qualifying, it would be a fraud on him and the other heirs, legatees, and devisees to assert that he had waived his right by not qualifying within the time limited by statute.</p>

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