Volume 42 — Indiana Reports

<p>City.—Common Council.—Petitioners for Street Improvement.—Good Faith, of Petitioners,—The common council of a city have a right to believe thafi every property owner petitioning for the improvement of a street does, so in j good faith, and not under a contract by which he is to be relieved of the-whole or any part of his share of the cost of the improvement, whilst he is seeking to have others taxed for the whole amount of their shares under the-law.</p> <p>Same. — Any agreement or combination among parties petitioning for the-improvement of a street, by which a few individuals, desirous of causing the improvemufht to be made, procure the signatures of others to the petition by ■ paying, or agreeing to pay, a consideration therefor, either directly or indirectly, is a fraud on the law and contrary to public policy.</p> <p>Same.—In an action upon an agreement to pay a consideration to procure the • signatures of property owners to'a petition for the improvement of a street, for those whose names were thus procured to say that they were not opposed to the • improvement “ in itself considered,” but that they did not feel pecuniarily • able to bear the expense, and that they accepted the agreement in good faith,. and without fraud, will not render the agreement valid, or enable them to ■ enforce it.</p>

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

<p>Bond.— Consideration.—Restraint cf Trade.—Suit for breach of a bond conditioned that the defendant would not cell intoxicating liquor of any kind within a certain town or a certain township, for the term of one year. The expressed consideration was, that the obligee had given a like bond to the defendant.</p> <p>Held, that the obligations of the parties must be regarded as independent, and that the execution of each instrument was an ample and valid consideration for the execution of the other; the execution and not the performance being the consideration.</p> <p>Held, also, that the bond was not void as being in restraint of trade and therefore against public policy.</p> <p>Same.—Instructions.—Intention of Parties.—The court charged the jury, in substance, that if the defendant had violated his agreement, the plaintiff was entitled to recover so far as any defence that could be shown under the general denial was concerned, “ no matter for what purpose, or under what circumstances the defendant sold the liquor.” The court also left it to the jury to determine as a question of fact (the defendant having filed an answer to that effect), whether it was the intention of the parties, and understood between them at the time the bonds were executed, that the defendant might sell whiskey, etc., as a medicine, and if they should so find, and that defendant had not sold for any other purpose, and only “ to persons laboring under some disease, which in the opinion of a competent physician required for the cure of such disease the liquors thus sold by the defendant,” he was entitled to recover. The evidence proved that the defendant was a physician.</p> <p>Held, that these charges were not liable to objection on the part of the defendant.</p> <p>Same.—Parol Agreement.— Written Contract.—A charge asked by the defendant, which undertook to control the written contract by a contemporaneous parol agreement inconsistent with the terms of the writing, was properly refused.</p> <p>Pleading.—Failure to Reply.—An affirmative answer, where the case has been tried without a reply, will be deemed to have been controverted on the trial, in the same manner as if a reply in denial had been filed.</p>

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

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

<p>Statute.—Assessment Law.—Printing of Delinquent List.—Compensation.— Sections 142 and 143 of the assessment law, as amended May 31st, 1861, require that the compensation for the publication of the delinquent list shall be made on the basis of tabular description, as contained in the duplicate, and have no reference to the number of columns in the newspaper.</p> <p>Excessive Payment.— Voluntary.—Where the commissioners have allowed an excessive claim for printing the list, there being no mistake of fact, the list being before them, and it being their duty to know the fact, the money cannot be recovered back.</p> <p>Board of Commissioners.—Allowance of Claims.—judicial Decision.—Conclusiveness.—The board of commissioners, in acting upon claims against the county, act in a judicial capacity, and their decisions are conclusive and binding alike upon the county and the claimant, unless appealed from, or unless an independent action is brought against the county when the claim has been disallowed.</p>

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

<p>Way.—A way is an incorporeal hereditament, and consists in the right of passing over another’s ground. It may arise from grant, prescription, or necessity, and is either in gross, that is, attached to the person using it, or appurtenant, or annexed to and passing with a conveyance of the estate.</p> <p>Same .—In Gross and Appurtenant.—A way is never construed to be in gross when it can fairly be construed to be appurtenant.</p> <p>SAME.— When a Way is Appurtenant.—A way is appurtenant when it is incident to an estate, one terminus being on the land of another, inheres in the land, concerns the premises, and is essentially necessary to their enjoyment. It is in the nature of a covenant running with the land, and must respect the thing granted, and concern the land or estate conveyed.</p> <p>Same.—Right of Way Ascertained and. Established.—Where them is no record evidence of a right of way, and the owner of the real estate over which the way is claimed denies its existence and is threatening to interrupt the use and enjoyment of the way, and has placed upon record a notice that he disputes such right, the person claiming such way may, by an action, have his right . ascertained and the way established, while those who are acquainted with the facts are alive.</p> <p>Practice.—Objection to Judgment.—Where a general objection is made to the rendition of a judgment, and no particular objections are pointed out to the court below, such objections cannot be made for the first time in the Supreme Court.</p>

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

<p>Witness,—Credibility.—Conviction of Infamous Crime.—Every person who, after the adoption of section 79, p. 999 of the Revised Statutes of 1843, was duly convicted of the crime of treason, murder, rape, arson, burglary, robbery, manstealing, forgery, or wilful and corrupt perjury, was incapable of giving evidence in a court of justice, prior to the adoption of section 243 of the present code; since the adoption of said section 243, such conviction may be shown to affect the credibility of a witness.</p> <p>Same.—It is error to permit the introduction in evidence of a record showing an indictment for an assault and battery with intent to commit a rape, and showing an acquittal of the intent and a conviction for a simple assault and battery, for the purpose of affecting the credibility of a witness.</p> <p>Evidence.—Practice.—Where a parly against whom incompetent or inadmissible evidence has been admitted objected at the proper time and in the proper manner, and excepted to its admission, he need not afterward move to strike it out, in order to have the benefit of his exception.</p> <p>Instruction.—Illegal Evidence. —Where an instruction to a jury does not withdraw illegal evidence or direct the jury to disregard it, though its legal import may be that the, evidence is incompetent or insufficient, the instruction does not cure the error in admitting the evidence.</p> <p>TRIAL.—Commencement of Trial.—With reference to the statute fixing the time when objections to depositions must be made (sec. 266 of the code), the swearing of the jury is the commencement of the trial.</p> <p>Deposition.—Motion to Suppress.—A court cannot suppress a deposition after the jury is sworn, unless the objection relate to some matter not disclosed in the deposition.</p>

<p>Judge,—Bill of Exceptions.—A person who has been a judge, and presided at the trial of a cause, possesses no power to sign a bill of exceptions in such cause after he has ceased to be a judge.</p> <p>Same.—Tbe successor in office of such judge has full power to sign a bill of exceptions embodying the evidence, and this court is bound to presume that in exercising such power be acted upon reliable information.</p> <p>Witness.—Assignor.—Claim Against an Estate.—Wfhere one sues as assignee upon an account, or upon a note equitably assigned, and makes the assignor a party to answer as to his interest, the assignor and assignee are not adverse parties; their interests are identical; and where the cause of action is filed as a claim against an estate, the assignor cannot testify as a witness for the assignee.</p> <p>STATUTE of Limitations.—New Promise.—Acknowledgment of Debt.—Evidence.—No acknowledgment of a debt barred by the statute of limitations, or promise to pay it,is sufficient to take the case out of the operation of the statute, unless the same be contained in some writing signed by the party to be charged thereby. It is not competent to prove such acknowledgment or promise by parol.</p> <p>Same.—Part Payment.—Parol Evidence.—Part payment may be proved by parol.</p> <p>Same.—An admission of continued indebtedness may be inferred from the fact of part payment; but the court is not allowed to imply such admission as an inference of law. It must be left to the jury.</p> <p>Same.—Part payment is only prima facie evidence of an admission of continued indebtedness, and may be rebutted by other evidence_ and the circumstances under which it was made.</p> <p>Same.—In order to- take a case out of the statute of limitations by part payment, the payment must have been on account of the debt for which the action is brought.</p> <p>SAME.—The force and effect of part payment is the same under the code that it was at common law, but no indorsement or memorandum of any payment, made upon any instrument of writing, by or on behalf of the party to whom the payment purports to be made, will be deemed sufficient to take the case out of the operation of the statute.</p>

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

<p>Practice.—Assignment of Error.—Motion for New Trial.—Error in permiting a deposition to be read in evidence, and erroneous instructions given to fhe jury, are covered by an assignment of error in overruling a motion for a new trial, if such matters are properly embraced in the motion for a new trial.</p> <p>Same.—Motion for New Trial.—A motion for a new trial on the ground of error of law occurring at the trial must point out the error relied upon to sustain the motion. So of error in giving instructions, the instructions objected to must be pointed out. So of irregularity in the proceedings of the jury, the irregularity complained of must be pointed out.</p> <p>Same.—Bill of Exceptions.—To present any question upon a motion for a new trial, on the ground that the verdict is not sustained by the evidence, or that the verdict is contrary to law, or that excessive damages have been given, the evidence must be put into the record by a bill of exceptions.</p> <p>Same.—Time of Filing.— Where timéis given, extending beyond the term, within which to file a bill of exceptions, the record must show affirmatively that the bill was filed within the time limited, or it will be disregarded.</p> <p>Statute of Frauds.—Contract.—Time of Performance.—Where no time is fixed for the performance of a contract, or where it is to- be performed by a certain day (not precluding the right to perform sooner), or where the performance depends upon a contingency which may or may not happen within the year; the contract is not within the statute of frauds.</p>

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

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

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

<p>City.—Territorial Limits.—The territorial limits of the city of Indianapolis are fixed and described by public law and public records open to all.</p> <p>Same.-—Ordinance for Street Improvement.—Contractor.—The action of the common council of a city in passing an ordinance for the improvement of a street, and proceedings under it in letting a contract, cannot be said to throw the person making such contract off his guard in making inquiry as to whether or not the street proposed to be improved is within the corporate limits of the city.</p> <p>Principal and Agent.—Liability of Agent.—One assuming to act as agent for another without authority does not necessarily render himself liable. It is when he knowingly or carelessly assumes to act without being authorized, or conceals the true state of his authority, and falsely leads the party with whom he contracts to repose in his authority, that he may be liable.</p> <p>Same.—-If one enters into a contract in the name of another and as his agent, and does it honestly, fully disclosing all the facts touching the authority under which he acts, so that the one contracted with, from such information or otherwise, is fully informed of the authority possessed or claimed, the agent is not liable on the ground of deceit or for misleading the other parly.</p> <p>Same.—It is material in such case that the party complaining of a want of authority in the agent should be ignorant of the truth touching the agency. If he has full knowledge of the facts, or of such facts as fairly and fully put him upon inquiry, and he fails to avail himself of such knowledge, or the means of knowledge reasonably accessible, he cannot, in the absence of fraud, say that he was misled, simply on the ground that the party assumed to act as agent without authority.</p> <p>Same.—Public Officer.—If a party contracts as a public officer, and in that capacity acts honestly, he will not ordinarily he personally liable. If his authority to act is defined by public statute, all who contract with him will be presumed to know the extent of his authority, and cannot allege their ignorance as a ground for charging him with acting in excess of such authority, unless he knowingly mislead the other party.</p> <p>Same.—Members of Common Council.—Contractor.—If the members of the common council of a city, in passing an ordinance and letting a contract for the improvement of a street, act in good faith, under a misapprehension, they and the contractor, as well as the adjacent owner of real estate, believing the street to be within the corporate limits of the city, the contractor having like knowledge with the members of the council, they cannot be held liable for the cost of such improvement, though the place where the same is made is not within the corporate limits.</p>

<p>City.—Appealfrom Precept.—Parties.—On an appeal from a precept issued to enforce the collection of an assessment for the improvement of a street, the contractor who did the work, and for whose benefit the precept issued, is the proper party plaintiff.</p> <p>SAME .—Appeal Bond.—The appeal bond in such case should be made payable to the contractor, and not to the city.</p> <p>Same.—yudgment.—Amendment.—Complaint.—Where, in such an action, the' ciiy appears as the party plaintiff, and the cause is allowed to proceed to final judgment without objection, and the court in the judgment orders the money when collected to be paid to the contractor, the judgment will be substantially a judgment in favor of the contractor, and the Supreme Court will deem the complaint to have been amended by making him the plaintiff.</p> <p>Judgment.— Objections to Judgment.—Where no objection has been made in the court below to the form of a judgment, objections first made in the Supreme Court will not prevail.</p>

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

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

<p>City.—Aid to Railroad Company.—Petition.—Remonstrance.—Where apetition asking a city to make a donation in aid of the construction of a railroad has been presented to the common council and referred to a committee of the council, persons who signed the petition may, by a remonstrance, withdraw their names from the petition while the same is in the hands of the committee; and if, after such withdrawal, there is not a sufficient number of petitioners asking the donation, the council cannot make the same.</p>

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

<p>City.—Contract for Street Improvenent.—Extension of Time.—Penalty.— Where a contract for a street improvement provided, that if the work should not he done within a time specified, and the contractor should desire an extension of time, such extension should only be granted on condition that five per centum per month should be deducted from the assessments for all work done after such extension, the deduction to operate for the benefit of the property holders;</p> <p>Held, that the deduction provided for was in the nature of a penalty, which the common council might enforce or not,in its discretion.</p> <p>I-Ield, also, that the penalty was only to attach on condition that the contractor desired an extension of time.</p> <p>Pleading.—Answer to Part of Catise of Action.—-An answer which assumes to be in bar of the whole action, when it is only in bar of a part, is bad.</p> <p>Judge.—Potuer to Correct Special Finding.—A judge may correct his special finding during the term at which it is made, by finding upon issues that have been omitted.</p> <p>Same.—Must Make Finding.-—-In making a sjiecial finding, where there is any evidence on a point pertinent to an issue in the cause, the court is required to find, either that the fact did exist or that it did not exist.</p> <p>Same.—If the testimony is evenly balanced, the court should find against the party upon whom the burden of the issue rests.</p> <p>City.—Appeal from Precept.—Issues to He Tried.—Oa an appeal from a. precept issued for the collection of an assessment for a street improvement, the issues to be tried are, whether the proceedings of Uie officers subsequent to the order directing the work to be done were regular ■ whether a contract was made; whether the work was done, in whole or in part, according to the contract; and whether the estimate has been properly made thereon.</p> <p>SAME.—Improvement of Street.—Acceptance of Work.—The acceptance by the city authorities of work done under a contract for a street improvement is only prima facie evidence that the work has been done in substantial compliance with the terms of the contract.</p> <p>PRACTICE.—Motion for Venire de Novo.—Special Finding.—Where a court makes a special finding of facts and conclusions of law, but fails to find all the facts covering the issues and embraced therein, a motion for a venire de novo assigning such cause should be sustained.</p>

<p>Husband And Wife.— Vendors Lien.—Where a wife, her husband, and a third person were joint purchasers of certain real estate, and the deed of conveyance was made to them, and notes given for the purchase-money were not signed by the wife, but were signed by the husband and the other purchaser, and the husband and wife were purchasers of one-half of the premises, and the next day after the deed was made, the purchasers, with the consent of the vendor,'had the name of the husband struck out of the deed by the justice of the peace who took the acknowledgment, and afterward the wife signed the notes;</p> <p>Held, that the vendor would be entitled to hold a lien upon the real estate for the unpaid purchase-money, as against the wife.</p> <p>Held, also, that the notes, as to the wife, were absolutely void, and she was net bound by stipulations therein to pay ten per cent, interest and to waive valuation and appraisement laws.</p> <p>Same.—• Tenants by Entireties.—Where real estate is conveyed to a husband and wife and another person jointly, the husband and wife will take an undivided one-half of the premises, as tenants by entireties.</p>

<p>Criminal Law.—Pleading.—Former Conviction.—In all criminal prosecutions, the defendant, under amoral plea of the general issue, may show a former conviction for the same offence.</p>

<p>Evidence.—Fraudulent Conveyance.—-Certain real estate was purchased of A. and conveyed to B., and by B. and his wife conveyed to C., the father of B.’s wife, and by C. conveyed to the wife of B. In a proceeding to subject said real estate to the payment of a judgment against B. on the ground of fraud;</p> <p>Held, that under an answer of general denial evidence was admissible that C. was to pay A. .the consideration for the real estate; that the deed was to have been made in the name of B.’s wife; that it was made to her husband without her knowledge and consent, and that she objected to its being made to her husband as soon as she knew of the lact.</p> <p>Conveyance to Wife.—Gift from Father.— Where a father, to provide his daughter with a home, paid the purchase-money for certain real estate, intending to make a gift of it to his daughter, and the real estate was conveyed to the husband of the daughter, and she never relinquished to her husband her right to hold the purchase-money or the benefit of it to her separate use; and afterward the husband, in consideration that his wife’s father had paid the purchase-money for her benefit conveyed the real estate through the father to her, she had the right to hold it against a creditor of the husband.</p> <p>SAME. —Where a married man, about the time of making a purchase of real estate, informed his wife that if her father would pay the purchase-money he would have the conveyance made to her; and the father of the wife, in pursuance thereof, paid for the land; and without the consent of the wife, or of her father, the deed was taken in the name of the husband; and afterward, being in failing circumstances, he, in order to fulfil his promise to his wife, conveyed the real estate to her through a trustee;</p> <p>Held, that the conveyance was founded on a good consideration, and was not fraudulent, and the land could not be taken from the wife to pay the debts of the husband.</p>

<p>Practice.—Special Finding.—General Verdict.—It is only when a special finding of facts is inconsistent with the general verdict, that the former will control the latter.</p> <p>Same.—If a special finding can by any hypothesis be reconciled with the general yerdict, the latter will control, and the court will not render judgment against the party who has the general verdict in his favor.</p> <p>Assignment of Error.—Insufficient Complaint.—Where the error assigned in the Supreme Court is, that a demurrer ought to have been sustained to the complaint, and no demurrer appears in the record, the sufficiency of the complaint is not presented by the assignment.</p>

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

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

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

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

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

<p>Costs.—Appeal from Justice of the Peace.—On appeal from a justice of the peace to the circuit court or court of common pleas, where the plaintiff has failed to recover before the justice, and again fails on appeal, the defendant is entitled to judgment against the plaintiff for full costs.</p>

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

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

<p>Justice of the Peace.—Appeal.— Application for. — On an application made under sec. 68. p. 597, 2 G. & H.,.for an order to authorize an appeal from a judgment of a justice of the peace, it may be said that a party has been prevented from taking an appeal by circumstances not under his control, when it clearly appears that he did not know within the time allowed for taking the-appeal that the suit had been brought or judgment rendered.</p> <p>Same.—Set-Off Pending Appeal to Supreme Court.—Where a judgment has-been rendered before a justice of the peace, and the defendant has applied for' an order to allow an appeal, which order has been-refused, from which refusal' an appeal has been taken to the Supreme Court; while the appeal is pending,. an order made in the court below, setting off the judgment from which an appeal is sought against a like amount due on a j udgment in favor of the defendant in the former judgment and against the plaintiff in said judgment,, will have no effect otjt the appeal.</p> <p>Supreme 'Court.—Petition for Rehearing.— It is too late to present a question! in the Supreme Court for the first time on a petition for a rehearing.</p>

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

<p>APPEAL fronxthe Montgomery Circuit Court.</p>

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

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

<p>Practice.—Impanelling of Special fury.—Statute.—The act of March 7th, *873 (Acts 1873, Reg. Ses. p. 103), empowering the circuit court, whenever its business requires it, to order the impanelling of a special jury for the trial of any cause, does not authorize the court to impanel such jury before the day fixed for the trial of causes, to which dav the regular panel has been summoned. It was intended to authorize a special jmy when the regular panel is engaged or after it has been discharged.</p> <p>Same.—Jury Trial.—Where a person indicted for grand larceny expressed himself as ready for trial on the fifth day of the term, none of the petit jury being present, not having been summoned to attend until the seventh day, and the court ordered a special jury to be impanelled, over the objection of the defendant, and proceeded to try him;</p> <p>Held, that the trial was irregular, and the defendant was entitled to a new trial.</p>

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

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

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

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

<p>Pleading.—Contest of Will.—The proceeding to contest a will is statutory; and the statute (2 G. & IT. 559, sec. 39) providing that any person may “ contest,” etc., “by filing in the proper court his allegation in writing, verified by his affidavit setting forth,” etc., is complied with when the complaint has been sworn to by any one or more of the plaintiffs.</p> <p>Same.—Unsound Mind.—In a proceeding to contest a will, the general allegation that the testator was of unsound mind includes every species of unsoundness of mind.</p> <p>SAME.—Will.—Undue Execution of.—In such proceeding, the allegation that the will was unduly executed includes duress, fraud, and whatever else goes to show undue execution.</p> <p>Same.—Parties.—Defect of—A demurrer to a complaint on the ground of a defect of parties defendants should be overruled, where it is not shown who ought to be made defendants.</p> <p>Practice.—Return of Verdict.—Clerk.—The clerk of a court cannot, by agreement of the parties to an action, in the absence of the judge, preside at the return of the verdict and during the polling of the jury, receive the verdict, and discharge the jury.</p> <p>JURISDICTION.'—Circuit Court.—Court of Common Pleas.—Change of Venue.— A proceeding to contest a will is required to be commenced in the court of common pleas, but the transfer of the same from the common pleas to the circuit court may be presumed to be governed by the statute providing for change of venue to the circuit court.</p> <p>Same.—The parties to such a proceeding in the court of common pleas, having agreed of record that the proceeding should be transferred to the circuit court, which had jurisdiction of the subject-matter, and in the latter court having appeared and gone to trial without objection, could not afterward object that the transfer had been erroneously granted.</p> <p>Practice.—Evidence.—Immaterial matter in a gomplaint may be struck out on motion, or evidence offered in support of it may be rejected.</p> <p>Evidence.—In a proceeding to contest a will on the ground of the unsoundness of mind of the testator and the undue execution of the will, evidence of the amount of property the widow owned when she married the testator was held inadmissible.</p> <p>Same.—In such a proceeding, evidence is inadmissible, that the widow in the lifetime of the testator, after the will was made, filed a petition for divorce from the testator, then her husband, which was pending at the time of his death.</p>

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

<p>Foreclosure.—Agreement to Release.—Reformation of Instrument.—To a suit to.foreclose a mortgage upon different pieces of real property, one of the defendants answered that he had purchased one piece of the property mortgaged from his co-defendant, the mortgagor; and in consideration of the payment of a certain sum to the plaintiffs by this defendant, the plaintiffs were to release the land from the mortgage, and the plaintiff G., for himself, signed the deed conveying the property, but by mistake failed to sign also, as had been agreed, for his sisters, his co-plaintiffs, whose agent he was. A reformation of the deed was asked.</p> <p>Held, on demurrer, that the facts entitled the defendant to a reformation of the deed, but that such reformation was not necessary to defeat the suit as to the land conveyed.</p> <p>Pleading.—Paragraph.—Each paragraph of an answer must be complete in itself, and a failure to describe the piece of land sought to be released from the lien of a mortgage would be a fatal defect in such paragraph.</p> <p>MORTGAGE.— Waste.—Duty of Mortgagee and Purchaser.—It is not the duty of either a mortgagee or the purchaser of the equity of redemption of a part of the property mortgaged, although it is his right, to enjoin the committing of waste; and the failure so to do furnishes no ground for requiring an account from the mortgagee, at the instance of such purchaser, and a credit upon the mortgage debt of the amount of waste committed upon other pieces of property included in the mortgage.</p> <p>Practice.—Change of Vemie.—Rule of Cemrt.—Unless a rule of court limiting the time for making application for a change of venue be made a part of the record, this court cannot on appeal notice the existence of such a rule.</p> <p>Decree—Form of—Judicial Sale.—.A decree giving the plaintiff the right to d irect the sale of different pieces of property, on foreclosure, is erroneous. The court should direct the order of sale in the decree.</p>

<p>Mortgage.—Description of Land.—A mortgage was executed to the State on “ all the west half of the north-west quarter of section 8, township 6, range 7,” without stating in what county or state the land is situated or at what particular land-office it was subject to entry.</p> <p>Held, that the mortgage, for the want of more certainty as to the land intended to be mortgaged, vested no interest in the State in any particular land; therefore, a sale by the auditor under the mortgage was a nullity and vested no title in the purchaser.</p>

<p>Practice.—Juror not a Householder.—Where a motion for a new trial has been made on the ground that one of the jurors was not a householder, and that the party making the motion accepted him in ignorance of that fact, and the court has overruled the motion, the ruling will be sustained on appeal, if in the affidavits on the point the preponderance of testimony sustains Ihe ruling.</p> <p>Same.—Conflict of Testimony.—This court wiil not determine the preponderance of testimony in cases of conflict thereof.</p>

<p>Practice.—Appeal. — Judgment l>y Agreement. — Supplemental Pleading.— Where, upon appeal, it was agreed, that if the instructions of the court below had been erroneous as applied to the evidence, the Supreme Court should render a proper judgment without a new trial, and this court thereupon fixed the basis of a judgment and directed the court below to render such a judgment, a party to the agreement could not, when the case was remanded, file a supplemental answer alleging partial payment upon execution issued pending the appeal; all the lower court could do was to enter the judgment as directed.</p>

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

<p>HIGHWAY.—Claim for Damages.— Waiver.—Where, upon, a petition being filed for the location and opening of a proposed highway, a remonstrant over whose lands it would pass appeared in the commissioners’ court, and made no objection to the sufficiency of the petition, the giving of notice, or as to the utility of the proposed highway, but filed his claim for damages;</p> <p>Held, that he waived all quastionsmi irregularity in the proceedings and as to the utility of the road.</p> <p>Evidence of [Use by Public.—Instruction.—In determining whether a proposed road will be of benefit or inj ury to a particular farm, it is proper for the jury to consider the existence or non-existence of the roads that pass over or near the farm; and the legality and permanency of such roads are of vital importance. Accordingly, it was error for the court to refuse to instruct the jury, that by the unopposed use of any road over the lands of the remonstrant by the public, he being cognizant thereof, until public accommodation and private rights would be materially affected by the interruption of the same, although the use had not continued twenty years, he would be barred of his right to close .the highway.</p>

<p>Practice.—Cause Reversed on Appeal.—Time of New Trial.—Statute Continued in Force.—This provision in the statutes of 1843 is continued in force by sec. 802, p. 336, 2 G. & H.: “ Whenever any cause is reversed in the Supreme Court, in whole or in part, on appeal or writ of error, and sent back for such further proceedings as may require a trial by jury, if the decision and opinion of the Supreme Court in such cause shall have been deposited in the office of the clerk of the inferior court sixty days or more before the first day of any term of such court, such cause shall stand for trial at such term; otherwise it shall be continued until the next term of the court. ”■</p>

<p>Contract.—Implied Promise.— Work and Labor.—Uncle and Niece.—A girl, upon the death of her mother, was turned away from home by her father, at the age of fourteen, and at the suggestion of her aunt and her grandmother she went to live with an uncle-and aunt, with whom she remained until she was twenty-five years of age; when, being engaged to be married, she privately left, and was afterward married; and she subsequently brought suit against said uncle for work and labor. It was not claimed that any express contract existed, and it appeared that she was kindly treated and provided for in a better manner than she would have been if she had merely received ordinary wages.</p> <p>Held, that she was not entitled to recover for her services.</p>

<p>Conveyance.—Statutory Form.—Covenants.—A warranty deed1 in- the statutory form is a conveyance in fee simple to the grantee,, his heirs, and assigns, with covenants from the grantor and his heirs and' personal representatives, that he is lawfully seized of the premises, has good right to convey the same, and guarantees the quiet possession thereof, that the same are free from all incumbrances, and that he will warrant and defend the title against all lawful claims.</p> <p>Same.—Breach of Covenant of Seizin.—Action not Local.—A., the grantee in a deed of conveyance of certain real estate from. B., brought suit against C., who had conveyed the land to B., for breach- of a covenant of seizin in his deed to B.</p> <p>Held, that the action was not local; that the suit was one to be brought, not in the county where the land was situated, but in the county where C, resided.,</p> <p>Same.—Covenant Running with Land.—The covenant of seizin will pass to the heir or assignee of the grantee. Whoever derives the right to the land through such grantee, and ultimately sustains damages in consequence of the covenantor’s want of title, may sue him for damages.</p> <p>Same.—Consideration.—The defendant in such an action may show a want or failure of consideration for the deed upon which the action is brought.</p>

<p>Turnpike.—Assessment.—Neither the board of érjualization nor any court or body, except the assessors, has power to make any assessment of benefits in the construction of a turnpike.</p>

<p>Practice.—Demurrer to Evidence.—Statement of Evidence.—Joinder in Demurrer.—The party demurring to evidence should set out in full the evidence and demur thereto, and if the other party join in the demurrer, he admits that the evidence is properly set out. If the party offering the evidence denies the correctness of the statement thereof, he should refuse to join in the demurrer, and point out to the court the matters of omission or'addition, and the court should require the demurring party to correctly state the evidence.</p> <p>Same.—Assessment of Damages.—Where there is a demurrer to evidence and a joinder therein, the court may have the damages assessed by the jury conditionally, or the jury maybe discharged and a new jury called if the demurrer be overruled. Thejlatter is the usual and the better practice.</p> <p>Same..—Judgment.—Exception.—Assignment of Error.—Pleadings.—Conclusions from Evidence.—If the demurrer be sustained, the judgment is like a final judgment on a successful demurrer to the complaint or answer. An exception to the ruling and an assignment of error thereon reserve Umqueslion ; hut defects in the pleadings cannot be taken advantage of to support the ruling, and the court will infer from the facts any conclusions the jury could reasonably have done.</p> <p>Samk—Motion for New Trial.—In Arrest.—If the demurrer he overruled and damages he assessed, a motion for a new trial maybe made for error in such • assessment, or in arrest of judgment for any defect in the pleadings sufficient in our practice to arrest judgment in other cases.</p> <p>Same.—Bill of Exceptions.—Where there is a demurrer to evidence, there is no bill of exceptions. Where a bill of exceptions is tendered, the evidence must go to the jury.</p> <p>Execution.— Growing Crop.—Lieu.—Where an execution was issued upon» a judgment on the 31st day of May, and, on the 25th day of the next July, the execution defendant sold his interest in a field of com growing upon his lands, which had been planted and cultivated by tenants, and of which, by. contracts with the tenants, he was to receive a portion when the corn matured in the field at cutting-up time, but each party was to save and take care of his own share; and the sheriff levied upon the interest of the execution defendant on the 4th day of August thereafter;</p> <p>Held, that the corn was subject to execution and sale as the property of the execution defendant; that the execution was a lien thereon from the time it came into the hands of the sheriff, and the subsequent sale of the com by the execution defendant in no manner impaired such lien.</p> <p>SAME.—Return.—Additional Levy.—Where there has been a levy upon real property under several executions, the statement in a return by the sheriff, as a reason for an additional levy on personal property, that he regarded the real property previously levied upon as insufficient to satisfy the execution, is no evidence of such being the fact. The return by the officer on the execution is evidence between the parties, only when the facts stated are official acts to be done in the usual course of proceeding. Matters of opinion or excuses for failure to perform a duty cannot be thus proved.</p> <p>SAME.—Satisfaction.—Presumption.—In this State, a levy upon real estate of sufficient value to pay the judgment creates a presumption of satisfaction, and there exists no distinction between the effect of a levy upon real estate and that of a levy upon personal property. This presumption of satisfaction does not arise from a mere levy, but from proof that the property levied upon is sufficient to satisfy the execution.</p>

<p>Criminal Law.—Indictment for Desecration of Salhath.—Indefiniteness.—An indictment for hunting on Sunday, which alleged that “on or about the 1st day of October, A. D. 1871,” the defendant, etc., “said 1st day of October, 1871, being then and there the first day of the week, commonly called Suii- • day,” was bad, for not being definite as to the time of the offence.</p>

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

<p>Vendor’s Lien.—Promissory Note.—Fordice v. Hardesty, 36 Ind. 23, adhered to.</p>

<p>Sheriff’s Bond.—Pleading.—Demurrer.—In a suit upon a sheriff’s bond, a failure to set out the bond -with the complaint renders the complaint bad on demurrer.</p>

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

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

<p>CRIMINAL Law.—Indictment.—Nuisance.—The keeping of a house where tippling and whoring are carried on is not a nuisance, unless -the public is affected by it, and an indictment therefore must show such facts as establish this consequence.</p>

<p>Mutual Insurance Company.—Receiver.—Assessment.—Pleading.—Embree w. Shideler, 36 Ind. 423, adhered to.</p>

<p>Promissory Note.—Individual Signature.—Note of Corporation.—A prom-note was executed in these words:</p> <p>“$ i,ooo. Mt. Vernon, Ind., May 2d, 1868.</p> <p>“ Two years after date, we, the undersigned, worshipful master and wardens of Mt. Vernon Lodge, No. 163, F. & A. M., and trustees of said lodge, for its use, promise to pay to the order,” etc.</p> <p>[signed.] “ John Conyngton, W. M.</p> <p>“ S. H. Pearse, S. W.</p> <p>•“ Edward Brown, J. W.</p> <p>“ G. -W. Thomas,</p> <p>“ M.JW. Pearse,</p> <p>] j</p> <p>Trustees.”</p> <p>Held, that this was the note of the lodge, and the makers were not personally liable thereon.</p>

<p>Practice.—Grand fiery.—Impanelling.—Under the act of March 10th, 1873, p. 158, regulating the convening of grand juries, where the record of a criminal action showed that the court met on the 24th of March, .1873, and the grand jury was impanelled on the 2d day of the term, it was presumed that they had been summoned pursuant to an order of the judge or prior to the approval of the act. The act did not prohibit the impanelling of a grand jury previously summoned.</p> <p>Criminal Law.—Motion to Quash Indictment.—A motion to quash an indictment cannot prevail unless the defect is apparent on the face of .the indictment.</p> <p>Same.—Indictment.—Larceny of Property of A. and of B.—An indictment may charge a larceny of A.’s property in one count, and of B.’s in another count, at the same time and place, where the character of the property is such that it may have constituted one offence and a conviction of one might be a bar as to the other.</p> <p>Same.— Omission in Verdict.—Motion for a New Trial.—The question as to an omission in a verdict to fix the disqualification of holding an office of trust and profit can not be raised by a motion for a new trial. .</p>

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

<p>Criminal Law.—Larceny.—Evidence.—Subsequent Conduct of Party Jointly Indicted.—When A. was on trial separately, under a joint indictment against him and B., for larceny, it was error in the court to permit the State to prove the conduct of B., subsequent to the alleged commission of the larceny described in the indictment, at a different place, and while the defendant was not present.</p>

<p>Will.—Residuary Legatees.—Lapsed and Adeemed Legacy.—Where five daughters were residuary legatees of the personal estate of their father, and one of them died, and three of the others gave receipts to their father for a sum of money in full of all their interest in the estate; the remaining daughter, the one legacy having lapsed and the three others having been thus adeemed in the lifetime of the testator, was entitled to the residue of the personal estate.</p>

<p>Jurisdiction.—Court of Common Pleas.—Qzio Warranto.—The court of common pleas had jurisdiction to hear and determine an action in the nature of a quo •warranto, and the information. in such case might be filed by the district attorney.</p>

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

<p>Deposition.—Proceedings before Mayor.—Depositions of witnesses may be taken out of the State, in an action pending before the mayor of a city.</p>

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

<p>Special Finding.—Signature of fudge__Bill of Exceptions.—When the court, at the request of a party, states the facts in writing, and then the conclusions of the law upon them, under section 341 of the code, and this special finding is not signed by the judge or incorporated in a bill of exceptions, the Supreme Court will not review the decision of the lower court upon the questions of law involved in the trial.</p>

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

<p>Will.—Posthumous Child.—Revocation of Will.—Jurisdiction of Court of Common Pleas.—In a proceeding in the court of common pleas to have a will declared revoked by the birth of a posthumous child, for whom no provision had been made, no question as to the jurisdiction of the court could be made on the ground that the title to real estate might be affected thereby.</p> <p>Same.—Party Plaintiff.—Such an action may be brought by the posthumous child,, or by any one interested, although there be others having a common interest who are not joined. ></p> <p>Same.—Descent.—The birth of such a child, without provision for it in the will, revokes the will; and while such a child lives, the will is to be deemed revoked, and the property of'the decedent must descend according to our statute of descents applicable to cases of intestacy.</p>

<p>Criminal Law.—Keeping Disorderly House.—Information.—"Where an information for keeping a disorderly house followed more closely the language of section 13 of the temperance act of 1859 than the language of other acts, it was treated as under the temperance law of 1859 rather than other acts; nor was it necessary that the information should allege that the defendant was keeping a licensed house under that act; nor that liquor sold by the defendant created the disturbance, it being sufficient if he suffered the liquor to be sold in his house.</p>

<p>CbiminAL Law.—Evidence.—Instruction.—Alibi.—In a criminal action, the charge to the jury, that under evidence of an alibi, “ you should carefully examine, in order to ascertain whether, even if an absence be shown, that absence at another place was so complete and of such a character in regard to time and location, as to render the defendant’s presence impossible at the time and place of the commission of the alleged crime,” was held to be erroneous. If the jury believed the defendant to have been at another place at a given time, and if his being there then created a reasonable doubt of his presence at the place of the crime, at the time of its commission, he should bave been acquitted.</p>

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

<p>Parol Agreement for Conveyance of Real Estate.—Part Performance.— Written Agreement.—Merger.—Stattite of Frauds.—Where a son, having a claim against his father for labor and for an interest in certain crops, agreed to and did release the claim, move upon certain land belonging to his father, cultivate the same, and make visible, lasting, and valuable improvements, upon the verbal promise by his father to convey the land to him, and after nine years residence and labor on the land, built a dwelling-house thereon, upon the receipt of a letter from his father, stating that if he would erect a building on the land, he should either be paid the value of the building and interest thereon, or a deed to the land should be made, at the option of the father;</p> <p>Held, that the letter did not merge the parol promise previously made, the performance of which, by the plaintiif, took it out of the statute of frauds; and that the contract could be enforced after the death of the father, in an action ■ against the, other heirs to have the title of said son in the land declared.</p>

<p>Liquor Law.—Indictment.—Sunday.—Permit.—In an indictment for the sale of intoxicating liquor on Sunday, to be drank on the premises, it is not necessary that there should be an express allegation that tire defendant had no permit to sell liquor, as such permit would not authorize a sale on that da}'.</p> <p>Same.—Section 10.—The tenth section of the act of 1873', regarding the sale of liquors, forbids the sale on Sunday.</p> <p>Same.—Evidence.—When, on the trial of such an indictment, the proof showed that the selling was on the fourth day of May, and on Sunday, but there was no proof as to the year;</p> <p>Held, that the conviction could not be sustained, although May 4th, 1873, was Sunday.</p>

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

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

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

<p>Promissory Note.—Pleading,—Variance,—Where suit was brought as upon a promissory note, and a due-bill was filed as an exhibit, it was held on • demurrer, that the variance, being amendable under the statute, would be disregarded.</p> <p>Motion to Make New Parties.—Street Improvemeiit.—A motion: by the defendant in such action, to make the mayor and common council of a city parties plaintiffs, also, on the ground that the due-bill in suit was executed for a street improvement in said city, and given to the contractor therefor, and that three years after the same was due and unpaid, the city had issued a precept to collect the same, was properly overruled.</p>

<p>Practice.—Bill of Exceptions.—Time of Filing.—Where it is not shown that a paper purporting to be a bill of exceptions was filed within the time limited, it cannot be considered.</p>

<p>Appeal.—Restraining Order.—No appeal lies from an order made by a judge . in vacation dissolving a restraining order.</p>

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

<p>APPEAL from the Wells Circuit Gourt.</p>

<p>Pleading.—Injunction.—Levy of Execution.—Complaint by A., alleging that B. recovered a judgment against A. and a turnpike company; that execution was issued on the judgment; that the sheriff had levied the execution on the house and lot of A., being his homestead and dwelling-house; and that at the time of the levy and before, A. and the turnpike company offered to give up a toll-house to be levied upon and sold to satisfy the execution. Prayer, that the sheriff be enjoined from selling the house and lot of A.</p> <p>Held, that the complaint was bad, for not averring that the toll-house belonged to the execution defendants, or one of them.</p>

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

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

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

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

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

<p>New Trial.—Motion.—Instructions to Jury.—The statement as a cause in a motion for a new trial in a criminal action, that the court misdirected the jury in a material matter of law (the attention of the court not being directed to the objectionable instruction, and no exception being taken to the instructions, the charge to the jury consisting of several distinct propositions), is too vague and uncertain to raise any question.</p>

<p>Criminal LAW.—Former Acquittal.—Special Plea.—To an indictment for murder in tlie first degree for the killing of A., the defendant entered a special plea in bar, wherein she alleged that she had been indicted for murder in the first degree for killing one B.; that she had been tried by a jury upon said indictment for the killing of B., after having taken issue thereon by a plea of not guilty as charged therein; and that upon such trial she was found guilty of murder in the second degree, and sentenced to the state prison for life; by which finding and judgment she was acquitted of the charge of murder in the first degree as charged in said indictment; and the crime charged in said indictment, for which she was tried and acquitted, “ was and is identical in all its parts, incidents, and circumstances, with the crime charged in the indictment for the killing of ” A.; “ that the evidence whereby alone the State will attempt to prove the indictment in this cause is the same and nowise different from that employed and produced upon the trial of the indictment on which she was acquitted of murder in the first degree; and this she is ready to verify,’’ etc.</p> <p>Held, that the plea was good.</p> <p>Held, also, that the plea stated in effect that the same act caused the death of A. and B., and if the same act resulted in the death of both, there was but one crime.</p> <p>Held, also, that it was not necessary that the plea should show that A. and B. were one and the same person.</p> <p>Murder.—Acquittal.—If upon an indictment for murder in the first degree, the defendant is found guilty of an inferior grade of homicide, without saying any thing as to the higher grade, the finding is by implication an acquittal of the higher grade.</p> <p>Same.—Killing of two Persons by the Same Act.—Where two or more persons are killed by the same act, the State cannot indict the guilty party for killing one of the persons and after a conviction or acquittal indict him for killing the other.</p> <p>Pleading.—Plea of Not Guilty.—Special Plea.—The privilege given by statute (2 G. & H. 413, sec. 97), that in all criminal prosecutions the defendant may plead the general issue orally, and under it every matter of defence may be proved, does not take away from him the right to plead specially any defence which before that enactment might have been specially pleaded.</p> <p>Same.—Special Plea in Bar.—Trial.—A defendant in a criminal prosecution may plead specially a former acquittal or a former conviction in bar, and have the issue orissuesjoinedonsuchplea tried separately and apart from the Question of the guilt or innocence of the crime charged in the pending indictment.</p> <p>Same.—If the issue or issues joined upon a plea of former acquittal or conviction are found against the defendant, he may still enter a plea of not guilty.</p> <p>Same.—Judgment.—The judgment upon a plea of former acquittal or conviction, when the issues have been found against the defendant, is that he answer over.</p> <p>Same.—Upon the general issue only can a defendant in a criminal prosecution be found guilty and subjected to the penalty of the law.</p> <p>Same.—It is optional with a defendant in a criminal prosecution whether he will plead a former acquittal or conviction specially, or give the same in evidence under the plea of not guilty.</p> <p>SAME.—Practice.—Demurrer.—The rule that -it is not an available error that a demurrer has been sustained to a pleading, when there is another pleading under which the same evidence is admissible, is not applicable in criminal cases.</p> <p>Same.—Demurrer.—In determining the sufficiency of a plea of former acquittal or conviction, to which a demurrer has been sustained, the court cannot regard the evidence that was afterward given on the trial of the cause upon a plea of not guilty.</p> <p>Instructions.—Exculpatory Facts.—On the trial of a criminal cause, it was error to instruct the jury, that if there were other facts not before them, which were exculpatory in their character, and they could have been proved by the defendant but were not, the jury might consider such failure with the other circumstances offered to show the guilt of the defendant.</p> <p>Same.—The juiy were instructed as follows: “ Remember that you are each responsible for the verdict you shall render, not forgetting, however, that no man can safely consider himself infallible, that no number of minds can agree upon a multitude of facts, such as this case presents, without some yielding of the judgment of individuals upon the evidence, some deference to the opinion of others, without what some might call compromise of different views. No man who is unwilling to do this within reasonable limits, and without a sacrifice of conscience, ought to have a place in the jury box or be a member of any deliberative body."</p> <p>Held, where the indictment was for murder in the fiist negree, and the evidence was all circumstantial and tended to prove murder in the first degree only, and there was a verdict of guilty of murder in the second degree, with a recommendation to executive clemency, that the charge was erroneous.</p> <p>New Trias,.—Effect of Granting a New Trial.—The legal effect of granting the appellant in this cause a new trial must be decided by the court below before it can properly be passed upon by the Supreme Court.</p> <p>Statute Construed.— Technical Error.—To deprive a defendant in a criminal prosecution of the right to plead a former acquittal or conviction by a special plea, and to have the issue thus tendered tried first, and, if found against him, to have another juiy tiy the issue on a plea of not guilty, is not a technical error within the meaning of sec. 160, 2 G. & H. 427.</p> <p>Instructions.—Effect of.—Although the jury in criminal causes are made the judges of the law as well as of the facts, the charge of the court is presumed io control their minds to some extent; and when the court has misdirected the jury in a material matter of law, such misdirection is a ground for a new trial.</p> <p>Same.—Where, from the whole case, it appears that the juiy might have rendered a different verdictj it may well be considered that an erroneous instruction leading to the verdict influenced them, and is good ground for a new trial.</p> <p>To that part of the original opinion holding that the special plea of the defendant was good, that the averments therein were sufficient to show that the two homicides were caused by the same act, Osborn, C. J., on petitiou for a rehearing, dissented.</p>

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

<p>Instructions to Jury.—Evidence.—A court zuay refer to the evidence in a cause and present it to the jury in the summing up and charge, but the court should not show to the jury any leaning in favor of one of the parties.</p>

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

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

<p>Practice.—Assignment of Error.—Reasons for New Trial.—Where on appeal to the • Supreme Court the assignment of errors includes only causes for a new trial, and fails to assign as error the overruling of a motion for a new trial, no question is presented.</p>

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

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

<p>Contract.—To Defraud Creditors.—As Between the Parties.—A contract made to hinder or delay creditors is illegal as to creditors only. As between the parties, and as to all others than creditors, it is legal and valid, and can be enforced in all its terms as any other contract.</p> <p>Supreme Court.—Rule of Court.—Marginal Notes on Transcript.—A failure to place marginal notes on the transcript, in compliance with rule nineteen of this court, though perhaps a ground for a motion to set aside the submission of the cause, is not a ground for dismissing the appeal.</p>

<p>Criminal Law.—Temperance.—Act of 1859.—Sale for Medical Purposes.—• On the trial of an indictment for selling intoxicating liquor without a license under the act of 1859, the proof was, that the defendant, a druggist, sold a pint of liquor on the statement of the purchaser that it was for medical purposes, and it was so used.</p> <p>Held, that the defendant should have been acquitted.</p>

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

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

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

<p>Supreme Court.—Appeal of One of Several Defendants.-.Notice to Co-Parties.—. Where there are three defendants to a suit on a promissory note, of whom one is defaulted, and as to another the cause stands continued, and against the third, after an issue and trial, judgment is rendered, and from that judgment he appeals, without serving notice of the appeal on his co-defendants, the appeal is not properly taken.</p>

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

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

<p>Temperance Law of 1859, 1873.—License.—Penalties.—Section 21 of the Temperance law of 1873 intends that persons who held a license under the law of 1859 should have a right to sell until such license expired, as if they had had a permit under the new law for such time, and that they should be subject to the penalties of the new law for any violation of its provisions.</p> <p>SAME.—Sale on Sunday.—License.—Evidence.—On the trial of an indictment for selling liquor on Sunday, May nth, 1873, the proof of a license under the act of 1859 was immaterial.</p>

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

<p>Costs.—Bill of Exceptions.—To present to the Supreme Court any question arising upon a motion to tax costs, a bill of exceptions must have been filed.</p>

<p>Decedents’ Estates.—Claim.—Jurisdiction.—To confer jurisdiction overtire subject of the action, a claim against the estate of a decedent must be filed, placed upon the appearance docket, and, if not allowed, must be transferred to the issue docket; and, upon demurrer for want of jurisdiction, the record must show that such steps have been taken.</p> <p>Same.—Other Defendants.—Where another person is a necessary defendant with the administrator -or executor, the claim need not be filed against the estate, but an ordinary action may be brought against the administrator and such other person.</p> <p>SAME.—Parties.—To an ordinary claim against an estate, neither the heirs nor the guardians of the heirs are necessary parties defendants.</p> <p>Same.—The same person cannot act in the double capacity of plaintiff, urging his own claim against an estate, and of defendant, making a defence to the same. In such case the court shouldappoint some person to defend for the estate.</p>

<p>Criminal Law.— Vemte.—Judicial Knowledge.—Presumption.—Where the proof under an indictment for grand larceny was, that the goods were stolen at Plainfield, Hendricks county, and brought into Marion county, this court took judicial notice that Plainfield is in Hendricks county, Indiana, and presumed that the county intended by the witness was Hendricks county in this State.</p> <p>Evidence.—Statements.—Immaterial.—On the trial of an indictment, evidence of statements made in the absence of the defendant, by one not connected with the defendant by the evidence, is inadmissible, but where the evidence is harmless, or favorable to the defendant, a judgment against him will not be reversed on account of the admission of such evidence.</p> <p>LARCENY.—Finding Stolen Goods.—Joint Possession of Place.—Evidence.— Where the only evidence connecting the defendant with the larceny was the finding of part of the recently stolen goods in a room jointly occupied by him and another person, and more particularly under the control of the latter, who was not charged with the larceny, the evidence was not sufficient to justify a conviction.</p>

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

<p>Turnpike.—Consolidation.—The act of February 23d, 1859 (1 G. & H. 490 , relating to the consolidation of turnpike companies, only authorizes the consolidation of companies theretofore organized. There is no authority by which companies since organized can be consolidated.</p> <p>Same.—Release of Stockholder.—The consolidation of turnpike companies without the consent of the stockholders, even when authorized by statute, discharges the stockholders not consenting from the payment of subscriptions. The fact that the consolidated company bears the same name as the original company to which the subscription was made will not change this rule.</p>

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

<p>Practice.—Motion to Strike Out.—Where a complaint contained three paragraphs, each "based on the same written instrument, and the court overruled a motion to strike out one of the paragraphs and a part of another because they made the complaint cumbersome and voluminous;</p> <p>Held, that the ruling was not an error for which fhe judgment would he reversed.</p> <p>Vendor’s Lien.—The holder of a written promise to pay money, which is shown to have been given by a purchaser of real estate for the purchase-money, has an equitable or vendor’s lien on the real estate.</p>

<p>Practice.—Assignment of Error.—“ On the Transcript.”—When there is no assignment of errors “ on the transcript,” as required by section 568, 2 G. & H. 275, the appeal will be dismissed on motion of appellee, although such assignment be made upon a detached paper among the papers in the case.</p>

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

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

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

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

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

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

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

<p>Practice.—Appeal.—Superior Court.—Assignment of Error.—On appeal from the Superior Court to the Supreme Court, the error should be assigned upon the action of the court in general term.</p>

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

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

<p>Jury.—Discharge of.—Misconduct.—Jeopardy.—A jury, which had been impanelled and sworn to tiy an indictment for murder, having heard the evidence and having retired in charge of a bailiff to deliberate upon their verdict, and having returned into court, it was shown to the court that during the adjournment of the court and after the commencement of the trial, the bailiff, in disobedience of the order of the court, instead of talcing the jury to a room, took them into the public square, and left them, and went to the saloon of the defendant, who was out on bail, and there procured from his barkeeper a can of beer, and gave it to the jury, who drank it, and that the bailiff so gave them said beer without the knowledge or consent of the court. Thereupon the court, over the defendant’s objection, discharged the jury.</p> <p>Held, that the discharge of the jury was not necessary.</p> <p>Held, also, that having so discharged the jury, there was no error in then discharging the defendant.</p>

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

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

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

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

<p>Turnpike.—Assessment.—Injunction.—Hopkins v. The Greensbuvg, Kingston, and Clarksburg Turnpike Co., 40 Ind. 44, adhered to.</p>

<p>Practice.—Interrogatories to Party.—Sham Pleading.—The answers made by a party under oath to interrogatories propounded by the adverse party, under section 303 of the code, cannot be examined by the court, for the purpose of sustaining a motion to strike out, as a sham pleading, a pleading which is'good on its face; nor can the Supreme Court examine such answers, for the purpose of affirming such action of the lower court.</p>

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

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

<p>Supreme Court.—Record.—Striking Oiit.—Bill of Excejitiozis,—Where on appeal to the Supreme Court a pleading struck out by the lower court is not made a part of the record by bill of exceptions, it will be presumed by the appellate court that the ruling was correct.</p> <p>Same.—Motion to Transfer Cause.—Where a motion to transfer a cause from the court of common pleas to the circuit court, on the ground that the title to real estate was in issue, was overruled, and on appeal there was no bill of exceptions embodying the motion or showing the ground upon which it was decided;</p> <p>Held, that the-ruling on the motion could not be reviewed.</p>

<p>Practice.—Motion to Reject Pleading.—In an action on an account, commenced before a justice of the peace, there was an answer in two paragraphs, of which one was a general denial. A motion to reject the whole^ answer for insufficiency thereof, filed by the plaintiff, in such a form as to be inseverable, was overruled.</p> <p>Held, that this ruling was not erroneous.</p> <p>Same.—Evidence.—Instruction to Find Against Plaintiff.—Where a demurrer to the evidence would be sustained, the court may instruct the jury to find against the plaintiff. Accordingly, where the plaintiff has introduced his evidence and rested, and the evidence introduced does not tend to prove the plaintiff’s cause of action, the court may refuse to hear evidence offered by the defendant, and direct the jury to find against the plaintiff.</p>

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

<p>Promissory Note.—Attorney’s Fees.—Pleading.—In a promissory note, a provision for the payment of attorney’s fees, if suit be instituted on the note, is valid; and if it were invalid, a complaint on the note would not be rendered insufficient by a clause alleging the value of the attorney’s fees.</p> <p>Practice.— Trial Without Isstie.— Where the parties to an action, without objection, go to trial without an issue formed upon the complaint, the defendant can not, after verdict, complain of the want of an issue.</p>

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

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

<p>Fire Insurance.—Principal and Agent.—Ratification.—A. and B. were equal partners in the business of insurance agency at the town of N., the former alone being the agent of some companies, the latter alone of others, and both jointly of others, they having a common office and acting together in soliciting business, the profits from all the agencies being divided between the partners. During a temporary absence of A., a policy of re-insurance in a certain company of which he alone had been appointed agent at N., and concerning which he alone had complied with the statute relating to foreign insurance companies, was, upon application, issued, countersigned by B., in the firm name, as agents. It had been understood between A. and B. and the agent who had appointed A., that B. was to participate in the business and instruct A. in its duties. The policy contained a provision that it should not be valid unless countersigned by the' company’s duly authorized agent at N. The policy had been previously signed by the president and secretary of the company. The premium was paid to B. and accounted for by A., in his next monthly report to the company, A. having returned to N., and having been informed of the issuing of the policy and of its having been so countersigned in the firm name. Before making said report, A. was wrongly informed that the insured property was being removed to another state. The general agent of the company, upon being informed of the issuing of the policy and receiving a copy thereof, made some objections to A. as to the character of the risk, and A. informed said general agent that the property was being removed from the State, and that the policy would be cancelled. The re-insured company was in no way connected with or responsible for the statement that the property was. being removed, and had no information concerning the objections raised by the general agent. About one month after the issuing of the policy of re-insurance and the payment of the premium, the property was destroyed by fire, the premium not having been returned or tendered to the re-insured company, which had no notice of dissatisfaction of the company that issued the policy or of its desire to cancel it.</p> <p>Held, that neither A. nor the general agent having taken any steps to undo the acts of B. by returning the premium, or seeking to have the policy cancelled, or giving notice of dissatisfaction to the re-insured, but having allowed the re-insured to rest under the belief that the risk was complete and satisfactory; there was a ratification by the general agent, and hence by the insurance company, of the issuing of the policy.</p>

<p>Void Judgment.—An illegal and void judgment will not bar another suit upon the same cause of action.</p> <p>SAME.—Jurisdiction of Person.—If a defendant, against whom a judgment is rendered, received no notice, either actual or constructive, of the pendency of the action, the judgment is a nullity.</p> <p>Practice.—Assignmetit of Error.—Sufficiency of Complaint.—In an action commenced before a justice of the peace, where a cause of action was filed, a party cannot, in the Supreme Court, assign for error that no cause of action was filed with the justice, and thereby raise a question as to the sufficiency of the cause of action.</p>