Volume 43 — Indiana Reports

<p>From the Montgomery Common Pleas.</p>

<p>Statute of FRAUDS. — Parol Agreement for Purchase of Real Estate. — Part Performance. — Where A. and B. made a parol agreement with each other, that if B. would exchange certain of his real estate for certain real estate owned by C. and convey the real estate procured of C. to A., A. would pay to B. a certain price for the same;</p> <p>Held, that the agreement was within thestatute of frauds, and B. could not compel the performance of the contract by tendering a deed to A. for the real estate procured of C. and enforce the payment of the purchase-money.</p> <p>Held, also (on petition for a rehearing), that the exchange by B. of his property for the real estate of C. was not a part performance of the contract between A. and B., so as to taire the case out of the statute of frauds. East-bum v. Wheeler, 23 Ind. 305, overruled.</p>

<p>Supreme Court. — Notice of Appeal. — Submission Set Aside. -Where an appeal has been taken to the Supreme Court under the last c'ause of section 556 of the code, by procuring a transcript and filing it in said court, if there has been no notice of the appeal issued by the clerk of said court and served on the appellee or his attorney of record in the court below, or notice by publication as provided in section 557 of the code, and the cause has been submitted by the appellant upon default of the appellee, the submission will be set aside on motion of the appellee.</p>

<p>From the Clinton Circuit Court,</p>

<p>Promissory Note. — Payable in Bank. — A promissory note payable “ at the bank in Delphi” is not negotiable as an inland bill of exchange.</p> <p>Same. — Evidence.—Whether or not a note is payable in a bank in the State must appear on the face of the note, and cannot be ascertained or shown by extrinsic evidence.</p> <p>Time. — 282$ and 2qth Days of February. — BUI of Exceptions. — In computing the number of days given, within which a bill of exceptions may be filed, the 28th and 29th days of February are to be counted, as one day.</p>

<p>From the Carroll Common Pleas.</p>

<p>From the Decatur Common Pleas.</p>

<p>Judgment. — Evidence.—A judgment is always evidence of the fact that such a judgment has been given, and of the legal consequences which result from that fact, whether the person against whom it is offered in -evidence was a party to the action in which it was rendered or not.</p> <p>Same. — But when a judgment is offered, not merely as evidence of its own existence, but as proof of some fact or facts upon the supposed existence of which the judgment was founded, the general rule is, that it is not binding upon any one except the parties thereto, those who might legally have become parties, and those in privity with them.</p> <p>Same. — The binding force and effect of a judgment offered in evidence must be mutual.</p> <p>Pleading. — Complaint.—A complaint must show a cause of action in favor of all those who unite as plaintiffs.</p>

<p>False Imprisonment. — When mi arrest is made upon valid process, issued by a court having jurisdiction, trespass for false imprisonment will not lie, though the arrest be maliciously procured by the prosecutor without probable cause.</p> <p>Malicious Prosecution. — If an imprisonment be under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution.</p> <p>False Imprisonment. — If an imprisonment is extra-judicial, without legal process, it is false imprisonment.</p> <p>Same. — Malice.—Where the gravamen of an action is for arresting and imprisoning the plaintiff without legal process, averments in the complaint relative to the malicious purposes of the defendant are only by way of aggravation.</p> <p>City Marshal. — Power to Make Arrest. — A city marshal, under the act of 1867 (3 Ind. Stat. 75, sec. 29), has authority to arrest, without process,anyperson, who within his view shall commit any crime or misdemeanor, or violate any ordinance of the city, and detain such person in custody until the cause of the arrest can be investigated. If the court having jurisdiction of the offence be not in open session, he may confine the person arrested in the city prison or county jail, until he can be brought before the court; and this shall be done at the earliest period.</p> <p>Same. — The right of a city marshal to arrest and imprison in the county jail carries with it the right, on the part of the jailer, to receive and detain the prisoner.</p> <p>Same. — Stahite Construed. — Power to Receive Pledge for Appearance. — Sections 38 and 40, 2 G. & H. 397, relate only to arrests made under warrants issued from courts of record, and do not authorize a city marshal or policeman, who has made an arrest on view, to accept of property or money as a pledge or security for the appearance of the person arrested to answer the charge.</p> <p>Arrest on View. — If an offence is committed in view of an -officer having authority to make an arrest on view, he may arrest the offender immediately, or as soon thereafter as he conveniently can.</p> <p>False Imprisonment. — Pleading.—Answer.—Where a complaint for false imprisonment alleges that the plaintiff was imprisoned on more than one charge, an answer justifying the arrest on only one of the charges is bad.</p> <p>SAME. — Malice.—Probable Cause. — In an action for false imprisonment, it is not necessary, to entitle the plaintiff to recover, that he should prove malice or want of probable cause.</p> <p>Same. — Pleading.—Evidence.—In an action for false imprisonment a defence of justification in making the arrest and imprisonment is not available under the general denial.</p> <p>Sheriff. — Acts of Deputy. — A sheriff is liable for the acts of his deputy or jailer within the scope of his authority.</p> <p>False Imprisonment. — Malice.—Evidence.—Where officers, having charge of a person under arrest, have no authority to fix the bail and take a recognizance, or to receive in pledge any article of value as security for the appearance of the prisoner, their failure to take bail or receive such pledge is no evidence of malice.</p> <p>Arrest. — City Marshal. — Jailer.—If a city marshal or police officer, having authority to make an arrest on view and to commit the prisoner to .jail until such time as he can be brought before the proper authority, make an arrest and take the prisoner to a jail with the declaration that he has been arrested for an offence committed on view, that declaration stands in the place of a mittimus in other cases, and the jailer should receive the prisoner without regard to the question of his guilt or innocence.</p> <p>Conspiracy. — Liabity of Conspirators for Acts of Each Other. — If there is a conspiracy of two or more to commit a tort, each one engaged in the conspiracy is liable for the acts of the other done in pursuance of the conspiracy. So each, is liable for the acts in which he participates.</p> <p>Police Officer. — Jailer.—If police officers make an arrest and bring the prisoner to the jailer,, and inform him of the arrest for a criminal offence committed in their view, the jailer, by receiving the prisoner as such, does not become liable for the former wrongful or oppressive acts of the police officers.</p> <p>Same. — If such jailer afterward unnecessarily put the prisoner in a filthy place, or otherwise exceed his authority, the police officers are not liable for such acts, unless they advise, or in some manner participate in, such oppressive excess of authority.</p>

<p>From the Tipton Circuit Court.</p>

<p>Malicious Prosecution. — ^Evidence.—In an action for malicious prosecution, evidence, offered by the defendant to prove that before the prosecution against Hie plaintiff was commenced, he consulted for advice and direction one who had-for twelve yehrs been a! justice'of the peace, but who was not the justice before whom the prosecution-was commenced, and made to him a full and fair statement of all the facts, and was by him advised to institute the proceeding, is inadmissible, for the puipose of showing that the defendant acted with probable' c'ause and without malice.</p> <p>Same. — If the defendant in such action, before the suit alleged to have been malicious was instituted,- in good faith consulted a practising attorney, and made to him a full and fair statement of his case, and was advised by the attorney to prosecute his complaint, this is a strong circumstance to repel the presumption of malice and want of probable cause.</p> <p>SAM-E. — Probable Came. — Statements of Credible Persons. — A- defendant' in such an action, in making-,up -his belief of probable-cause for instituting the prosecution alleged to have-been malicious, is justified in giving credit to the statements of credible persons, whom he believes.</p> <p>Instructions. — It is the duty of a party who desires a particular charge to prepare it and ask that it be given to the jury, and- if he fails to do so, and the court omits- to charge on the subject, he cannot complain.</p>

<p>Railroad.— Tax to Aid in Construction. — Where the county commissioners, on a proper petition, ordered an election to be held in a township of the county, to determine whether an appropriation should be made by the township to aid in the construction of a railroad, and the election was held, and resulted in favor of the appropriation; and afterward the’boundary line between the township voting to make the appropriation and an adj oining township was changed, so as to detach from the latter a strip of land one-half a mile wide and annex the same to the former; and the railroad, after the vote was so taken, was located and built in and through the strip of territory so annexed, without passing into or through the territory which constituted the township at the time the vote was taken;</p> <p>Held, that no tax to aid in .the construction of the railroad, as it was located and built, was authorized to be levied by the vote taken.</p> <p>Held, also, that, to authorize the levy, the road should be built within the territory of the township as it existed at the time the vote was taken.</p>

<p>From the Wayne Common Pleas.</p>

<p>Office. — Resignation of. — A written resignation of an office, to take immediate effect, when transmitted by the officer to, and received by, the officer or authority appointed to receive it, cannot be withdrawn, and there is then a vacancy in the office.</p> <p>Same. — Sheriff.—A written resignation of the office of sheriff, to take immediate effect, cannot be withdrawn after it has been received by the governor, 'even with the governor’s concurrence.</p>

<p>From the Tippecanoe Common Pleas.</p>

<p>From the Noble Common pleas.</p>

<p>Pleading. — Evidence.—Justice of the Peace. — Under the general denial, in an action before a justice of the peace, on an account for goods sold and delivered, evidence may be given of payment, and that the goods, for the value of which the action is brought, were furnished on the order of a third person.</p> <p>Appeal. — Where the evidence is conflicting, the Supreme Court cannot, upon the evidence, reverse the j udgment below.</p>

<p>¡Process. — Service.—Return.—Residence.—Under a statute (2 G. & H. 582) requiring that summons shall be served by reading the same to'the defendant “ or leaving a copy thereof at his last usual place of residence,” etc., a return of service “ by copy left at the residence ” of the defendant is sufficient.</p>

<p>Partnership. — Part Payment by one Partner. — Effect of. — Consideration.— Principal and Surety. — Two partners, owing debts and having assets, dissolved partnership, and, by agreement, one partner was to retain all the assets, and pay all the debts, and manage and close up the business. The partner who had withdrawn from the management of the business, desiring a discharge from further personal liability on a certain note made by said firm and held by one of the creditors thereof, acquainted such creditor with the facts of the partnership arrangement, and proposed to pay him one-half the amount of said note, the creditor to relieve him from further liability *and look to the effects in the hands of the former partner and to such partner personally for the other half; which proposition the creditor accepted, and one-half the amount of said note was then paid accordingly.</p> <p>Held, that such part payment was not a sufficient consideration for the promise to release the party making it as to the remainder.</p> <p>Held, also, that the arrangement between the partners and the part payment of the note did not so change the relations between the former partners as to make the one who made part payment a surety for his former partner for the payment of the residue, so as to bring them within the provisions of the stat-I ute, secs. 672, 673, pp. 306, 307, 308, 2 G. & H. To enable a party to proceed under that statute, it may be laid down as a general rule that he must have-been a surety at the inception of the contract.</p> <p>Held, also, that if the statute governing principals and sureties did apply, a notice from the surety to the creditor, that “ if you think” such surety “ in any way liable, you will take notice to proceed accordingly and legally,” did not conform to the statute, so as to require the creditor forthwith to sue on the note.</p>

<p>From the Clinton Common Pleas.</p>

<p>Bill of Exceptions. — Time of Filing. — Where sixty days were given within which to file a bill of exceptions, and the bill was signed by the judge within that time, and, though it was copied into the record, it did not appear by any statement in the body of the record that it was ever filed, but the certificate of the clerk of the court below, given within the. sixty days, stated that the record was a full, true, and complete transcript of all the proceedings had in the case, as the same appeared of record, and of papers on file in his office;</p> <p>Held, that it affirmatively appeared that the bill of exceptions was filed prior to the date of the certificate and within the time allowed by the court.</p> <p>Evidence.— Witness. — Impeachment of. — Where witnesses testified, on examination in chief, that the general character of a party for truth, veracity, and honesty was good, it was incompetent to ask them, on cross-examination, if they had heard certain of his neighbors say that the sheriff of a certain county had come to arrest him foi larceny on a warrant issued on an indictment found against him in that county.</p> <p>Same. — Malicious Prosecution. — Probable Cause. — In an action for damages for malicious prosecution, evidence of the general bad character of the plaintiff for morals is inadmissible to rebut evidence of want of probable cause.</p> <p>Same. — Malice.—The existence of malice is not imputed as a conclusion of law, but may be inferred as a fact from the want of probable cause. It is for the jury to determine whether they will so infer it or not.</p> <p>Same. — Jury.—A jury must consider all evidence introduced, decided to be admissible by the court.</p> <p>Same. — A jury have the right to disregard the evidence of a witness, in whole or in part, if they deem him unworthy, although his character for truth and veracity may not have been directly impeached, though they ought not to do so wantonly, without evidence or cause.</p> <p>Same. — Confidential Communications. — Attorney and Client. — Prosecuting Attorney.— Waiver. — Communications made to a prosecuting attorney relative to criminals or suspected persons are privileged, and cannot be divulged without the consent of the person making them. The immunity from disclosure of communications so made is a privilege personal to the one making them, which is not waived by his voluntarily testifying generally,, in an action against him for malicious prosecution, in his own behalf, but is waived, if, being a witness in his own behalf, he voluntarily discloses what statements he made to the prosecuting attorney, who then may testify in relation to the communication.</p>

<p>Railroad. — Fences.—Killing Cattle. — Railroad companies are not required to fence their tracts at stations and sidings where freights or passengers are received or discharged; nor are they liable to pay for cattle that may wander upon the track at such places, and be killed without negligence on the part of the company.</p>

<p>From the Marion Criminal Circuit Court.</p>

<p>From the Monroe Common Pleas.</p>

<p>From the Ripley Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>Decedents’ Estates. — Claims.—Heirs.—A person who, not being excused by any statutory disability, fails to file his claim against a decedent’s estate before final settlement, although such claim at the date of such settlement be not due, is barred of any right of action against the heirs of such estate, although they have inherited property from the decedent.</p>

<p>Arrest. — Constable.—A writ for an arrest issued by a justice of tbe peace and directed “to any constable of the county,” delivered to one not a constable or authorize him to make the arrest. To create him a special constable and justify him in making such arrest, the writ must be directed specially to him by name, and his appointment to act as such special constable, in that particular case, must be noted by the justice on his docket. In case of the non-compliance with these provisions of the statute, a party acting as special constable has no authority to act and cannot justify under the writ.</p> <p>Same. — Citizen Acting under Officer. — A citizen acting under such person cannot justify. It may be that where a known public officer calls upon a citizen to aid him in the execution of process, the citizen can justify under the officer, although the officer himself be guilty of a trespass; but where the party making the arrest is not a known public officer, but only assumes to act in the particular case by special appointment, persons aiding the supposed officer are bound to know whether he is authorized to make the arrest or not; and if in such case the party making the arrest is a trespasser for want of authority, those aiding him are also trespassers.</p> <p>Same. — "Where a person is so illegally under arrest, a justice of the peace is also a trespasser in committing the person so arrested to prison, as he has not acquired jurisdiction over his person.</p> <p>Same. — Liability of Judicial Officers. — Judicial officers are not liable for mistakes of judgment or erroneous decisions, but they are liable for trespasses committed under color of judicial authority when they have no jurisdiction over the parties or the subject-matter.</p>

<p>From the Knox Common Pleas.</p>

<p>Corporation. — Liability for Acts of Agents. — A corporation is liable for the wilful acts and torts of its agents committed within-the general scope of their employment, as well as acts of negligence; and the corporation is thus bound, although the particular acts have not been previously authorized or subsequently ratified by the corporation. The act of the agent within the general scope of his employment is the act of the master, and if wrongful, the master is liable, although the act be unnecessary to the performance of the master’s service, and was not intended for that purpose. The liability of the master does not depend upon the necessity of the act or the intent with which it was done, but upon whether the act was wrongful and within the general scope of the employment of the agent.</p> <p>Same. — Railroad.—Evidence.—In a trial for damages for the alleged wrongful ejectment of a passenger from a railway train, it is competent for a witness who was present to state what he heard said on, the occasion of such expulsion, leaving it to others to identify the persons who made the statements.</p> <p>Deposition. — Motion to Suppress. — A court should not sustain a motion to suppress the whole or a part of a deposition, if it would be admissible in rebuttal, although not admissible in the first instance.</p> <p>Impeachment of Witness. — In a deposition to impeach a witness, to the question, “Is that character good or bad?” the answer was, “It is bad anywhere, and always was; I .would not believe him on oath.” A motion to strike out all of this answer but the ’words, “ It is bad,” should have been sustained.</p> <p>Same. — When a female has testified to certain indecent conduct toward herself, evidence relating to her general character for truth, veracity, and chastity is admissible, to impeach her.</p> <p>Evidence. — Railroad —Ejection of Passenger. — It is competent for a party who has been forcibly ejected from a railway train, in a suit for damages for such ejection, to prove what was the state of his health and the condition of his clothing shortly after his expulsion from the train, as tending to show the character of the treatment he received from the employees of the road and the danger to which he was subjected by reason of his sickness and exposure; but his own statements - to a witness as to such condition of his clothing and what caused it are not admissible.</p> <p>Same. — Harmless Error. — Although evidence has been improperly admitted, the judgment will not for that reason be reversed, if the same facts were clearly and unmistakably próved by other competent testimony.</p>

<p>From the Allen Common Pleas.</p>

<p>Executor and Administrator.— Promissory Note. — Assignment.—If an administrator of an estate barter promissory notes of the estate and assign them for goods for his own use, it is a waste of the assets of the estate; and, if the assignee have knowledge, even from the nature of the transaction, that the administrator is thus acting in violation of his trust, the right of property in the notes is not divested, and he cannot hold the notes or profit by such purchase as against those rightfully entitled to them.</p> <p>Same. — It seems that, as our statute (2 G. & H. 528, sec. 159 ) authorizes a foreign executor or administrator to sue in the courts of this State, the bringing of evidences of debt by him to this State, from the foreign state in which administration has been granted, can not work a forfeiture of his title.</p>

<p>Liquor Law. — License.—Appeal.—An application for a license to sellintoxicating liquors, under the act of March 5th, 1859, was refused by the county commissioners, and the applicant appealed to the circuit court, from the decision of which court certain remonstrants appealed to this court.</p> <p>Held, that under the act of 1861, the decision of the circuit court was final, conclusive, and without appeal to the Supreme Court.</p>

<p>Mortgage. — Equity of Redemption. — Set-Off.— Vendor and Purchaser. — The assignee of an equity of redemption, who accepts a deed without covenants for the mortgaged estate, takes it charged with the mortgage debt. In the absence of a special contract, or without some special circumstances, the purchaser must be held to take the land charged with the incumbrance. He cannot pay off the debt, and then keep it alive by taking an assignment of it to himself, and set it off against an unpaid balance he may still owe his vendor on his purchase.</p>

<p>From the Bartholomew Common Pleas.</p>

<p>Attachment. — Liability on- Bond. — The statute does not require, in order to give the defendant in an attachment proceeding an action on the undertaking, that there should have been an issue made on the affidavit and a finding in favor of the defendant thereon.</p> <p>SAME. — There may be two results in an attachment proceeding without any issue upon the affidavit, either of which would entitle the defendant to his action upon the undertaking; first, when the plaintiff has failed in his action, and the proceeding is wrongful and oppressive; second, when, although the plain- , tiff has succeeded in his action, the proceeding has been wrongful and oppressive.</p> <p>Same. — If attachment proceedings are wrongful and oppressive, that gives the defendant a right of action, whether the plaintiff has a good cause for his main action, or not, or whatever may be the result of the principal action.</p>

<p>From the Jackson Common Pleas.</p>

<p>Vendor and Purchaser. — Incumbrance.—Indemnity.—Chattel Mortgage.— A vendee of encumbered land, for which he paid full price, took from his vendor a mortgage on chattels to indemnify against such incumbrance. The mortgage was in the form prescribed by statute for a mortgage of real estate, and contained this clause : “ The above property vests in mortgagee when mortgagor attempts defraud.” The mortgagor resided in Tippecanoe county, and the chattels were in Montgomery county, and the mortgage was recorded in Montgomery cqunty, ■ The mortgagor attempted to defraud the mortgagee, and he learning the fact, although the incumbrance on the land was not due, and as to it there was no default, seized and took possession of the mortgaged chattels. After he had so come into possession, a third party recovered a judgment against the mortgagor, and an execution was issued, and by direction of the mortgagor the sheriff levied upon the -mortgaged chattels in the possession of the mortgagee. The incumbrance indemnified against was still not due, and as to it there was no default when the execution was levied;</p> <p>Held, that the chattel mortgage, in the form prescribed by statute for a mortgage of real estate, was a valid mortgage and sufficient in respect to its form to vest in the mortgagee an interest in the property according to the apparent intent of the parties.</p> <p>Held, also, that by the language, “ the above property vests in mortgagee when mortgagor attempts defraud,” it was intended that the mortgagee should have I the right to the possession of the property in the event that the mortgagor attempted to defraud him by some act having a tendency to defeat the mortgage security.</p> <p>Held, also, that the failure to reeord the mortgage in the county in which the mortgagor resided rendered'such mortgage void as to all persons other than the parties thereto, whether such persons had or had not acquired a lien upon the property. ..</p> <p>Held, also, that the execution plaintiff not having been a party to the mortgage, it was void as to him, and the mortgaged property was subject to his execution.</p> <p>Held, also, that the incumbrance on the land not being due when the mortgagee took possession or when the ‘execution was levied, he had not become the absolute owner of the property; and as he had no claim except by virtue of the mortgage, if that was invalid for want of legal registration, he had no legal or valid claim to the property as against creditors of the mortgagor.</p> <p>Chattel Mortgage. — Equity of Redemption. — The question whether the mortgagor of chattels, after forfeiture, has an equity of redemption or not, was discussed, but not decided.</p>

<p>From the Miami Common Pleas.</p>

<p>Statute of Frauds. — Earnest.—In a contract for the sale of goods of the value of fifty dollars or more, where the purchaser pays a sum of money as earnest or part payment, such payment takes the sale out of the operation of the statute of frauds, and the contract may be proved by parol.</p> <p>Arbitration. — Award.—"Where in a common law arbitration the submission is to three, and there is no agreement that two may act and render an award, all three of the arbitrators must meet, hear the proofs, and sign the award, to render such award valid.</p> <p>Evidence. — Conflict.—Where there is a direct and irreconcilable conflict in the evidence, this court will not upon the evidence disturb the verdict of the jury.</p>

<p>Chattel Mortgage. — Possession of Mortgaged Property. — Sureties, who have paid the debt of their principal and who hold a mortgage upon a chattel to indemnify them, where the mortgage provides that if the debt is not paid at maturity by the mortgagor the sureties shall have possession of the mortgaged property, may recover possession thereof.</p> <p>Replevin. — Part Owner of Chattel. — One part owner of a chattel cannot maintain an action against the other part owner or part owners to recover possession thereof. One has as much right to the possession as the other or others.</p> <p>Same. — A defendant in an action to recover possession of a chattel, who is a part owner with the plaintiff, cannot in his answer claim and have judgment for the possession of the part owned by such defendant; nor is it proper in such action to render judgment for the value of such part if possession be not given by the plaintiff.</p>

<p>From the Orange Circuit Court.</p>

<p>Married Woman. — Contract.—The promissory note of a married woman is absolutely void. Such note, although given for property purchased for her own use, she having a separate estate and her husband being insolvent, is not evidence of her intention to charge her separate estate with the payment of the debt named in the note.</p> <p>Same. — Intent to Charge Separate Estate. — The fact that credit for goods sold to a married woman is given upon faith of her separate property, is not sufficient to create a charge against her lands or income; she, also, must contract with regard to her separate property.</p> <p>SAME. — Complaint.—Husband.—A complaint against husband and wife on a note, alleging that it was executed by both for property sold to the wife, and praying judgment only against the separate property of the wife, presents no cause of action against the husband.</p> <p>Same. — Appeal.—In such case the husband, by virtue of the marital relation, may properly join in an appeal from a judgment against'the property of the wife.</p>

<p>Turnpike. — Articles of Association. — It is essential to the legal existence of a corporation organized under the act of May 12th, 1852, as amended by the act of 1859, authorizing the construction of plank, etc., roads, that the articles of association shall set forth the residence of each and every subscriber thereto. Eakrigkt v. The Logansport and Northern. Indiana Railroad Co., 13 Ind. 404, criticised.</p>

<p>Decedents’ Estates. — Claim.—No formal complaint is necessary in prosecuting a claim against the estate of a decedent; a succinct statement of the nature and amount of the claim is all that the statute requires. A statement of an account which would be a good cause of action against a living defendant before a justice of the peace, is a sufficient statement of a claim against a decedent’s estate.</p> <p>Same. — Evidence.—As a general rule, a party may introduce his evidence in the order in which he prefers; therefore, on the trial of a proceeding to enforce a claim against a decedent’s estate, it was not error to admit evidence of the value of personal service rendered by the plaintiff to the decedent (his father), before any proof was given of an express promise by the decedent to pay for such services.</p> <p>Same.— Witness. — Exeaitor.—On the trial of a claim for services rendered to a decedent in his lifetime, the personal representative cannot testify as a witness, unless called as such by the opposing party or by the court.</p>

<p>Specific Performance.— Tender. — Where a purchaser of real estate brings suit for the specific performance of an executory contract of sale, it is not necessary that he should make an unconditional tender of the purchase-money and pay the same into court. It is sufficient for him to tender the money on condition that a deed is made to him, and upon the refusal of the vendor to accept the money and perform his contract, the vendee may bring his action and show in the complaint such tender and refusal, and that he is ready, able, and prepared to pay whatever sum may be found due, upon a decree for a specific performance.</p> <p>Statute of Limitations. — Demand.—A. sued B. for the specific performance of a contract for the conveyance of real estate. In his complaint A. alleged a tender and refusal of the purchase-money, and brought the same into court, and it remained in the hands of the clerk. After years of litigation, a final decree was rendered in favor of A. The executors of B. then demanded said sum of money of the administrators of the clerk, who had died, and on their refusal to pay, suit was Brought for its recovery. Answer, that more than six years had elapsed since the right of action accrued, prior to the commencement of suit.</p> <p>Held, that the statute of limitations did not commence to run against the plaintiffs until after a demand upon the defendants for the return of the money.</p> <p>Practice. — Special Finding. — When a party desires to object to the conclusions of law upon a special finding by the court, he should except to such conclusions of law; a motion for judgment on the special finding in favor of the party against whom the finding is made presents no question for review in the Supreme Court.</p> <p>Samé. — Motion.—Sill of Exceptions. — Motions to strike out portions of pleadings, to reject pleadings, or to require the separation of the same into distinct paragraphs, are unavailing on appeal to the Supreme Court, unless incorporated into the record by bill of exceptions.</p>

<p>From the Tippecanoe Common pleas.</p>

<p>DRAINING Association. — Articles of Association. — The law authorizing the organization of associations for the purpose of draining wet lands (Acts Special Session 1869, p. 82, 3 Ind. Stat. 222) contemplated that the mode and manner of draining should be described and particularly specified in the articles of association of a draining company; and without this they are fatally defective, and any assessment made thereunder upon lands for benefits thereto is illegal, and the collection may be enjoined.</p>

<p>From the Boone Circuit Court.</p>

<p>From the Marion Criminal Circuit Court.</p>

<p>Will. — Life Estate. — A will contained the following clause: “ To my wife, Rachel, * * * I will and bequeath the eighty acres whereon the house and barn and most of the improvements are of the home place, and which, together with the home place, during her natural life to her, and dispose of the same as she may think best for the interest and comfort of herself and my children.” After the death of the testator, the widow sold and conveyed by quitclaim deed the real estate described in the will.</p> <p>Held, that the widow and her vendee took an estate only for the life of the widow.</p>

<p>From the Grant Common Pleas.</p>

<p>From the Clark Common Pleas.</p>

<p>Evidence. — Objection to. — Motion for New Trial. — On appeal, in order to raise the question of the admission of improper evidence, the attention of the court below must have been called to the improper evidence, and it is necessary to point it out in the motion for a new trial.</p> <p>Same. — Parol Evidence.— Vendor and Purchaser. — Parol evidence jnay be given to show the real consideration of a deed of conveyance of real estate, and that the purchaser took the conveyance subject to incumbrances and agreed to discharge them in addition to the consideration stated in the deed.</p> <p>New Trial. — Motion.—Denmrrer.—Error in overruling or sustaining a demurrer is not a ground for a new trial.</p> <p>Vendor and Purchaser. — Incumbrances.—Consideration.—The parol agreement of a vendee of mortgaged land to pay off the mortgage, as part consideration of the purchase, is valid. It is not within the statute of frauds, and need not be in writing, and may be proved by parol. It is an agreement to pay his own debt, not that of another; and in a proceeding tp foreclose, thé court may decree that the land be sold and render several judgments against the mortgagor and his vendee, and that, for any sum remaining unpaid after the sale of the mortgaged premises, execution be first levied of the property of such vendee.</p>

<p>From the Decatur Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>Arbitration and award. — Evidence.—It is a good ground of objection to an award, expressly made so by statute, 2 G. & H. 345, sec. 16, that the arbitrators “refused to hear evidence material and pertinent to the controversy.”</p> <p>Same. — Answer.—Where it was shown by the submission to arbitration that the partnership goods of the parties went into the hands of one party, after the dissolution of their partnership, for the purpose of adjusting and settling the partnership affairs, and that the submission to arbitration was for the purpose of settling said affairs, an answer alleging the refusal of the arbitrators to allow the other party to prove that the partner into whose hands the goods were so placed, by a sale or resale of the goods, made a profit for which he had not accounted, was a valid objection to the award.</p> <p>Same. — Such answer was not bad because it did not recite all the evidence given on the trial before the arbitrators.</p> <p>Same. — In arbitration cases arising under the statute, there is no rule of law by which a party excepting to an award can have a trial by jury; and the court in refusing a demand for a jury trial in such case commits no error.</p>

<p>From the Carroll Circuit Court.</p>

<p>Evidence. — Husband and Wife. — In an action brought by a husband and wife to recover rent chimed to be due on a written lease made by the husband and wife, it was not error to allow the defendant to testify that he negotiated with the husband when renting the premises, to show the relations of the parties and as tending to establish the agency of the husband for the wife.</p> <p>Witness. — Husband and Wife. — Lease of Wife's Real Estate. —Where a lease is executed by a husband and wife, but it is stipulated that the rent is payable to the wife, and the premises are to be surrendered to her, an action for the rent brought in the name of the husband and wife concerns the separate estate of the wife, and the husband has no interest in the action except that he would be liable for costs if the same could not be made out of her property, and in such action the husband is not a competent witness.</p> <p>Lease. — Husband and Wife. — Authority of Husband to Accept Surrender.— Authority on the part of a husband to receive rent for his wife’s premises, and to direct repairs, will not authorize him to accept a surrender of the demised premises.</p> <p>Same. — Where the premises of a wife are leased for a term of years, and by the express terms of the lease the surrender of the premises, at the expiration of the lease, by lapse of time or otherwise, is to be to the wife, though the husband may be authorized to accept payment pf rent and to direct repairs, handing the keys of the premises to him before the expiration of the term, without stating the purpose of their being handed to him, and his acceptance of them without any agreement that the premises shall be surrendered, or that the lessor may have possession, will not amount to a surrender of the lease and premises.</p>

<p>From the Daviess Circuit Court.</p>

<p>City. — Liability for Street Improvement, — Where a city organized and acting under our general law makes a. contract for the improvement of a street at the expense of the property holders, and the contractor does the work in whole or in part, and the engineer refuses to make an estimate, and the council refuses to issue precepts upon the proper application against the property holders, a suit cannot be maintained by the contractor against the city for damages.</p> <p>Same. — Mandate.—The remedy in such case is bymandate to compel the engineer and council to perform their duties.</p>

<p>Practice. — Súfreme Court. — Demurrer.—Where no demurrer is in the record, this court cannot say that any was filed assigning as cause that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Same.— Weight of Evidence. — A judgment will not be reversed simply because the verdict was against the weight of evidence.</p> <p>Same. — Motion for New Trial. — A motion for a new trial, on the ground that the court erred in admitting evidence offered by the plaintiff over the defendant’s objection, is too indefinite to raise any question for review.</p>

<p>Bill of Exceptions. — A bill of exceptions filed after the expiration of the time given within which to file the same does not become a part of the record.</p>

<p>From the Tippecanoe Common Pleas.</p>

<p>RAILROAD. — Killing Animals. — Parties.—Under the statute, the company owning a railroad is liable for stock killed by a train on such road, without reference to the company or persons who may have been running the locomotive or cars that caused the injury; and such company owning the road may, be sued alone.</p>

<p>From the Montgomery Common Pleas.</p>

<p>From the Jefferson Common Pleas.</p>

<p>Sheriff. — Overpayment to. — An overpayment to a sheriff on an execution, under a threat to levy if the sum demanded be not paid, is not a voluntary payment, but money obtained by the sheriff “ by virtue of his office;” and in a suit on his official bond to recover such oveipayment, his sureties are liable.</p> <p>Motion for New Trial. — Demurrer.—Error in overruling a demurrer is not a cause for a new trial.</p> <p>Sheriff: — Deputy.—What a sheriff does by his deputy he does himself, and he is responsible for money paid to such deputy as if paid to himself in person. ,</p> <p>Same. — Bond.—A sheriff’s bond is several as well as joint; and in a suit thereon against him and his sureties, although the court might render judgment against him and his sureties, yet that judgment has been rendered against him alone is no reason for reversing it on an appeal by said sheriff, neither the plaintiff nor the sureties complaining of the action of the court below.</p>

<p>From the Marion Superior Court.</p>

<p>Practice. — Bill of Exceptions. — If a party seeks to take advantage of a ruling in admitting, refusing to admit, or striking out, or refusing to strike out evidence, the evidence concerning which the ruling has been made must be presented in the record.</p>

<p>Contract. — Nervation.—If A. takes the note of B. for the debt of C., it is an extinguishment of the debt of C. if so agreed by the parties.</p> <p>Practice. — Bill of Exceptions. — The action of a court in ruling upon a motion for a new trial, for reasons relating to evidence improperly admitted or rejected, newly-discovered evidence, or the weight and legal effect of evidence, is not properly presented for review unless the evidence is in the record by a bill of exceptions.</p>

<p>From the Morgan Circuit Court.</p>

<p>Promissory Note. — Additional Surety. — Alteration.—Adding a name to anote as an additional surety, with the assent of the payee, and with the assent and at the request of the personal representative of the original surety, and with the agreement that the estate should not be released, was not such an alteration as would release the estate of the original surety.</p>

<p>From the Allen. Circuit Court.</p>

<p>County Clerk. — Allowance for Attendance in Court. — A circuit court bas no legal power to make an allowance to the clerk for bis' daily attendance in court during the year 1870; and if such allowance has been made, the auditor is not bound to issue a warrant therefor.</p>

<p>From the Posey Common Pleas.</p>

<p>Bill of Exceptions. — Documentary Evidence. — Parties cannot, by agreement in writing, authorize the clerk, in making up a transcript for the Supreme Court, to annex to the record documents used in evidence, without copying them into the record and having them authenticated as other evidence.</p> <p>Practice, — Comparison of Handwriting by Supreme Court. — Upon a question as to the genuineness of a signature, the Supreme Court can decide nothing by an examination and comparison of signatures.</p> <p>Evidence. — Expert.— Testimony by Comparison of Signatures. — Where the genuineness of a signature is in dispute, a witness who is an expert may have papers conceded to be genuine placed in his hands, and he may compare the genuine signatures with the one in dispute, and from such comparison state whether or not the disputed signature is genuine or simulated.</p> <p>Same. — Papers not in evidence in the cause, nor admitted to be genuine, cannot be used in making suck comparison.</p> <p>Grand Juror. — May be a Witness. — The oath of grand jurors does not prevent the public or an individual from proving by one of the jurors, in a court of justice, what passed before the grand juiy.</p> <p>Evidence.— Witness. — Cross-Examination.—Impeachment.—A witness testifying on the trial of a cause may, for purposes of impeachment, be asked, on cross-examination, whether he did not at a certain time and place testify before the grand jury, and there make statements different from his present testimony.</p>

<p>From the Sullivan Circuit Court.</p>

<p>From the Shelby Circuit Court.'</p>

<p>From the Shelby Circuit Court.</p>

<p>From the Shelby Circuit Court.</p>

<p>Railroad. — Animal Killed. — Contributory Negligence. — If the owner of a cow knowingly permits her to run at large in the vicinity of a railroad, where it is not required by law to be fenced, and she strays upon the track and is killed, it not appearing that the killing is wilfully done, the railroad company will not be liable, though the owner may not have known that the railroad was completed.</p>

<p>Summons. — Service.—Railroad.—In an action against a railroad company to recover the value of stock killed, a return of the summons, “ Served by reading to ” A., “ who is the local freight agent of said defendant, at the city of” ect., does not show good service under section 30 of the code.</p> <p>Same. — Statute Construed. — Section 30 of the code contemplates cases where a corporation, company, or an individual has an office or agency in the county for the transaction of business, and the suit grows out of, or is connected with, the business of such office or agency.</p> <p>Same. — Section 36 of the code designates three classes of officers or agents of corporations, upon whom process may be served; first, chief officers; second, officer# of secondary rank; third, any persons authorized to transact business in the name of the corporation.</p> <p>Same. — If no officer of the first or second class can be found, the service may be upon an agent or person of the third class. If the service is upon an officer or person of the second or third class, it must appear by the return that the officer or officers of the higher grades were not found in the county.</p> <p>.SAME. — Under the act of March 4th, 1853 (note to 2 G. & H. 62), as amended (Acts Special Session, 1861, p. 78), the persons who may be served with process against a corporation whose principal office is not in this State are all of one grade, and service on any one of them is good without reference to whether others are found or not.</p> <p>Same.— General Agent. — A local freight agent isa general agent of a railroad corporation within the meaning of the above act, and service on such agent is good, though there be a superintendent of the road and a director of the company residing in the county, and conductors daily passing on the trains.</p> <p>Railroad. — Killing Stock. — Fence.—That a place on a railroad where an animal is killed is within a city, is not sufficient to excuse the company from fencing the road.</p> <p>Same. — Evidence.—The plaintiff in a suit against a railroad company for killing an animal may show that after the killing the company repaired and built a fence at the point where the injury occurred, for the purpose of showing that the company regarded the place as one that might legally be fenced.</p>

<p>From the Morgan Circuit Court.</p>

<p>Pleading. — Injunction.—Illegal Tax. — In an action against a county treasurer, to enjoin the collection of a tax alleged to have been illegally assessed by the assessor, the complaint must show that the assessment was placed upon the tax duplicate, that the duplicate is iu the hands of the treasurer, and that he is threatening to collect the tax.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Lake Common Pleas.</p>

<p>From the Fountain Circuit Court.</p>

<p>From the Randolph Circuit Court.</p>

<p>From the Grant Common Pleas.</p>

<p>From the Hancock Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Shelby Common Pleas.</p>

<p>Principal and Surety. — Extension of Time. — Promise of Surety after Extension. — Where the payee of a note has, for a good consideration, given an extension of the time of payment to the principal, without the consent of • the surety, a promise afterward made by the surety to pay the debt, made in ignorance of the fact that the time of payment had been extended by the payee, is not binding on the surety.</p> <p>Pleading. — Complaint to Review. — Principal and Surety. — Extension of Time. — A complaint by a surety to review a judgment rendered upon a promissory note, and to restrain the levy of an execution, alleging that he suffered judgment to go by'default, not knowing that he had any defence to the action, but that since the execution issued, he had for the first time learned that the payee of the note had, on divers occasions, taken interest in advance and extended the time of payment to the principal, without the knowledge of the surety, was held good.</p> <p>Bill of Exceptions. — Where the evidence is not all in the record, this court cannot say that the finding is not supported by the evidence.</p>

<p>Private Road. — Petition,—Land-Owners.—In an action to recover damages and to restrain the defendant from tearing down fences and opening a private road through the land of the plaintiff, the name of the plaintiff being mentioned in the petition for the road;</p> <p>Held, that the plaintiff could not attack the validity of the proceedings to ■ establish the road on -the ground that the names of all the owners of lands over which the road was to pass were not mentioned in the petition.</p> <p>Same. — Notice.—Jtirisdiction.—That notice has been given of a petition for the opening of a private road, is a jurisdictional fact that must be proved,, before the board of commissioners- can act on the petition; and if the record shows a finding that due notice was given, it is conclusive.</p> <p>SAME. — Constitutional Law. — Eminent Domain. — The statute authorizing the location of private roads, as far as it provides for the exercise of the right of eminent domain to establish them, is unconstitutional.</p>

<p>From the Jefferson Circuit Court.</p>

<p>From the Marion Common Pleas.</p>

<p>-JURISDICTION. — Forcible Entry and Detainer. — The statute confers jurisdiction, in cases of forcible entry and detainer, upon justices of the peace and also upon courts of common pleas.</p> <p>Same. — Court of Common Pleas. — In the court of common pleas, where it did not appear upon the face of the-complaint, or by a subsequent pleading verified as the statute required, that the title to real estate was in issue, the jurisdiction of the court was not ousted. ^</p>

<p>Supreme Court. — Notice to Co-Parties. — Where a part only of the defendants in a judgment appeal therefrom to the Supreme Court, without notice to the other defendants in accordance with section 551 of the code, the appeal will be dismissed.</p>

<p>CRIMINAL Law. — Conviction after Repeal of Law. — The act of February 27th, 1873 (Acts 1873, p. 151), to regulate the sale of intoxicating liquors, contains no provision saving prosecutions pending at the time of its passage, and as it repealed all laws in conflict with any of its provisions, a judgment rendered in such an action for a violation of the previous law is without foundation, even if rendered on a plea of guilty.</p>

<p>From the Floyd Circuit Court.</p>

<p>Contract. — Consideration.—Promissory Note. — The makers of a promissory note mortgaged their personal property to a third person to secure to such person a debt due from the mortgagors, and the mortgagee was placed in possession of the mortgaged property, and was selling the same, to make the amount due, under a power of sale contained in the mortgage, and while so engaged he agreed with the holder of the note made by the mortgagors that if he could save enough out of the mortgaged goods to pay his own debt and the amount of the note, he would pay the note, and as evidence of the agreement he placed his name on the note.</p> <p>Held, that if he failed to realize enough from the sale of the goods to satisfy his own debt, he could not be held liable on the note, there being no consideration to support the execution of the note.</p> <p>Same. — To constitute a valid consideration, there must be some benefit to the promisor, or to a third person, or some loss or inconvenience to the promisee.</p> <p>SAME. — A mere naked promise to pay the already existing debt of another, though in writing, if without a new consideration, is void.</p>

<p>From the Vigo Circuit Court.</p>

<p>From the Marion Criminal Circuit Court.</p>

<p>From the Wayne Circuit Court.</p>

<p>Chattel Mortgage. — Growing C> Op. — Effect of Recording. — Where ten acres of growing wheat was mortgaged, and the mortgage duly recorded, and afterward the mortgagor, without the consent or knowledge of the mortgagee, harvested, threshed, removed, and sold the wheat, and the purchaser converted it to his own use by mixing it with other wheat;</p> <p>Held, that the title to the wheat was vested in the mortgagee, and the recording of the mortgage was constructive notice to the purchaser.</p> <p>Held, also, that the mortgagee could recover the value of the wheat of the purchaser, by identifying the wheat purchased as the wheat that was mortgaged, though the purchaser bought the wheat in the usual course of trade, and without actual notice.</p> <p>Same. — Evidence.—Parol evidence is admissible to identify chattels mortgaged.</p> <p>SAME. — Possession.—The recording of a chattel mortgage, under the tenth section of the statute of frauds (1 G. & H. 352), dispenses with the necessity of an actual delivery of the property to the mortgagee. McCord v. Cooper, 30 Ind. 9, overruled.</p>

<p>From the Marion Superior Court.</p>

<p>From the Vigo Common Pleas.</p>

<p>Cbimisjai, Law. — Indictment.—Obtaining Money by False Pretenses. — An indictment for obtaining money by false pretenses, under section 27, 2 G. & H. 445, must allege whose money was obtained.</p>

<p>From the Putnam Circuit Court.</p>

<p>From the Morgan Circuit Court.</p>

<p>Pleading. — Malicious Prosecution. — In an action for malicious prosecution, to allege that the defendant falsely, maliciously, and without any reasonable or probable cause, filed his affidavit charging the plaintiff with having committed a criminal offence, is sufficient, without repeating the allegation of malice and want of probable cause in connection with the averments concerning the issuing of the warrant, the arrest, and the imprisonment.</p> <p>Bill of Exceptions. — Where no time has been asked or given at the time of the making of a decision, within which to file a bill of exceptions, a bill filed at a subsequent term, at the time of the rendition of judgment, does not become a part of the record.</p>

<p>From the Wayne Common Pleas.</p>

<p>■Practice. — Failure to Demur. — Assignment of Errors.. — A failure to demur to a complaint does not waive the right to call in question the jurisdiction of the court over the subj ect of the action and the sufficiency of the facts stated in the complaint; but to raise such questions for the first time in the Supreme Court, there must bean assignment of error that the court below did not possess jurisdiction of the subject-matter of the action, and that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Insolvent Debtor. — Judgment Against. — An insolvent debtor contemplating an assignment may enter an appearance to a complaint and allow judgment to go, on proof, for a just debt; upon which an execution may issue, under and by virtue of which the goods of the debtor may be seized and sold.</p> <p>Same. — Judgment Creditors of Insolvent Debtor. — Such judgment creditors have liens prior and paramount to the claims of other creditors who have no judgments, and are entitled to have their judgments paid in full, and cannot, on the application of other creditors, be enjoined from collecting their judgements.</p> <p>Same. — Such other creditors cannot, on their application, have a receiver appointed to take possession of and sell the property of the judgment debtor, • where it is not shown that there is danger of the judgment debtor’s fraudulently disposing of his property.</p> <p>Injunction. — In what Cases Granted. — Injunctions are granted to restrain the commission of acts threatened or anticipated, injurious to the plaintiff, pending litigation, and not where the matter complained of has been consummated • either before or after the action is commenced, and before judgment.</p> <p>SAME. — Where a debtor is in the open and visible possession of property, and it is not shown that there has been a fraudulent disposition of any of the property, or that the debtor threatens so to dispose of it, there is no cause to restrain the debtor from selling or disposing of the property.</p>

<p>Replevin Bail. — Attestation iy Justice of the Peace. — An undertaking of replevin bail upon a judgment rendered by a justice of the peace is void, if not attested by the justice. Downey, C. J., dissented.</p> <p>Constable. — Suit on Bond. — In a suit upon the bond of a constable, where the only breach alleged is a failure to levy upon the property of the replevin bail, if the undertaking of replevin bail be void, there can be no recovery.</p>

<p>Supreme Court. — Assignment of Error. — Where the overruling of a motion for a new trial is not assigned as error, the Supreme Court will not consider any error properly constituting a cause for a new trial.</p>

<p>Liquor. Law. — Sale to Minor bv Bar-Tender. — Where a bar-tender in charge of a saloon, in the absence of the proprietor, who had a license or permit, and without his knowledge, sold liquor to a minor;</p> <p>Held, that the proprietor was not liable for a violation of section six of the act relating to the sale of intoxicating liquors, Acts 1873, p. 154.</p>

<p>From the'Putnam Circuit Court.</p>

<p>From the Madison Circuit Court.</p>

<p>From the Newton Circuit Court.</p>

<p>City. — Liability for Defect in Sidewalk. — Where a city improved one sidewalk and the roadway of a street, but did not improve the opposite sidewalk, and a lot owner on the side unimproved made a sidewalk, in front of his property, under the direction, as to the grade thereof, of the civil engineer of the city (being a continuation of a sidewalk which had been used by the public for several years), which he so constructed that it terminated in an abrupt descent, over which a foot passenger fell and injured himself in the night-time.</p> <p>Held, that the city was liable for the injury, in the absence of negligence of the injured party, the city having notice of the dangerous character of the sidewalk, notwithstanding such sidewalk had been so constructed without authority from the city.</p>