Volume 44 — Indiana Reports

<p>„ ,, „ „ , , . „ Pleading.—Contract.—Performance.—A complaint to recover the price of corporation stock sold averred, “ that in full performance and execution of said contract on the part of the plaintiff, he delivered to the defendant a certificate of stock for the shares of stock,” etc., “which certificate the defendant received and accepted as a full performance of the said contract on the part of the plaintiff, but defendant has failed and refused to pay,” etc.</p> <p>Held, that this averment was not shown to be untrue because the certificate of stock set out showed that the stock was transferable only on the books of the company.</p> <p>Held, also, that the fact that the legal title to the stock did not pass to the defendant by the delivery to him of the certificate and the acceptance thereof by him, in no manner showed the allegation that it was thus delivered and accepted by the defendant as a full performance of the contract on the part of the plaintiff to be untrue. The delivery of the certificate to the defendant and the acceptance by him as stated in the pleading vested the equitable title to the stock in the defendant; and if he accepted that equitable title as averred in the pleading as a full performance of the contract on the part of the plaintiff, he could not object that the plaintiff had not performed the contract on his part.</p> <p>Same.—One paragraph of the complaint averred that the plaintiff contracted and agreed with the defendant to sell him certain shares of stock, etc., and the defendant in consideration therefor undertook and expressly agreed with the plaintiff to pay him, etc., and that the plaintiff offered to execute and perform said contract, and to transfer said stock, and had been ready and willing at all times to perform said contract, but the defendant failed and refused, etc. Another paragraph varied the averment thus: “ And the plaintiff then and there delivered to defendant the certificate of stock held and owned by him for said two shares of stock, which defendant accepted, and the plaintiff then and there offered to transfer the said shares of stock to defendant, and defendant refused to pay,” etc.</p> <p>Held, that each paragraph alleged a complete agreement to sell on the part of the plaintiff and to pay on the part of the defendant; the two minds met; the contract was not nude, for the agreement of the one was the consideration for the agreement of the other.</p> <p>Held, also, that the contract set up was executory, no time having been fixed for its performance, and that the law would imply that it was to be performed immediately or within a reasonable time.</p> <p>Held, also, that the contract did not pass any title to the stock, but it was a valid contract, which either party could enforce, he being in no default himself.</p> <p>PRACTICE.—Setting Aside Stibmission.—There may be circumstances that would justify the court in setting aside a submission of a cause for trial upon the application of the plaintiff after the evidence has been adduced and the argument has been heard; and, the record not showing for what cause the submission was set aside, this Court will presume some valid reason existed.</p> <p>Same.—Appeal.—The fact that the record onappeal to the Supreme Courtshows that the appellant has paid the costs adjudged against him below does not prevent his prosecution of the appeal.</p>

<p>Board of Commissioners.—Bridge over Stream Forming County Line.—Statute Construed.—Under the act of May 14th, 1869 (3 Ind. Stat. 59)> where a stream is the boundary between two counties, the commissioners of one of the counties have no authority to erect a bridge across such stream, without the concurrence of the board of commissioners of the other county.</p> <p>Same.—Contract Without Authority of Law.—A county cannot be made liable for acts of her board of commissioners wholly outside of the power conferred by law upon such boards.</p>

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

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

<p>Principal and Surety.—Extension of Time.—Consideration.—Suit on the relation of a former ward on his guardian’s bond. Breach, failure to account and pay over to the relator, etc. Answer, by the surety, that more than one year after the relator became of full age, he entered into a contract with his former guardian, that in consideration that he, the said guardian, would pay to the relator ten per cent, interest on the amount due him, he would extend the time of payment ninety days; which contract was made without the knowledge or consent of the surety; that at the time the contract for extension was made, the guardian was amply able to pay, and at the expiration of the time was insolvent and so ever since has remained. It was not shown that any interest had been paid.</p> <p>Held\ that the agreement of the guardian furnished no valid consideration for the agreement of the ward to forbear for the ninety days. The ward’s hands were not tied by this contract, it being void for the want of a sufficient consideration, and he might have maintained an action at once for the money.</p> <p>Parol Agreement to Pay Interest.— When Void.—A parol agreement to pay more than six per cent, interest is void.</p> <p>Forbearance.— Void Agreement.—An agreement to pay six per cent, interest for forbearance, when the promisor is already bound by law to pay such rate without any new contract, is not a valid consideration for an agreement of forbearance.</p>

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

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

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

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

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

<p>Liquor. Law.—Salt by AgtnL—Under an indictment against a saloon keeper for selling intoxicating liquor to one he knew to be in the habit of becoming intoxicated, the defendant is not liable where the sale was made in his absence, by his bar-tender, without his knowledge or consent, and against his express direction.</p>

<p>Execution.—Satisfaction by Levy.—A levy upon property, real or personal, sufficient to pay the execution, operates as a satisfaction, until such levy is legally disposed of by the sale of the property or in some other legal man* ner.</p> <p>Same.—Negligence.—Replevin Bail.—Notice.—It is the duty of the execution plaintiff who has a levy on real estate of the execution defendant, when made a party to an action to enforce a superior mortgage lien, to use reasonable or ordinary diligence to protect his levy; and if such execution plaintiff by his negligence fails to make a proper defence against a pretended superior lien (the replevin bail not being a party to said action), the execution cannot be levied on the property of the replevin bail. Query, whether the execution plaintiff, when made a party to such an action, can throw upon the replevin bail the burden of defending the action by giving him notice of it.</p>

<p>City.—Appropriation of Land for Street.—Liability for Damages.—When commissioners appointed to assess damages and benefits resulting to lot owners by the opening of a new street in a city, proceeding in accordance with the statute, assess damages to a lot owner and report to the common council, and the common council, within the twenty days limited by the statute, accept such report and make an order of appropriation of land for the street, in accordance with the report of such commissioners, the city becomes liable at once for the payment of the damages assessed; and on the failure or refusal of the council to appropriate money for the payment of such damages, a suit lies against the city therefor.</p> <p>SAME.—After the council has accepted the report of the commissioners and made the proper order for the appropriation of the land necessary for the street, the right of the land-owner to the damages assessed becomes absolute. The council cannot, therefore, set- aside the assessment, nor by refusing to open the street avoid the payment of such damages.</p> <p>Same.—The party in whose favor damages have been assessed is not required to wait for compensation until the city collects the benefits assessed against other property on the line of the proposed street.</p>

<p>Partnership.—Scope of Business.—Milling.—As properly and reasonably connected with the business of milling, one partner in a firm engaged insuch business may borrow money to be used in the purchase of grain and middlings for the mill.</p> <p>PRACTICE.—Appeal.—Evidence.—The Supreme Court would not consider questions of the admissibility of evidence, where an exception was taken to the admission of evidence, but the grounds of objection were not pointed out to the court below.</p> <p>SAME.—Costs.—Reporter.—A question as to the taxing as costs of a reporter’s fee for taking down evidence cannot be raised on appeal in the Supreme Court, when it has not been reserved in any way.</p> <p>SAME.—Evidence.—Exceptions.—Where the reason for a new trial is, that the court during the trial erred in its rulings as to the admissibility of evidence excepted to at the time, and there were several exceptions taken to the admissibility of evidence, the Supreme Court on appeal cannot know to which of the rulings reference is made.</p>

<p>Practice.—New Trial.—Motion.—The assignment of causes for a new trial should be certain and specific, so as to apprise the court and the opposite party of the ground upon which the new trial is asked. The particular irregularity of the court or prevailing party must be designated, where either of such causes is relied upon for a new trial.</p> <p>SAME.—Pleading.—Amendment.—It is within the discretion of the court to allow a proper amendment of the pleadings at any time before the jury retire to deliberate on their verdict.</p> <p>Same.—Appeal.— Witness.—The conduct of a witness, while testifying, towards a party, cannot be considered on appeal, where no bill of exceptions or affidavit showing such conduct appears of record.</p> <p>Divorce.—Civil Action.—Change of Venue.—A suit for divorce is not a civil action within the meaning of sec. 207 of the code (2 G. & H. 154), which provides for a change of venue in civil actions, and the refusal of a court to grant a change of venue from the county, upon motion and affidavit assigning as a reason therefor the undue influence of the defendant over the citizens of such county, is not erroneous.</p> <p>Same.— Trial.—Jury.—Struck Jury.—A party to a suit for divorce is not entitled to a trial by jury as a matter of right. The act (2 G. & H. 192) providing for struck juries does not apply to a suit for a divorce.</p> <p>Practice.—Evidence.—A party cannot avail lumself of error in the admission of irrelevant evidence, where his own persistent questions call it out.</p> <p>SAME.—New Trial.—Smoking in Court.—Where it does not appear, on appeal, how smoking in court by the judge and attorneys prevented a party from having a fair trial, and the party assigning such conduct as a ground for a new trial does not appear to have objected to it, there is nothing for the Supreme Court to consider in relation to such conduct.</p> <p>SAME.—Assignment of Errors.—Judge.—The assignment, as a reason for a new trial, “ that the court erred in sleeping or sitting with his eyes closed during the reading of the written evidence on the part of the plaintiff at the trial of the cause,” is too vague and indefinite. If the judge was asleep, the party should have ceased reading or awakened him; if he sat merely with his eyes closed, it is presumed he did so to hear the more acutely.</p> <p>Divorce.—Parties.—Conspiracy.—In a suit for a divorce, where one cause alleged in the petition was, that the defendant conspired with certain other persons to and did cause the petitioner to be' adjudged insane, such persons are not necessary or proper parties to the suit.</p> <p>Same.—Pleading.—.Petition for Divorce.—A petition or cross petition for divorce need not be sworn to. Section 13, 2 G. & H. 352, applied only to the answer.</p> <p>Same.—Practice.—Dismissal of Petition.—Cross Petition.—Where a cross petition for divorce is filed, the court may decree a divorce to the party legally entitled thereto; and upon the dismissal of the petition, the defendant may proceed to trial of the cross petition without further notice to the plaintiff.</p> <p>Same .—Allowance.—Upon granting a decree of divorce to the wife, or refusing one to the husband, the court should make an allowance to the wife to pay all her reasonable expenses in the prosecution or defence of the petition for divorce.</p> <p>SAME.—Alimony.—Judgment.—The decree for alimony is an absolute personal judgment, collectible by execution, belongs to the wife, and is in lieu and bar of her interest in the real and personal estate' of her husband, and should be in such sum as the circumstances of the case render justand proper, so that the wife shall not be placed in a worse condition than if she had survived her husband.</p> <p>SAME.—Infants.—Custody, Support, and Education of.—The court in decreeing a divorce should make provision for the guardianship, custody, support, and education of minor children.</p>

<p>(Practice.—Change of Venue.—Second Application.—After one change of venue has been taken on affidavit against the county and the judge, another change cannot be taken by the same party.</p> <p>'Same.—Instructions.—It is not error to refuse instructions which, although correct as abstract propositions of law, are not applicable to the facts in evidence before the jury.</p> <p>:Same.—Appeal.—When the verdict below is clearly in accordance with the evidence, there can be no error in giving or refusing instructions. It is only where, from the whole case, a j ury might have rendered a different verdict, that the giving of improper, or the refusal of proper, instructions will be held erroneous.</p> <p>'Same.—Limitation of Argument.—The court limited the argument in a slander case to one hour and a half on the part of the plaintiff, and one hour on the part of the defendant.</p> <p>Held, on an appeal by the plaintiff, that this was no abuse of the discretion of the court.</p> <p>'Same.—Separation of fury.—Failure to Object.—During the progress of the trial, the court adjourned and suffered the jury to separate without giving them the statutory charge touching their duty during the adjournment. The plaintiff was personally present, acting as his own counsel, and made no objection to the action of the court, and failed to call its attention to the omission until the next meeting of the court, when he excepted to what had been done.</p> <p>Held, that his failure to object and to ask that the jury might be properly instructed at the time of their separation, was an acquiescence in the action of the court and a waiver of the irregularity.</p>

<p>•Decedents’ Estates.—Overpayment to Administrator.—A debtor paid a debt due a decedent to his administrator, each party supposing the true amount was being paid. After final settlement of the estate, the debtor siied the ex-administrator in his individual capacity, to recover an excess.alleged to have been paid to the defendant as administrator. , '</p> <p>Held, that the suit would not lie. The claim, if there was any, was against'the estate, and should have been filed as such claim before the final settlement thereof. Nor would the fact that the overpayment was not discovered until after the estate was settled enable the plaintiff to recover.</p>

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

<p>Surviving Partner.—Suit Against by Administrator of Deceased Partner.— Demand.—In a complaint by an administrator de bonis non against a surviving partner, to recover the share of the decedent in the partnership assets, it is necessary to aver a demand for a settlement and accounting before suit. The facts thr t the surviving partner was the original administrator, that he never made any settlement, as such administrator, with the proper court, and that he has been removed and the plaintiff appointed in-his place, does not obviate the necessity of such demand, unless it is shown that, as surviving partner, he has violated his trust by failing to discharge his duties.</p> <p>SAME.—'Set-Off.—In such suit the surviving partner may set off an indebtedness of the decedent to him; and he may also set off the amount he may have . paid to discharge the debts of the decedent, in excess of assets received by him as administrator.</p> <p>Practice.—Interrogatories to fury.—The court was requested to submit certain interrogatories to the jury, which did not require the finding of any fact ' involved in the issues between the parties, but only what matters they considered in determining the amount of damages.</p> <p>Held, that the request was properly refused.</p> <p>Same.— Witness.—The defendant in such a case was not entitled, as a matter of ' right, to testify in his own behalf.</p> <p>Same.—A daughter of the decedent was a competent witness in behalf of the .■.administrator.</p> <p>SAME.—-Verdict.—Special Findings in Answer to Interrogatories.—When there is a general verdict and also a special finding in answer to interrogatories, , and the special finding shows that the general verdict is for too much, the former will control the latter, and judgment should be rendered for the amount ;shown to be due by the special finding.</p>

<p>Vendor and Purchaser.—Contract. —Injunction.—Receiver.— Waste.—In a, suit by tbe vendor in a contract for the sale of land for the recovery of the purchase-money, where the vendee is insolvent, is in possession, has committed waste, and threatens to materially injure the property by cutting down and removing timber, the court may grant an injunction restraining the commission of waste and appoint a receiver to take charge and possession of the land.</p> <p>SAME —Additional Security.— Waiver.—Mortgage.—Purchase-Money. — One who has contracted to convey land, not having parted with the legal title, does not, by taking a mortgage of other real estate as additional security for the payment of the purchase-money, waive any right to recover the purchase-money by sale of. the land which he has agreed to convey; he holds the legal title as a security for the unpaid purchase-money, and all the incidents of a mortgage, so far as the lien is concerned, attach to the contract of sale.</p> <p>SAME.—Pleading.—The vendor in a contract for the sale of land, who has taken as security for the payment of the purchase-money a mortgage of real estate other than that embraced in said contract, need not first exhaust such mortgaged property, before instituting proceedings against the vendee to recover the purchase-money, by judgment and the sale of the real estate described in said contract. Nor, where the vendor has instituted such proceedings, is the pendency of a suit to foreclose such mortgage, or a decree of foreclosure of such mortgage and for the sale of the mortgaged property, a bar to such proceedings ; but the sale under such decree may be pleaded and shown as a credit of the amount received on such sale.</p> <p>Same.—Evidence.—In a proceeding by the vendo/ in a contract for the sale of land, for the recovery of the purchase-money, under section 791 of the code (2 G. & H. 334), the note given for the purchase-money, the contract of sale, a deed made by the vendor to the vendee, and testimony of the tender of such deed and of demand of possession of the real estate in the contract described, made before suit, are admissible in evidence.</p> <p>Same.—Deed.— Tender.— Waiver.—The vendor, before proceeding by suit to enforce the recovery of the purchase-money, must tender a deed, unless the vendee has waived such tender.</p> <p>Same.—Parties.—Auditor of State.—An action for the recovery of the purchase-money of land sold by the State, against a person holding by a.contract of purchase, is properly brought in the name of the State, on the relation of the Auditor of State.</p> <p>SAME.— Contract.—Defect of Cured by Deed.—Tender.—House of Refuge.— "Where the governor of the State and the commissioners of the House of Refuge were by statute authorized to sell certain real estate, and on the sale a contract was executed by the governor and by the president only of the board of said commissioners (of whom there were three), and the governor was authorized upon payment of the purchase-money to execute, in the name of the State, a deed to the purchaser attested by the secretary and seal of State, and such a deed was tendered to the purchaser, on condition that he paid the purchase-money, which was due and unpaid;</p> <p>Held, that the tender of said deed cured any irregularity, if any existed, in the execution of said contract.</p> <p>Same.—Estoppel.—Possession.—Title.—A purchaser of real estate, who takes and claims possession and title by virtue of his purchase and from no other source, cannot, while so claiming, as a defence to the payment of the purchase-money, deny the right of his vendor to sell to him.</p> <p>Same.—Receiver.—"Where a purchaser takes possession of and claims real estate by virtue of his purchase, and is in possession at the commencement of an action for the recovery of the purchase-money and for the appointment of a receiver to take charge and possession of the real estate pending litigation, because of waste committed and threatened by the purchaser, the appointment of a receiver is not such a change of possession as to estop the vendor from enforcing his remedy.</p> <p>Same.—fitdgment.—Subrogation.—Specific Performance.—Under the provisions of section 791 of the code (2 G. & H. 334), in an action for the recovery of purchase-money against a person holding a contract for the purchase of land, who is insolvent, the court may decree the sale of the interest of such ' person in the land, the subrogation of the purchaser to the rights of such person, and that upon the payment of all the purchase-money stipulated to be paid by the contract within a stated lime, the vendor in said contract shall convey the land to the purchaser at such sale.</p> <p>Constitutional Law.—Title of Act.—House of Refuge.—In the act of the General Assembly entitled “ An act to establish a House of Refuge for the ■ correction and reformation of juvenile offenders,” the section providing that .certain real estate should be sold and the proceeds applied toward the purchase of other grounds and the erection of suitable buildings for the institution, is not objectionable, on the ground that it violates the constitutional requirement that “ every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.”</p>

<p>Practice.—Motion to Strike Out.—It is not error to strike out allegations of an answer that are put in issue by the averments of the complaint and a general denial in answei.</p> <p>Jurisdiction.—Ohio River.—The State of Indiana possesses concurrent jurisdiction with the State of Kentucky, for the enforcement of civil and criminal laws on the Ohio river, where the two States possess the opposite shores.</p> <p>Same.—How Exercised.—The jurisdiction may be exercised in such manner as the State shall elect.</p> <p>Same.— To What it Extends.—Such jurisdiction is not limited to the service of process or to judicial proceedings, but is general, and includes the right of legislation touching all civil and criminal cases on the river.</p> <p>Same.—Statute.—Death Caused ly Wrongful Act.—Section 784 of the code (2 G. & H. 330) is general and extends over all territory over which the State of Indiana has exclusive or concurrent jurisdiction. It applies to cases where death is caused by wrongful acts or omissions, on vessels whilst navigating the Ohio river under license under the acts of Congress, by the owners or their agents, officers, and servants in charge of such vessels; and it is not invalid as tending to regulate commerce among the states, or as hindering or obstructing the free use of the license under which such owners may be navigating the river.</p> <p>DAMAGES.—Injury Causing Death.—Money Received on Insurance Policy.— In an action for an injury causing death, brought under section 784 of the code, the receipt of money by those for whose benefit the action is brought, on a policy of insurance on the life of the deceased, cannot be shown, for the purpose of reducing the amount of recovery.</p> <p>Carriers oe Passengers.—Degree of Care.—The law imposes upon the owners of boats engaged in carrying passengers, their agents, servants, and employees, the duty of exercising the highest degree of care in the navigation and management of their boats, but they are not insurers or bound to carry passengers safely at all events.</p> <p>Same.— Two Boats Running on Same Line.—Where two boats are owned by the same pei-sons, running on the same line, and carrying passengers, such owners cannot escape liability for an injury causing the death of a passenger, by a discharge of their duty on the particular vessel upon which the deceased was a passenger, but they must exercise the same care and vigilance in the management of the other boat.</p> <p>Same.—Burden of Proof.—If the employees engaged in navigating such boats saw each the other boat, while they were two or three miles apart, and the boats were accustomed to pass at and about the same point, and the river was wide enough for them to pass at that point without danger, with proper care, and a collision occurred there, such circumstances tend to show negligence; and it devolves on the defendants to show that the collision was not caused by their neglect or omission; and in such case if-some sudden, unexpected thing occurred just before the collision, which could not with due care have been avoided, it is for the defendants to show it.</p> <p>Same.—In an action against the owners of two steamboats, engaged in carrying passengers on the same line, where one boat is ascending and the other descending a river, for an injury causing the death of a passenger upon one of the boats, the burden of proof of all material facts of carelessness causing, the death remains with the plaintiff and does not change in any progress of the cause; but if the plaintiff shows that the descending boat departed from the rules of navigation and gave the fust signal to pass, then the burden of proof is upon the defendants to show that there was a necessity for it.</p> <p>Practice.—Motion for New Trial.—A motion for a new trial for error in the admission or exclusion of evidence is too indefinite to raise any question, where neither the name of the witness nor the character of the testimony is specified.</p> <p>Witness.—Action by Administrator for Injury Causing Death.—In an action by an administrator for an injury causing death, the defendant is not a competent witness to testify on his own behalf.</p>

<p>Fraud.—Circumstances and Presumptions.-—-It is quite seldom that fraud is ever proved by positive evidence, but it is generally established by circumstances and presumptions which arise from the conduct of the parties.</p> <p>Same.—A court or jury cannot presume the existence of fraud, in the absence of evidence, but a presumption may arise from facts and circumstances proved, that the transaction was tainted with fraud.</p> <p>Same.—Evidence.—Where, in an action brought by A. against B., to recover the possession of certain property, the plaintiff alleged that lie was the owner, and the defendant answered in general denial, and, also, that as ■ sheriff, by virtue of a writ of attachment, he seized the property as the property of C., who he alleged was the owner, and the plaintiff replied in general denial, and reasserting ownership;</p> <p>Held, that aftci proof by the plaintiff of his purchase of C, evidence on behalf, of the defendant that the sale was made by C. to defraud bis creditors, and that A. was aware of such fraudulent purpose on the part of C. was within the issue, and having been admitted without objection or exception, its admission constituted no cause for a new trial on the motion of the plaintiff.</p>

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

<p>Criminal Law.—Principal and Accessory.—When an accessory to the crime of assault and battery with intent to murder is tried before the principal, and a verdict of guilty is rendered against him, but before judgment the principal is tried and acquitted, the accessory, on the production of the record showing the acquittal of the alleged principal, is entitled to be discharged.</p> <p>SAME.—Statute.—Section 51 of the criminal code authorizes the trial and conviction of an accessory before or after the conviction of the principal offender ; but it does not authorize the conviction of the accessory after the principal has been tried and acquitted.</p>

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

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

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

<p>Pleading.—Founded on Written Instrument.—Where a pleading is founded on a written instrument, the original or a copy thereof must be filed with the pleading.</p>

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

<p>Pleading.—A pleading should state facts, not arguments, inferences, or matters of'law.</p> <p>Same.—Misjoinder.—Under the code, causes of action arising out of contract cannot properly be joined with a causo of action in tort, but such misjoinder is not remediable in the Supreme Court.</p> <p>Vendor and Purchaser.—Deed.—Covenant for Quiet Enjoyment.—To constitute a breach of a covenant for quiet enjoyment, the general rule is, that there must be an eviction under a paramount title. The mere existence of á mortgage incumbrance is not such a breach.</p> <p>Same.—Pleading.—Evictio7i.—A deed was executed in Indiana for the conveyance of land lying in the State of Illinois, the deed containing a covenant for quiet enjoyment. Complaint, that the land when conveyed was encumbered by a mortgage containing a power of sale; that by virtue of the power, and in accordance with its provisions, the mortgagee sold the land; and that the plaintiff was evicted by the purchaser at the mortgage sale.</p> <p>Held, that the complaint was bad, for failing to show that the mortgagee did the acts prescribed in the mortgage, as a prerequisite to a sale under the power contained therein.</p> <p>Fraudulent Representations.—False and fraudulent representations made by a grantor to a grantee, as to the time when an existing mortgage on the land will come due, do net furnish a ground of action; to do this, there must be a sale of the land under the mortgage and an eviction of the grantee.</p>

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

<p>ATTORNEY.—Demand.—Arrest of Judgment.—A suit cannot be maintained against an attorney or collecting agent, for money collected and not paid over, ' without an averment in the complaint, and procf on the trial, of a demand of payment or settlement. An allegation that the defendant has failed and refused to pay over is not sufficient; in such a case, where the complaint fails to show a demand before suit brought, a motion in arrest of judgment should be sustained.</p>

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

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

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

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

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

<p>Execution.—Exemption.—When an execution defendant has once made his schedule and had the three hundred dollars worth of property exempt from execution appraised and set off to him, he is required, when a subsequent execution issues against him, to again make out his schedule and have his property appraised, to entitle him to its exemption.</p> <p>Same.—Householder.—When an execution defendant ceases to he a resident householder of this State, his right to exempt any of his property from execution ceases, and property that may have been set - off to him as exempt while such resident householder may be seized and sold on execution.</p>

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

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

<p>MARRIED Woman.—Conveyance to Husband.—A married woman, being desirous to provide for a daughter by a former marriage, proposed to her husband that if he would convey to the daughter forty acres of his land, she would convey to him a like quantity owned by her in her own right. The offer was accepted; the husband and wife joined in a deed of conveyance to the daughter of the husband’s land, and the wife executed a deed of conveyance of her own land directly to her husband, pursuant to their agreement.</p> <p>Held, that the deed of the wife to the husband was absolutely void, both at law and in equity. The statute prohibits a married woman from conveying her lands except by a deed in which her husband joins.</p> <p>Same.— Specific Performance.—In such case, the heirs of the husband could not maintain an action for specific performance against the heirs of the wife.</p> <p>Same.—Rescission.—Nor could the daughter, who received such conveyance of the husband's lands, he required to reconvey the same to the heirs of her stepfather in consequence of the failure of title to the land attempted to be conveyed by her mother. She was not charged with any fraud or imposition; the consideration named in the deed to her, natural love and affection, was sufficient; and her title could not be affected by the fact that her mother failed to pay for the land so conveyed to her.</p> <p>MISTAKE.—Mistakes of fact may be corrected by the court, hut not mistakes of law.</p>

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

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

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

<p>Criminal Law.—Larceny.—Indictment, Form of.—An indictment for larceny : charged that the defendant, on etc., at etc., did *• unlawfully and feloniously steal, take, and carry away, of the personal goods and chattels -of one” A. “ then and there being of the value of four dollars, one pair of boots, contrary to the form of the statute,” etc.</p> <p>Held, that while the indictment was somewhat transposed and out of the usual form, it substantially and sufficiently charged a larceny of the personal goods of the,party named.</p> <p>Same.—Evidence.—Where the evidence fails to show that the goods alleged to have been stolen were the property of the person named in the indictment as , the, owner, the defendant should be acquitted.</p>

<p>Township Trustee.—Conclusiveness of Oficial Report.—In a suit against an ex-township trustee and his sureties on his official bond, to recover an alleged '' balance in his hands, it is a sufficient answer that he settled with his successor, and that the latter, in his next official report to the board of county com- . ■ missioners, charged himself with such balance as received from his predecessor. ' Such report is conclusive evidence that the outgoing trustee paid to his successor the sum stated in the report of the latter.</p> <p>Same.—Fraud.—A reply setting up that the defendant did not in fact pay said money to his successor, hut fraudulently procured the latter to charge himself with it, on the promise that it should immediately be paid to him, is bad. Fraud can only be predicated of an existing or an alleged existing fact, and not on a promise to be complied with in future.</p>

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

<p>National Banks.—Interest.—National banks, organized and doing business in this State, are entitled to contract for and receive, upon loans of money, interest at the rate of ten per cent, per annum.</p> <p>Same.— Validity of Usurious Note.—The reservation of more than the legal rate of interest by such bank does not render void a note given for money loaned. The only penalties incurred by the bank in such a case, so far as concerns the debtor, are the forfeiture of the unpaid interest, and a penalty of twice the amount of interest that has been paid, if sued for within two years, the time limited by the national banking law. '■</p> <p>Same.—Liability of Sureties.—Such note, being valid as against the principal, is not void as to hip sureties.</p> <p>SAME.—Recoupment.—In a suit on a note given for money borrowed of a national bank, the defendant cannot recoup illegal interest paid in advance. The remedy given by the national banking act for the recovery of excessive interest is exclusive, and cannot be supplemented by the statute of this State on that subject.</p> <p>Same.—Attorney's Fees.—Where such note provides for reasonable attorney's fees, the plaintiff is entitled to recover such fees in an action on the note.</p>

<p>Practice.—New Trial.—When the allegations in an answer are found to be true, and the finding is sustained by the evidence, it is not error to overrule a. motion for a new trial, assigning for cause the insufficiency of the evidence.</p> <p>Same.—The sufficiency of an answer cannot be tested by a motion for a new trial.</p>

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

<p>APPEAL.—Bastardy.—No appeal from the decision of a justice of the peace is provided for in the bastardy act.</p> <p>SAME.—An entry by a justice of the peace in a bastardy prosecution, that the court “ does now find the defendant not guilty,” is not a judgment from which an appeal will lie.</p> <p>Bastardy.—Civil Proceeding.—A prosecution for bastardy is a civil proceeding, and trials therein are governed by the law regulating civil suits.</p>

<p>DECEDENTS’ Estates.—Contract.—A monument was placed on the grave of a decedent at the request of his mother, and she gave her own note for the price. The administrator had no agency in the matter, and made no promise to pay.</p> <p>Held, that the party furnishing the monument could not maintain an action against the administrator to recover its value.</p> <p>Practice.— Temporary Judge.—Bill of Exceptions.—An attorney properly called to try a cause, in which the judge of the court is disqualified, has the same power over the case as the regular judge would have had if not disqualified. Hence, as the regular judge might have given time and signed the bill of exceptions after the term, the called or appointed judge may and ought to do so in a proper case.</p>

<p>From, the Boone Common Pleas.</p>

<p>Practice.—Entry of Judgment.—On the trial of an indictment for assault • and battery with intent to murder, the defendant >yas found guilty of assault and battery, and his punishment was fixed at imprisonment in the county jail and a ■ "fine. After motions for a new trial and in arrest were overruled, the defendant was imprisoned in the county jail by the sheriff, but no judgment was entered during the term. In vacation, the prisoner having sued out a writ 'of hateas corpus, the judge telegraphed the clerk to enter judgment in the order . book as of a day certain in the preceding term, which the clerk accordingly did.</p> <p>Held, that the entry was a nullity and gave no authority to hold the defendant: in prison. After the court had finally adjourned, without any entry of judg- ■ ment on the order book, the clerk could not by order of the judge enter it in vacation.</p>

<p>Pleading.—Mechanic's Lien.—Arrest of Judgment.—A complaint to enforce a mechanic s lien must show that the notice of intention to hold a lien was filed within the time required by the statute; and in the absence of such averment, a motion in arrest of judgment will be well taken.</p> <p>Married Woman.—Charge on Real Estate for Erecting Building.—If a complaint to recover for work done and materials furnished, in erecting a house on the real estate of a married woman, alleges that the materials were furnished and the work was done at her special request, and that the same were necessary to the full enjoyment of the property by her, it will be inferred, after a verdict for the plaintiff, that it was proved on the trial that her contract was conscionable, that it related to the betterment of her real estate, and that it was reasonably calculated to promote that end; and the court in such case should render judgment charging the real estate with the value of such improvement.</p>

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

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

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

Draining Association.—Appraiser.—Disqualification by Reason of Interest.—An appraiser, appointed to appraise the benefits and damages to accrue to land-owners along the line of a ditch, whose sister-in-law, niece, and nephew own land along the line of the ditch, is not a disinterested party, and is disqualified from acting. From the White Common Pleas.

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

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

<p>Principal And Surety.—Fraud of Principal in Obtaining Signature of Surety.—Where the payee of a promissory note filled the same up and gave it to the maker to obtain the name of a surety thereon, and the maker applied to a person who could not read or write, and asked him to sign the note as surety, stating to him that it was for a certain sum smaller than that expressed in the note, and he thereupon authorized the principal to sign his name to the note, without asking that it might be read, the payee not having anything to do with procuring the signature, and not being chargeable with any fraud or deception;</p> <p>Held, that the surety was liable for the amount of the note.</p>

<p>Descent.—Statute.—Basis of Distribution.—Under the first and second sections of our statute of descent, where a person dies intestate, without living children, leaving surviving grandchildren and great-grandchildren, descendants of a deceased grandchild, the grandchildren inherit per capita, taking share and share alike without regard to the number of the children of said intestate, and the great-grandchildren inherit per stirpes, taking together the-share which said deceased grandchild would have taken if living.</p> <p>Same.—The statute of 1832 does not in this respect, change the rule of descent as prescribed in the revised code of 1843, but is in harmony with the latter.</p>

<p>Legatees.— When Liable for Testators Debts.—A. mortgaged two tracts of . land to the State of Indiana to secure a loan from the college fund. Subsequently both tracts were owned by B., who conveyed one tract to C. by warranty deed, and later sold the residue to D., it being stipulated in the deed • that D., as a part of the consideration, should pay the college fund mortgage. .' D. sold to E. and E. to F., each purchaser in turn agreeing to. .assume .and pay said mortgage, and F. also executing to E. a mortgage for part of the pur- ¡ chase-money. Neither of them paid it, and both tracts were eventually sold ' by the Auditor of State to satisfy A.’s mortgage, G. being the purchaser. The sale produced a surplus, which remained in the auditor’s hands. H. afterward purchased of G., to whom H. represented that he was purchasing for the benefit of the parties secured by the mortgage of F., that part of the land charged in said several deeds with the payment of the mortgage. The widow and children of B., who were also his legatees, paid to C. a certain sum which he had paid to G. in redemption of the piece of land he had purchased from B., and then sued D., E., F., G., and H, and the Auditor of State,'praying in their complaint that the surplus in the hands of the said auditor might be paid to them, and that the residue might be charged on the land purchased by H. of G.</p> <p>Held, that the complaint was bad for failing to show that the plaintiffs had received assets from B.’s estate. If they received none, they were in no way liable for B.’s debts, and their payment to C. was voluntary and gave them no right of action.</p> <p>Mortgage to the State.—Purchaser’s Rights.—The purchaser of land mortgaged to the State for the benefit of the college fund takes under the mortgage, and is not affected by equities between purchasers of the land subsequent to such mortgage.</p> <p>Vendor and Purchaser.—Notice.—A purchaser in good faith, without notice, can convey to his grantee a good title, although the latter may have notice of outstanding equities in favor of other parties.</p>

<p>From the Marion Civil Circuit Court,</p>

<p>Promissory Note.—Assignor.—Diligence.— Consideration.—The request of the assignor to the holder not to sue the maker of a promissory note not governed by the law merchant, without any consideration for the delay, is a reasonable and valid excuse for not bringing such suit.</p>

<p>Injunction.—Bond.—Damages.—Attorney's Fees.—Where the sole object of a complaint is an injunction, and after a trial, resulting in a disagreement and ■ discharge of the jury, the temporary injunction is dissolved and the action dismissed on motion of the defendant,he is entitled, in a suit upon the injunction bond, to recover, as a part of ins damages, reasonable attorney’s fees.</p>

<p>Pleading.—Complaint for New Trial.—A complaint for a new trial, on the. ground of newly-discovered evidence, must show that the evidence could not have been discovered with reasonable diligence ■ before the trial, and must show that diligence was Used to discover it; and it should also contain the evidence given on the former trial, so that the court can determine whether the additional evidence would be likely to change the result.</p>

<p>-Vendor and Purchaser.—Fee Simple and Life Fstate.—Merger.—Where A. owned in fee simple an entire tract of land, of which B. held a certain portion during his life, and the title was in dispute and litigation, A. claiming . to own the whole land subject to the life estate of B., and B. claiming to own one-fourth of the land in fee, in addition to his life estate, and a compromise - was effected, by which’A. conveyed to B. in fee one undivided fourth of the land, and B. conveyed to A. in fee the undivided three-fourths of such land, without any reservation of his life estate;</p> <p>Held, that B. by his deed conveyed to A. three-fourths of his life estate.</p> <p>Held, also, that when B. received of A. the conveyance in fee for one-fourth of • 'the tract of land, the remaining one-fourth of his life estate was immediately merged in the greater estate.</p> <p>Mistake.—Reformation of Written Instrument.—A court will not reform a written instrument by supplying the expression of an intention of the parties. - omitted through mistake of law and not of fact.</p>

<p>Office and Officer.—Lucrative Office.—An office to which there is attached a compensation for services rendered is a lucrative office.</p> <p>Same.—Councilman.—The office of councilman m a city is an office purely and wholly municipal m its character, and such officer lias no duties to perform under the general laws of the State.</p> <p>Same.—Constitutional Law.—The office of councilman in a city, although a lucrative office in the ordinary sense of thewords, is not a lucrative office within the meaning of the ninth section of the second article of the constitution, which provides that no person shall hold more than one lucrative office at the same time.</p>

<p>Juror.—Challenge.—Statute Construed.—A juror who has served as a tales-man upon a jury in the same court at a previous term within a year may, under the second section of the act of March 8th, 1873, Acts 1873, p. 139, be challenged for this cause.</p>

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

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

<p>Consideration.— Written Promise to Pay Money.—A written promise to pay money implies a consideration; and if there was none, it is for the promiser to plead and prove a want of consideration.</p> <p>Pleading.—Abatement.— Verification.—A plea in abatement is bad, if not sworn to.</p> <p>Same.—Answer.—Bankruptcy of Plaintiff.—In an action on a written obligation to pay money, an answer that the plaintiff had been declared a bankrupt and discharged as such, and that the indebtedness for which the obligation was given accrued to the plaintiff before his petition in bankruptcy was filed» and that the indebtedness was not contained in the inventory and schedule filed by the plaintiff, is bad, where the obligation sued on was given after the bankruptcy.</p> <p>Same.—An answer purporting to be in bar'of the entire action is bad, if it only answers a part.</p> <p>Judgment.—Form of.—Where no objection is made to the form of a judgment in the court below, such objection cannot be made in the Supreme Court.</p> <p>Practice.—Motion for Neto Trial.—That the court erred in its ruling upon demurrers, or in the form of the judgment, are not reasons for a new trial.</p>

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

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

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

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

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

<p>Appeal.—County Commissioners.— Turnpike.—Under the statute, I G. & H. 253, sec. 3, providing that an appeal from the board of county commissioners by a person not a party to the proceedings shall not be allowed unless he file an affidavit “ setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest,” an appeal was taken to the circuit court from a decision of the board granting the petition of a gravel road company for the location of a gravel road on a highway and for the assessment of the benefits to lands within one mile and a half of the line of the proposed gravel road, upon the filing of an affidavit setting forth that the affiants were the owners of lands within one mile and a half of the line of said road and would be affected by the grant of right of way and said assessment, and were personally interested in the matter of the petition.</p> <p>Held, that the affidavit was defective, because it did not state that affiants were aggrieved by the .decision of the board, and that the appeal was properly dismissed.</p> <p>Held, also, that it did not follow that the appellants were 'aggrieved by the decision of the board, because, as stated in their affidavit, they were the owners of land which might be assessed.</p> <p>Same.—Where a petition of a gravel road company for the assessment of benefits to lands is presented to the board of county commissioners, an appeal lies, in favor of a person aggrieved, from the decision by said board of the following questions : 1. Whether the company is organized pursuant to law. 2. Whether the company has a valid and solvent subscription of at least three-fifths of the estimated cost of the proposed road. 3. Whether the estimate of cost has been made by a competent and disinterested civil engineer. The Pendleton, etc., Co. v. Barnard, 40 Ind. 146, and Trustees of the Town, of Princeton v. Manck, 35 Ind. 51, explained.</p> <p>Same.—Parties.—Semlile, that where an appeal is taken from, the decision of the board of county commissioners by the remonstrants against the granting of the petition of a gravel road company for right of way and assesment of benefits to lands, on the ground that they are parties to the proceedings, all the remonstrants should be united in the appeal.</p> <p>Same.—Discretionary Power of Commissioners.—Semble, that the discretionary power to grant the right of way upon a highway to a gravel road company is exclusive in the board of county commissioners, from the exercise of which there is no appeal.</p>

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

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

<p>Judicial Sale.—Rents and Profits.—Where, on execution, the rents and profits of real estate have been offered for sale, and no bid has been received therefor, the fee simple may be sold.</p>

<p>Instruction.—Where, on appeal to the Supreme Court, the evidence is not all in the record, if an instruction given would not have been correct upon any state of the evidence which might properly have been before the court and jury, the giving of such instruction is a cause for reversal.</p> <p>Bastardy.— Witness.—Mother of Bastard.—In a prosecution for bastardy, the prosecuting witness, being the mother of the illegitimate child, is interested in the event of the suit. So far as the case of Dailey v. The State, 28 Ind. 285, is inconsistent with the case of McCullmgh v. The Slate, 14 Ind. 391, the former is overruled.</p>

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

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

<p>Superior Court.—Assignment of Errors.—On appeal to the Supreme Court from the judgment of the general term of a superior court, the record must show what errors were assigned at the general term; if no assignment of errors appears in the record, the Supreme Court will presume that none was filed.</p> <p>Same.—If on appeal from the special to the general term, there is no assignment of errors, the judgment of the special term should be affirmed.</p> <p>SAME.—When all appeal is taken from the general term of the superior court to the Supremo Court, the assignment of errors must relate to the rulings at the general term.</p>

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

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

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

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

<p>From the St. Joseph Common Pleas.</p>

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

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

<p>Superior Court.—Appeal.—It is not necessary to except to the decision of a superior court in general term, in.order to present in the Supreme Court the questions decided by such general term.</p> <p>Same.—Assignment of Errors.—The assignment of errors in this court, on appeal from a decision of the general term of the superior court, must go to the action of the general term, and not to the rulings at special term.</p>

<p>Attorney.—Poor Person.—Circuit Court.—Where an attorney was appointed by the circuit court, upon a proper showing, to defend a poor person indicted for murder, which service was fully rendered, and said court made an allowance of two hundred dollars to the attorney for his service and ordered that the county should pay it;</p> <p>Held, that the county was liable to the attorney for such service.</p>

<p>Appeal.—yWiM-sVftb».—Amount in Controversy.—No appeal can be taken to the Supreme Court in an action originating before a justice of the peace, where the judgment, exclusive of interest and costs, does not exceed ten dollars.</p>

<p>Bill of Exceptions.—Time of Filing.—Certificate.—Time was given until the first day of the next term, which began on February 26th, 1872, to file a bill of exceptions. A transcript was certified to the Supreme Court, March 5 th, 1872, which purported to be a true and complete transcript of all the proceedings and papers in the case. Later, on application of the appellants, a certiorari was awarded, directing the clerk to certify up a bill of exceptions alleged to be on file in his office. The clerk certified a copy of the bill, and said in his certificate, “ the original bill of exceptions now on file in my office was filed as of date of February 24th, 1872.”</p> <p>Held, that the two certificates were not contradictory, but that taking them together they showed that the bill of exceptions was filed after the 5th of March, and that it was to relate back to the 24th of February.</p> <p>Held, also, that the hill of exceptions was filed too late and formed no part of the record.</p> <p>Malicious Prosecution.—Pleading.—A complaint for malicious prosecution charged that the defendants falsely, etc., procured the plaintiff to he indicted and tried on a false charge, by them preferred, of perjury, without setting forth the elements of the crime of perjury.</p> <p>Held, that after verdict the complaint was sufficient, although it set forth the offence with which the plaintiff had been charged by its technical name of “perjury” only.</p>

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

<p>Practice.—Supreme Court.—Rehearing.—When a rehearing is granted by the Supreme Court generally, and not as to particular points, the cause is before the court for examination and decision as though it had never been considered and decided; and in such case a concession or admission contained in an original brief may be withdrawn.</p> <p>Pleading.—Duplicity.—Immaterial Allegations.—To render a pleading double, there must be in substance two good causes of action or defence. The matter must be so pleaded that issue may be taken thereon. Immaterial matter will not bring a pleading within the rule against duplicity.</p> <p>SAME.—Motion to Separate.—Where but one defence is set up in a paragraph of answer, a motion to separate it into paragraphs should be overruled.</p> <p>SAME.—Motion to Strike Out.—A motion to strike out is well taken, when there is no cause of action or defence, or when the matter proposed to be struck out is immaterial, but is connected with matter that is material.</p> <p>SAME.—Answer.—Breach of Warranty.—An answer setting up a waixanty and a breach of it must show the character and extent of the warranty, and the nature and particulars of the breach, and if in bar of the entire action, it must show that the damages amounted to as much as the cause of action.</p> <p>Practice.—Denvurrer.—Where a demurrer to a bad special answer is overruled, the error is not harmless though the same facts are admissible under some other paragraph.</p> <p>Damages.—Measure of.—Breach of Warranty.—When an action or defence is based upon the breach of a warranty in the sale of a chattel, the measure of damages is the difference between the value which the thing sold would have had at the time of the sale, if it had been sound, or had corresponded to the warranty, and its actual value with the defect.</p> <p>Same.—Where damages are claimed for a breach of warranty in the sale of machinery sold by a person not the manufacturer, and where no fraud is charged, it is error to instruct the jury that they may allow, as damages, the value of the use of the machinery for a reasonable time to make the repairs necessary to cause the machinery to comply with the warranty.</p>

<p>Constable.—Bond of Indemnity.—An execution plaintiff is under no obligation to give a bond of indemnity to the constable having the execution.</p> <p>Same.—A constable is bound to perform his duty according to law without a bond of indemnity.</p> <p>Same.—Duty to Levy—Where property in the possession of an execution defendant is pointed out to a constable, and he is requested to levy on it as belonging to the execution defendant, it is the duty of the constable to make the levy, though the property may have been mortgaged by the execution defendant, or a part of it may have been sold to a third person.</p> <p>Same.—Liability for Failure to Levy.—Where an execution defendant has property, a constable failing to levy on such goods will be liable for such failure, unless he can clearly show that no damage resulted to the execution plaintiff by such failure.</p>

<p>PRACTICE.—Special- Finding.—Where what purports to be a special finding made by the court does not appear to have been made at the request of either party, and is not signed by the judge, and does not state any conclusions of law, it can only be regarded as a general finding.</p> <p>Same.—Prayer.—Striking Out.—It is not error to strike out a part-of the prayer of a complaint, when sufficient remains to authorize the court to give the plaintiff any relief to which he may be entitled under the facts charged.</p> <p>Same.—Extent of Relief.—When the defendant has answered, any relief may be granted consistent with the case made by the complaint.</p> <p>Corporation.—Relation of Officer to Stockholder.—The president óf a railroad company, who was also one of its directors, having knowledge, by reason of his official position, that the true value of the stock of the company, was very largely in excess of its nominal market value, purchased, at much less than its real worth, the stock of a non-official stockholder, who was ignorant of the company’s financial condition and of facts giving an extraordinary value to the stock, without disclosing to the sfellerthe facts and circumstances within his knowledge as to its real value.</p> <p>Held (Downey, C. J., dissenting), fhat the relation of trustee and cestui que trust did not exist between the parties, and that in the absence of actual fraud the purchase was valid. The purchaser was not bound to communicate to the seller his knowledge of the worth of the stock,- although the same was obtained by reason of his official relation to the company, nor was the purchaser required, in order to make a valid purchase, to pay a fair and adequate price for the stock.</p> <p>Same.—Officer.—Trust.—The doctrine that the directors of a corporation are trustees for the stockholders has relation only to the acts of the directors in connection with the property held by the corporation itself and to their management of its business.</p>

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

<p>Practice.—Demurrer.—Where a demurrer to a complaint is overruled, and then a motion to strike out parts of the complaint is sustained, and afterward a second demurrer is filed to the complaint and overruled, no question can be made, on appeal, as to the correctness of the ruling upon the first demurrer.</p> <p>Turnpike.—Pleading.—Injunction.—The statute of 1865 requires that a suitable person shall estimate the cost of a proposed gravel road, and that he shall “ take an oath to perform his duty according to the best of his ability.” A complaint to enjoin the collection of a tax for the construction of a gravel road alleged, as a ground of objection to the tax, that the engineer did not take an oath that he would “discharge his duties according to .and as required by law.”</p> <p>Held, that the complaint did not state that he did not take an oath to perform his duty accoi'ding to the best of his ability, and the objection was not well taken.</p> <p>Same.—Pleading.—The allegation that a civil engineer did not make any legal report of the cost of a turnpike is not the allegation of a fact.</p> <p>Same.—Pleading.—Appended Document.—Where the complaint alleged, that “ the civil engineer appointed to estimate the cost of a gravel road did r.ot make any legal report of the cost of said road, as is shown by a copy of the report filed by him, which is made a part hereof and marked ‘ Exhibit B</p> <p>Held, that such a mode of pleading was unauthorized; that the court could not be required to refer to documents unnecessarily appended, to supply allegations omitted in the pleading.</p> <p>SAME.—Tax for Constrzzctiofz-.—Apportionment of Tax.—Under the act of March 6th, 1865 (3 Ind. Stat. 534), the aggregate cost, as estimated by a civil engineer, of a proposed gravel road is to be apportioned among the owners of the real estate within certain prescribed limits, according to the ‘value of the real estate as assessed on the books of the auditor. The line of a proposed gravel road was projected in three counties, and the estimated cost of the road was reported by the engineer to the auditor of each county, and the tax was apportioned by the auditor of a certain one of said counties without anything to show what the lands liable to assessment in the two other counties were appraised at or what they would produce.</p> <p>Held, that the apportionment was not made on a proper basis and was illegal.</p> <p>Same.—“ Real Estate.”—The words “ real estate,” as used in the fifth section of said act, which requires the auditor to fix the amount of each man’s tax according to the value of his real estate within the prescribed limits, comprehend improvements, as well as the land without improvements.</p> <p>PLEADING.—Complaint.—A complaint is defective which shows a right of action in a part only of the plaintiffs.</p> <p>Same.—Estoppel.—Izijzmctim.—Tztrnpike.—Tax.—Where a complaint praying for an injunction to restrain the collection of a tax assessed for the construction of a gravel road, under the act of 1865, alleges for cause the illegality of the assessment, an answer of estoppel, on the ground that plaintiffs stood by while the work progressed, etc., is defective, which does not allege that the tax was collectible, or that the treasurer was about to collect or was threatening to collect the tax, or show that the plaintiffs had a right of action for which they might have instituted proceedings earlier to enjoin the collection of the tax.</p> <p>Practice.—New Trial—Motion,—Errors of the court in its action on motions to strike out and on demurrers to pleadings are not assignable as reasons for a new trial.</p> <p>Same.—Evidence.—Evidence offered in support of an answer which has been held bad on demurrer should be rejected.</p> <p>SAME.—Motion for New Trial.—Bill of Exceptions.—A motion for a new trial which only referred to a bill of exceptions for the facts on which it was founded as constituting error in the admission or rejection of evidence, the record showing that such bill of exceptions was not then made, was held insufficient.</p> <p>Same.—Pleading.—Motion to Strike Out.—A judgment will not be reversed on appeal for error of the court below in refusing to strike out part of a complaint, where the remaining part of the complaint states a cause of action.</p>

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

<p>Venue.—Change from County in Criminal Cause.—In a criminal cause, whether a change of venue from the county shall be granted or not, rests in the sound discretion of the court, and the exercise of that discretion will not be reviewed, unless it has been clearly abused.</p> <p>Same.— Change from Judge.—In a criminal cause, where the application for a change of venue is on the ground of objection to the judge, if the affidavit is sufficient, the court has no discretion, and the change must be granted.</p> <p>Same.—A change of venue from the judge may be taken after a change from the county has been granted or refused, and vice versa.</p>

<p>Supreme Court.—Evidence.—Where there is any evidence that reasonably sustains the finding, the Supreme Court will not reverse the judgment on the weight of the evidence.</p>