Volume 45 — Indiana Reports

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

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

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

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

<p>¡Summons.—Returnable to Day Beyond the Next Term.— Void Judgment.—■ A summons made returnable to a day beyond the next term of court, a term o£ court intervening between the teste and return of the writ, is void, and a judgment rendered by default on the service of such writ is void.</p> <p>'.Same.—Appearance after Default.—An appearance after a default on the service of a void summons, and making an unsuccessful motion to set aside the default, and contesting the damages, will not waive the error in the invalidity of the summons.</p> <p>Default.— What Admitted by Default.—The default of the defendant admits the cause of action, the material and traversable averments, and that something is due the plaintiff, but leaves the amount open to be determined ‘by the proof.</p> <p>SAME.—Rights of Defendant after Default.—Assessment of Damages.— In the assessment of damages after default of the defendant, he may appear and demand a trial by jury; he may cross-examine the witnesses called by the plaintiff, and may call other witnesses and prove any matter which properly goes to extenuate or mitigate the damages; he may require the court to give proper instructions as to the measure and extent of damages; he may argue the question of damages, may move for a.new trial, and may reserve by a bill of exceptions any question affecting the damages.</p> <p>Same.—The right of a defendant after default, in an inquest of damages, does not extend so far as to allow him to introduce a substantive defence; but, subject to this qualification, he may show that the plaintiff has no legal claim to any but nominal damages.</p>

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

<p>Guardian and Ward,—Guardian Discharged by Marriage of Ward.—Under the statute (3 Ind. Stat. 283), the marriage of a female ward to a person of full age puts an end to the guardianship and requires the guardian to> account.</p> <p>Same.—Pleading.—Complaint on Guardians Bond.—Conversion of Assets.— Where, in a complaint upon a guardian’s bond, the only allegation as to the estate that came to the hands of the guardian is, that there came to his hands-on a certain day three several promissory notes, of a certain value at that date, without showing that they were due, or when they would become duer is bad, though it is alleged in general terms, as a breach of the bond, that, the guardian converted said assets to his own use and benefit.</p> <p>SAME.—If it is intended in such case to show that the guardian sold and. assigned the notes, and used the proceeds for his own purposes, the facts, ought to be alleged.</p>

<p>Practice.—New Trial.—Demurrer.—Error of the court in ruling upon a demurrer is not a reason for a new trial.</p> <p>SAME.—Evidence.—The assignments as reasons for a new trial, that the court permitted the introduction of irrelevant, immaterial, and incompetent testimony over the obj ection of the party moving for a new trial, and that the court refused to allow the introduction of material, relevant, and competent testimony offered by said party, are too general to raise any question.</p> <p>Slander.—Justification.—Evidence.—In an action of slander for an alleged charge of a crime against plaintiff, an answer of justification on the ground that the charge was true can be sustained only by proof of its truth beyond a reasonable doubt, by such evidence as would justify a conviction on an indictment for the offence.</p> <p>SAME.—In an action of slander the plaintiff must prove the speaking of enough of the words alleged in the complaint to constitute the slanderous charge complained of, and not other or equivalent words.</p> <p>SAME.—Practice.—Instructions.—It is not error in the court, in an action of slander, as preliminary to instructions relative to the evidence necessary to sustain the issues, to instruct the jury, where such is the fact, that the defendant, in addition to denying, admits that he spoke the words and alleges that they were true.</p> <p>Same.—An instruction, that “ evidence, introduced under an answer of justification charging plaintiff with having committed a crime, tending to prove plaintiff’s guilt but not establishing his guilt beyond a reasonable doubt, cannot constitute a complete defence and bar to the action” (of slander)-,“but may be considered in mitigation of damages,” does not assume that the evidence does not sustain the answer and cannot be complained of by defendant.</p> <p>Instruction to Jury.—It is not error in the court, after having fully instructed the jury, to refuse to give the instruction in another form.</p> <p>Same.—The court cannot be required to give an instruction concerning the effect of proof of a defence, where there is no evidence given to which the instruction could apply.</p>

<p>PRACTICE.—Insufficient Answc-r Proved.—Where an answer is insufficient, the facts alleged not being sufficient to constitute a defence, the judgment for the plaintiff will not be reversed because the evidence shows .such answer to be true.</p> <p>SAME.—Motion for New Trial.—A motion for a new trial, on the ground of evidence being improperly excluded, must indicate what evidence was thus excluded.</p> <p>Evidence.—It is not error to exclude testimony offered to support an insufficient answer.</p>

<p>PRACTICE.—Bill of Exceptions.—Motion to Suppress Parts of Deposition.— Where failure to suppress certain parts of a deposition is assigned as a reason for a new trial, and there is no bill of exceptions showing the motion to suppress or the parts of the deposition proposed to be suppressed, the Supreme Court cannot review the action of the lower court.</p> <p>Same.—Time of Filing Bill of Exceptions.—Where a bill of exceptions says on its face that it is filed in time, and is signed by the judge, this can only mean that the judge signed it in time. Only the clerk can say when a bill of exceptions or other paper or pleading was filed.</p> <p>Jurisdiction.—Amount.—Where a justice of the peace has jurisdiction of the amount due at the time of suit, if, by the action of the defendant, judgment is delayed by appeal, until interest added to the principal exceeds the amount of which a justice of the peace has jurisdiction, it is not error for the court to give judgment for the full amount due.</p>

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

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

<p>Replevin.—Plea of Property in Defendant.—A defendant in replevin may prove, under the general denial, his ownership of the property in dispute; therefore, the general denial being pleaded, it is not error to strike out a special answer setting up property in the defendant.</p> <p>Practice.—Sufficiency of Complaint.—Supreme Court.—Where a complaint is not demurred to, and on appeal it is not assigned for error that it does not state facts sufficient to constitute a cause of action, no question as to the sufficiency of the complaint is presented to the Supreme Court.</p> <p>Same.—Immaterial Evidence.—A judgment will not be reversed on account of the admission of immaterial evidence, unless it appears that the party objecting was injured in his rights by its admission.</p> <p>Hew Trial.—Motion.—A motion for a new trial, on the ground of the admission of improper evidence, must specifically point out what evidence was improperly admitted.</p> <p>SAME.—Appeal.—Evidence.—Where the whole evidence is not set out in the bill of exceptions, the Supreme Court cannot consider the question of the insufficiency of the evidence to sustain the verdict.</p>

<p>Practice.—Judicial Discretion.—Time of Trial.—A court has some discretion in the matter of taking up causes for trial; and where a cause is taken up out of its order and tried over the objection of one of the parties, but Without an application for a continuance or postponement, it will be presumed, the contrary not appearing, that good ground existed for the action of the court.</p> <p>Jury.—Talesmen.—When the regular panel of jurors are engaged in the trial of a cause, the court may direct the sheriff to call bystanders or go upon the streets or into the country and summon other jurors.</p> <p>'Same.—If any jurors of the regular panel are present and not engaged, they should be called, and the panel then filled from others, as the court may direct.</p> <p>Interrogatories to Jury.—Where interrogatories are submitted to a jury, if additional ones are desired, they should be prepared and submitted to the court, with a request that they be submitted to the jury.</p> <p>Same.—Answers to Interrogatories.—If answers to interrogatories are not full and responsive, objection should be made to the discharge of the jury, and it should be asked that they be sent out to answer further.</p> <p>Practice.—Alimony.—In an action for a divorce, where objection is made that the amount of alimony allowed is excessive, it must appear that the attention of the court below was called to the question, either by a motion for a new trial or a motion to modify and correct the judgment. Assigning as a reason for a new trial that the jury erred in its finding as to the value of the husband’s property is not sufficient.</p>

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

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

<p>Vendor And Purchaser.—Demand.—Liquidated Damages.—Condition Precedent.—On August 24th, 1872, H. executed to L. a contract of sale of certain real estate, in which the receipt of one hundred and fifty dollars of the purchase-money was admitted, and it was provided that a like sum should be paid December ist, 1873, and one hundred dollars December 1st, 1874, with interest. The contract contained these further stipulations, viz. : “ Notes and mortgage to be executed for the deferred payments as soon as deed is made.. Now, I hereby agree to cause to be made to him” L. “ a deed of conveyance for the aforesaid lands, on or before January ist, 1873, an<l if I fail make such deed I am to repay to said” L. “ the aforesaid sum of one hundred and fifty dollars, with interest from this date, and one hundred and sixty dollars agreed damages.” Suit by L. to recover the one hundred and fifty dollars paid, and also one hundred and sixty dollars as liquidated damages, on the failure of H. to convey at the time stipulated.</p> <p>Held, that the contract required H. to tender a conveyance on the day named, and that it was not necessary to aver an offer by L. to execute his notes and mortgage prior to a tender of a deed by I-I. The acts of the parties were not required by the contract to be concurrent, but the execution of the deed was a condition precedent to the making of the notes and mortgage.</p> <p>Held, also, that the proper construction of the contract for the mortgage was, that it should be given on the land so agreed to be conveyed.</p> <p>Held, also, that on failure of H. to make and tender the deed at the time fixed, L. was entitled to recover the payment made, and also the amount agreed upon as damages.</p> <p>Same.—Tender of Deed.—When a vendor obligates himself to execute a deed on a day certain, and the contract provides that the vendee shall execute his notes and mortgage for deferred payments “ as soon as a deed is made,” the tender of a deed need not be absolute, but the vendor must sign and acknowledge the deed, and may tender it to the purchaser, on condition that the latter execute his notes and mortgage in conformity with the contract.</p> <p>Practice.—Bill of Exceptions.—Affidavits.—Affidavits in support of a motion to set aside a default are not a part of the record, unless made so by a bill of exceptions.</p>

<p>Tax Assessment.—State Board of Equalization.—A circuit court cannot, on the complaint of tax-payers, control, reduce, or enlarge the amount of assessments as fixed by the State Board of Equalization, where the board was properly constituted, and where no fraud, but only a mere mistake, is charged.</p>

<p>Promissory Note.—Rights of Parties Amongst Themselves.—As to the payees of a promissory note, the makers are all principals and equally liable; the creditor has the right to hold all the makers, whether principals or indorsers, for the entire debt; but the rights and liabilities of the makers amongst themselves depend upon the contract between them, upon the relation each may sustain to the other and to the transaction.</p> <p>PRACTICE.—Appeal.—A judgment will not be reversed, because a demurrer to a bad answer has been overruled, where the finding on the issue therein presented has been against the party filing such answer.</p> <p>Co-Sureties.—Judgment.—When two sureties are sued upon a promissory note, one of them who has paid half the note is not entitled to an order directing the sheriff to levy an execution that may be issued to collect the residue upon the property of his co-surety exclusively. The creditor has his remedy against all the makers for all of the debt; and sections 674 and 675 of the code only authorize the court to order that the property of the principal shall be sold before resort is had to that of the surety.</p> <p>SAME.—Contribution.—It is only when one surety has paid more than his share of the liability that he can call upon a co-surety for contribution.</p>

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

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

<p>Mechanic’s Lien.—Material-Man.—A material-man who furnishes materials, not to the owner, but to the contractor, for the erection of a new building, can acquire and enforce a lien on the building, and on the interest of the owner of the real estate on which the building stands, to the extent of the value of the materials furnished.</p> <p>Same.—Payment to Contractor.—Notice.—Such lien, if the notice is filed within the time limited by the statute, is not defeated by the fact that the owner, before the filing of the notice of intention to hold the lien, has paid the contractor in full for the work and materials.</p>

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

<p>FACTOR.—Eight of Factor to Sell Goods where Advances Save Been Made.— Where goods were consigned to a factor for sale, without instructions as to the price for which they were to be sold, and the factor advanced money to the consignor to an amount greater than the value of the.goods, and, after such advances, the consignor instructed the factor not to sell for less than a certain price, as he could do better by having the goods returned, and the factor thereupon informed the consignor that the goods had not been sold, and that it was doubtful whether they could be sold at the price fixed, and that he would await further instructions, stating that if the consignor wished to remove the goods, an account of the advances would be rendered, and the amount could be remitted at the time the goods were ordered to be removed, to which the consignor made no response;</p> <p>Held, that, after the lapse of a reasonable time, the factor might sell the goods for the best price he could get in the market.</p>

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

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

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

<p>Pleading.—Copies of Written Instruments.—Written instruments which are not the foundation of an action, though filed with the complaint, cannot supply necessary averments thereof.</p> <p>Same.— Turnpike.—Where the action is to restrain the collection of an illegal tax assessed in aid of the construction of a turnpike, copies of the petition for the right of highway, the certificate of the county auditor as to the ownership of three-fifths of the land, etc., the order of the board of commissioners, the list of taxes assessed on the plaintiff’s land, made by the auditor, and a statement of the proceedings of the petitioners and stockholders of a turnpike company agreeing upon the name of the company and the election of officers do not properly form part of the complaint.</p> <p>Same.—Articles of Association.—Illegal Tax.—Injunction.—Under the act of March 6th, 1865 (3 Ind. Stat. 534), unless the persons receiving a permit from the county commissioners to use and occupy a highway for a turnpike unite in articles of association, in order to become a corporation, the collection of the tax provided to be levied for the construction of the turnpike may be enjoined.</p> <p>Same.—Parties.—An action to enjoin the treasurer of a county from collecting a tax assessed to aid in the construction of a turnpike, on the ground that the turnpike company was never organized as a corporation pursuant to the statute, is not a proceeding to destroy the turnpike company, but to prevent the collection of the tax because the company had not the authority to have the tax assessed, and there is no inconsistency in making the pretended corporation a party defendant by its assumed corporate name. 1 Pettit, J., dissented.)</p>

<p>Juror.—Accepting Without Interrogating.—If a party accepts a juror without interrogating him in -reference to whether he is a householder or freeholder of the county, he thereby waives the right to object to the competency of the juror on such grounds.</p>

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

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

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

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

<p>Practice.—Reasons for New Trial.—That the complaint is not sufficient, or that no sufficient notice had been given of the pendency of the action, is not a reason for a new trial.</p> <p>Garnishee.—Where one served as garnishee shows that he, in good faith, purchased the property and effects of the debtor, and agreed therefor to pay certain debts of debtor, and apply the residue, if any, on a debt due to himself from the debtor, and that the proceeds of the property will not be sufficient to pay the debts assumed and his own, the plaintiff cannot recover of the garnishee.</p>

<p>Pleading.—Answer to Part of Cosnplaint.—A plea in confession and avoidance, which is pleaded in bar of the entire cause of action, but which constitutes only a partial defence, is bad.</p>

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

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

<p>Set-Off.—Pleading.—A plea of set-oif is not bad because it assumes to answer the whole complaint, but, in fact, only answers a part.</p> <p>Same.—Sureties on Guardian! s Bond.—The sureties on the bond of a guardian, in a suit upon the bond, may plead by way of set-off an indebtedness of the relator to the guardian.</p> <p>Same.—In a suit upon a guardian’s bond, an answer' by the sureties that the guardian was poor and indigent, and was compelled to use the money sued for in support of the relator, and that he wrongfully refused to claim any allowance for the support of the relator, and asking that the amount so expended may be set off against the claim of the relator, is bad.</p>

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

<p>Pleading.—Complaint to Recover Penalty of Corporation.—In an action against a corporation to recover the penalty provided by statute for refusing an inspection of the stock book of the company, the complaint must show that the officer upon whom the demand for inspection was made had notice that the person malting the demand was entitled to the inspection.</p>

<p>New Trial.—Appeal.—When the rejection of evidence is not properly assigned as a cause for a new trial in the court below, such ruling cannot be considered in the Supreme Court.</p> <p>Same.—That “ the court erred in excluding material and competent evidence offered by the defendant,” is too general a statement of a cause for a new trial. The particular evidence excluded must be stated in the motion.</p>

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

<p>Jurisdiction.— Venue.—The indorsee of a promissory note payable at a bank in this State may sue both the makers and the indorsers in a county where the indorsers reside, though none of the makers reside in such county.</p> <p>Same.—Practice.—Objection to the jurisdiction of the person, if it appear on the face of the record, must be taken by demurrer; if not, it must be taken by answer; otherwise it will be deemed to be waived.</p>

<p>Witness.—Credibility Left to Jury.—Whether a witness is worthy of credit or not, is a question for the jury tiying the cause, and it is error for the court to stop the cross-examination of the witness and say, in the presence of the jury, “ I have serious doubts' whether that witness ought not to be recognized to answer for perjury.”</p> <p>Instruction.—Assuming Facts.—In instructing a jury it is error for the court to assume the truth of matters which have not been proved, or of matters concerning which the testimony has been conflicting, and indicate the leaning of the court against one of the parties.</p> <p>Same.—Bastardy.—Competency of Witness.—In a prosecution for bastardy, where the prosecuting witness has testified to the particular time when she was impregnated, and has given reasons for her belief, it is not error to refuse to instruct the jury that if they believe that the prosecuting witness had connection with another man about the time the child was begotten, this would destroy her competency as a witness to prove that the defendant was the father of her child.</p>

<p>Statute of Frauds.—Lien of Mechanic on Chattel.—The verbal promise of a mortgagee of a chattel to pay for repairs of the mortgaged property made for the mortgagor by a mechanic, in consideration of which the mechanic relinquishes his lien on the property for the repairs made by him, is not within the statute of frauds and may be enforced.</p>

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

<p>Principal and Agent.—Death of Principal.—Effect of on Contradi—By a written agreement between P., of Connecticut, and E., a resident of Indiana, P. furnished means to purchase a large quantity of lands in the latter state, the titles being taken in the name of P.; E. was to take the care and agency of said lands as the attorney of P. and to make no charge for commissions, diligence, skill, or personal services, but after P. was paid his original investment and ten per cent, interest thereon, from the proceeds of the sales of said lands, E. was to have half the residue for his services, and was to be sole agent for the sale of the lands for the term of four years, during which time they were all to be sold, unless the time should be extended by mutual agreement. No authority was conferred on E. to execute deeds as P.’s attorney. It was further agreed that P. should receive his capital so invested with ten per cent, interest thereon within four years, and in case any of said lands remained unsold at the end of four years, E. was to make no claim to any interest in such unsold lands, but they were to be wholly vested in P., his heirs, etc. Before the four years expired, P. died, leaving a will by which he devised said lands to certain persons; but no provision was made by the will for carrying out his contract with E. or for making deeds for such lands as E. might sell. The devisees took no measures to carry out the contract, and after the expiration of the four years sold the lands at a large advance over the cost price and ten per cent, interest.</p> <p>•Held, that the contract was one of agency and did not constitute a partnership, or give E. an interest in the lands themselves, but only in the surplus of the proceeds thereof.</p> <p>Held, also, that the death of P., the principal, revoked the authority of E., the agent.</p> <p>Held, also, that a power to sell coupled with an interest in the thing to be sold survives the grantor of the power; otherwise where the interest is in the proceeds only of the thing.</p> <p>Held, also, that the failure of P. to provide, by his will for carrying out the contract with E. was a breach of its terms, and that E. was entitled to recover from the estate of P. such sum as he could have realized by sales of the land within the four years limitation if his authority to sell had not been so terminated.</p> <p>Supreme Court.—Res Adjudicates.—When the Supreme Court has laid down a rule of law, it will adhere to it in a subsequent action between the same parties, where a different decision would leave one party without remedy, even though doubtful of the correctness of the rule when applied to other cases.</p>

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

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

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

<p>Pleading.—Covenant.—Incumbrance.—Lease.—Where the existence of a lease is pleaded as' a defence to an action for the purchase-money of real estate conveyed to the defendant by warranty deed, the basis of the defence is the covenant of warranty, and not the lease, and the lease need not be filed with and made a part of the answer.</p> <p>Same.—Where the defence to an action for the purchase-money of real estate was the breach of the covenant against incumbrances because of the existence of a lease, the answer not showing by whom, to whom, or when the lease was executed, or how long it had run, or whether the lessee had taken possession;</p> <p>Held, that the answer was fatally defective.</p> <p>Same.—Damages.—Eviction.—An answer pleaded in bar of an action for the purchase-money of real estate, alleging a breach of the covenant of warranty against incumbrances, but not alleging eviction, entitles the defendant to only nominal damages, and is therefore bad.</p>

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

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

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

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

<p>JUDICIAL Sale.—Sale in Parcels.—Execution.—A sale by the sheriff on execution of real estate as an entirety, which is palpably and clearly susceptible of division and sale in parcels to satisfy the execution, is void; as where, to satisfy a judgment of three hundred and sixty-five dollars and eighty cents and costs, thfere were sold four acres, one part of which had on it a two-story dwelling-house, a stable, and an orchard, and was worth from fifteen hundred dollars to two thousand dollars, and was separated by a fence and wagon road from the other part, which had on it a saw and grist mill, and was worth from two thousand dollars to two thousand five hundred dollars.</p>

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

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

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

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

<p>From the Montgomery Circuit Court.</p> <p>J. E. McDonald, J. M. Butler, and y.~ M. Cowan, for appellant.</p>

<p>Guaranty.—Notice.—Insolvency.—A guarantor is entitled, to notice of the default of the party, the performance of whose contract he has guaranteed.</p> <p>Same.—Certain parties guaranteed the performance of a contract for the purchase of a lot of cattle and.the payment therefor. For eighteen months after the maturity of the contract the principal was solvent, but afterward, and before suit, he became insolvent. No notice of his default was given to the guarantors.</p> <p>Held, that the guarantors were discharged.</p> <p>Same.—The difference between liability of surety and guarantor discussed.</p>

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

<p>From the Hunting toil Common Pleas.</p>

<p>Fraud.—False Representations.—Knowledge.—Frenzel v. Miller, 37 Ind. I, 4pproved.—The principles of law enunciated in Frenzel v. Miller, 37 Ind. I, in reference to the knowledge of a party making representations, alleged to be false and fraudulent, approved, and that case adhered to.</p> <p>Variance and Amendment.—Practice.—¶¶here the attention of the court below has not been called to a discrepancy between the allegations of a complaint and the proof, the objection cannoj, be made for the first time in the Supreme Court. And where the discrepancy is, that real estate is described in the complaint as lying in “range 13 •west,” when the proof shows it to be in “ range 13 east,’’ the Supreme Court will regard the pleading as amended.</p>

<p>Parties.—Church Organization.—A church organization can sue only in the name of “ wardens, and vestrymen of-• church-; ” orin the name of “trustees of-church-</p>

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

<p>Pleading.—Answer to Suit on Note.— Want of Consideratiofi.—In a suit upon a note for assessments against lands for benefits arising by reason of the construction of a turnpike, an answer admitting that the tax was valid and a lien upon the land of the maker, but alleging that it was without consideration, because the assessment was made against a former owner of the land, who had property, out of which the assessment might be made, and that such former owner had agreed to pay it, where it is admitted that the note was made with a full knowledge of the facts, is bad.</p> <p>Consideration.—Promissory Note.—The release of the land of the maker from a lien is a sufficient consideration to support a promissory note.</p> <p>Same.—It is not necessaiy that a consideration and promise should be equivalent in actual value.</p> <p>Same.—A certificate of stock in an incorporated company isa sufficient consideration to support a promissory note.</p>

<p>PRACTICE.—Appeal from Superior Court.—Assignment of Error.—On an appeal from a superior court, assigning for error that the court in special term erred in overruling a motion for a new trial, and in finding for appellee and rendering judgment upon insufficient evidence, or that the finding and judgment is contrary to law, in this, that the complaint is insufficient in law, presents no question for review in the Supreme Court.</p> <p>Same.—On an appeal from a superior court, assigning for error that the court in . general term erred in affirming the ruling and judgment of the court in special term, to which action, opinion, and judgment in general term the appellant at the time excepted, presents for review in the Supreme Court any error- that was properly assigned in the general term of the superior court.</p> <p>Same.—On an appeal from a superior court, if the appellant has assigned for error in general term, that the complaint did not state facts sufficient to constitute a cause of action, an assignment of erx-or in the Supreme Court, that the general teirn erred in affirming the. judgment of the special term, presents the question of the sufficiency of the complaint.</p> <p>Pleading.—Complaint for Possession of Real Estate.—Sufficiency of Description.—In an action to i-ecover the possession of real estate, if the real estate can be identified from the description in the complaint, the description will be sufficient.</p> <p>SAME.—Notice to Quit and Demand.—Where in such case the relation of landlord and tenant does not exist, it is not necessary that there should be notice to quit and demand of possession and surrender of the premises.</p> <p>Lease.—Assignment of.—Where the lessee of real estate, by an agreement with another, sold the right to use and possess the real estate as long as the lessee could, the rent to be paid to the lessee, and he to pay the lessor;</p> <p>Held, that the arrangement was, in legal effect, an assignment of the lease.</p> <p>Agent.—Authority.—The mere power to collect rent does not confer authority to make a new lease or change an existing one.</p> <p>Landlord and Tenant.—Assignment of Lease.—Estoppel.—Where a lease contains a clause against an assignment of the lease without the written consent of the landlord, if the lease is assigned without such consent, the assignee is chargeable with notice of the terms of the lease, and if the landlord does not accept rent for occupancy of the premises after assignment, he will not be estopped from claiming a forfeiture of the lease by reason of the assignment.</p>

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

<p>WILL.—Rule in Shelley's Case.—Statute.—A testator devised certain real estate to his wife for life, and at her death to be disposed of as follows: “ And from and after her decease, I give and devise the same to my adopted son, Morey, for and during his natural life; and from and after his decease I give and bequeath the same in fee to the lawful issue of said Morey; and if he shall decease without such issue, then I give and bequeath the same in fee to the heirs of said Morey.”</p> <p>Held, that at common law the devise to Morey would have created in him an estate tail, according to the rule in Shelley’s case, and that, under the statute of this State abolishing estates tail and converting them into estates in fee simple, he took a fee simple estate subject to the life estate of the testator’s widow.</p>

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

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

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

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

<p>Principal and Surety.—Extension of Time.—Interest.—An agreement in writing to pay an increased rate of interest, made by the principal maker with the holder of a promissory note, is a good consideration for an extension of the time of payment; and when the agreement is to extend for adefinite period without the consent of the surety, it will discharge the surety.</p> <p>Same.—Evidence.—Alteration of Contract.—An agreement to pay an increased rate of interest thereafter, indorsed on a promissory note, made by the principal only, without the knowledge or consent of the surety, does not of itself change, alter, or supersede the contract evidenced by the face of the note; and in a suit against the surety, the note is proper evidence to be given to the jury. Harden v. Wolf, 3 Ind. 31, explained.</p> <p>PRACTICE.—Pleading.—Judgment Notwithstanding Verdict.—Where the answer contains one or more good paragraphs, a judgment notwithstanding the verdict cannot be rendered for the plaintiff.</p> <p>Same.—Instructions.—In an action on a promissory note, where no general denial is pleaded, and the execution of the note is not disputed, and no evidence is given in support of the affirmative defences pleaded, and where the note sued on has been ¡¿properly excluded when offered as evidence by the plaintiff, it is error for the court to instruct the jury to return a verdict for the defendant.</p>

<p>From thé Hamilton Common Pleas.</p>

<p>Bastardy.—Imprisonment of Defendant.—Contempt.—The imprisonment of a judgment defendant in a bastardy proceeding is a means of enforcing the order of the court, and is a part of the remedy to which the relator, or the State, is entitled, and a failure to pay or replevy the judgment is not to be treated as a contempt of court.</p> <p>Same.—The defendant in a bastardy proceeding, who has been adjudged to be the father of the child, and charged with its support, and imprisoned for not complying with the order of the court, cannot be released from prison on habeas corpus, by showing that some other person is the father of the child, or that he has no money or property with which to pay the judgment or procure replevin bail.</p>

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

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

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

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

<p>Partition.—Equalizing Shares by Payments of Money.—Judgment.—In aproceeding for the partition of lands, if the commissioners find that a just and equitable partition in value cannot be made without injury, the parties may agree that the commissioners may equalize the partition by requiring those that receive more than their just and equitable share to pay to such as receive less certain sums of money; and if the commissioners agree upon the sums to be thus paid, and the parties then consent to the partition thus made, and all agree that the court may render judgment for the sums named by the commissioners against the parties required to pay the same, in favor of the parties who are to receive the same, judgments so rendered will not be void, and such judgments will be a lien on the lands of the judgment defendants.</p> <p>Judgment.—Lien of.—Period of Lien.—The lien of judgments upon real estate is regulated by statute, and the general rule is, that the lien continues for ten years from the rendition of the judgment, and no longer; but there are four exceptions, the statute excluding from the compulation of time, I. The time during which the party is restrained by an appeal from proceeding. 2. The time during which the plaintiff is restrained by an injunction. 3. The time the plaintiff may be prevented from proceeding by the death of the defendant. 4. The time the plaintiff may be prevented from enforcing the judgment by an agreement of the parlies entered of record.</p> <p>Same.—Purchaser of Real Estate from Judgment Defendant.—A purchaser of real estate from a judgment defendant, after the expiration of ten years from ■the rendition of the judgment, takes the land discharged from the lien of the judgment, unless the lien is preserved by some of the exceptions contained in the statute.</p> <p>Same.—Lien where Judgment is, by Agreement, not Collectible for a Certain-Time.—Where a judgment is rendered in pursuance of a written agreement of . the parties, entered of record, that the judgment shall be rendered collectible and payable nine years from its date, the ten years during which such judgment will remain a lien on the real estate of the defendant will not commence to run until the expiration of the nine years.</p> <p>Same.—Purchaser of Real Estate from Judgment Defendant Bound by Terms of Judgment.—A purchaser of real estate from such a judgment defendant is chargeable with notice of the existence of the judgment and its terms, and is hound tor know that the lien of such judgment will not be discharged until after the expiration of ten years from the time when the plaintiff could have proceeded to collect the judgment.</p> <p>Practice.—Dissolving Restraining Order.—Dissolving a restraining order, where the cause was left to be tried upon its merits, was held not error.</p>

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

<p>Liquor. Law.—ConstittOional Law.—Affidavit.—In a prosecution before a mayor or justice of the peace, under the act of February 27th, 1873, for selling intoxicating liquors without a permit, the affidavit is sufficient if it contains the averments prescribed by section 19 of said act; therefore it is not necessary to state the price for which the liquor was sold, or Jihat the seller had no permit. Said section 19 is constitutional.</p> <p>Same.—Appeal.—On an appeal to the circuit court in such case, the trial is to be had on the affidavit filed before the mayor or justice.</p> <p>Same.—Evidence.—To justify a conviction for selling contrary to the provisions of section 1 of said act, it must be shown that the defendant, without a permit, sold liquor to be drank in, upon, or about the building or premises where sold, etc. Therefore, where the accused sold a bottle of beer, which he delivered to the purchaser in his wagon, standing immediately in front of the seller’s place of business, and which was there drank, and- it did not appear that the seller had any knowledge or understanding that it was to be drank in such close proximity to his premises, the evidence was insufficient to convict.</p> <p>Same.—The purpose or understanding of the parties in such case may be inferred from the circumstances of the transaction.</p>

<p>Liquor Law.—Evidence.—Where, in a prosecution for selling intoxicating liquor without a permit, the evidence showed, that the accused sold a bottle of beer, which was taken by the purchaser to a shed, from fifteen to twenty feet distant from the seller’s premises, and there drank, and that there was no agreement or understanding between the buyer and seller as to where the liquor was to be drank j</p> <p>Held, that there was no violation of the law by the seller.</p>

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

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

<p>From the St. Joseph Circuit Court.</p>

<p>Pleading.—Suit on Official Bond of Justice of the Peace.—A complaint on the official bond of a justice of the peace alleging that the relator was plaintiff in an action before the justice, and on the trial the justice found for the plaintiff in the sum of one hundred and sixty-six* dollars, but without the fault or knowledge of the relator, the justice entered his findiig and judgment for only the sum of sixty-six dollars, and that the relator did not know of such entry for more than sixty days thereafter, by reason of which the relator lost the sum of one hundred dollars, is bad.</p> <p>Same.—Conclusiveness of Record.—The record of a justice of the peace is conclusive evidence of the facts set forth therein, and such record cannot be contradicted by a pleading.</p>

<p>Practice.—Refusal to Strike Out.—A refusal to strike out a pleading can not be an available error.</p> <p>Witness.— Widow.—The widow of a testator is a competent witness to testify to conversations and statements made by her husband to others, in her presence, relating to transactions between her husband andr such others; but she is not a competent witness to testify as to statements made to herself by her husband. ;</p>

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

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

<p>Turnpike.—Assessment.—Appeal.—Issue.—On an appeal from an assessment for benefits that would result to lands from the construction of a turnpike, the statute does not contemplate a demurrer to the assessment, or that any pleading will be filed. The issue between the parties in such case is the amount of the assessment, and that issue may be tried by a jury.</p>

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

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

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

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

<p>PRACTICE.—Special Finding.—A special finding of facts alld conclusions of law, not made at tie request of either party, not signed by the judge, and not made a part of the record by order of court or by a bill of exceptions, cannot be regarded as having been made under- sec. 341 of the code, and can only have the effect of a general finding.</p> <p>Pleading.—Foreclostire.—Answer.—To a complaint to foreclose a mortgage made to secure a promissory note, an answer that the note was given without any consideration is good. .</p> <p>Same.— Want of Title in Vendor.—An allegation of an entire want of title in the vendor is no defence to the foreclosure of a mortgage given to secure the payment of the purchase-money.</p> <p>Same.— Writing Filed with Pleading.—It is not sufficient to state in a pleading that a writing is filed with it; the writing must be filed, or it will not be available.</p> <p>Pleading.—Foreclosure.—Mortgage to Secure Purchase-Money.—Failure of Title.—To a complaint to foreclose a mortgage, an answer alleging that the note sued on was given for the purchase-money of the mortgaged real-estate, and that the title has failed, and the defendant has been evicted, but not showing t that the real estate had been conveyed to the mortgagor by a deed containing any covenants, is bad.</p> <p>Title.—Representations that Vendor has Title.—A party about to purchase real estate has no right to rely on a statement of the vendor that he has a good title.</p> <p>Pleading.—Foreclosure.—Mortgage to Secure Purchase-Money.—Fraud.— Breach of Warranty.—To a complaint to foreclose- a mortgage, an answer alleging that the note secured was given for purchase-money of the real estate mortgaged, and alleging a want of title in a part of it, but not showing fraud or a breach of covenant, is bad.</p>

<p>PRACTICE.—Special Finding.—The only way to reserve questions arising on a special finding of facts and conclusions of law thereon is to except to the conclusions of law. It is not enough to except to the finding; nor can any question thereon be raised by a motion for a new trial or for a judgment on the special finding.</p> <p>SAME.—Where exception has been properly taken to conclusions of law, an assignment that the court erred in its conclusions of law will present to the Supreme Court the question whether the court so erred.</p> <p>Same.—A special finding of facts and conclusions of law must be signed by the judge or incorporated in a bill of exceptions ; entering it upon the order book with other entries which are signed by the judge is insufficient.</p> <p>Pleading.—Stibscription to Aid in Construction of Railroad.—Assignment of Subscription.—To a complaint by an assignee of a subscription to pay or donate money to aid in the construction of a railroad, the rfioney to be paid on certain conditions, an answer alleging that the assignor of the subscription refused and declined to accept it or act on it, and publicly abandoned the enterprise, is good.</p>

<p>Decedents’ Estates.—Executor.—Power to Administer all the Assets.—Letters testamentary give the executor the power and right to administer all the-property of the testator, though a part of the property is not bequeathed by the will.</p> <p>Same.—Letters of administration cannot be legally granted and confirmed while letters granted and confirmed to an executor named in the will are in full force.</p>

<p>Promissory Note.—Action Against Assignor.—Non-Residence of Maker.— Diligence,—Where the maker of a promissory note, after the assignment thereof and before the right of action thereon matures, becomes a non-resident of the State, the holder may proceed against the assignor.</p> <p>Same.—Pleading.—In an action by the assignee against the assignor of a promis•sory note, an allegation in the complaint that the maker of the note, since the. indorsement by the defendant and before the note became due, left the State of Indiana, is not equivalent to an averment that the maker became a nonresident of the State.</p> <p>SAME.—Undertaking of Assignor.—Parol Evidence.—The assignor of á promissory note, where the indorsement is either in full or in blank, undertakes to* pay the note, if, after due diligence, it cannot be collected from the maker; and this liability cannot be varied or qualified by a parol agreement simultaneous with tke indorsement.</p>

<p>Pleading.—Facts averred in one paragraph of a pleading cannot be adopted, and made a part of another paragraph by reference; such facts must be set out by averments.</p> <p>Promissory Note.— Verbal Ccmdition.—A verbal condition cannot be annexed to a promissory note.</p> <p>Consideration.—Bastardy.—If a promissory note be made to the mother of a bastard child for the support of the child, under a state of facts constituting a valid consideration for the note, the death of the child afterward ■will not defeat the collection of the note- on the ground of a partial failure of the consideration.</p> <p>SAME.—Bastardy.—To a suit upon a promissory note, an answer by the waiter, that the payee claimed to be pregnant with a bastard child by the son of the maker, and relying upon such statements he made the note for the sole purpose of maintaining the child, and this was the only consideration, shows that the note was given without consideration, and the answer is good on demurrer.</p>

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

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

<p>CITY.—Structures Overhanging Sidewalk.—The cornice of a building which projects over a sidewalk in a city, and which is being constructed in such a. manner as to be dangerous to persons using the sidewalk, is a nuisance.</p> <p>Same.—The city has power under the statute to abate such nuisance, and if it fails to do so after notice to the proper authorities of its dangerous character, and takes no precaution to prevent injury to parties using the sidewalk, it will be liable in damages to a person injured by the falling of such cornice.</p> <p>SAME.—The power of a city over its streets and the right of the public to them extends upward indefinitely for the purpose of their preservation, safe use, and enjoyment; and the duty of a city in this respect is commensurate with its power.</p>

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

<p>Malicious Prosecution.—The defendant in a criminal prosecution was found guilty; but a new trial was granted, and subsequently a nolle prosequi was duly entered, and the defendant was thereupon discharged.</p> <p>Held, that this was such a determination of the case as to enable the accused to sue for malicious prosecution.</p> <p>Held, also, that the finding of guilty having been set aside, it was no evidence of probable cause'.</p> <p>Same.—Malice.—The defendant in an action for malicious prosecution was before the grand j ury, not voluntarily, but in obedience to a subpoena, and, on being questioned, testified to what he believed to be true in reference to a criminal offence supposed to have been committed by the plaintiff, and there* after took no part in prosecuting the criminal charge.</p> <p>Held, that malice could not be inferred from these tacts.</p>

<p>Contract or Indemnity.— Construction.— Whether Original or Collateral.— A. executed to B. his written agreement, which, after reciting that B. was about to appoint C. his agent for the purchase of grain, and to furnish him money for that purpose, contained this provision: “ I hereby become responsible to said” B. “ and agree to pay him all money that he may so advance to said” C. “ and that may be due him from” C. “ from time to time, by reason of such advances.”</p> <p>Held, that the liability assumed by A. was primary and absolute, and not collateral.</p> <p>Evidence.—Admissions.—The admissions of C. as to the amount due from him; to B., made after he had abandoned his agency, were not admissible against. A.</p> <p>Same.—Harmless Error,—A judgment will not be reversed on account of the-admission of improper evidence, when the same fact' is proved by competent-testimony and the evidence upon the point involved is not conflicting.</p> <p>Pleading.—An answer is had which sets up facts in direct conflict with a written agreement sued on, and which contains no averment of a mistake of fact,, and no prayer to reform the instrument.</p>

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

<p>Statute of Frauds.— Vendor and Purchaser.—Mortgage.—A verbal promise-of the purchaser of an equity of redemption to pay the mortgage debt, made after his purchase and not connected with the consideration to be paid therefor, cannot be enforced by the mortgagee, although a valuable consideration, may have been given for the promise. Such an undertaking is void by the.statute of frauds.</p> <p>Judgment.—Review of.—When judgment by default has been rendered on ant insufficient complaint, the defendant may maintain a proceeding for a review and reversal of the j udgment in the same court, although no exception appears., in the record.</p> <p>Practice.—Motion to Strike Out.—Transcript.—When it appears by the record that a part of the complaint was struck out on motion, but it is not shown clearly, either by the clerk’s entry or a bill of exceptions, what words were so-struck out, the Supreme Court will consider the complaint as it appears in the. transcript to be correct.</p>

<p>.Criminal Law.—Removal of Landmark.—Indictment.—An indictment charged that the defendant, on, etc., “did then and there unlawfully, maliciously, and mischievously remove a certain stone landmark and monument, I hen and there erected for the purpose of designating the south-west corner of a certain tract of land in said county, to wit,” describing the land.</p> <p>Held, that the indictment was sufficient. Under the first division, of sec. 33, 2 G. & H. 468, it is not necessary to charge the intent with which the monument was removed.</p> <p>Witness.—Proof of Refutation Of.—While it is the character of the witness-at the time he testifies that is material to be shown, it has never been held that the testimony must have reference to that exact lime. If some little latitude were'not allowed, it would, in many cases, be impossible to impeach the most corrupt witness or sustain the most truthful one.</p> <p>Same.—When an attempt had been made to impeach a witness by evidence of statements made out of court in conflict with his testimony on the trial, and evidence had been given of the good character of the witness in his neighborhood at the time of trial, it was not error to admit testimony that his character was also good two years before in a different neighborhood.</p> <p>Misdemeanor.—Accessories.—There can be no accessories, as such, in misdemeanors, cither before or after the fact; but those who are at all guilty are guilty in the same degree.</p> <p>Criminal Law.—Monument.—Survey.—Where a monument has been set up as a landmark, not by the proper officer of the government of the United States, at the time of the government surveys, or by authority of a surveyor in accordance with the requirements of the statute, or to mark a boundary fixed by the county surveyor in the presence and by the acquiescence of the parties interested, without the previous statutory formalities, or to mark a boundary or corner recognized and acquiesced in for a sufficient length of time, but has been erected by a surveyor without notice as required by statute, on the land of one who was not present at the survey and did not consent to it, and set as a corner stone at another place than that long recognized and used as the corner, the person on whose land it has been placed will not be liable to prosecution for removing such monument.</p>

<p>Conveyance.—Construction of Grant.—Prior to the revised statutes of 1852, a conveyance containing no words of limitation or inheritance gave to the grantee an estate for life only.</p> <p>Same.—In construing the language of a grant, that construction is to be given which is most favorable to the grantee. Where a grant was made prior to the revision of 18?2, to one, with no-other words of limitation, he will be entitled to an estate during his own life, if the estate of the grantor would allow him to convey so much. To create an estate for the life of the grantor, or for the life of another than the grantee, words indicating such purpose must be used.</p> <p>Same.—Joint Tenancy.—By the revised statutes, both of 1843 and 0f *852, a conveyance to two or more persons creates in the grantees a tenancy in common, except in the instances where the statute expressly provides that it shall be a joint tenancy, unless it shall be expressed therein that the grantees shall hold in joint tenancy, or it shall manifestly appearfrom the exact words of the instrument that it was intended to create an estate in j oint tenancy. The intention cannot be gathered from the circumstances surrounding the grantor and attendant upon the execution of the instrument.</p> <p>Same.—Deed Without Covenants.—Effect of—A deed of bargain and sale, or by way of release or quitclaim, conveys all the present estate of the grantor, but hinds no after-acquired estate. There being no covenants of title, there is no estoppel.</p>

<p>VENDOR and Purchaser.—Parol Contract.—Specific Performance.—A complaint by a purchaser to enforce the specific performance of a parol contract for the sale of land, which relies on part payment of the purchase-money, possession, and the making of valuable and lasting improvements by the purchaser, must also show that possession was taken under the contract, with the knowledge and consent of tire vendor, and that the purchaser is ready and willing to pay the residue of the purchase-money on obtaining a decree or receiving a deed for the land.</p>

<p>Judgment.—Conclusiveness of.—Attachment.—A writ of attachment was levied on real estate, to which the defendant had only an equitable title. Judgment was rendered against the defendant, and the attached property was ordered to be sold. The attachment defendant, after the sale and the execution of a sheriff’s deed to the purchaser, brought his action to recover the property so sold.</p> <p>..Held, that the question whether the land attached was subject to attachment was one to be passed upon by the court in the attachment proceeding, and that the judgment under which the sale was made could not be attacked collaterally.</p> <p>?SAME.—A judgment is not only conclusive on what was actually determined, but also extends to every other matter which the parties might have litigated ■ in the case.</p>

<p>PARTIES.—Review of Judgment.—As a general rule, in a proceeding to review-a judgment, the same parties, and all of them, should be before the court as-» in the original proceeding sought to be reviewed.</p>

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

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

<p>RAILROAD.—Fence.—Falling Animals.—A cow got upon a railroad track and" was killed by a passing locomotive, at a point on said railroad where there-was a saw-mill located and in operation fifty feet from said track, the intervening ground between said track and said mill being used by the owniers of the mill for piling their lumber and for loading lumber upon the cars of the-railroad company for transportation, and by the public for passing to and from-,' said mill with logs and lumber, and for piling wood to be sold to the railroad!, company.</p> <p>Held, that the railroad company was not bound to fence in the track at such point, and, in the absence of negligence, was not liable for the killing of the cow.</p>

<p>Sheriff’s Sale.—Statutory Redemption.—Where, within the year allowed by statute for the redemption of land sold on execution, the purchaser accepts a part of the redemption money, on the promise of the execution debtor to pay the residue within the year, he waives his right to hold the land as a purchaser,- and the debtor may complete the redemption after the expiration of the year. In such case, the purchaser holds the land under the sheriff’s deed merely as a security for the remainder of the redemption money.</p>

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

<p>Joint Debtors.—Partnership.—Discharge of One Joint Debtor.—Pending, the dissolution of a partnership, a creditor received the notes of the several, partners for their respective portions of a partnership debt standing on an. open account, and agreed to release each partner from any other portion of the debt than that covered by his note, and accepted the notes as a full dis- - charge of, each partner from the residue of the account.</p> <p>Held, that the contract was binding on the creditor, and that he could not maintain a suit on the account against a partner who had paid the note so accepted.-, for his share of the debt.</p> <p>Same.—The taking of a note, with or without security, from one of several joint. debtors for a pre-existing debt is a payment when it is expressly agreed that. it is taken as payment and at the risk of the creditor.</p> <p>Practice.—Amendment.—An amendment changing the issue, to conform the-pleadings to the facts proved cannot be allowed after verdict; but where-such amendment does not change the legal effect of the pleading, a judgment will not be reversed because of it.</p>

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

<p>Criminal Law.—Murder.—Manslaughter.—Justifiable Homicide.—instruction.—On the trial of an indictment for murder, where there is evidence tending to show that the defendant acted in self-defence, it is'error to instruct the. jury that if the death of a human being be produced by a deadly weapon in. the hands of another, the presumption is, that the party using such weapon intended, and is guilty of murder, and that to remove this presumption and reduce the lulling to manslaughter, it devolves on the'defendant to show'that it was under great provocation, such as endangered the life of, or would have resulted in great bodily harm to, the party using such weapon. ,- '</p> <p>Same.—The use of a deadly weapon, resulting in homicide, under circumstances that endanger the life of the person using such weapon, or would result in great bodily harm to him, will justify the killing.</p> <p>Instruction.—An erroneous instruction cannot be corrected by another instruction, which may state the law accurately, unless the erroneous instruction be thereby plainly withdrawn.</p>

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

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

<p>Lease.—Mining Lease.—Screened Coat.—Where a mining lease provided that the lessees should pay a certain sum per bushel “ for all screened coal” that the lessees should remove from the demised premises, and at the time of the lease there was but one screen in use at the mine leased, and but one screen in common use in other mines in the same locality, and afterward the lessees placed over the screen then in use in said mine another or second screen, ■with larger meshes or spaces between the bars;</p> <p>Held, that the parties must be held to have contracted with reference to the state of things existing at the time the lease was made; that the words “ screened ’ coal” meant such coal as passed over the single screen then in use; and that the lessees must pay the price stipulated for all coal that passed over the lower as well as the upper screen.</p>

<p>Sl/ANDER.—Pleading.—Provincial Meaning of lYords.—In an action of slander, a complaint alleging that tbe words used had a provincial meaning in the-neighborhood where they were spoken, and alleging what they meant and were understood to mean', showing that the words, as they meant and were» ■understood, charged that the plaintiff had been guilty of bestiality with a sow, sufficiently showed the words to be actionable.</p>

<p>'Complaint for New Trial.—Newly-Discovered Evidaice.—Cumulative £vi- . deuce.—Impeachment.—A complaint for a new trial was filed by the defendant in. an action for slander, on the ground of newly-discovered evidence, wherein it was alleged that on the trial a certain witness testified to the speaking of the slanderous words by the defendant, and that they were spoken within a certain time, and that he had never heard any one speak of the subject before, and wherein it was shown that witnesses were examined at the trial by the defendant for the purpose cf proving statements of the witness who testified to the speaking of the slanderous words, showing that he knew of the •charge before the time he said he heard it from the defendant; and the alleged ■newly-discovered evidence was that of witnesses who it was alleged would testify that they talked with the witness who testified to the speaking of the slanderous words, about the slanderous charge against the plaintiff, and that he repeated the charge, before the time the alleged charge was made by the defendant.</p> <p>Jrleld, that the complaint was bad, the newly-discovered evidence being only cumulative and for impeachment.</p> <p>^Slander.—-The precise time when slanderous words were spoken is immaterial.</p> <p>.Pleading.—Complaint for New Trial.—Where an application for a new trial is made after the term, the complaint must show that the causes were discovered after the term.</p>

<p>RIPARIAN Rights.—Diversion of Water-Course.—Immaterial Issue.—Where the gravamen of an action is the diversion of water from its natural and usual channel, thereby depriving the plaintiff of the use of the water in carrying off slop and offal from his distillery, an issue tendered that the water was diverted for the purpose of depriving the plaintiff of its use for canying off the slops, etc., and to cause the same to accumulate below and around • the distillery, in order that the plaintiff might be liable to a prosecution for maintaining a nuisance, is an immaterial one.</p> <p>Demurrer.—Unavailable Error.—Where a demurrer has been overruled to a paragraph of an answer, but the verdict of the jury is for the plaintiff, and, .against the defendant, oii that paragraph, the plaintiff is not prejudiced by the ruling on demurrer.</p> <p>Tractice.—Bill of Exceptions.—Evidence cannot be made a part of a bill of. exceptions by reference to certain pages of the transcript where it may be found, although written in the record by the clerk as indicated.</p>

<p>Bill of Exceptions.—Affidavit.—Change of Venue.—Affidavits filed ia support of a motion for a change of venue will not be considered by the Supreme-Court on appeal, unless they be made a part of the record by a bill of exceptions.</p> <p>CRIMINAL LAW.—Indictment.—Grand fury.—The caption of an indictment showed the impanelling of the grand jury in the county of Sullivan, State of Indiana, and the indictment was entitled “ State of Indiana, Sullivan county,” etc., and commenced, “ The grand jurors of the State of Indiana,.. being duly impanelled, sworn, and charged to inquire of crimes and offences, committed within the body of the county of Sullivan, in the State of Indiana, in the name, and by the authority, and in behalf of said State of Indiana,, upon their oaths present,” etc.</p> <p>Held, that the county in and for which the grand jury was impanelled was sufficiently shown.</p> <p>Same.— Verdict.—A general verdict- of guilty on an indictment containing several counts is equivalent to a verdict of guilty, as the defendant stands charged in the indictment, in each and every count thereof.</p>

<p>Will.—Life Estate.—Remainder.—Condition Subsequent.—Charge upon Real Estate Devised.—A testator by his will, directed that his wife should hold possession of his farm and receive annually one-third of all the farm should produce, as long as she should live, and that his son A. should receive one bed and two hundred dollars in money, which had already been paid him; and, further, that his son B. should remain and attend to the farm and transact all business connected therewith, as the testator would do, if living, and pay to the testator’s two daughters two hundred dollars each, and one bed and bedstead each; and-at the death of his wife, the said farm with all personal property and appurtenances was to accrue to B. in fee simple. The daughters were also directed by the will to allow B. time, not less than five nor more than seven years, to pay them the two hundred dollars each.</p> <p>Held, that the will created a life estate in the wife in all the lands devised.</p> <p>Held, also, that the remainder in fee passed to B., upon condition that he should remain on the farm, support his mother, and pay the sums named to his sisters.</p> <p>Field, also, that the conditions in reference to the wife of the testator and the legacies to his daughters created a charge upon the lands devised to B. and constituted conditions subsequent.</p> <p>Same.—Conditional Devise.—Construction of Will.—If it is to be gathered from all the provisions of a will, that the expectation of the performance of the duties imposed on the devisee, by the will, served the purpose of a consideration to induce the devise,'and that but for that expectation it would not have been made, and that it was not intended that the devisee should receive and retain the property unless he should discharge the duty, then the devise must be regarded as conditional.</p> <p>5AME.—Condition Subsequent.—Forfeiture .of Estate.—Demand and Refusal to Perform Condition.—Before there can be a forfeiture of an estate held on condition subsequent, there must be a demand on the part of the person entitled to insist upon its performance, and a refusal on the part of the person in whom the title is vested whether the condition consist in the payment of money or the performance of some other act.</p>

<p>Malicious Prosecution.—Probable Cause.—Pleading.—In an action for malicious prosecution, the plaintiff must aver and prove a want of probable cause ; consequently, facts showing probable cause may be given in evidence.under the general denial, and, the general denial being pleaded, it is not error to sustain a demurrer to a special answer alleging the existence of probable cause for the prosecution.</p> <p>3ill of Exceptions.—Deposition.—On overruling a motion to suppress depositions, the cleric noted an exception to the ruling on the order book.</p> <p>Meld, that this was insufficient; to present the question to the Supreme Courts it was necessary to embody the ruling below in a bill of exceptions.</p> <p>"Practice.—Objections to Evidence.—Where the admission of certain evidence is objected to on the trial, the ground of objection must be stated, or it will not be considcied on appeal.</p> <p>'Same.—Instructions.—Instructions copied by the cleric into the transcript will not be considered by the Supreme Court on appeal, when the record fails to show that they were excepted to.</p>

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

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

<p>Contract.—Concurrent Acts.—Where by the terms of a promissory note, payable to a railroad company, and by it assigned to the plaintiff, the company was upon its payment to issue to the maker an amount of the capital stock of the company equal to the amount of the note;</p> <p>Held, that the payment of the note and the issuing of the stock were dependent and concurrent acts, and the stock must be issued and tendered to the maker-before an action on the note could be maintained.</p> <p>jfield, also, that the acceptance and assignment of the note by the company-imposed on it the duty to tender the stock.</p>