Volume 46 — Indiana Reports

<p>New Trial.—Evidence.—A motion for a new trial on the ground of the admission of incompetent testimony must point out the particular evidence objected, to. It is not sufficient to refer to it as the evidence shown by the bill of exceptions to have been objected to, especially when the bill of exceptions has not been filed.</p> <p>SAME.—Conflicting Evidence.—The Supreme Court will not reverse a judgment on the weight of evidence, where the evidence is conflicting.</p> <p>Same.—Instructions.—One cause alleged for a new trial was, that the court gave erroneous instructions to the jury; another, that the jury disregarded the-instructions of the court.</p> <p>Held, that the objections were too general. The particular instructions objected to should have been pointed out.</p> <p>Held, also, that the complaining party could not have been injured in consequence of the disregard by the jury of erroneous instructions.</p> <p>Same.—It is not error to refuse instructions proper in themselves, if the same ■ matter is substantially embraced in other instructions given by the court.</p> <p>Witness.—Married Woman.—In an action against husband and wife, where her property interests, as well as those of the husband, are involved, she is a competent witness in her own behalf, and her testimony for herself is not to-be disregarded because it may incidentally benefit her husband.</p>

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

<p>Vendor and Purchaser.—False Representations,—Knowledge.—Where a vendor, to induce the vendee to purchase a certain lot of ground, represented to him that the lot was the ground inclosed by a certain fence, which ground was examined by the vendee and had long been known to him; that the lot had a frontage of a certain number of feet on a street; when the fact, unknown to the vendor and vendee, was, that the fence inclosed five feet in width of a street and as many feet less than the frontage so represented by the vendor;</p> <p>•Held, that, in an action for the purchase money, the vendee might defend as to so much of the price as was agreed to be paid for the five feet in width of the street so inclosed.</p> <p>Streets.—Adverse Possession.—Easements.—The rights of the public in a street of a city cannot be impaired or destroyed by the inclosure and occupancy thereof, by fencing, by an adjoining land-owner claiming title thereto.</p> <p>.Evidence.—Admissions.—Testimony of an admission by defendant, that he was willing to pay the claim sued on if he had not been sued on it, is inadmissible.</p>

<p>Pleading.—Negligence.—Answer.—111 an action to recoverfor an injury alleged to have been caused by the negligence of the defendant, the complaint must ■allege that the injury resulted without any negligence on the part of the ■plaintiff contributing-thereto, and an answer alleging facts showing that the negligence of the plaintiff contributed to the injury, or facts showing that the injury was caused solely by the plaintiff’s negligence, is sufficient on demurrer, though unnecessary where the general denial is pleaded.</p> <p>’Negligence.—Contributory Negligence.—In all cases where ordinary negligence on the part of the defendant is sufficient to infer liability, it is a sufficient defence to show that there was contributory negligence on the part of the plaintiff.</p> <p>¡Same.—In such a case it is a sufficient defence to show that although the negligence of the defendant was a cause, and even the primary cause of the occurrence, yet the occurrence would not have happened without a certain degree of blamable negligence on the part of the plaintiff.</p> <p>Same.—Infant Plaintiff.—These rules apply where a child is the plaintiff, whether the fault is that of the. child or the negligence of the person having the care of the child.</p>

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

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

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

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

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

<p>Appeal.—Evidence.—Where the evidence in the lower court is conflicting, the Supreme Court will not reverse the judgment on the weight of evidence.</p>

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

<p>Injunction.—Collection of Judgment.—The collection of judgments on fines. assessed for violation of a criminal statute cannot be enjoined on the ground that the judgments are void on their face, for want of jurisdiction of the court, because there were no valid affidavits upon which the prosecutions were based, because the judgments do not describe any offences against the laws of the State, or because the law for the violation of which the fines and judgments-were rendered was repealed after the judgments were rendered.</p>

<p>Promissory Note.—Negotiability' of.—All promissory notes are negotiable in this State by statute, but not as inland bills of exchange unless payable in a bank in this State; and in that case the note on its face must designate the particular bank in which it is payable.</p> <p>Same.—The difference between negotiability merely, and negotiability as inland bills of exchange, discussed.</p> <p>Same.—Common Law.—Promissory notes were not negotiable as inland bills by the common law, but were first made so negotiable by the statute of Anne.</p> <p>English Statutes.— What Adopted by this State.—Chapter eighty-seven of the Revised Statutes, i G. & H. 415, adopts as the law of this State the common, law of England and statutes in aid thereof of a general nature, etc., made by the British Parliament prior to the fourth year of James I. (A. D. 1607) ; but the statute of Anne relating to the negotiability of promissory notes was passed nearly one hundred years later, and was never in force here.</p>

<p>'Parties.—Trust.—Decedents' Estates.—Pending an attachment proceeding, in which certain goods had been seized and were held by the sheriff, an order of court was made by consent of all the parties interested, that the sheriff should sell said goods, and that he might sell on a credit, talcing the notes of purchasers, with approved security. On making sales, the sheriff took notes payable to himself individually, and before the termination of the suit he died.</p> <p>Meld, that the sheriff held the notes as a trustee; that he had no interest in them that could pass to his administrators, and that the latter, not being the parties in interest, could not maintain an action on a note so given.</p>

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

<p>Nuncupative Will.—Nuncupative wills are to be restricted to cases falling clearly within the reason of the statute.</p> <p>Same.—Soldier.—A person who had enrolled himself in a volunteer company,, raised under a call by the Governor for troops in 1862, but had not been accepted and mustered into the service, could not make a nuncupative will as a soldier.</p> <p>Same.—Real estate cannot be devised by the nuncupative will of a soldier.</p> <p>Constitutional Law.—When a statute has been held unconstitutional by the-Supreme Court, it is inoperative while such decision is maintained; but a later decision sustaining such statute gives it vitality from the time of its enactment, and it is to be treated as having been constitutional from the beginning.</p> <p>Same.—Descents.—The Act of March 4th, 1853, dividing the property of an intestate, in certain cases, between his parents and his widow, was treated as unconstitutional under the ruling in Langdon v. Applegate, 5 Ind. 327; but the case of The Greencastle Southern Turnpike Co. v. The State', ex rel. Malot, 28 Ind. 382, established its constitutionality; and the property of an intestate who died between March 4th, 1853, and the repeal of said statute by. the act of March 9th, 1867, descended according to its provisions, and a right thereunder might be asserted, where suit was brought within the time limited by the act of 1867.</p>

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

<p>PLEADING.—Answer.—False Representation as to Written Instrument.—In. att. action on a note payable one year after date, and to foreclose a mortgage executed to secure it, an answer that the plaintiff represented at the time the-mortgage was made that it was payable in five years, and, relying on the word of the plaintiff, the defendant did not read the mortgage or have it read, and that the original agreement was that the defendant should have five years,, was not a good answer.</p> <p>Principal and Agent.—Negligence of Agent.—Neglect and want of skill of an agent, by which the principal is wronged, will not entitle the principal to relief against a third person not guilty of any wrong in the matter.</p> <p>Pleading.—Action on Note and Mortgage.—Answer.—To an action on a note- and mortgage, an answer that the note was given for a stock of goods bought of the plaintiff, and that numerous articles mentioned in the invoice were not in the possession of the plaintiff at the time the invoice was made, and have-never been delivered to the defendant, presents no defence in whole or ins. part.</p>

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

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

<p>Criminal Law.—Assault and Battery.—Evidence.—On the trial of an information for assault and battery, evidence is admissible, to show the animus of the defendant and give character to the alleged offence, that a felony had been committed in the neighborhood within a few days before the alleged assault and battery, that there were circumstances of suspicion that the prosecuting ■witness had commited the felony, that the defendant and others, as member» of an association authorized by law for the detection and apprehension of felons, arrested said witness upon suspicion of having committed the felony, ■and that such arrest was the assault and battery complained of.</p>

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

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

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

<p>Juror,—Competency.— Waiver.—On the trial of a criminal cause, the defendant, as well as the State, by failing to interrogate the jury as to their being householders or freeholders, or to take other steps to ascertain their competency in that respect before accepting them and before they arc sworn to try the cause, waive objection on the ground of the wantof such qualifications, . and the defendant as well as the Slate will be bound by the verdict of such jury, though one or more of them may not be householders or freeholders.</p> <p>SAME.—Criminal Law.—jeopardy.—By the swearing of such jury to tiy the-cause after such waiver, the defendant was put in jeopardy, and was entitled' to have a verdict at their hands; and the discharge of one of such jurors by the court on finding that he was not a freeholder or householder, without the - consent of the defendant, would have been equivalent to the acquittal of the-defendant, and such defendant could not again have been put on trial for the-same offence. But the defendant being in court in person and by counsel, at the time such juror was discharged, and neither excepting nor objecting, such, discharge must be held to have been with the consent of the defendant, and. subsequently putting the defendant on trial was not error.</p>

<p>"Will.—Election to take Real Estate or Money.—A. made his will, giving to his two daughters eight thousand dollars each, which they or either of them might take in real estate not disposed of by will, at its fair value, or they might decline to take the same or any part thereof in real estate; if not taken in real estate, to be paid in money; and if necessary, in order to pay the same, the executor to sell real estate and pay the same; the said daughters to enjoy the use of the money bequeathed to each “ during their natural lives and at their death to revert and descend to the heirs of their body.”</p> <p>Held, that the devisees were required to make an election whether they would take real estate or money, and the legacies were not payable in money until they declined to take real estate.</p> <p>Held, also, that the tide to the undevised real estat vested upon the death of the testator in his heirs at law, and the executor had no power to convey to the devisees the real estate by them or either of them selected.</p> <p>Held, also, that a commissioner should be appointed to convey the lands selected, after the same had been appraised by suitable and competent persons appointed for the purpose.</p> <p>Held, also, that the devisees would hold and possess the lands selected in fee simple, and the money paid them would be theirs absolutely.</p>

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

<p>Constitutional Law.—Fee and Salary Act of 1871.—The fee and salary-act of 1871, Acts 1871, p. 25, is not unconstitutional because it makes the-salary of the sheriff payable out of the fund denominated therein the county officers’ fund, or because the amount of said fund may be less than the amount of salary and deputy hire on account of the deficiency of the fund or of the-amount paid in by the sheriff; but said act violates section 22, of article 4 of the constitution, by making the salaries of sheriffs ununiform. Under said act, therefore, the sheriff is not a salaried officer.</p> <p>SAME.—Payment of Fees into Treasury by Sheriff.—The provision of the fee- and salary act of 1871, Acts 1871, p. 25, requiring the sheriff to pay his fees, into the county treasury is unconstitutional. The fees when collected by the sheriff are his own.</p>

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

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

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

<p>'Check.—Form.— When Payable.—A written instrument reading as follows is a check, and not a bill of exchange, and is payable on demand: “ COLUMBUS, Ind., Jan. 17th, 1871. First National Bank of Columbus, Indiana, pay to” A. “or order, fourteen hundred and ten dollars and twenty-six cents, as per deposit on the above date.” (Signed) B.</p> <p>tSAME.—Protest not Necessary.—No protest of a check is necessary in case of its non-payment.</p> <p>Same.—Notice of Dishonor.—Damages from Failure to Give Notice.—When demand of payment of a check has been made and refused, it is the duty of the holder to give notice of the dishonor of the check, but a failure so to do will not discharge the drawer, unless damages result to him from the delay, and then only to the extent of the damages sustained.</p> <p>■Same.—Action on Chech.—Pleading.—Notice of Non-Payment.—In an action by the holder of a check against the drawer, when payment has been refused, the complaint must show that notice was given of the non-payment of the check, or aver a legal excuse for not giving notice.</p> <p>Pleading.—Complaint.—A complaint or paragraph of a complaint must show a cause of action in favor of all who are joined as plaintiffs.</p> <p>Same.-—■Complaint on Check.—Answer of Set-Off.—To a complaint by a husband and wife, on a check payable to A. & Co., wherein it is alleged that the wife is in business with other parties, under the firm' name of A. & Co., but that the check is her individual property, in which the other members of the firm have no interest, and that it was drawn payable to A. & Co. by mistake, an answer in the form of a cross bill, alleging that the check was given for certain notes bought of A. & Co., and represented by the plaintiffs to be the property of A. & Co., which notes were indorsed to the defendant in the name of A. & Co., and claiming to set off the amount of a note made by A. & Co., and-held by the defendant, is good.</p> <p>Practice.—Joint Demurrer.—Where a demurrer is joint to all the paragraphs of an answer, if one paragraph is good, the demurrer should be overruled.</p>

<p>Practice.— Waiver of Reply.—Where the record shows the filing of a demurrer to certain paragraphs of an answer, but does not show any ruling of the court thereon, or that any reply was filed, no question arises as to the sufficiency of the answer, and the presumption is that the defendant waived a reply.</p> <p>Bill of Lading.—Assignment of.—The delivery of a bill of lading transfers the title to the property. A formal assignment is not necessary.</p> <p>Same.—Pleading.—Immaterial Averments.—In a complaint upon a bill of lading given to the consignor, which contains, in addition to the usual provisions,, a clause providing that the goods shall be delivered on “ presentation of duplicate hereof,” it is unnecessary to aver the reasons that influenced, and purposes that controlled, the shippers or the carrier in inserting the clause, and’</p> <p>’ such averments do not add anything to the legal effect of the bill of lading. SAME.—Effect of Bill of Lading Containing Provision for Delivery of Goods on Presentation of Duplicate.—A bill of lading containing aprovision that the-goods are to be delivered on “ presentation of duplicate hereof,” establishes-the fact that the consignor is the owner of the goods, and if the carrier delivers the goods to the consignee without the presentation of any bill of lading, the carrier becomes liable to the consignor.</p> <p>tSAME.—If such condition had not been in the bill of lading, the title to the goods would have vested in the consignee on their delivery to the carrier, but being there, the property remained in the consignor until the goods were paid for by the consignee.</p>

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

<p>PRACTICE.—Motion to Strike Out.—Questions arising upon a motion to strike out a part of a pleading must be presented by a bill of exceptions.</p> <p>Pill of Exceptions.—It must appear that a bill of exceptions was filed within the proper time, or it cannot be regarded as in the record.</p> <p>Will.—Contest of—Demurrer.—Assuming, without deciding, that a party may demur to one or more of the several grounds of contest of a will, if a demurrer be joint, and any one of the grounds be good, the demurrer should be overruled.</p> <p>'Same.— Unsound Mind.—That a testator was of unsound mind at the time of making his will, is a good ground of contest.</p> <p>Pill of Exceptions.—Evidence.—Where evidence is copied into the record without any indication to distinguish it from ordinary entries of the clerk, it cannot be regarded as legally in a bill of exceptions.</p> <p>Instructions.—Instructions Given Made Part of Record'.—Instructions given by the court cannot be made a part of the record, or any question thereon be presented, by merely indorsing thereon, “given and excepted to,” signed by the attorneys, when such instructions are not also signed by the judge.</p> <p>.Same.—Instructions Refused Made Part of Record.—When instructions asked are signed by the party or his attorney, refused by the court, and noted as refused and excepted to, signed by the party or his attorney, they become .a part of the record, without the signature of the judge.</p>

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

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

<p>Pleading.—Representations.— Warranty.—If property be sold to several persons under representation and warranty that it is of a certain quality and! value, and a part only of the purchasers give a note for the price of the property, the latter, when sued upon the note, may set up, by way of answer, that the property for which the note was given was not of the quality or value-represented and warranted.</p> <p>Same.—Set-Off.—Mutuality.—Two of three defendants in an action on a promissory note pleaded a set-off.</p> <p>Held, that the answer was' bad.</p>

<p>“Criminal Law.—Circuit Court.—Criminal Causes Commenced by Affidavit and Information.—Section 79 of the act abolishing courts of common pleas, etc., Acts 1873, p. 87, does not confer upon the circuit court the power to hear and determine a criminal cause commenced in that court by affidavit and information.</p>

<p>Principal and Agent.—Demand.—In a complaint by a principal against his agent to recover money collected by the latter and not-paid over, it is essential to aver a demand of payment before suit.</p> <p>SAME.—Arrest of Judgment.—When, in a suit by the principal against his-agent for not paying over money collected, the complaint fails to allege a demand before suit, and there is a verdict for the plaintiff, judgment should be arrested.</p> <p>Amendment.—After Verdict.—A bad complaint cannot be made good by an-amendment after verdict. Such amendment is not properly a part of the: record.</p>

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

<p>Railroad.—Complaint for Killing Live-Stock.—A complaint before a justice of the peace against a railroad company for killing a cow belonging to the plaintiff charged that the animal was killed by a locomotive of the defendant, at a point where the railroad was by law required to be fenced, and where the same was not fenced.</p> <p>Held, that the complaint was sufficient. It was not necessary to aver that the animal went upon the track at a place where the road was not fenced; the reasonable inference from the averments of the complaint being that the road was not securely fenced at the place where it went upon the track and was killed.</p>

<p>Partnership.—Parties.—Where a demand exists infavor of a partnership, and’ olie of the partners refuses to join in an action for its enforcement, he'may be made a defendant with the partnership debtor, in a suit brought by his. co-partner.</p> <p>Same.—Measure of Relief.—Judgment.—In suchhase, where the defendant-partner filed .an answer alleging that he had no knowledge of a claim by the-partnership against his co-defendant, but averring that if it existed he was-entitled to one-half thereof, and praying that judgment for his half might not be rendered in plaintiff’s favor, it was error to render judgment in his favor against his co-defendant for one-half the sum found due to the partnership. To entitle himself to such judgment, he must have filed a cross complaint asking affirmative relief. The answer made no issue between him and the other-defendant.</p> <p>Appeal.—Evidence.—Where the evidence is conflicting, the Supreme Court wilt not reverse a judgment on the weight of evidence.</p> <p>Pleading.—Defect of Parties.—A demurrer for defect of parties defendants lies only where a necessary party is not made a defendant, not because there are too many defendants.</p>

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

<p>Guarantor.—Promissory Note.—Extension of Time to Maker.—An answer by a guarantor to a complaint on a note, that the payee extended the time of payment to the maker, is fatally defective if it does not show a definite time of extension and a consideration for the agreement to extend.</p> <p>Same.—Parties who guarantee the payment of a promissory note by indorsing thereon and signing these words at the time of its execution, “ We guarantee payment,” are neither sureties nor indorsers, but guarantors, and they are not discharged by a failure to use diligence to collect the note of the maker; nor can they require the holder to sue the maker, as provided by statute in case of sureties.</p>

<p>Railroad.—Killing Animals.—Statute.—It is essential to the liability of a railroad company, under the acts of 1853 and 1863, for the death or injury of an animal, that the animal should be actually touched by the engine, cars, or other carriages.</p> <p>Same.—Negligence at Common Law.—Wilful Negligence.—Where the track of a railroad passed through a cut eighty rods long, and a horse of the owner of the land was near the track at the entrance of the cut, and the whistle of an approaching engine was sounded, and the horse ran upon the track • and into the cut, whence it could not escape up the sides, and the engine was run on and the whistle sounded, thereby continuing to frighten the horse until it jumped into a trestle-work at the other end of the cut and was killed, when the engine could have been stopped after the horse was in the cut and before it jumped into the trestle-work;</p> <p>.Held, that the company was guilty of such negligence as rendered it liable at common law for the value of the horse. The negligence in such case is wilful.</p>

<p>For the questions presented and decided in this case, see The State, ex rel. Hutson, v. Joest, post, p. 235.</p>

<p>Guardian and Ward.—Decedents' Estates.—-Marriage of Infant Female.—An infant female when married to a man of full age can have no guardian, and she may receive her estate from her guardian, and may also receive her distributive share of her father’s estate, with the assent of her husband.</p> <p>Same.—A payment made to the husband by such administrator or guardian, with her assent and by her direction, is good as to her.</p> <p>Same.—If both the husband and wife are infants, such payments will not be good.</p> <p>Same.—If such payments have been made while both the husband and wife were infants, the money so paid need not be tendered back before suitis brought by the wife to recover the same of such guardian or administrator.</p>

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

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

<p>Attachment.—Delivery Bond.—Lien.—The giving of a delivery bond in an. attachment suit does not discharge the lien of the attachment.</p> <p>Same.—Judgynent in Attachment.—A judgment against an attachment defendant, upon which an execution may issue. on which'the sheriff, will be entitled to demand the goods specified in a delivery bond, must be a judgment in. attachment.</p> <p>Same.—Attachment Dissolved.—Delivery Bond.—Where an attachment is dissolved, all the proceedings in attachment are quashed and become of no effect,, and a delivery bond' in such,' case falls with the writ, on which it is based.</p>

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

<p>‘Railroad.—Animal Killed.—Receiver.—Service of Process.—A railroad company is liable to an action, under tbe statute, for killing stock while the road is being run, operated, and controlled by a receiver appointed by the circuit court of the United States; and service of process in such case upon a conductor of a train passing through the county where the animal -was killed is sufficient, though the conductor be employed and controlled by ;such receiver. '</p>

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

<p>Mistake.—Mortgage.—Judgment Creditor of Mortgagor.—A mortgagee cannot have his mortgage reformed and corrected on the ground of a mistake in describing the real estate, so as to make the mortgage cover another and different tract of land than that described therein, as against a judgment creditor who has purchased in good faith, for a valuable consideration, judgments rendered against the mortgagor after the execution of the mortgage.</p>

<p>PRACTICE.—Assignment of Error.—Stiferior Court.—An appeal from a special term to the general term of a superior court, so far as the assignment of error is concerned, is governed by the same rules that govern in appeals from the circuit courts to the Supreme Court.</p> <p>'Same.—New Trial.—To repeat the reasons contained in a motion for a new trial as assignments of error, without assigning the overruling of the motion for a new trial as error, presents no question for review.</p>

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

<p>Practice.—Supreme Court.—Demurrer.—If a demurrer to a pleading is not in the record, no question can be decided with reference to the overruling of a demurrer to the pleading.</p> <p>Promissory Note.—Answer.— Want of Consideration.—In a suit upon a promissory note given for a patent right, where a want of consideration is pleaded in answer, the facts that the patented machine was tested and found worthless, and that the defendant offered to rescind the contract, will not defeat a recovery upon the note.</p> <p>Instructions.—Inference of Law.—Where instructions are signed by the judge and copied in the transcript, with the exceptions properly noted by counsel, it will be inferred that they were filed with the clerk, as contemplated by the statute.</p> <p>'Trial.—Separation of Witnesses.—A j udgment will not be reversed on account of a refusal to order a separation of witnesses.</p> <p>Practice.—Failure to Reply.—A failure to file a reply is no reason for the reversal of a judgment; the presumption is that it was waived.</p>

<p>Ratlroad.—Right to Discriminate as to Rates of Fare.—Railroad companies may discriminate between the amount of fare where a ticket is purchased and where the fare is paid upon the train.</p> <p>'.Same.—Railroad companies have no right to discriminate between persons, and .sell tickets to some and refuse others.</p> <p>Same.—A person having duly applied for a ticket, and having been refused without just cause, has the same right to be carried upon paying, or offering to pay,, the ticket rate of fare as if he had previously purchased a ticket.</p>

<p>Pleading.—Demurrer.—It is not error to sustain a demurrer to a special paragraph of an answer when it puts in issue nothing not also in issue by the general denial.</p> <p>Practice.—Bill of Exceptions.—An exception was taken to a ruling of the court, and time was given “ till next term ” to file a bill of exceptions, but it was not filed until the sixth day of the next term.</p> <p>Held, that this was too late. “ Till next term ” of the court did not include the time during the next term, or any part of it.</p>

<p>Contempt.—Constructive Contempt.—Affidavit.—If proceedings against a party for a constructive contempt are commenced by affidavit, all'the facts necessary to constitute the contempt should be stated in the affidavit.</p> <p>Same.—Until a party has been, subpoenaed to attend before the grand jury, or a subpoena has been issued for him, it is not a contempt of court for a person to induce him to absent himself in order that he may not be subpoenaed.</p> <p>Same.—Sufficiency of Affidavit.—An affidavit charging an indicted person with a contempt of court by informing a witness, subpcenaed to testify on the trial of the indictment, that it was non-prossed, and thus procuring the witness not to attend, without showing that the statement was untrue, is insufficient.</p>

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

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

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

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

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

<p>Criminal Law.—Instructions.—Alibi.—Upon the trial of a defendant on a criminal charge, where there is evidence tending to prove an alibi, it is proper to instruct the jury that if, from the evidence, they have a reasonable doubt as to whether the defendant was at the place where the crime was committed, at the time, or was at the place where the evidence tends to show he was, they should find him not guilty.</p> <p>Same.—In such case it is error to instruct the jury that the defence of alibi is good, if proved true by witnesses worthy of credit, but does not belong to the doctrine of doubts, which entitles the defendant to be acquitted, but when established, it entitles the defendant to be acquitted upon the higher ground of innocence established.</p> <p>Same.—Evidence.—On a trial of an indictment for murder, it is error to admit in evidence against the defendant a transcript of the pleadings and papers in an action of divorce by the deceased against the defendant, pending in court and undetermined at the time of the alleged murder.</p> <p>Same.—Declarations in Extremis.—Opinion not Admissible as Such.—On a trial for murder, declarations of the deceased, made when in extremis, consisting of expressions of opinion as to who it was that fired the fatal shot, based on previous threats and what had previously occurred between the deceased and the accused, are inadmissible.</p> <p>Same.—Where a written memorandum of declarations made in extremis is not signed, parol evidence of such declarations is admissible. If signed, the writing should be produced or accounted for.</p>

<p>Practice.—Bill of Exceptions.—Motions and Affidavits.—Motions, affidavits, and other papers cannot be made a part of the record by a reference in a bill of exceptions to a part of the transcript where they may be found.</p> <p>Same.— Validity of Bill of Exceptions.—The validity of a bill of exceptions-depends upon the approval and signature of the judge.</p> <p>Instructions.—Presttmed to be Correct.—If, under any supposable state of the evidence, instructions given could have been correct, it will be presumed, the evidence not being in the record, that such evidence was given.</p> <p>Same.—Record.—Copying instructions given into a motion for a new trial will not make them a part of the record.</p> <p>Same.—How Made Part of Record.—An exception noted to the giving of an instruction at the end thereof and signed by the party excepting, or his attorney, is sufficient to make the instruction and exception a part of the record.</p> <p>Practice.—Change of Venue.—Time of Trial.—Where a cause was pending in a common pleas court, and a change of venue was taken from the judge, the court had power to fix a time in vacation for the trial of said cause.</p> <p>Jurisdiction.— Waiver by Appearance.—Where a court has jurisdiction of the subject-matter of an action, an appearance to the action in the court to which, a change of venue has been taken is a waiver of any objection to the juristion over the person, or as to the regularity of the change of venue.</p> <p>Pleading.—Complaint on Insurance Policy.—Description of Property.—A complaint on a policy of insurance need not be more specific than the policy in the description of the property insured.</p> <p>SAME.—Interest in Property Insured.—A complaint upon a policy of insurance should allege that the assured had an interest in the property insured, and to-what amount, at the commencement of the risk and at the time of the loss, but it is not necessary to state the plaintiff’s title to, or ownership in, the property.</p> <p>Same.—Damage of Plaintiff.—Where a schedule filed with a complaint on a policy of insurance sets out the items destroyed by fire and the value of each, as well as the aggregate value, the complaint will sufficiently show that the-plaintiff has been damaged.</p> <p>Insurance.—Open Policy.—Over- Valuation.—In an open policy of insurance, an over-valuation of the property insured is immaterial.</p> <p>Practice.—It is not error to sustain a demurrer to a paragraph of answer, when the same facts are admissible in evidence under another paragraph upon which issue is joined.</p> <p>Pleading.—Insurance Policy.—Answer.—Fraudulent Statement of Loss.—An answer to a suit on an insurance policy, that the plaintiff fraudulently stated' the amount of loss to-be greater than it was, without showing that the statement was made to the insurance company or its agent, or in any transaction, in relation to the loss, is bad.</p> <p>Same.—Permitting Loss.—So, also, an answer alleging that the plaintiff negligently stood by and permitted the property to be consumed, and made no reasonable exertion to prevent the fire or save the insured property, is bad where it is not averred that it was within his power to have prevented the fire or loss of the property.</p> <p>'SAME.—Inspection of Books and Papers.—Where the conditions of a policy of insurance require the insured, in case of loss, to produce his books of account and other vouchers in support of his claim, and permit copies and extracts thereof to be made, whenever required in writing, an answer alleging a refusal to produce them, without alleging a request in writing, is bad.</p> <p>Same.—Examination Under Oath.-—Where a policy of insurance makes it the duty of the insured in case of loss to submit to an examination under oath by the agent or attorney of the insurance company, an answer alleging generally a refusal to submit to an examination, vrithout showing when or by whom the request was made, or that a time or place was named for such examination, is bad.</p> <p>Same.—Reply.—Where an answer to a suit on a policy of insurance covering materials and machinery used in manufacturing tobacco alleges that the risk had been materially increased by using the third story of the building occupied as a store-room for old boxes, casks, and rubbish, a reply that the boxes, etc., were used and were necessary materials in the business, and constituted a part of the risk insured against, is good.</p> <p>■Same.—Reply.—Excuse for not Producing Books.—Where an answer to a suit on a policy of insurance alleges a failure on the part of the insured to produce his books and bills of purchases, etc., a reply that they were destroyed by fire shows a good excuse.</p> <p>Foreign Insurance Company.—Certificate of Nearest Magistrate.—Statute.— By the sixth section of the act of December 2ist, 1865, 3 Ind. Stat. 315, a foreign insurance company cannot require a certificate of loss to be certified by the nearest magistrate.</p>

<p>Constitutional Law.—Private Way.—The law for the establishment of private ways, for the benefit of one man over the lands of another, is unconstitutional.</p> <p>Private Wav.—Public Highway.—If a way is petitioned for and damages assessed as for a private way, and the order of the board of commissioners. made for a private way, the way cannot be sustained on the ground that it is a public highway.</p> <p>Way of Necessity.—A way of necessity derives its origin from a grant, and. cannot legally exist where neither the party claiming the way, nor the owner of the land over which it is claimed, or any one under whom they or either of them claim, was ever seized of both tracts of land.</p> <p>Estoppel.—Private Way.—The receipt of damages assessed in proceedings before county commissioners for the opening of a private way will not estop the person receiving the same from resisting the opening of the tvay over his lands, where the money'is accepted under a mistake as to the amount of work that will be done in opening the way by the person for whose benefit it is proposed to be opened.</p>

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

<p>Husband and Wire,—A wife is liable for her debts contracted dum sola, and the husband, though not liable as at the common law, is liable by statute on account of the property he may have received with or through the wife, and to the extent of its value; and in a suit against the husband in such a case, the wife should also be a party defendant.</p> <p>^Practice.—Defect of Parties.—An objection for a defect of parties defendants must be taken by demurrer or answer, or it will be considered as waived.</p> <p>SAME.—Demurrer.—A demurrer must be well taken as to all those uniting in it, otherwise it should be overruled as to all of them.</p> <p>•SAME.—Assignment of Errors.—That a verdict is contrary to law, that it is not supported by sufficient evidence, or that it is excessive in amount, is good cause Tor a new trial, but is not a proper assignment of error. An assignment of error that the court below erred in overruling a motion for a new trial brings, all those matters before the appellate court, if they were embraced in the-motion for a new trial.</p> <p>Same.—New Trial.—Supposed errors of law occurring at the trial must be-particularly stated in the motion for a new trial. The requisite particularity cannot be supplied by reference to a bill of exceptions to be thereafter made..</p>

<p>Practice.—Motion far Leave to Issue Execution.—Pleading to Such Motion/-* Upon a motion for leave to issue execution upon a judgment after the lapse of ten years from its rendition, the judgment defendant may appear, and in answer to the motion plead payment or satisfaction of the judgment; but whether he appear or not, no execution can issue unless it be established by the oath of the judgment plaintiff, or other satisfactory proof, that the judgment or a part thereof remains unpaid.</p> <p>:SAME.—Derision Doubted.—-The case of Plough v. Reeves, 33 Ind. 181, doubted, so far as it was held therein that on a motion for leave to issue execution, no pleading was conterdplated, and the hearing should be summary.</p> <p>"SAME.—Payment or Satisfaction of Judgment.—Under an answer to a motion for leave to issue execution after the lapse of ten years, denying that the judgment is unpaid and pleading affirmatively that it has been paid and satisfied, the judgment defendant may show that it has been satisfied in consequence of the judgment plaintiff having received money on collaterals, or show that by negligence and failure to collect collaterals he has become chargeable with their amount.</p> <p>Pleading.—Former Adjudication.—To a complaint by a judgment defendant, to have a judgment declared satisfied, it is a good answer on the part of the judgment plaintiff, that the same matters alleged in the complaint were set up in an answer to a motion for leave to issue execution on the judgment, and that such matters were in that proceeding adjudicated.</p>

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

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

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

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

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

<p>County Commissioners.—Parol Contracts of.—A parol employment by the board of county commissioners, at a legal session, of an attorney to defend a suit brought against the county is valid, and such attorney, having rendered the service involved in his employment, may recover compensation therefor.</p> <p>SAME.—In employing counsel, the board of county commissioners acts as a corporation, and, like other corporations, may employ agents and attorneys without making such employment a matter of record; but this must be done by the concurrent act of a majority of the board at a legal session.</p>

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

<p>Pleading.—Failure of Consideration.—Answer.—rTo a suit upon a promissory note for three hundred and fifty-five dollars, an answer alleging that it was .given in part payment for a saw and saw-mill, represented to be sound and perfect, and claiming a failure of consideration on account of a latent defect in pulley tighteners, of the value of fifteen dollars, causing them to break, and by breaking, to destroy and injure other parts of the machinery to the value of three hundred and eighty-five dollars, but not showing that the pulley tighteners were a part of the mill purchased, and that they broke and caused •the injury complained of without the fault of the defendant, was held bad.</p>

<p>Pleading.—Fraudulent Representations.—A complaint to rescind a contract of sale of certain real estate, showing that the defendant fraudulently represented that he had purchased said real estate at a sale by an administrator of an estate, for the purpose of inducing the plaintiff to buy the real estate of the defendant, which the plaintiff, relying on the representation, did buy, showing the representations to be false, etc., was held sufficient.</p> <p>'Parties.—In such action, the widow and. children of the decedent, whose estate it had been represented had been bought by the defendant, were not necessary parties.</p>

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

<p>County Commissioners.—Power to Bind County.—Attorney.—The board of county commissioners can not render the county liable for services rendered', by an attorney as such by a contract with such attorney, or an employment of him, when such board is not in session according to law, or when the members, of the board are acting successively and separately.</p>

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

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

<p>Practice.—Amendment During Trial.—When the court permits an amendment of a pleading after the trial has commenced, the jury need not be-re-sworn unless such amendment changes the issue.</p> <p>Pleading.—Evidence.—In an action between parties who had been partners,, involving partnership transactions, the defendant answered that the plaintiff had received certain moneys of the firm which he had converted to his own. use.</p> <p>Held, that, under a general denial of such answer, the plaintiff might prove that the moneys so received by him had been expended for partnership purposes..</p>

<p>'Guardian.—Removal of.—Practice.—Appeal—Pending a petition to remove the guardian of an insane person, on the ground that he had taken his ward to a neighboring state and was there keeping him, an order was made that such guardian should bring his ward within the jurisdiction of the court by a day fixed. Having failed to perform the order, a rule was entered at a subsequent term requiring the guardian to show cause why he should not be attached. To this he presented an answer, to which exceptions were filed and submitted. Without deciding the exceptions, the court summarily removed the guardian, and refused an application on his part to file an answer to the peLi- • tion for his removal and to introduce his evidence. The court also refused the guardian’s prayer for an appeal and refused to fix the penalty of an appeal bond or the time within which it should be filed.</p> <p>Jleld, that on the exceptions to the answer to the rule to show cause, etc., the question of the removal of the guardian was not before the court, and that it was error to pass over the exceptions and summarily remove him without, allowing him to file an answer and introduce his evidence.</p> <p>Held, also, that the order of removal was a final judgment from whichan appeal lay to the Supreme Court.</p> <p>Held, also, that the court erred in refusing an appeal, and also in refusing to fix the penalty of the appeal bond and the time within which it should be filed.</p> <p>Practice.—Pleading Struck Out.—An answer struck out on motion is not a part of the record unless made so by-a bill of exceptions.</p> <p>SAME.—Bill of Exceptions.—Where no time beyond the term is given to file a. hill of exceptions, it cannot be signed and filed at a subsequent term.</p>

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

<p>Specific Performance.—Uncertainty in Contract.—Parol Evidence.—Suit by A. and B. against C. and D. for specific performance of the following contract:</p> <p>“Messrs. A. and B,—Gents: We will give you our woollen mills, with all the appurtenances thereunto, situated in the north-west comer of public square in the town of Franklin, Indiana, for six hundred and forty acres of land in Anderson county, Kansas, one thousand dollars cash, five hundred dollars in six months, without interest; each party to pay the taxes on their property for 1870.</p> <p>“ Franklin, April 7th, 1871. C. & D.”</p> <p>“ We accept the above proposition. A. & B.”</p> <p>Held, that parol evidence was inadmissible in such case, first, to describe the real estate, and then to apply the description.</p> <p>Held, also, that evidence offered to show that the premises of C. & D. were not in the public square in the town of Franklin, nor adjoining it, would contradict the writing, and be inadmissible.</p> <p>Held, also, that there being no description of the land in Anderson county, Kansas, nor any mode agreed upon by which the lands intended could be identified, parol evidence to show what land was intended, or to permit A and B, to select what lands they pleased, would be to make a new and different contract for the parties.</p> <p>Held, also, that the contract was too vague and uncertain as to the description of the property proposed to be exchanged to be aided and the property identified' by parol evidence.</p> <p>Pleading.—Complaint to Correct Mistake.—A complaint to correct a written contract on the ground of a mistake, and to enforce it, wherein it is averred, in a very general and indefinite way, that by the mistake, inadvertence, or neglect of the scrivener drawing it up, and without any fault of the plaintiff, the contract does not fully set forth the agreement of the parties, without showing in ■what respect or particular it fails to set forth the agreement, what words are-omitted that it was agreed should be inserted, or what words are inserted contrary to the intention of the parties, is bad.</p> <p>SAME.—Mistake.—A mistake that can be corrected in such case must have been: a mutual mistake of fact. It is not enough that one of the parties was mistaken.</p>

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

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

<p>PRACTICE.—Appeal from Judgment of Justice of the Peace after Thirty Days. A defendant who was personally served with process in a suit before a justice of the peace, and who suffered judgment to go against him by default, procured an order of the court of common pleas for an appeal more than thirty days after the rendition of the judgment. His affidavit showed that he paid the costs two days after judgment, and supposed the default had been set aside, and was waiting for the j ustice to fix a time for the trial of the cause; that he “had no other idea than defending the suit;” thatthenote on which judgment was rendered had been paid, and that he was not aware that the default had not been set aside until the day of making the affidavit.</p> <p>field, that the appeal was improperly granted and should have been dismissed. The payment of the costs did not of itself operate to vacate the judgment That could only be done on the defendant's motion, andhe made no motion to that effect before the justice.</p>

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

<p>Instructions to Jury.—Evidence.—Where the evidence is not in the record, but instructions are shown to have been given to the jury that are clearly erroneous under any supposable state of facts, the judgment will be reversed.</p> <p>Same.—Criminal Law.—Larceny.—Possession of Stolen Goods.—On a trial for larceny, where the possession by the prisoner of the property alleged to have been stolen has been proved by the State as a circumstance to establish guilt, it is error for the court to assume, in' its charge to the jury, that such property was stolen, and then to charge that its possession by the defendant in a short time thereafter raised a presumption that he stole it, which if not explained by him would authorize the jury to find a verdict of guilty.</p> <p>Possession of Stolen Goods.—Evidence.—A party in possession of personal property is presumed to be the owner; but when it is proved that the property has been stolen, and it is found, recently after the larceny, in the exclusive possession of another, the law imposes upon such person the burden of accounting for his possession, and if he fails to satisfactorily account for such possession or gives a false account, the presumption arises that he is the thief. Such possession may be explained, either by direct evidence or the attending circumstances, or by the character and habits of life of the possessor, or otherwise, but if not explained in some one of these modes, the evidence of guilt is. deemed conclusive.</p>

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

<p>County Treasurer.—Fees for Disbursing Special School Tax.—County treasurers are entitled to one per cent, for collecting and disbursing special school taxes.</p> <p>SAME.—Over-Payment by Mistake.—When, by mistake, ignorance of his rights, or oversight, the treasurer has made a full settlement with the county board,, without receiving the commission allowed him by law for the collecting and disbursing of such taxes, he may maintain an action to recover such compensation, if the board, on his claim being properly presented, refuse to allow it.</p> <p>SAME.— Voluntary Payment.—The doctrine of voluntary payments is not applicable to such a case, but the rights of the treasurer and the duty of the-board of commissioners are governed by sec. 120 of the assessment law, 1 G. &H. 101.</p> <p>SAME.—Case Criticised.—In the opinion in Shoemaker's. The Board, etc., 36-Ind. 175, the scope and effect of said section 120 were limited and restricted too much.</p>

<p>Criminal Law.—Bigamy.—Evidence.—Admissions of Defendant.—In a prosecution for bigamy, it is competent to prove the former marriage by the admissions and declarations of the defendant.</p> <p>Same.—Instruction.—Criminal Intent.—In a prosecution for bigamy, it is proper to charge the jury that if they believe from the evidence that the defendant had been informed that his wife had been divorced, and that he had used due care, andmade due inquiry, to ascertain the truth, and had, considering all the circumstances, reason to believe, and did believe, at the time of his second marriage, that his former wife had been divorced from him, then they should find for the defendant.</p> <p>Same.—Reasonable Doubt as to Life of First Wife.—In a prosecution for bigamy, the State must prove beyond a reasonable doubt that the first wife was living at the time of the second marriage. Where there is no direct evidence on this point, and the only evidence is, that the first wife was alive two years previous to the second marriage, the presumption of the continuance of her life is neutralized by the presumption of the innocence of the defendant, and in such case there can be no conviction.</p> <p>Same.—Evidence.—In a prosecution for bigamy, it is noterror to admit in evidence the marriage license, and the return made thereon by the clergyman who performed the marriage ceremony at the second marriage.</p>

<p>Pleading.—Partitioit of Real Estate.—Answer.—Complaint for the partition, of real estate. Answer, that the plaintiffs and the defendant, being of full age, entered into a parol contract by which each selected a disinterested person to make partition of the land; that the persons so selected made partition, and the parties then had the land which was set off to each surveyed and the lines established; that each then took possession of the respective parts so-set off, and had the the same transferred on the tax duplicate, and had so held, possession for eight years; and that the defendant had made lasting and valuable improvements on the part set off to him; and asking that a commissioner-be appointed to make deeds, etc., and that the defendant’s title be quieted.</p> <p>Held, that this was a good answer in bar.</p> <p>Same.—It was not necessary that the answer should allege an offer of the defendant to malee a deed to the plaintiffs, or show a demand upon the plaintiffs, for a deed.</p> <p>PARTITION.—Tenants in Common,—Partition by Parol.—A parol partition; made by tenants in common is valid, where possession is taken and held in. pursuance of such partition.</p> <p>Presumption of Law.—Plaintiff Suing by Guardian.—Where a complaint shows that one of the plaintiffs sues by a guardian, and the answer alleges that eight years priorto the filingof the complaint, the plaintiffs, being of full age: and competent to contract, made acontract, etc., the court will not presume, on demurrer to the answer, that the plaintiff suing by guardian was insane or an. infant at the time of making the contract set up in answer.</p>

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

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

<p>Pleading.—Demtirrer.—A demurrer for want of sufficient facts will be overruled, if on the facts stated the plaintiff is entitled to any relief whatever, although not entitled to that demanded.</p> <p>Same.—Trespass.—Injunction.—A complaint alleging the commission of a trespass upon real estate, by cutting and carrying away limber, and alleging that an additional trespass is threatened and apprehended, and ashing an injunction, is good on demurrer.</p> <p>Statute of Frauds.—Sale of Growing Trees.—A contract for the sale of growing, trees is a contract for the sale of an interest in land, and must be ia. writing, in order to render it binding on either party.</p> <p>License.—Trespass.—A parol license to enter on lands will excuse what would otherwise be a trespass.</p> <p>Same.—A license confers only a privilege, and does not pass an estate, and may be revoked or countermanded at any time by the licensor.</p> <p>Same.—Parol Agreement for Sale of Growing Trees.—A parol agreement for the sale of growing trees, the trees to be severed and taken from the land by the vendee, will amount to a license for the vendee to enter upon the vendor's land for the purpose of making such severance; and if the license is not revoked before the trees are severed, the title to the trees will vest in the vendee, and the license after such severance will become coupled with an interest and irrevocable, and the vendee will have a right to enter and remove the trees thus severed; but if, before the trees are severed, the vendor should revoke such license, no title will pass to the vendee, and no rights will vest by virtue of such parol agreement.</p> <p>Growing Trees.—Growing trees are a part of the real estate, and are in the possession of the owner of the real estate until they are severed, and no delivery of the trees to another can take place, short of transferring an interest in the real estate.</p>

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

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

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

<p>■Contempt.—Power of Justice of the Peace.—Juror.—A justice of the peace has power to attach and punish as for a contempt jurors who, after being sent out to consult upon a verdict, escape and goaway without leave of the justice, before returning a verdict.</p> <p>’Same.—When a jury is sent out by a justice of the peace to consult upon their verdict, the justice must determine when they have consulted together for a reasonable time; the jury cannot determine this for themselves, and separate without leave of the justice.</p> <p>'SAME.—If jurors do thus separate without leave of the justice, no affidavit of the fact need be filed to authorize the justice to issue an attachment against the jurors for the same.</p> <p>■Same.—It is not a valid excuse for such jurors that they were hungry, or that the place assigned them for their deliberations was not comfortable or well adapted to the purpose.</p> <p>Same.—Sufficiency of Writ.—A writ of attachment in such case, reciting the names of the jurors, and alleging their escape without leave of the justice, and ordering their arrest to answer for the alleged contempt, is substantially correct, and is sufficient to authorize the arrest of the parties.</p> <p>Practice.—Reasons for New Trial.—Assigning as a cause, in a motion for a new trial, the refusal of the court to admit certain evidence “ as shown in the bill of exceptions,” when at the time of the motion there is no bill of exceptions, is insufficient.</p>

<p>Coroner.—Justice of the Peace.—When the coroner is absent from the county,, or unable to attend, a justice of the peace may hold an inquest, and, in doing-so, has all the power and can perform all the duties pertaining to the office of coroner.</p> <p>Same.—Post Mortem Examination.—Physician.—When a justice of the peace,, acting as coroner, requests a physician to make an examination of the body over which an inquest is being held, and he malees an examination, and the-justice so certifies to the county commissioners, the physician will be entitled to an allowance.</p>

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

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

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

<p>■ Appeal.—Assignment of Errors.— Title of Action.— Township Trustee.—In all action against a township trustee, upon a note executed by him as township trustee, a judgment was rendered against the township. Upon appeal to the Supreme Court, the entitling of the cause in the assignment of errors embraced the names of both the township and trustee as appellants, but the body of the assignment named the trustee only, as complaining of error.</p> <p>Held, that the assignment of errors was not by the township, but by the trustee.</p> <p>Held, also, that there was no judgment against the trustee from which he could' appeal; and the appeal was dismissed on motion.</p> <p>Township.—Corporation.—By the statute townships are corporations.</p>

<p>Grand Jury.—When the record does not show the contrary, it will be presumed that the grand jury was regularly drawn, summoned, and empanelled.</p> <p>Same.—Reconvening of.—Where the grand jury has been dismissed before the final adjournment of the court, it may, if necessary, be resummoned to attend again at the same term.</p> <p>Practice.—Motion.—Affidavit.—Affidavits in support of a motion for a continuance are not a part of the record, unless made so by a bill of exceptions.</p> <p>Same.—Discharge of fury.— Waiver.—The discharge of a jury in a crimina® case must be excepted to at the time by the defendant, or he will be deemed to have waived any objection thereto.</p> <p>Assault and Battery with Intent to Commit Murder.—Definition.—In charging the jury .in a prosecution for assault and battery with intent to commit murder, it was error to define the words “ purposely and maliciously,” used in the indictment, as being equivalent to the words “ knowingly and wilfully,” and to charge the jury that if the assault and battery was knowingly and wilfully done with intent to kill, this was sufficient to sustain the higher charge included in the indictment.</p> <p>Criminal Law.—Presumption of Innocence.—The defendant in a crim inal prosecution is presumed to be innocent until the contrary is shown, and it is error to refuse to so instruct the jury.</p>

<p>INJUNCTION.—Execution.—Properly Subject to Execution.—An injunction will not be granted to restrain a sheriff from selling property sold by an execution defendant after the issuing of the execution, on the ground that the sheriff since the sale has wrongfully permitted the execution defendant to remove from the State and sell other properly subject to the lien of the execution.</p> <p>'Same.—An injunction will be granted to restrain a sheriff from selling property sold by an execution defendant after the issuing of the execution, until other property of the defendant subject to execution shall be exhausted.</p>

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

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

<p>«Chattel Mortgage.—Possession of Mortgaged Property.—The principle of the common law prevails, unchanged by the statutes of this State, that where a mortgage of personal property is silent as to possession, the mortgagee is entitled to immediate possession upon the execution of the mortgage.</p> <p>¡Same.—Stattite.—The provision of the statute (2 G. & IT. 355, sec. 1,) that “ unless a mortgage specially provides that the mortgagee shall have possession of the mortgaged premises, he shall not be entitled to the same,” applies to mortgages of real estate, and not of personal property.</p> <p>.'Same.—Sale of Mortagor's Interest on Execution.—Sec. 436, 2 G. & H. 240, which provides that the interest of the mortgagor of goods may be sold on •execution, does not give the purchaser the right of possession, except upon his compliance with the conditions of the mortgage.</p> <p>¡Same.—Foreclosure.—Though an action to foreclose a chattel mortgage will lie to enforce the lien and extinguish the equity of redemption of the mortgagor, yet the mortgagee may take possession and sell without foreclosing.</p>

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

<p>Practice.—Amended Complaint.—Where an amended complaint is filed, covering all the matter contained in the original complaint and the amendments thereto, if any, the original complaint ceases to be a part of the record, and the answers which have been filed to it, if any, go out of the record with it.</p> <p>Same.—Reasons for New Trial-.—That the finding and judgment of the court should have been for the defendant instead of for the plaintiff, is not, in form, one of the statutory reasons for a new trial.</p>