Volume 47 — Indiana Reports

<p>Trust and Trustee.—Promissory Note.—Parties.—Where a note was made payable to certain persons, “for the purpose of erecting and endowing an institution .of learning in the city of Logansport or its vicinity;”</p> <p>Held, that the persons named were trustees of an express trust, and they, or the survivors in case of the death of one of them, were proper parties plaintiffs in an action on the note.</p> <p>Pleading.—Reply.—A reply pleaded in avoidance of an entire answer consisting of several paragraphs must be good asto each and all of the paragraphs.</p> <p>Estoppel.—Promissory Note.—Unsound Mind.—To a complaint on a note given to erect and endow an institution of learning, the defendant, pleaded that at the time of the execution of the note he was of unsound mind; the plaintiffs replied that at said time defendant was apparently of sound mind' and not to them known to be otherwise, and that in reliance upon his promise, before any disaffirmance by him, just debts and obligations had been incurred in purchasing property, erecting buildings, and endowing said institution,, and thereby defendant was estopped from averring that he was not of sound, mind.</p> <p>Held, that the reply was bad. Wilder v. Weakley’s Estate, 34 Ind. 181, distinguished.</p> <p>Contract.—Unsound Mind.—'The contract of a person who has been judicially pronounced to be of unsound mind is void, but the contracts of a person who. lias not been so adjudged, and who is apparently of sound mind, are voidable-merely, and are capable of ratification or disaffirmance when reason has been restored.</p>

<p>Contract.—Contradicting Written Contract by Parol,—Set- Off.—To an action for foreclosure and judgment by an administrator, on a mortgage and note executed to his intestate, the defendant answered, that he was a bishop of the Roman Catholic Church, and according to the canons of said church the real •estate of each congregation of his diocese was deeded to him to hold in trust for such congregation; the mortgage was on real estate purchased by one of his congregations, and it and the note were given by him for money lent by the intestate to such congregation, with the agreement and understanding between the mortgagee and the defendant that said congregation, and not the defendant, was to repay said loan. The answer further alleged, that the plaintiff’s intestate, before and at and after the execution of the note and mortgage, was the priest of said congregation, and that as such he collected from the-members thereof one thousand three hundred dollars to pay the debts of the congregation, including the' debt sued on, and for other purposes, no part of which he had paid to the congregation, or to the defendant as its trustee; which sum the defendant offered to set off against the plaintiff’s demand.</p> <p>Held, that the verbal understanding between the mortgagee and the defendant could not be set up against the written contract; and that as a set-off the answer was defective for failing to state how much of the one thousand three hundred dollars was applicable to the debt in suit, or how much of it was required for the other debts and “ other purposes.”</p> <p>Practice.— Waiver of Reply.—Where a defendant proceeds to trial without a reply to his answer, and without any objection on that account, the reply is deemed to be waived, and the answer is regarded as controverted without a reply.</p>

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

<p>■Practice.—Joint Demurrer.—A joint demurrer to several paragraphs of an answer should be overruled, if any one of the paragraphs is good.</p> <p>Pleading.—Denial of Existence of Corporation.—To an action, brought in what purports to be the name of a ditching corporation, to collect an assessment of benefits, an answer properly verified, that at and before the commencement of the suit there was no such corporation, is a good answer in bar.</p> <p>Costs.—Where a demurrer is erroneously sustained toa complaint, and the cause is reversed on account of such error, and finally disposed of by a judgment for the defendant, the costs made before the demurrer was sustained should be taxed to the plaintiff.</p>

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

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

<p>JURISDICTION.—United States District Courts.—Bankruptcy.—-Where a district court of the United States has first acquired jurisdiction over a bankrupt, that jurisdiction is plenary and exclusive over the. property of the bankrupt wherever situate (though in another district and state) so long as the proceedings in bankruptcy are pending.</p> <p>•SAME.—Stay of Proceedings.—Mortgage.—Proceedings in a suit to foreclose a mortgage, brought in a state court after an adjudication of bankruptcy against the mortgagor by a district court of the United States, will be stayed until the proceedings in bankruptcy are closed, upon motion showing such facts. In such a case, the further proceedings should be stayed until the proceedings in bankruptcy are closed, though the mortgaged property may have been ordered by the district court to be sold clear of the mortgage, for such order is subject to be changed, so as to direct the property to be sold subject to the mortgage, when the mortgagee can proceed to foreclose.</p> <p>-Practice.—New Trial.—In a suit to foreclose a mortgage, the overruling of a motion to stay further proceedings until proceedings pending in bankruptcy shall be closed, is not a reason for a new trial.</p>

<p>Practice.—Denmrrer.—A ruling upon a demurrer to a complaint in. a justice’s-court can not, in the Supreme Court, be assigned as error.</p> <p>SAME.—Where, on appeal from a justice of the peace to the circuit court, the plaintiff demurs to an answer, the demurrer reaches back to the complaint.</p> <p>Corporation.—Pleading.—In an action on tlie original articles of association to recover a subscription to a corporation to be formed, the complaint must show that all the requisites of the statute for the organization of the corporation have been complied with.</p>

<p>Pleading.—Contrihitory Negligence.—If a complaint against a railroad company for an injury to the person of the plaintiff shows by its statement of facts that the latter was himself guilty of negligence contributing to his injury, the complaint is bad, notwithstanding it may contain an averment that he was without fault.</p> <p>Railroad.—Exclusive Right to Use of Track.—Between stations and public crossings a railroad track belongs exclusively to the railroad company, and all persons who walk, ride, or drive thereon are trespassers; and if such persons so walk, ride, or drive thereon at the sufferance or with the permission of the company, they do so subject to all the risks incident to so hazardous an undertaking, and if injured by a train of the railroad company, the company is not liable in damages, unless the injury was wantonly or intentionally inflicted.</p>

<p>'Judgment.—Assignment of.—A part of a judgment may be assigned, and tbs assignee may unite in an action to enforce tbe same with the owner of the residue.</p> <p>'.Mortgage.—Merger.—Foreclosure.—By a foreclosure a mortgage is not so merged in the judgment that the holder of a subsequent incumbrance obtains a priority of lien; but the judgment of foreclosure is a continuation of the mortgage lien.</p> <p>.‘Same.—Satisfaction of.—A mortgagee, who has assigned the note secured by the mortgage, can not, by his entry of satisfaction of the mortgage upon the mortgage record, affect the rights of an assignee of a judgment on the note and for the foreclosure of the mortgage; incumbrancers whose liens have accrued after such entry will not be protected as purchasers for value without notice of such prior lien.</p>

<p>Pleading.—Demurrer.—A complaint or any paragraph (hereof is bad on-demurrer of any defendant against whom no cause of action is shown therein.</p> <p>Mortgage to School Fond.— Void Sale.—A sale, by the authority of the. county auditor and treasurer, of land mortgaged to the State for the use of the congressional township, for a sum greater than is due at the time of sale, is void.</p> <p>Sheriff’s Sale.— Vendor and Purchaser.—JVotice,,—Mortgage.—Where land is. purchased at sheriff’s sale by one who has actual notice of a mortgage thereon,, wherein the county and state where the land is situated are not named, though the section, township, and range are specified, and the vendee knows whatland was intended to be mortgaged and the county where the land lies, he can not be regarded as a purchaser for a valuable consideration without notice.</p> <p>Practice.—Demurrer.—A demurrer to a reply will not be considered where the answer is not in the record.</p> <p>SAME.—Evidence.—Objections to.—Bill of Exceptions.—Objections to the admissibility of evidence must be specific, must be made in the court below,, and, on appeal, must appear in a bill of exceptions.</p>

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

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

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

<p>Will.—Construction of.— Widow.—Marriage.—Devise in Restraint of.—Executor.—Estoppel.—Where a testator, after bequeathing to his wife his personal! effects, etc., directed that the residue of his estate should be converted into money, empowering his executor to sell and convey, and, when the whole • should be converted into money, gave the money to his executor in trust, to place the same at interest, and to pay the interest in semi-annual instalments, six: hundred dollars annually, to his wife during her life, except that if his wife should remarry said payment should cease, and his property should be divided among his'brothers and sisters; providing that the bequest to his wife should be-in lieu of her right as his widow, and, also, that if the annual rents and profits of his real estate in the opinion and discretion of his executor should exceed the interest at the rate of ten per cent, per annum of the moneys which-might be realized from a sale of the real estate, then the real estate should not ibe sold during the life of his widow, and while she remained his widow, unless-by her direction and consent; though if she married again, her consent should not be required, and the sale should in such case remain a matter in the discretion of the executor; and, also, that if from the rents of real estate and investments made said annuity could not be produced, the deficiency should be paid out of the principal, so that she be'-secured a sufficient support, not to exceed six hundred dollars annually, but not to be drawn or received by her in case she again married; and, also, that at the death of the widow the residuary estate be distributed to parties named; and the widow accepted the provisions of said -will, and received the annuity therein provided for two years, and subsequently married again, and the interest on investments made by the executor and the rents from real estate yielded an annual income of seven hundred dollars;</p> <p>Jield, that it was -not necessary to convert the entire real estate into money, hut the annuity was to be paid the widow from rents of real estate and interest ott investments, and if not realised therefrom, the deficiency was to be made up from the principal of the estate.</p> <p>Jield, also, that when funds had been invested so as to produce six hundred dollars, the executor could not sell the real estate unless required by the widow.</p> <p>.Held, also, that when a fund was created producing six hundred dollars annually, the widow was entitled to demand and receive her annuity, and the executor having paid the annuity for two years could not afterward deny such, right of the widow.</p> <p>Jield, also, that though the title of the real estate was by the will vested in the executor, to raise a fund to pay the annuity to the widow, the condition imposed on the widow, that in case she married the bequest was null, and the payment of the annuity forbidden, was in restraint of marriage and void, and the bequest must be upheld.</p> <p>Jield, also, that the bequest in favor of the widow vested as soon as the rente and interest amounted to six hundred dollars annually, and as she was at that time a widow, the condition of forfeiture was subsequent.</p>

<p>Practice.—Motion for New Trial.— A. motion for a new trial, on the ground of evidence having been improperly admitted or excluded, must point out the evidence claimed to have been improperly admitted or excluded.</p> <p>Instruction.—Fraud and Warranty.—In an action for fraud and warranty in ,the sale of personal property, it is error to instruct the jury that if the plaintiff made an examination of the property for himself he can not recover, unless the defendant warranted the property to be of a certain kind or character, and it did not comply with the terms of the warranty.</p>

<p>Railroad.—Liability for Acts of Conductor.—A railroad company is liablefor/ the -wilful acts or torts of the conductor of a train and its other servants acting under him, in ejecting a passenger, when such ejection is wrongful.</p> <p>■SAME.—Commutation Ticket.—A railroad company, being the owner of one road and the lessee of another, the two forming a continuous line between Indianapolis and St. Louis, sold a “ thousand-mile” ticket, authorizing the purchaser to travel three hundred miles upon one of said roads and seven hundred miles upon the other, having black figures representing the one road and red figures the other, with directions to conductors to punch out the black figures representing the number of miles travelled on the western division of the road, and the red figures for the miles travelled on the eastern end. On the back of the ticket were printed conditions, on which the ticket was issued, signed by the purchaser, among which was a stipulation that the miles travelled each trip should be indicated by the conductor punching out corresponding figures on the opposite side. After all the red figures had been punched out, the purchaser offered the ticket for passage on a train on the eastern division of the through line, which the conductor refused to accept, though there were black figures not punched out amounting to the number of miles for which it was offered; and the holder of the ticket, refusing to pay his fare orto leave the car unless forcibly ejected, was put off by the conductor and his assistants.</p> <p>JUeld, that the terms expressed on the ticket constituted a contract between the seller and purchaser of the ticket; that when the purchaser had travelled on the eastern part of the line a sufficient number of miles to exhaust the red figures, the ticket gave him no claim to be carried any more on that part of the road, and that his refusal to pay fare and to leave the car on request justified his expulsion therefrom.</p>

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

<p>Reformation of Writing.—Mistake of Law.—To entitle a party to a reformation of a written instrument, it must be made to clearly appear that there was a mistake of fact, and not of law. It must appear that something has been inserted contrary to the intention and agreement of the parties, or that something has been omitted which it'was intended should be inserted.</p> <p>Deed.—Contemporaneous Parol Agreement.—The express terms of a deed cannot be varied, changed, or controlled by a contemporaneous parol agreement.</p> <p>Same.— Voluntary Conveyance,—A voluntary conveyance of real estate without any consideration, either good or valuable, is binding between the parties, in the absence oí fraud.</p> <p>■Guardian or Administrator.—Settlement Cannot be Attacked Collaterally.— The settlement of a guardian or administrator cannot be set aside or opened up, except by a direct proceeding.</p> <p>Conveyance.—Description of Property.—A deed conveying, in general terms, without a specific description of the property, all of the vendor’s real and personal estate, inherited from a person named, is good.</p>

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

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

<p>Tax.—Assessment of Personal Property,—Statute.—Construction of.—By section 276 of the tax act of December 21st, 1872, the duty of assessing per: sonal property for taxation for the succeeding two years was devolved on the county appraisers of real estate chosen at the October election in 1872.</p> <p>Same.—Bond and Oath of Appraisers.—Such real estate appraisers were not required to take an additional oath of office, or to file an official bond as assessors, and the failure to file such oath and bond did not authorize a county auditor to appoint another person-to assess personal property for taxation.</p> <p>Same.—Legislative Power.—It was competent for the legislature to confer on such appraisers the additional duty of assessing personal property.</p>

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

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

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

<p>■Criminal Law.—Pleading.—Answer to Indictment for Betting on Election.—To an indictment for betting upon the result of an election, an answer that before the indictment was found or presented, the defendant was compelled by the grand jury to testify as a witness in said cause, and disclose all the facts and matters alleged in the indictment, and to prove the offence charged therein, is bad.</p> <p>'Same.—Betting on Election.—Betting upon the result of an election is not gaming.</p>

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

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

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

<p>Evidence.—Appeal.—It is the uniform practice of the Supreme Court not to disturb the verdict of a jury, or the finding of a court, on questions of fact, when the verdict or finding is not clearly wrong on the evidence.</p>

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

<p>PLEADING.—Injunction.—Administrator.—The administrator of the estate of one who was replevin bail for the stay of execution on a judgment cannot maintain an action to enjoin the levy of an execution issued on such judgment upon the real estate of his intestate, where he does not show that he will' be injured in his representative capacity by the sale of the real estate, or that it is necessary, or will become necessary, to sell the real estate to pay the debts of the intestate, or that the personal estate is insufficient to pay the debts, or that the judgment debtor has property sufficient to pay the debt within reach of the execution.</p> <p>Administrator.—Real Estate.—It is only where the personal estate is insufficient to pay the debts of the deceased, that the administrator has anything to do with the real estate.</p>

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

<p>Liquor Law.—Evidence.—In a prosecution for selling intoxicating liquor to a person in the habit of getting intoxicated, it is not necessary on the part of the State to prove that the defendant had knowledge of such habit of the person to whom the liquor was sold. His want of such knowledge may be shown in ■defence.</p>

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

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

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

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

<p>Conversion of Property.—Where A. gave to B. personal property belonging to C, in payment for services rendered by B. to A., a demand of the property by C. of B., and negotiations between them in reference to the surrender of the property, not ending in a perfected arrangement for its surrender, did not relieve A. from his liability to C. for the conversion of the property.</p>

<p>CONSTITUTIONAL Law.—Punishment of Drunkenness.—The subject-matter of the ninth section of the act to regulate the sale of intoxicating liquors, etc.,, approved February 27th, 1873 (Acts 1873, p. 151), providing for the punishment of persons found intoxicated, is not expressed in the title of the act, nor is it properly connected with the subject expressed in the title, and said section is therefore unconstitutional and void. Buskiuk, J., and Downey, C. J., dissented.</p>

<p>Vendor And Purchaser.—Canal Lands,—Assignment of Certificate of Purchase,—Where one who had purchased canal lands of the Trustees of the. Wabash and Erie Canal assigned and delivered his certificate of purchase to another, such assignor had thereafter no interest or title in the lands purchased that would descend to his heirs, and a conveyance made by such heirs would pass no title.</p> <p>SAME.—Action to Recover Real Property.—Legal and Equitable Titles.—Record' of Conveyances.—Where A. purchased canal lands of the Trustees of the. Wabash and Erie Canal in 1854, and received a certificate of purchase therefor, and afterward, in 1856, assigned and delivered the certificate to B.,who, in 1857, obtained a patent, or deed, for the land, and after the death of A.,. in 1862, his heirs conveyed said real estate to C., the latter could not recover the real estate from one who acquired title through B., though the deed of B. was not placed on record within the time limited by law, or until after' the-deed from the heirs of A. to C. had been recorded, •</p>

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

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

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

<p>New Trial.—Motion.—Record.—A motion for a new trial constitutes a part of the record without being made such by a bill of exceptions, and when it is copied into the transcript it is not necessary to copy it again in the bill of exceptions.</p> <p>Admissions.—Evidence.—Instruction to Tury.—An instruction to a jury embodying the observations in section 200, Greenleaf’s Evidence, on the uncertain character of verbal admissions, declaring that “ all verbal admissions ought to be received with great caution,” etc., was erroneous, which omitted the following portion of said section: “ But where the admission is deliberately made and precisely identified, the evidence it affords is often of the most satisfactory nature.”</p> <p>Instructions to Jury.—A judgment will be reversed where instructions given are inapplicable to the case proved, and are calculated to mislead the jury.</p> <p>New Trial.—Remittitur.—After a motion for a new trial has been granted on the ground of excessive damages, it is too late to avoid the objection by remitting the excess. The proper practice in such cases discussed.</p> <p>Same.—Excessive Damages.—That the damages found by the jury are excessive, is a good cause for a new trial in actions founded on contract, as well as in tort.</p>

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

<p>Draining Association.—Appeal from- Assessment.—Pleading.—On an, appeal by a land-owner from an assessment made upon bis lands to aid in tbe construction of tbe ditch of a draining association, there should be no demurrers, no answers, and no replies.</p>

<p>Superior Court.—Assignment of Error,—Where, on appeal from a superior-court, the record does not show that error was assigned in the general, term of that court, the judgment will be affirmed.</p>

<p>Practice.—Striking out Answer.—Record.—The fact that the clerk has copied into a transcript a paragraph of answer that was struck out by the court, does not make it a part of the record on appeal; it can only be made a part of the record by a bill of exceptions.</p> <p>SAME.—Amended Pleading.—An amended answer supersedes the original, and the latter ceases to be a part of the record.</p> <p>Pleading.—Promissory Note.—Consideration.—To an action by A. against B. on a promissory note, the defendant answered, that the note was given for a mortgage on a steam saw-mill, executed by one H., who then had a suit pending against B., and that A., to induce B. to execute the note, repre» sented to him that the mortgage was valid, and could be .used by him as a set-off in said pending suit; upon which representations, believing them to be true, etc., B. purchased the mortgage, and gave therefor the note, etc.; but that the mortgage was not a valid mortgage, and B. could not use it as a set-off in said action of H.</p> <p>Held, that the answer was bad, if for no other reason, because it failed to statp why the mortgage was invalid, or why B. could not use it as a set-off.</p> <p>Demurrer.—Practice.—It is not error to sustain a demurrer to a paragraph of answer, when the same defence is pleaded in another paragraph which remains in the record.</p> <p>Deposition.—Suppression of.—The suppression of a deposition can only be urged as a ground for a new trial, and is not available as an assignment of error.</p>

<p>Criminal Law.—Affidavit.—Justice of the Peace.—Liquor Law.—An affidavit in a criminal prosecution, under the act of February 27th, 1873, to regulate-the sale of intoxicating liquors, before a justice of the peace, is sufficient if the offence is charged “ as the affiant verily believes.”</p> <p>Same.—Trial.—Pleading.—In prosecutions before justices of the peace, two offences may be charged in one affidavit, and both may be tried together.</p> <p>Same.—Liquor Law.—On the trial of a prosecution for selling intoxicating, liquor to a person in the habit of getting intoxicated, the evidence must show what kind of liquor was sold, or that it was intoxicating.</p> <p>Same.—Where the defendant in a prosecution for selling intoxicating liquor to a person in the habit of getting intoxicated had no knowledge, at the time of the sale, of the habit of intoxication of such person, who was a stranger to.the defendant, was sober at the time, and had not the appearance of being a person in the habit of getting intoxicated, he is entitled to an acquittal.</p>

<p>'Parties.—Demurrer.—To a complaint allegingthat certain named persons (not parties to the action), doing business under a given firm name, executed the notes and contract sued on and filed with the complaint, which notes so filed. were signed in said firm name, and the contract contained the full names of the members of the firm, a demurrer for defect of parties was filed on the ground that the firm (the firm name being given) that signed the notes sued on, and with whom the contract was made, should be made parties defendants.</p> <p>Held, that the demurrer was sufficient to raise the question of defect of parties. •Same.—The defendant had agreed with a certain firm, by a contract filed with the complaint, to compromise and settle all (without specifying any) of the debts of the firm; the plaintiffs, as payees of notes made by the firm, sued the defendant to compel him to pay them.</p> <p>Held, that the members of the firm were necessary parties to the action,</p> <p>SAME.—Contract.—Reformation of.—Cross Complaint.—Where the defendant had made a contract with a firm, generally, to pay all its debts, and the plaintiffs as creditors of the firm had brought an action on notes made by the firm, . and on the contract, to compel payment of the notes, without making the members of the firm parties, and the defendant by answer alleged a mistake in the contract, and sought reformation thereof;</p> <p>Held, that there could be no reformation of the contract, the firm not being made parties to the action, and that the answer was bad on demurrer.</p> <p>Held, also, that the answer should have been in the nature of a cross complaint, to which the firm should have been made defendants.</p> <p>■'CONTRACT.—Notice.—Acceptance.—If, where one makes a contract, generally, to pay the debts of another, and the contract is rescinded and cancelled before the former has notice that the creditor will accept the benefits of the contract, such creditor cannot enforce the contract.</p> <p>‘■Same.—Demand.—Where one makes a contract with another to pay the debts of the latter, before an action can be maintained against the former by a creditor, a demand of payment is necessary.</p>

<p>Evidence.—Husband and Wife.—In an action of replevin against a married woman, her husband is not a competent witness to testify as to his purchase of the property sought to be recovered, and his sale of it to the plaintiff, or to rebut testimony tending to show a gift of the property to the wife.</p>

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

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

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

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

<p>IjQUOR LAW.—Sale on Sunday.—Affidavit.—In a prosecution for selling intoxicating liquors on Sunday, the affidavit alleged that the sale was made “ on or about the 2d day of November, 1873, the said day being Sunday.”</p> <p>Held, that the time, which was an essential ingredient of the offence, was not stated with sufficient accuracy, and that amotion to quash the affidavit should have been sustained.</p>

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

<p>School Fund.—Fog. Tax Fund.—•Injunction.—The dog-tax fund must be apportioned among the schools of the township and with the other funds appropriated for tuition, and an injunction will lie to prevent the use of said fund to employ a teacher in a single school district, or the use of said fund in advance of the general apportionment for tuition for the year.</p>

<p>'Criminal Daw.— Venue.—Liquor Law.—In a prosecution for selling intoxicating liquor to a person in the habit of getting intoxicated, the only evidence as to the place of the sale was that it was “ at Noblesville</p> <p>JLfeld, that the evidence as to venue was insufficient.</p>

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

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

<p>Evidence.—A judgment will not be reversed because oftbe admission of irrelevant evidence barmless in its character.</p> <p>Same.—It is error to admit evidence that a party to a suit was silent when his adversary testified to certain facts prejudicial to him on a former trial. No presumption of acquiescence arises from silence under such circumstances. because the party affected is not at liberty to dispute or contradict the statements of a witness while testifying.</p> <p>Same.—Witness.—Cross-Examination.—A cross-examination must be limited to matters about which the witness has testified in chief.</p> <p>Bastardy.—Evidence.—When the mother of an alleged bastard child dies during the pendency of proceedings in bastardy, her examination taken and reduced to writing by the justice of the peace, and properly certified by him, may be read in evidence on a subsequent trial in the circuit court.</p> <p>SAME.—Where the written examination of the mother has been read on the trial in the circuit court, parol evidence of what she testified to on the trial before the justice is not admissible.</p>

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

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

<p>Assignment of Error.—Appeal from Superior Court.—On appeal to the Supreme Court from a superior court, the assignment of error should be based upon the action of the lower court in general term, in affirming the ruling at special term. An assignment that the court in special term erred in overruling a motion for a new trial presents no question.</p>

<p>.Pleading.— Warranty.—Fraud.—To an action on a promissory note, the defendant answered: i. That the note was given for a combined reaping and mowing machine; that the plaintiff warranted that the machine would perform all the requisites of ordinary mowing; that the defendant, relying, etc., purchased the machine; and that at the time of the sale and warranty it was utterly worthless and of no value to the defendant. 2. That the defendant was unacquainted with the machine; that the plaintiff represented that the same would perform all the requisites of ordinary reaping and mowing; that the defendant was thereby induced, etc.; but that the machine would not perform as represented; wherefore, etc.</p> <p>Meld, that both answers were bad; each should have averred that the defendant tested the machine in a proper manner, and in a reasonable time, and also that it was of no value, or that it was returned by the defendant to the plaintiff. It was not sufficient to aver that it was of no value to the defendant.</p> <p>"Evidence.—Motion to Strike Out.—When a motion is made to strike out evidence given on the trial, the grounds of the motion should be stated; and on appeal the grounds of such motion must appear in a bill of exceptions; otherwise the Supreme Court will presume in favor of the action of the court below in overruling the motion.</p>

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

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

<p>Venue.—Change of.—Rule of Court.—An application for a change of venue on. the ground of objections to the judge was filed on the fifth day of the term, and before the issues were completed. The cause had been docketed for trial on the second day of the term. The application was refused on the ground that there was a rule of court which provided, that “ application for a change of venue will not be entertained or allowed, unless the same is made on or before the cause is docketed for trial; nor after the party making the same has applied for a continuance, which has been overruled.”</p> <p>Held, that the change of venue was properly refused.</p> <p>Promissory Note.—Duress.—No recovery can be had upon a note which the maker was induced to give either by duress of his person or. to regain possession of his property unlawfully withheld.</p> <p>SAME.—Ignorance of the Law.—It is not a good defence to a suit on a promissory note, that the defendant gave the note in ignorance of the law, believing himself to be liable for an injury done by his runaway team, when he was not so liable.</p> <p>Negligence.—A team of horses attached to a wagon, in consequence of a fright received in the street of a city, ran away and collided with and injured the plaintiff’s carriage, without any fault or negligence on the part of the owner of the team.</p> <p>Held, that the latter was not liable for the injury.</p>

<p>Town.—Incorporation of.—County Commissioners.—Annexation by City Council.—Where a petition has been filed by the proper parties before the board of county commissioners for the incorporation of a town, and the petition conforms to the requirements of the statute, it' is the duty of the commissioners to hear the proofs, and, if satisfied that the requirements of the law have been complied with, to make an order declaring that the territory embraced in the petition shall, with the assent of the qualified voters thereof, be an incorporated town, by the name specified in the petition; and after the election has been properly certified by the inspectors of the election, it is the duty of the commissioners to make an order declaring that such town has been incorporated by the name adopted. After the filing of such petition, the territory embraced therein can not be annexed to an adjoining city .by.a vote of the city council.</p> <p>Same.—Jurisdiction.—The pendency of- the petition gives the county commissioners jurisdiction of the subject-matter thereof, and that jurisdiction cannot be ousted by the adverse action of the city council. When there exist two tribunals possessing concurrent and complete jurisdiction of a subject-matter, the jurisdiction becomes exclusive in the one before which proceedings are first instituted.</p> <p>Same.—Plat.—Recording.—A plat of lots, not purporting to be the plat of a town, nor of an addition to a town or city, but simply of out-lots in a congressional section of land, is not such a plat as is recognized and entitled to record by the act touching the laying out of towns, etc., I G. & H. 632.</p> <p>SAME.—Unauthorized Recording of Plat.—A plat not signed and acknowledged as required by law is not entitled to record; and if it be recorded, the record is a nullity.</p> <p>"City.—Annexation of Platted Territory.—The common council of a city has authority to annex territory, .and extend its boundary so as to include lots laid off and platted adjoining the city, if the plat has been legally recorded in the recorder’s office of the county, but not otherwise.</p>

<p>Descent.—Statute.—Section 26.—Section 26 of the statute of descents, I G. & H. 296, was in force in the year 1870; it should be construed as if it provided that if a husband or wife die, leaving any estate undevised, and leaving no child and no father or mother, the whole of such estate shall descend to the survivor; the word “ intestate ” refers to property, and not to the decedent.</p> <p>Practice.—Stare Decisis.—When a court of appeals of last resort has by its decisions established a rule of property under which rights have been acquired, an. adherence to such decisions by the same court becomes a duty, and they should not be overruled except for the most convincing and overwhelming reasons.</p> <p>Repeal op Laws.—Repeal of Repealing Statute.—The repeal of a repealing act revives the original act.</p>

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

<p>Administrator De Bonis Non.—Suit on Bond of Former Administrator.— Parties.—An administrator de bonis non may sue a former administrator of the same estate on his official bond, and the executor of a surety upon such bond may be joined in such suit.</p> <p>Evidence.—Exeaition of Bond.—Where the execution of a bond sued on is. not proved, but it is read in evidence against the executor of a deceased surety on the bond, without objection on that ground the failure to prove its execution will not be error. , Objections to the introduction of the bond on. grounds other than a failure to prove its execution will not be sufficient to-raise the question of such failure.</p> <p>Decedents’ Estates.—Jurisdiction.—Claim Against Estate of Joint Obligor.— "Where the legal representative of a deceased joint obligor is a proper or necessary party defendant in a suit on the joint obligation against the survivors, the court has jurisdiction to try the claim against the decedent’s estate.</p> <p>Judgment.—Joint Action.—Administrator.—In a joint action brought against an administrator and others on a joint obligation, the judgment may be against all the parties for the full amount, and not against the administrator for a proportionate amount.</p> <p>Practice.—Appeal.—Motion for New Trial.—Where a motion for a new trial is made on the ground that the verdict is contrary to the evidence, because certain facts have not been proved, the party making the motion is precluded, ore. appeal, from urging that the verdict is not sustained by sufficient evidence.</p>

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

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

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

<p>Railroad.—Liability for Killing Stock.—In a complaint against a railroad company to recover under the statute the value of an animal killed by the cars of such company, it is sufficient to allege that the railroad was not fenced at the place, etc. If the killing was at a point where the company was not required to fence its track, that is a matter of defence, and need not be negatived in the complaint.</p> <p>Demurrer.—Misjoinder of Cateses.—No judgment can be reversed for error in overruling or sustaining a demurrer for misjoinder of causes of action.</p> <p>Pleading.— Uncertainty.—If it be doubtful from the complaint whether a. plaintiff sues in his individual capacity or in a representative capacity, the defendant’s remedy is by motion to make the allegation more certain and specific, and not by demurrer.</p>

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

<p>MORTGAGE.—Presumption of Jurisdiction.—When a mortgage upon real estate-has been foreclosed, it will be presumed that the court rendering the j udgment of foreclosure had jurisdiction of the subject-matter and of the parties, and that the mortgaged premises were located in the county where the foreclosure was. had.</p> <p>PROMISSORY Note.—Suit by Holder Against Assignor of Note Secured by Mortgage.—Right of Assignor as to Mortgaged Property.—Where a promissory-note was secured by a mortgage of real estate by the maker, which mortgage has been foreclosed by an assignee and, on a sale under the decree, bought in by the assignee, in a suit by such assignee against his assignor, to recover a. balance due on the note, it is no defence on the part of the assignor that the real estate, was worth more than the amount bid for it by the assignee. The assignee of the note, who has thus bought the mortgaged real estate, is not a trustee for-the assignor, though the latter was not a party to the foreclosure suit.</p> <p>PARTIES.—Foreclosure of Mortgage.—Assignor of Note not a Proper Party to Action of Foreclosure.—The assignor of a promissory note secured by a mortgage of real estate is not a necessary or proper party to an action against the maker to foreclose the mortgage.</p> <p>Promissory Note.—Suit by Assignee Against Assignor.—Diligence in Suing-Maker.—Where a complaint by the holder against an assignor of a promissory note, secured by a mortgage executed by the maker of the note, alleged that suit was commenced against the maker to foreclose the mortgage at the first term -of the court, sitting next after the assignment to the plaintiff, and that a decree was obtained at said term, and the mortgaged property afterward sold on said decree, and the amount of the note not realized, and alleged that the-maker at the time of the assignment had no property, other than the real estate-mortgaged, subject to execution, out of which the balance of the judgment could be made, and that the maker was and still is insolvent;</p> <p>Held, that the complaint showed sufficient diligence on the part of the assignee, though the suit against the assignor was not commenced until about seven years-thereafter.</p>

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

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

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

<p>Vendor AND Purchaser.— Unrecorded Deed.—Grantee's Right of Action-Against Fraudulent Purchaser with Notice, who Sells to Innocent Purchaser.—A., being the owner of a tract ofland, conveyed the same to B., who conveyed to C., who conveyed to D. None of the deeds except that of C. to D. were recorded. E. and F., knowing of said conveyances, procured a quitclaim deed for the same land from A., had their deed duly recorded, and subsequently sold the lands to an innocent purchaser, G., for a valuable consideration, the land all this time being wild and uninclosed. D. thereupon brought suit for damages against E. and F., who bought with knowledge of his title,» and deprived him of it by selling to the innocent purchaser G.</p> <p>Held, that D. was entitled to recover.</p> <p>Registry.— To Whom it is Notice.—The registry of a deed is notice only to those who claim through or under the grantor by whom the deed was executed.</p> <p>Instructions to Jury,—If no question as to instructions to the jury is raised. on a motion for a new trial, such instructions will not be reviewed on appeal.</p>

<p>Pleading.—Evidence.—Execution of Written Instrument.—Administrator.—■ In a suit brought by an administrator upon a written promise to pay money to his intestate, a sworn denial by the alleged maker puts the administrator upon proof of the execution of the instrument.</p> <p>SAME.—Statutes Construed.—Section 75, 2 G. & H. 101, and section 785, 2 G. & H. 332, should be considered with reference to section 80, 2 G. & H. 105, and construed so that the fact that a pleading has been sworn to by either party shall not on the trial be deemed proof of the facts alleged therein, nor "require other or greater proof on the part of the adverse party than is required, for pleadings not sworn to, except when the execution of a written instrument is thus denied.</p>

<p>Vendor and Purchaser.—Agreement to Pay Mortgage Debt.—A purchaser of real estate, who takes it subject to a mortgage debt, which he assumes and agrees to pay as a part of the purchase-money, cannot, in a suit to foreclose-the mortgage, set up that there was, as between the mortgagee and mortgagor,, a failure or want of consideration, in part.</p>

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

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

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

<p>Turnpike.—Assessment.—Appeal.—An appeal lies to the Supreme Court from the judgment of a circuit court rendered on an appeal from the order of the-board of county commissioners directing the assessment of land for constructing a turnpike road.</p> <p>Same.—Description of Route.—Where the course is definite and certain, and the termini can be ascertained from the description given, the route is sufficiently described. That which can be rendered certain is sufficiently certain.</p> <p>Same.—Pleading.—The statute does not contemplate pleadings in such a case. The defendants have the benefit of all legal objections they can urge against the making of the assessment, without pleading them.</p> <p>Same.—Articles of Association.—Evidence.—On the trial of the appeal in the circuit court, the articles of association of the company are admissible in evidence without proof of their execution, it being shown that they have been, duly recorded as required by statute. From the time the articles of association are recorded in the recorder’s office of the proper county, the association is to-be deemed a corporation.</p>

<p>Parties.—Misjoinder of Parties.— Vendor's Lien.—Where the conditions of a: bond for the conveyance of real estate were the sale of property to the obligor and a third person, and the release by the obligee of said third person front liabilities for said obligee on account of said property, said third person was not a proper party plaintiff to an action to foreclose the vendor’s lien.</p>

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

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

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

<p>Corporation.—Contract.— Ultra Vires.—It is the general doctrine that corporations possess the powers expressly conferred by law, and such implied powers as are necessary to enable them to exercise the powers expressly granted, and no others; yet, although there may be a defect of power in a corporation to make a contract, if a contract made by it is not in violation of the charter of the corporation, or of any statute prohibiting it, and the corporation has by its promise induced a party, relying upon such promise and in execution of the contract, to expend money and perform his part of the contract, the corporation is liable on the contract.</p>

<p>Repeal of Laws.—Saving Clause.—A repealing act with a saving clause can not revive a liability that has been extinguished by a repealing act without saving clause.</p> <p>Same.—Ditching Company.—By the act approved March nth, i86j (3 Ind. Stat. 228), to enable the owners of wet lands to drain and reclaim them, etc., the act of June 4th, 1861 (Acts Special Session 1861, p. 83), and the act of March 7th, 1863 (Acts 1863, p. 30), on the same subject, were absolutely-repealed; and all rights of action, under said acts, upon any assessment of benefits, were taken away, and were not revived by the subsequent repeal of the act of 1867 by the act of 1869 (3 Ind. Stat. 222).</p>

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

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

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

<p>Eminent Domain.—The right of eminent domain lies dormant in the State until legislative action is had pointing out the occasion, mode, conditions, and agencies for its exercise; and it should never he exercised except when the public - Interest clearly demands it, and then cautiously and in accordance with law.</p> <p>SAME.—Construction of Statute,—Cities.—Power to Appropriate Private Property to Construct Sewers.—Under the act of 1867 for the incorporation of cities, a city does not possess the power to condemn and appropriate private property for the construction of sewers.</p> <p>SAME.—The forty-third subdivision of the fifty-third section of the act of 1867 for the incorporation of cities, which provides that the common council may enforce ordinances “to construct and regulate sewers, drains, and cisterns, and provide for the payment of the cost of constructing the same,” does not confer the power to condemn and appropriate private property for the construction of sewers.</p> <p>SAME.—The fifty-first subdivision of section 53 of the act of 1867 for the incorporation of cities, which provides that the common council may enforce ordinances “ to provide on what terms real estate in such city may be drained by means of surface or underdrains over and across other real estate therein,” relates to the construction of drains by one land-owner over and across the lands of another, and not to the construction of public sewers.</p>

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

<p>Practice.—New Trial.—More Than two New Trials.—Statute Construed.—• That part of the eighth specification of section 352 of the code (2 G. & H. 211), which provides, that not more than two new trials shall be granted to the same party in the same cause, means that Where two new trials have been granted in the same cause to the same party, either by the court below or the Supreme Court, exclusively for any of the reasons specified in said section as causes for a new trial, another new trial cannot be granted to the same party in such cause for any of the reasons specified in said section. But the Supreme Court may reverse a judgment for erroneous rulings upon pleadings, or other matters not constituting reasons for a new trial within the meaning of said section, after there have been two new trials, granted for reasons specified in said section, although such reversal may result in another trial upon the merits. Roberts v. Robeson,22 Ind. 456, and Carmichaelv. Geary, 27 Ind. 362, modified.</p> <p>Pleading.—Stipplemental Complaint.—A complaint, or paragraph of complaint, alleging that since a former trial certain notes constituting the foundation of the suit have been lost, is not a supplemental complaint, and is a nullity.</p> <p>Same.—Departure.—Reply.—Where a complaint is upon a promissory note-made by the defendant, and the defendant answers that the note was given for the plaintiff’s interest in partnership goods held by the plaintiff and the defendant, and that the defendant has since paid partnership debts, for which he asks a set-off against the notes, it is not a departure for the plaintiff to reply that the defendant agreed in writing, as a part of the consideration for the goods, to pay the debts of the firm.</p> <p>SAME.—A reply which sets up matter which is not inconsistent with the complaint, but which tends to support and justify it, is not a departure.</p> <p>Venue.—Change of Venue.—Prestimption.—Where the venue of a cause is changed, but it does not appear whether by motion or by agreement, it will be presumed that it was rightfully changed.</p> <p>Same.—After an appearance, and after the jurisdiction of the court to which &. cause is sent on a change of venue has been recognized, the court may refuse to remand the cause back to the court from which it was changed.</p>

<p>•Negligence.—Complaint.—Contributory Negligence.—Ilian action for damages-for an injury to the person caused by the negligence of the defendant, it must appear from the complaint by express averment, or it must be clearly manifest from the facts alleged in the complaint, that the injury occurred without the-fault or negligence of the plaintiff.</p>

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

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

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

<p>Fram the Ripley Common Fleas.</p>

<p>Negligence.—Pleading.—Injziry to Person.—Railroad.—In an action for damages for injury to the person, the complaint averred, that the defendant, a railroad company, did not use due care, diligence, and skill in carrying the plaintiff; but, on the contrary, the track of the railroad was in had condition and repair, and the defendant by its servants, etc., negligently, unskilfully, and carelessly, ran its train of cars, whereby, etc.</p> <p>Held, on demurrer, that the averment of the condition of the track was not too general.</p> <p>Held, also, that if defendant desired a more particular description of the condition of the track, a motion to make the averment more specific should have been made.</p> <p>Held, also, that in such an action, an act, the doing of which is complained of, and that such act was negligently done, must be alleged; and that the above averment of the condition of the track and the manner in which the train was run sufficiently stated an act, and that it was negligently done.</p> <p>Held, also, that when the act complained of is sufficiently stated, it is only necessary to aver that such act was negligently done, without setting out in detail the particulars of the negligence.</p> <p>SAME.—Common Carrier.—Contract.—A common carrier cannot by contract exempt itself from liability for loss resulting from any negligence on its part. Wright v. Gaff, 6 Ind. 416; The I. C. R. R. Co. v. Remmy, 13 Ind. 518; The Ind. Central R. W. Co. v. Mztndy, 21 Ind. 48; and Thayer v. The St. Louis, etc., R. R. Co., 23 Ind. 26, overruled.</p> <p>SAME.—Stock Drover.—Stock Pass.—Free Pass.—A drover travelling on a freight train for the purpose of taking care of his stock on the train, for which stock he paid freight, received from the railroad company a ticket called a “ stock pass,” with an indorsement signed by him, as follows: “ In consideration of receiving this ticket, I voluntarily assume all risk of accidents, and expressly agree that the company shall not be liable under any circumstances, whether by negligence of their agents, or otherwise, for any injury to my person, or for any loss or injury to my property; and I agree that as for me, in the use of this ticket, I will not consider the company as common carriers, or liable to me as such.”</p> <p>Held, in an action for damages'for injury to the person of the drover, caused by the negligent act of the railroad company, that the agreement aforesaid was invalid as a defence to said action.</p> <p>Held, also, that such stock drover so travelling with said pass was a passenger for hire, and was not a gratuitous passenger.</p> <p>SAME.—Duty of Carrier of Passenger on Freight Car.—Where a railroad com-' pany undertakes to convey a stock drover as a passenger on a freight car, its duly is to so run and manage the train that he shall not, by its own carelessness, be injured.</p> <p>SAME.—Free Pass.—Liability of Carrier io Passenger Travelling On.—It is well settled, that in the case of a person riding on a free pass, common carriers of passengers are held to the same liability for injuries to the person by the negligent act of the carrier as in the case of a passenger paying fare.</p> <p>PRACTICE.—Pleading.—General and Special Answers.—Where a general denial is filed, a specific denial of the averments of the complaint may be struck out on motion.</p> <p>Evidence.—Speed of Train.—Condition of Track.—Evidence-is admissible of the rate of speed at which a train was run at the time of the accident, by comparison with the speed of trains at other times; as is, also, evidence of the condition of the track at the time of the accident, by comparison with its condition, at other times.</p> <p>Same,—In an action for damages for injury to the person of a drover travelling on a stock pass, by the negligent act of a railroad company, evidence that the plaintiff had continued since the injury to make contracts for the shipment of stock, and to ride on stock passes in the same manner as at the time of the injury, is inadmissible.</p> <p>Same.—Burden of Proof.—Injury to Person.—In such action, the burden of proof is upon the plaintiff to establish, by a preponderance of evidence, the material allegations of the complaint.</p> <p>Same.—Speed of Train.—The true criterion for determining whether at the time of an accident a train was running at a higher rate of speed than was safe and prudent, taking into consideration the portion of the track where the accident occurred, is the rate of speed at which other trains have been run over that portion of the road, both before and after the accident.</p> <p>Pleading.—Amendment.—Injury to Person.—Specific Averments of.—Evidence.—Continuance.—Measure of Damages.—Implication of Law.—The complaint in an action for damages for injury to the person charged, that by the negligent act of defendant he was grievously bruised, hurt, and injured, etc., and that his collar-bone was broken, and shoulder dislocated.</p> <p>Held, that under said general allegations of injury, the plaintiff was entitled to prove any and all injuries which he received, and which were the natural consequence of the wrongful act of the defendant) and that, on the trial, it was not error for the court to allow the plaintiff to insert in the complaint another specific allegation that his shoulder-blade was broken, and to refuse the defendant a continuance of the cause, upon affidavit made, on the ground of surprise occasioned by such amendment.</p> <p>Held, also, that the said specific averments of injury did not limit and restrict the proof of plaintiff to them’.</p> <p>Held, also, where the law does not imply the damage as the natural and necessary consequence of the wrongful act, the special damage should be set out , with particularity.</p> <p>PRACTICE.—New Trial.— Verdict.—Special Findings.—Where there are a general verdict and special findings, and the correctness of the general verdict is not questioned, a case will not be reversed on the evidence, when it is conflicting, to support the special findings.</p>

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

<p>IPleading.—Contract.—Where damages are claimed for a breach of a contract to deliver certain kinds or brands of tobacco at certain prices, the quantity and kind or brand demanded must be specified.</p>

<p>LIQUOR Law.—Act of 1873, Secs. I and 10 Construed.—Sale of Liquor on Sunday,—Sale of Liquor to be Dnmk on Premises.—Lndictment.—By the first section of the act of February 27th, 1873 (Acts 1873, p. 151), it is made unlawful for any person, etc., to sell, etc., any intoxicating liquor to be drunk in, upon, or about the building or premises where sold, etc., until such person shall have obtained a permit therefor, as in the act provided. By section 10 of said act it is declared, that the permit granted under the act shall not authorize the person receiving it to sell intoxicating liquor on Sunday, or at certain other times, and that any and all sales made on any such day, etc., are unlawful, and that upon conviction a fine shall be imposed on the person selling on said days, etc.</p> <p>Held, that said section 10 is a limitation as to the times when sales shall be made of intoxicating liquor to be drunk in, upon, or about the building or premises where sold; and that an indictment for selling intoxicating liquor on Sunday was bad, which did not charge that the sale was of liquor to be drunk in, upon, or about the building or premises.</p> <p>Held, also, that said section io only prohibits sales of intoxicating liquor under a permit granted under said act, or otherwise, during the times therein specified; and that it does not make any sale unlawful which could be lawfully made at any other time without the permit.</p> <p>Same.—Sec. 21 of Act of 1873.—Licenses Under Act of 1859.—Section 21 of said act authorizes the holders of licenses issued under the act of 1859, to continue to sell under such licenses until their expiration, subject, however, to the provisions and penalties of the act of 1873 affecting the holders of permits granted under it.</p> <p>Same.—Quantity Sold.—Under the said act of February 27th, 1873, the offence consists in selling intoxicating liquor to be drunk on the premises (except in cases of sales to certain persons), and the quantity sold is not material, and need not be stated in an indictment to have been of a less quantity than a quart.</p> <p>Same.—Downey, J., and Buskirk, C. J., dissenting, held, that by said tenth section all sales, not by wholesale, within the meaning of the act, on the days and between the times therein mentioned, are prohibited, whether the person selling have a permit or not, and whether the liquor be sold to be drunk at the place where sold or not.</p>

<p>Injunction.—Illegal Tax.—An action will lie to enjoin the collection of taxes assessed without authority of law.</p> <p>'TAX.—Foreign Corporation.—Statute Construed.—The act to provide for a uniform assessment of property, Acts 1872, p. 57, does^ not contain any provision in relation to the manner of assessing the capital stock of foreign corporations.</p> <p>Same.—Stock of Foreign Telegraph Corporation.—The capital stock of a foreign telegraph company owning and operating a line of telegraph in this. State can not be assessed under the provisions of said act.</p>

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

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

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

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

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

<p>Mortgage.—Equity of Redemption Cannot be Sold on Execution Without Foreclosure.—Section 640, 2 G. & H. 297, prohibits the' sale of the equity of redemption on an execution issued on a judgment rendered for the mortgage debt without a foreclosure. Such execution is no authority to sell the mortgaged property. *</p> <p>■Same.—Such prohibition does ijot depend on the indorsement on the execution of a description of the mortgaged premises as directed by said section.</p> <p>Same.—Purpose of Indorsement on Execution.—The indorsement on the execution, directed by the statute, is to give information to the sheriff and to parties who may desire to become purchasers of the lands, and not for the information of parties to the judgment.</p> <p>-SAME.—Purchaser on Execution.—If the purchaser of real estate at a sheriff’s sale, on an execution issued on a judgment rendered for a debt secured by a mortgage on the real estate, knows that the lands sold were mortgaged, to secure the debt for which the judgment was rendered, he cannot claim, in answer to a complaint to set aside such sale and to foreclose the mortgage, that he suffered harm from a failure to indorse on the execution a description .of the mortgaged premises.</p>

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

<p>Parties.—Civil Township and School Township.—A complaint against a township for money alleged to be due for building a school-house should be against the school township, and not against the civil township.</p>

<p>Promissory Note.—Attorney’s Fees.—Reasonable Fees.—Prima facie, Hie amount or rate stipulated for as attorney’s fees in a promissory note is to govern in a suit upon tíre note. Ten per cent, for attorney’s fees on anote for one hundred and eight dollars and fifty cents is not excessive.</p> <p>SAME.—Evidence.—Where a promissory note made a part of a complaint fixes the amount of attorney’s fees at ten per cent., it is the same as if the complaint alleged that a reasonable fee would be ten per cent, on the amount due, and no evidence other than the note is necessary.</p> <p>SAME.—Pleading.—It is not necessaiy, in order to recover attorney’s fees, to allege in such complaint that suit has been instituted on the note, and that such fees are due, nor where the record shows that the suit is brought by an attorney, that counsel has been employed.</p> <p>Same.—Attorney’s fees, when it is agreed in a promissory note to pay them, if suit he instituted thereon, are a part of the damages which a maker of the note stipulates to pay in such event, are incident to the main debt, and cannot be sued for in a separate action after judgment on the note for the amount of the debt, and such, fees may be included in the judgment, with the principal and interest of the note.</p>

<p>Pleading.—Town.—Complaint for Street Improvement.—Demurrer.—The sufficiency of a complaint by a contractor to recover for grading and gravel-ling a street in an incorporated town, in reference to matters occurring prior . to the making of the contract, maybe tested by demurrer.</p> <p>SAME.—Such complaint must show, except where the street improved is “around” the public square, that the improvement was asked by a petition signed by a majority of the property owners; that specifications were prepared showing the kind, quantity, and location of the work to be done; that proposals to do the work were advertised for; that a contract to do the work according to the . specifications was entered into; that the work was done according to the contract; that the amount of the contract price was estimated to the different tracts of ground bordering on the street improved; that the board of trustees required the owners to pay the amount so estimated; and that the owner complained of failed or refused to pay the same within ten days after the date of - such estimate.</p>

<p>Assignment of Error.—An assignment of error entitled of the proper parties-will not be disregarded by the Supreme Court because the word “ defendant” is used instead of the word “ appellant,” when it is apparent that the former is employed to designate the appealing party. Substance should be regarded rather than form.</p> <p>Indictment.—An indictment for an assault and battery with intent to murder is sufficient, if it describes the assault and battery in the language of the statute creating that offence, and charges the felony intended in the language of the statute defining the crime of murder. A specific description of the assault and battery is not necessary.</p> <p>Evidence.—Co-conspirator.—Declaraticms of.—On the trial of A. for an assault and battery with intent to commit murder, evidence having been given tending to prove a conspiracy between A. and B. to commit offences of force and violence, and it having been shown that B. was the active assailant in the assault and battery in question, A. being present aiding and abetting him, evidence was received of prior declarations of B. as to the intended course of conduct of himself and A. which resulted in the offence for which A. was on trial.</p> <p>Held, that the evidence was properly admitted.</p> <p>Principal and Accessory.—A person who is present aiding and abetting in the commission of a felony is a principal, and not an accessory. He is a principal in the second degree, but may be indicted as principal in the first degree, and the indictment will be sustained by proof of his being principal in the second degree.</p>

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

<p>Pleading.—Promissory Note.—Party in Interest.—To an. action upon a promissory note payable in bank, and indorsed by the payee, aparagraphof answer by one of the makers, verified by oath, in which he attempts to plead a set-off or counter-claim, but which is bad for that purpose, if it alleges that the payee wrote his name across the back of the note, but never delivered it to the plaintiff, and that the plaintiff has no right, title, or interest therein, and is not the real party in interest, and that the payee owns and holds the note, is good, as showing that the suit is not being prosecuted by the real party in interest.</p>

<p>PLEADING.—Practice.— Waiver of Reply.—Assuming, but not deciding, that in an action for slander, an answer in mitigation of damages needs a reply, if the defendant goes to trial without a reply, he will be deemed to have waived!! it, and the answer will he deemed to have been controverted as if a reply had. been filed.</p> <p>SAME.—Motion in Arrest.—If a complaint contains one good paragraph, judgment on a general verdict for the plaintiff can not be arrested because there are other paragraphs which are defective, nor can the insufficiency of the bad! paragraphs be assigned as error.</p> <p>SLANDER.—Actionable Words.—The following words were spoken to a married: woman in the presence of a third person: “Liz” (meaningthe plaintiff),, “ you have taken men into your bedroom, when your husband was lying siclc and helpless in his bed, and you would stay with them for hours; I can-, prove it by twenty-five witnesses, if necessary;” and, in the same conversation, addressing the third person, the following words were spoken by the same-speaker : “ She even tried to sleep with a preacher, who came to my house to stay all night;” and, on being asked by the plaintiff by whom he could prove-that, the same speaker said, “ By my old woman, who watched you all night to keep you from getting into the bed with the preacher;” and further, in the-same conversation, to the third person, the same speaker said, “ Why she even attempted to get into bed with Tom ■-.”</p> <p>Held, that, taken as a whole, the inference might be fairly drawn, that it was-intended to charge her with adultery with the men taken into her bedroom,, and the words spoken were actionable.</p> <p>Same.—Question of Fact.—If words spoken, alleged to be slanderous, are capable of two constructions, one of which would he innocent, it is for the jury to determine whether they were used in an innocent sense or otherwise.</p>

<p>HIGHWAY.—Change of Highway ¡y Gravel Road Company.— Vacation of Same..—Where a gravel road company, in pursuance of law, with the consent of the county commissioners, located its road upon a county road, and afterward, hy its board of directors, made a slight change in the line of the road,, - for a distance of less than half a mile, not thereby increasing the distance foe travel more than one-eighth of a mile, if in making Stick change the provisions, of the act of March 9th, 1867 (3 Ind. Stat. 294), were complied with, that part of the road abandoned by the change was thereby vacated. Such change might be made after the gravel road had been ' constructed, as well as before.</p> <p>SAME.—'Where such abandoned portion of the highway ran through the lands of different persons, such abandonment could not operate as a vacation of the highway, although the statute was in other respects complied'with, and all the owners of the land consented to the abandonment.</p> <p>Same.—Legislative Power.—The legislature has power to determine what circumstances shall vacate a public highway, and that upon the occurrence of such circumstances it shall he deemed vacated without judicial determination,</p>

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

<p>'Practice.—Harmless Error.—Though a demurrer to a pleading has been erroneously overruled, if the court on the trial found that the pleading was not true, the ruling cannot be a cause for reversing the judgment.</p> <p>Evidence.—Hearsay.—Representations of Maker to Surety.—Statements or representations made by the principal maker of a promissory note, to one whom he procures to sign the note in blank as surety, in reference to the subsequent signing of the note by a third person as surety, made in the absence and without the authority of such third person, are not admissible in evidence against such third person on a question of suretyship.</p>

<p>Bill of Exceptions.—A bill of exceptions can not be regarded as part of the record where it does not appear from the record that such bill was filed within the proper time as required by statute.</p>

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