Volume 48 — Indiana Reports

<p>Erom the Porter Circuit Court.</p>

<p>PnEADrso.—Answer.—An answer professing to answer the whole cause of action, but which answers only a part, is bad on demurrer.</p> <p>Pause Bepbesentations.—Promise.—Estoppel.—One of several heirs of A. owning an estate in common, in which the widow of A. held a dower interest only, represented to the other heirs that if they and the widow would unite with himself in the sale and conveyance of said estate, he would invest the proceeds of the sale in certain real estate in the name of the widow; the sale and conveyance were made accordingly, and the proceeds were invested by said heir in said real estate, the deed of which was taken by him, generally, “ to the heirs of A.”</p> <p>Held, that the alleged representation by said heir was a promise only as to how he would invest the proceeds of the sale, and was not a statement of a fact of which a false representation could be alleged.</p> <p>Held, also, in an action by a grantee of the widow against said heir, that the latter was not estopped, by said promise to the other heirs, not made to the widow, to claim partition of said real estate as one of the heirs of A.</p> <p>'Same.—-Opinion.—A false and fraudulent representation cannot be alleged of a mere opinion.</p> <p>Estoppeu.—Public Becmd.—Pleading.—An estoppel cannot be pleaded of a false representation of what in its nature is of public record and easily accessible.</p> <p>Pbactice.—Bill of Exceptions.—A bill of exceptions must be filed within the time allowed by the court, or it will not be considered as a part of the record.</p>

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

<p>• Cuimiwai. Law.—Sale of Intoxicating Liquor <m Sunday.—Where a society or club of persons, having a treasurer and other officers, met every Sunday, and each person on becoming a member paid into the treasury a certain sum and monthly assessments thereafter, to- form the basis of a fund to pay expenses and for relief, and the treasurer, by order of the club and for the club, on each Saturday evening purchased a keg of “ lager beer,” an intoxicating liquor, and placed it in the hall where the meetings were held, and on Sunday whenever a member-desired a glass of beer he got it, drank it on the premises, and delivered to the treasurer five cents, which money was placed in the treasury to keep up the funds, to pay expenses, and for relief for sickness and other mishaps to members;</p> <p>Meld, that the delivery of a glass of the beer under such circumstances to a member of tbe club, and receiving five cents tberefor by tbe treasurer, constituted a sale by tbe treasurer, as agent of tbe club, witbin tbe meaning of tbe statute of 1873, prohibiting tbe sale of intoxicating liquor on Sunday.</p> <p>Admission.—Criminal Intent.—An admissior/in an agreed statement of facts that there was no intention of violating tbe law, followed by a further admission that if tbe facts admitted constitute a violation of tbe law, then is tbe defendant guilty, otherwise not, will not release tbe defendant from, liability because of a lack of intention to violate the law.</p>

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

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

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

<p>"Contract.—Statute of Mauds.—A parol agreement, made by one who has purchased the interest of a partner in the partnership property, to pay, as apart of the consideration for the property purchased, one-half of the debts of the old partnership, may be enforced against such purchaser by the holder of a note made by the members of the old firm. Such agreement is not within the statute of frauds.</p>

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

<p>Vendor and Purchaser.—Govmant.—Breach of.—Highway.—Battroad.—A tract of land was conveyed with covenants of title and against incumbrances. At the time of the execution óf the deed, the land was subject to the right of way of a railroad and of a public street.</p> <p>Held, that these were easements on the land, and their existence was a breach of the warranty against incumbrances.</p> <p>Same.—Ineimhrmces.—Notice to Purchaser.—Effect of.—A grantee can recover upon a covenant against incumbrances, although he had full knowledge of the existence of the incumbrance at the time he accepted the covenant.</p>

<p>Descent.—Second or other Subsequent Wife.—Life Estate.—-The proviso in section 24 of the statute of descents (1 G. & H. 295) limits the right of a surviving second or other subsequent wife, tbe husband having no children by her but having children alive by a previous wife, to a life estate only in the third of the lands of the husband.</p> <p>■ Same.—Amendments of 1853.—The amendments made in 1853 (Acts 1853, p. 55) to sections 24 and 25 of the statute of descents must be regarded as in force from the time of their publication until repealed by an act passed March 9th, 1867. (Acts 1867, p. 204.)</p> <p>■Statute.—When Amendment does not Repeal Former Statute.—If an amendment does not change the original law, hut simply adds something to it, the amendatory law will not operate as a repeal of the old law.</p> <p>Same.—When Amendment does Repeal Former Statute.—If an amendment changes the old law in its substantial provisions, it must, by necessary implication, repeal the old law as far as they are in conflict.</p> <p>■Same.—“Where a now law in the form of an amendment or otherwise covers the whole subject-matter of a former one, and is inconsistent with it, and is evidently intended to supersede and take its place, it repeals .the old law by implication.</p> <p>Same.—Statute of Descents.—Amendments of 1853.—The amendments made in 1853 (Acts 1853, p. 55) to sections 24 and 25 of the statute of descents entirely superseded and took the place of the original sections, and by implication repealed them.</p> <p>:Same.—Repeal of Amendatory Act.—When the above amendatory provisions of 1853 were repealed by the act passed March 9th, 1867 (Acts 1867, p. 204), the repeal operated as a revivor of the original sections 24 and 25 of the, ■law of descents.</p> <p>■Same.—Statute Construed.—Section 802, p. 336, and section 2, p. 338, 2 G. <fe. H., do not change the common law rule, that the repeal of a repealing act operates to revive the original act.</p>

<p>Jurisdiction.—Parties.—The heirs of a decedent were, on their own application, admitted as defendants with the administrator, to contest a claim filed against the decedent’s estate.</p> <p>Held, that they could not afterward object to the jurisdiction of the court over them.</p> <p>Decedents’ Estates.—Qtaim.—Affidavit.—The proper court has jurisdiction of a claim against the estate of a decedent although the s ame be not sworn to». The only effect of a failure to attach the statutory affidavit to a claim is, that no costs can be recovered by the claimant. The statute does not require that the affidavit shall allege that no set-off exists against the claim.</p> <p>Bill of Exceptions.—Pleading.—Striking Out.—The rulingof the court below on a motion to strike out a part of a pleading will not be considered on appeal, unless the bill of exceptions clearly defines the matter to which the motion applied.</p> <p>Demubbeb.—It is not error to sustain a demurrer to a paragraph of an answer good in itself, when proof of the matter so pleaded is admissible under other paragraphs of the answer.</p> <p>Contbact.—Parent and Ohild.—Oare and Support of Parent.—Implied Promise. Where a parent resides in the family of a child, there is no implied contract on the part of the parent to x>ay for services rendered, or for board, lodging, or clothing supplied; but a liability may arise from an express contract, or a contract to pay may be inferred from circumstances. The relationship rebuts the presumption which exists in other cases that compensation was intended, and the circumstances must be such as to overcome the presumption which arises from the relationship of the parties.</p>

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

<p>Assignment on Ebeob.—Insufficiency of Complaint.—On appeal to the Supreme Court, it may be assigned as error that the complaint does not state facts sufficient to constitute a cause of action, although no demurrer vas filed to it in the lover court.</p> <p>Eeaud.—Sale of Corporation Slock.—Creditor’s Bid.—Shares of stock in an incorporated company being liable by statute' to levy and sale on execution, a judgment creditor may maintain an action against the judgment defendant and his assignee, to set aside a fraudulent sale of such stock to the latter.</p> <p>Practice.—Motion to Separate.—A motion to separate a complaint into paragraphs should state how the mover thinks it ought to be divided; a general motion to separate is too indefinite.</p> <p>•Same.—Surplusage.—A judgment will not be reversed because of the refusal of the lower court to strike out surplusage in a pleading.</p> <p>Motion.—Presumption.—On motion of a defendant, the attorneys for the plaintiff were ruled to show by what authority they prosecuted the action. In answer to the rule, they filed their affidavit, whereupon the rule was discharged.</p> <p>Held, that, in the absence of the affidavit from the record, it must be presumed that the court below did right.</p> <p>Judgment.—Conclusiveness of.—In a suit by a judgment creditor to set aside a fraudulent sale of property by the debtor, the vendee of the latter cannot call in question the judgment by setting up matters which might have been a defence to the action in which the judgment was rendered. The only question which interests him is, whether the property he has purchased shall be subjected to the payment of the judgment.</p> <p>Deposition.—Notice.—Presumption.—When a motion to suppress a deposition because of the shortness of the notice is overruled, the Supreme Court will presume in favor of the ruling of the court below, where it is not shown that the time between the service of notice and the taking of the deposition was unreasonably brief.</p> <p>•Same.—A party to an action may take the deposition of his adversary, and may read it in evidence on the trial, notwithstanding the party examined may be present at the trial.</p> <p>Same.—Motion to Suppress.—A motion below to suppress parts of certain depositions will not be considered on appeal, when the record shows that a part only of the depositions objected to were read in evidence, and fails to designate what portions were sp read and what were not.</p> <p>Jury Triad.—An action by a judgment creditor to subject property fraudulently sold to the payment of his judgment, which but for such fraud would have been subject to levy on execution, is not a x>roceeding supxilementary to execution, and the xilaintiff is entitled to a jury trial.</p> <p>Practice.—Deposition.—Party Offering Must Bead the Whole.—On the trial, the court permitted the plaintiff, over defendant’s objection, to read the examination in chief of the defendant’s deposition, taken by the plaintiff, without also reading the cross-examination.</p> <p>Held., that this was error; but it appearing that the residue of the deposition was read in evidence by the defendant at a later stage of the trial, the error was cured.</p> <p>Mew Trial.—Certainty Bequired in Motion.—Beasons for a new trial that the court erred in the admission of evidence “ as shown in the bill of exceptions,” and that the court erred in refusing instructions asked “ as shown in the hill of exceptions,” no hill of exceptions having been filed, are too-indefinite.</p>

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

<p>Carrier.—Railroad.—Passenger.—Ejection, of.—-Where all the seats in one of two passenger cars are already filled with passengers, another passenger has no right to demand a seat in that particular car, and to refuse to pay his fare or deliver his ticket unless furnished a seat in such car; and if he refuses, under such circumstances, to deliver his ticket or pay his fare, the persons in charge of the train may rightfully eject him therefrom.</p> <p>Same.—Violence to Conductor.—When a passenger, because not furnished a seat in a railroad car already filled with passengers abused the conductor in a violent manner and with profane language, and struck said conductor in a violent and angry manner, without any excuse whatever, and on account of such misconduct, and his refusal to pay his fare or deliver his</p> <p>ticket, the passenger was ejected from the train;</p> <p>Held, that such ejection was justifiable.</p> <p>Certiorari.—It is contrary to the practice of the Supreme Court to grant a writ of certiorari to amend the record'after the case has been decided.</p> <p>Demurrer.—A judgment will not be reversed because a demurrer has been sustained to a good answer or reply when the general denial is also filed, and the matters alleged in the special pleading are admissible under such denial; but the rule is otherwise where a demurrer has been overruled to an insufficient reply, although a general denial may also be pleaded to the answer.</p>

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

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

<p>•From tbe Clay Circuit Court.</p>

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

<p>New Tbiae.—Newly-Discovered Evidence.—Diligence.—Pleadmg.—A party applying for a new trial on the ground of newly-discovered evidence must show that he used reasonable diligence to discover and produce the evidence at the former trial; and in a complaint, under section 356 of the code, for a new trial for such cause, it is not sufficient to allege that the evidence “ could not have been discovered and produced at the trial by the’ use of reasonable diligence.”</p>

<p>Peactice.—Supreme Court.—Where objection to the complaint because of the’ insufficiency of the facts stated therein is first made in the Supreme Court,, it must be by assignment of error on the transcript, and not by mere suggestion in the brief.</p> <p>Same.—Trial Without Reply.—A defendant waives a reply by going to trial without moving for it.</p> <p>Deaining- Association.—Assessment.—JMibnce.—In an action by a draining association to recover an assessment of benefits accruing to the defendant’s land from the construction of the ditch, evidence that its construction did not benefit his land, but injured it, is inadmissible. The land-owner so aggrieved must seek his remedy by appeal from the assessment, under the statute.</p>

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

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

<p>Cits'.—Street Improvement.—In the advertisement of the letting of the contract for a street improvement in a city, the notice bore date May 13th, 1868 and stated that bids would he received “ up to Monday evening, May 13th, 1868.” An entry in the minute hook of the proceedings of the council stated that the bids were opened on the evening of May 18th, 1868.</p> <p>Meld, on demurrer to the transcript, on appeal from a precept issued for the-collection of an assessment for such improvement, that the notice was not legal, or published for a sufficient length of time.</p> <p>Same.—In such case the description of the property to be sold was as follows: “The west part of the west half of lot number one hundred and twenty-one, in the original plat of the city of Lafayette, bordering on said improvement forty-four feel.”</p> <p>Meld, that this was sufficiently definite.</p> <p>Same.—"Whether the improvement of a street "be a first or second one, it is chargeable to the Adjoining property; and the question whether the improvement remains in good condition, or a new improvement is needed,, isa matter to be determined by the council.</p>

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

<p>Judicial Notice.—Pleading.—In an action brought in Fountain county, against a railroad company, for hilling a cow, the complaint alleged that the place where the animal was killed was “ about two and a half miles east of Covington.”</p> <p>JBeld, on motion in arrest, that the Supreme Court knew judicially that the place so designated is in the county where the action was brought.</p> <p>B att,do ad.—Injury to Animal.—Fence.—Pleading.—In an action, under the statute, against a railroad company, for injury to an animal, the allegation that “ the road was not securely fenced as required by law” is not the statement of a mere conclusion of law, and is a sufficient allegation as to the fencing of the road.</p>

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

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

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

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

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

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

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

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

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

<p>Erom the Dubois Circuit Court.</p>

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

<p>Erom the Washington Common Pleas.</p>

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

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

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

<p>Conoceact.—Work and Labor.—Where one has entered into a special contract to perform work for another and has done the work, but not in the time or manner stipulated by the contract, if the work done is accepted and used by the other party, the latter is answerable to the amount he is benefited, upon an implied promise to pay for the value he has received.</p> <p>■Same.'—Architect’s Certificate.—By the terms of a special building contract, payment for work and materials was to be made only on the presentation of the architect’s certificate of the quality and value of the work done and materials furnished in accordance with the contract; suit was •brought'by the contractor, not on the special contract, but on a quantum meruit.</p> <p>Held, that, to maintain such suit, it was not necessary to procure a certificate-from the architect.</p> <p>Practice.—Objections to Evidence.—Where the admission of evidence is objected to, the objection is unavailable on appeal, unless the record shows the kind of evidence offered and the ground .of the objection to it.</p> <p>Same.—Where the record recites an offer to prove certain facts, which on the objection of the opposing party was refused, it must also be shown with what kind of evidence the proof was offered to be made,- and also what the ground of objection to it was.</p> <p>Verdict.—Answer to Interrogatories.—To justify a judgment on special findings, notwithstanding the general verdict, the former must be inconsistent with the latter on matters material to the issue.</p>

<p>Decedents’ Estates.—Eight of Creditor After Final Settlement.—Liability of Devisee and Heir to Creditor to Extent of Property Deceived.—Pleading.—Under the statute (2 G-. & H. 517, sec. 112), which provides, that “the heirs, devisees, and distributees of a decedent shall be liable to the extent of the property received by them from such decedent’s estate, to any creditor whoso claim remains unpaid,who, six months prior to such final settlement, was insane, an infant, or out of the State; but such suit must be brought within one year after the disability is removed</p> <p>Held, that an allegation that the administrator had fully administered the estate, etc., was not the equivalent of an allegation that a final settlement of the estate had been made.</p> <p>Held, also, that the date of the final settlement should have been stated in the complaint, and that it should have been alleged that during the six months prior to such final settlement the plaintiff was insane, an infant, or out of the State, as the case might be.</p> <p>Held, also, where two-thirds of the real estate of a decedent descended from him to his children, and the widow took one-third (which was not liable to decedent’s debts), and the children died (intestate and without issue), leaving surviving them their mother, the widow, who married the second time and died leaving a child of said second marriage surviving her, to whom from her descended said two-thirds of the real estate, that said child was liable to the creditor of the decedent who was within the statute, to the extent of said two-thirds of said real estate.</p>

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

<p>Mortgage.—Feredomre.—Jurisdiction Where Lands Lie in Different Counties. Where tráete of land situated in different counties are embraced in one mortgage, the court of either county has jurisdiction to foreclose the mortgage and order the sale of the land.</p> <p>Same.—Sheriff’s Sale.—Sale of Mortgaged Lands.—Where tracts of land sit- - uated in different counties are embraced in one mortgage, and ordered to be. sold upon a foreclosure of the mortgage by the court of a county wherein one of the tracts is situated, each tract must be sold at the door ■of the court-house of the county wherein it is situated.</p>

<p>New Tbiae.—A motion for a new trial assigned as a cause, tbat the court erred in allowing testimony to be given to the jury, over the objection of the defendant, “ as shown by the bill of exceptions,” and in refusing to allow the defendant to give testimony, “as shown by bill of exceptions.” No bill of exceptions was then in the record, and none was filed for some time thereafter.</p> <p>JELeld, that there was nothing to point the court to the supposed errors, and the motion was properly overruled.</p> <p>Same.—Instructions to Jury.—To make an exception to an instruction a part of the record, it must appear in a bill of exceptions, or the exception must be noted upon the charge, and be signed by the party or his attorney.</p>

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

<p>Evidence.—Admissions by Former Administrator.—In an action by an administrator de bonis non, to recover tbe value of certain property sold by liis intestate, tlie defendant pleaded payment to a former administrator.</p> <p>Held, that proof of admissions of tie former administrator that payment had been made to him were properly admitted in evidence.</p>

<p>CoüHty Clerk.—Rees.—Extra Allowance,—County commissioners have no authority to make an allowance to the county clerk for extra services, under the act of 1861, 2 G-. & H. 652, to an amount exceeding one hundred dollars per annum; nor for any sum unless the clerk take and subscribe an oath or affirmation to the truth of his statement of charges.</p>

<p>Street.—Dedication of by Town, Flat.—Fee Simple.—By the making and recording of a town plat, under the statutes of this State on that subject, the designation of streets, lanes, and alleys on the plat gives to the public only an easement therein for such use as the public have a right to make of them; hut the fee simple remains in th«.proprietor.</p> <p>Same.—Effect of Gonneyanee of Land Abutting on Street.—A conveyance of land on a highway carries with it the fee to the center of the road, as part and parcel of the grant, unless such inference he expressly excluded; and this rule is applicable when the land conveyed is a lot or part of a lot in a town or city and designated on the plat by its number, or ascertained by its appropriate description, and abutting on a street, lane, or alley. (Pettit, J., dissented.)</p> <p>Same.—Location of Bailroad on Street.—The construction of a railroad track along a street, on which locomotives and trains of cars are used, is a new use or appropriation of the soil and entitles the owner of the fee to an action for damages and to all other remedies provided by law for the protection of rights in real property.</p> <p>Constitutional Law.—Railroad.—Appropriation of Lands for Right of Way. Under the constitution of 1851, the owner of land appropriated by a railroad company can not be required to initiate proceedings, under the statute, for the assessment of damages for such appropriation; it is the duty of the railroad company to have the damages assessed, and to tender the same before taking the land. This necessarily follows from the provision of the constitution, that no man’s property shall be taken by law without just compensation, nor, except in case of the State, without such compensation being first assessed and tendered. ' All decisions of this court asserting a contrary doctrine ar^ overruled.</p> <p>’ Same.—Remedies of Land-Owner.-—If a railroad company enter into possession of the land of an individual for the use of the road, without first having his damages assessed and tendered, the owner may maintain an , action to recover possession of the land; and he may enjoin the use of his land by the railroad company until his damages are assessed and tendered.</p> <p>Injunction.— When it Lies to Prevent Continuance of Injury,—Injunctions, being designed to prevent the doing of acts, are not granted after the actB are done; butwhen there is a continuance of aninjury against which, before the act was committed, an injunction might have been granted, and a right to continue the injury is claimed by the aggressor, an injunction may, in a proper case, be granted to restrain such continuance.</p> <p>.Limitation.—Damages.—The length of time, prior to bringing suit, for which the owner can recover damages against a railroad company for an unauthorized use of his land discussed, but not decided.</p>

<p>■ Criminal Law.—Instructions.—In a criminal action, where there is no evidence, or none upon a particular point, upon which a conviction can he based, the court has a right to say so and direct the jury to find the defendant not guilty.</p> <p>• Same.—Larceny.—Adultery.—An instruction, according to the facts, was correctly given by the court to the jury, on the trial of the defendant on an indictment for larceny, as follows: “ It appearing from all the evidence in the case that the goods were taken by the defendant with the consent of the owner’s wife, under an agreement with her that he was to dispose of the same and account for the proceeds to her, and there being no evidence tending to show that there was any adulterous intercourse, actual or contemplated, between the defendant and said wife, you will return a verdict of not guilty.”</p>

<p>AxiMOrnr.—Judgment.—Oomtnietive Notice.—A personal judgment for alimony rendered against the defendant in a cause where there has been no personal service of summons, but only constructive notice, and no appearance of the defendant in person or by attorney, can not be made the foundation of an action by the party in whose favor it was rendered, or be •filed and used as a claim under an attachment sued out by another person.</p>

<p>Evidence.—Proceeding to Bemove Guardian.—On the trial of a proceeding to remove a guardian for failure to file, within three months after his appointment, an inventory, verified by oath, of the real and personal estate of his ward, the clerk testified that no inventory had been found among the papers, and that it was not his habit to make a record of the, filing of such inventories, but merely to mark them filed.</p> <p>PEeld, on appeal from a judgment of removal of the guardian, that in the absence of evidence showing affirmatively that such inventory had been filed, this sufficiently showed that none had been filed.</p>

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

<p>•Justice’s Court.—Pleading.—It is not necessary that a complaint filed before a -justice of the peace should state the title of the cause, or specify the name of the court or county in which the action is brought. Section 49 of the code, 2G.& H. 69, does not apply to justices’ courts.</p> <p>Verdict.—Correction of.—Horn of.—When a verdict is returned, it.may be corrected in form by direction of the court, in the presence of the court, or the jury may retire for that purpose.</p> <p>Same.—Form of in Peplewn.—A general verdict for the plaintiff in replevin is, in effect, a finding that the ownership and right of possession of the property is in him, where both those questions are in issue; but the verdict should find the amount of damages sustained by the detention of the property.</p> <p>■Jury.—Separation o/.—It is within the discretionary power of the court to permit the jury to separate if they find a verdict during an adjournment, and to instruct them to return a sealed verdict on the reassembling of the court. In such case the jury should be admonished not to converse with, or suffer themselves to be addressed by, any other person on any subject of the trial; but when such permission was given to the jury by consent •of the parties, and no objection was taken to the failure of the court to so admonish them, the objection could not be taken after verdict, where. there was nothing to show that any injury resulted thereby to the complaining party.</p>

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

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

<p>Erom tie Marion Superior Court.</p>

<p>Soudieb’s Bounty.—Statute.—In October, 1864, to avoid an impending draft to fill the quota of soldiers required from White county under a call of the President, the county commissioners made an order for the payment of four hundred dollars to each volunteer accepted and credited on the quota of said county, conditioned that none of the appropriation should be exj>ended unless the entire number required from said county should volunteer and be accepted. The effort to procure a sufficient number of volunteers failed, and a draft took place. A. was drafted, and having furnished a substitute, he sued the county for four hundred dollars.</p> <p>Held, that he could not recover. The county commissioners had the right to name the condition on which they would pay bounties, and their order did not embrace drafted men or substitutes. The act of March 3d, 1865, did not attempt to change the terms of the orders of boards of county commissioners making appropriations,but only gave them validity so far as they had attempted to go.</p>

<p>5Tew Tktaii.—Motion.—That the complaint does not state facts sufficient to constitute a cause of action, is not in any case a reason for granting a new trial.</p> <p>Same.—Uitceriainty mBeasonsfor.—Areasonfor anew trial, “that the court erred in excluding the evidence offered by the defendant, as appears elsewhere in the record,” is too indefinite. The motion should state definitely the causes relied on.</p> <p>Action to Becoveb Beat. Estate.—Evidence.—Blierdff’s Sale.—To make out a title to real estate under a sheriff's sale, the judgment, execution, return, and sheriff’s deed are pertinent and relevant evidence, when other- ■ wise unobjectionable.</p>

<p>Promissoby Note.—Assignment of.—Intervening Rights of Third Persons.— If A. places personal property in the hands of B., as his agent, to sell, and B. sells the property to 0. and wrongfully takes for it a note, not governed by the law merchant, to himself or to D., and the note is assigned by the payee to an innocent assignee for a valuable consideration, in a suit by the assignee of the note against the maker, A. may, on his application, be made a defendant, and may set up by way of answer the facts, stating his rights and interest, and recover on the note so given. Buskibk, 0. J., dissented.</p>

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

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

<p>Contract.—Pleading.—A complaint in the general form for work and labor done is not demurrable because it sets out the manner of the employment and the character of the work done with unnecessary particularity, when the facts stated do not show a special contract, or increase the liability of the defendant beyond such general employment.</p> <p>Assignment on Errors.—To enable the Supreme Court to review questions of evidence, the overruling of a motion for a new trial must be assigned as error.</p>

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

<p>Tubnetke.—Act of 1865.—Injunction.—Where the person appointed, under the fourth section of the act of March 6th, 1865, in relation to the organization of turnpike companies, to estimate the work and audit the amount of each owner’s tax, does not take an oath as required by said section,. the collection of the tax assessed against a land-owner may be enjoined for this reason.</p>

<p>Erom the Warren Circuit Court.</p>

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

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

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

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

<p>Cibcum; Gotjet.—Thirty-third Circuit.—Statute Construed.—Under the act of the General Assembly, approved March 9th, 1875, constituting Whitley and Kosciusko counties the Thirty-third Judicial Circuit, the circuit court of Kosciusko county -was properly in session on March 15th, 1875.</p>

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

<p>Erom the Warren Circuit Court.</p>

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

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

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

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

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

<p>Life Insurance.—Policy.—Consideration.—A policy of life insurance recited the consideration to be a certain sum of money then and there paid, and a like amount to be paid annually, on a designated day, to the insurance company.</p> <p>Held, that the consideration was sufficiently stated. It was not necessary to set out the accruing obligations, if any such were separately given.</p> <p>Same.—Preliminary Declaration.—It is not necessary that the “declaration” of the party in whose favor a policy issues should be made an exhibit to a complaint on such policy. Such declaration is not the foundation of the action.</p> <p>Practice.—Defective Copy.—Amendment.—In a complaint on a policy of insurance, the copy of the policy set out was neither signed nor countersigned, hut it was amended on the trial according to the original policy.</p> <p>Held, that the amendment was properly allowed, and if the copy as filed was fatally defective, the amendment cured the defect and also the error of overruling a demurrer to the complaint.</p> <p>Same.—Striking out Redundant Pleading.—It is not error to strike out a paragraph of answer and an- interrogatory filed therewith, if the matters alleged in such paragraph are admissible in evidence under a remaining paragraph of the answer.</p> <p>’■Same.—Interrogatories.—Interrogatories filed-with an answer should be struck out when not relevant to any issue made by the pleadings.</p> <p>Life Insurance.—Statement of Applicant.—Warranties.—Answers given in an application for life insurance by the party whose life it is sought to insure, touching his past and present condition of health, are warranties, and it is unimportant whether or not the party for whose benefit the policy issues knows such answers to be false.</p> <p>:Same.—Interrogatories to Jury.—Answers to.—The answer of the jury to an interrogatory as to the existence of certain supposed facts was: “ The weight of the evidence justifies the jury in answering no.”</p> <p>Held, that the answer was sufficient.</p> <p>-Same.—The jury was required to answer, whether the party insured by a life policy had not, within a designated period, had a certain disease for which he received medical treatment. The answer was: “ He may have received medical treatment for that disease, but we believe if he did he received treatment for a disease he did not have.”</p> <p>Held, that the answer was equivalent to saying that the jury did not believe that the insured received such treatment for that disease; and that the answer, though informal, was substantially good.</p> <p>Same.—Life Insurance.—Evidence.—Medical Examiner.—Certificate.—The certificate of the physician who examined the party whose life was insured is admissible in evidence, where he acted by the consent of both parties, although he was not the regular examining physician of the insurance company.</p> <p>Agent.—Admissions by.—It is not error to admit in evidence the declarations of the agent of an insurance company against his principal, in reference to the subject-matter in controversy, where there is evidence tending to prove that such declarations were within the scope of his agency.</p> <p>Practice.—Striking out Interrogatories to Jury.—An interrogatory to a - jury may properly be struck out by the court, the answer to which could be a decision only as to a part of the evidence, and which decision either way would not control a general verdict.</p> <p>:Same.—Instructions to Jury.—It is not error to refuse an instruction asked, when the same ground is covered by other instructions given.</p> <p>Appeau.—Supreme Court.—Buie of Eeeisim.—To justify the reversal of a case, it must be clearly wrong in law, or clearly against fact. "When merely doubtful, not contrary to law or fact, it must be held as settled.</p>

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

<p>Kailboad.—Killing Animal.—Pleading.—Fence.—In an action'against a railroad company for the killing of a cow by the defendant, the complaint alleged that the track at the point where said cow entered upon the same and was killed was not “ securely fenced in, and said fence maintained by said company or any other person at its special instance and request.”</p> <p>Held, that the complaint was good. The addition of the words, “ or any other person at its special instance and request,” did not create the implication that the road was fenced in by some person-not at the instance and request of the company, which was a matter of defence to be specially pleaded by the defendant.</p> <p>Held, also, that it was not necessary to allege in such complaint, that the defendant was bound to fence the road at the point where the cow came upon the track and was killed.</p>

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

<p>Erom the Porter Circuit Court.</p>

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

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

<p>Pleading.—Bill of Particulars.—In an action to recover for services rendered to the defendants hy the plaintiff as an attorney, the hill of particulars filed with the complaint was as follows: A. and B. to C. Dr., “ to legal services rendered in the October term of the Tippecanoe Circuit Court, in the case of themselves v.” D. “ and others, to set aside a fraudulent mortgage, two hundred dollars ($200).”</p> <p>Held, that this was a sufficient bill of particulars.</p> <p>Practice.—Appeal.'—Form of Judgment.—No question as to the form of a judgment can be raised for the first time in the Supreme Court.</p>

<p>Pbactice.—Motion, for New Trial.—Instructions.—A motion for a new trial for-alleged error in giving or refusing instructions must point out and identify the instructions given or refused.</p> <p>Same.—Interrogatories to Jury.—It is not error to refuse to submit interrogatories to a jury, when not ashed in the form prescribed by statute, sec. 335, 2 G-. & H. 205.</p>

<p>^Election.—Contest.—The statute, 1G-. & H. 318, requires the contestar of an election to make affidavit to his ground of contest, hut it does not require the contestee to swear to the grounds on which he resists the contest.</p> <p>•Same.—Where an election is contested on the ground that illegal votes were cast for the contestee equal to his declared majority, it is a sufficient answer that illegal votes were given and counted for the contestor, and that the contestee received a majority of the legal votes cast.</p>

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

<p>Cbimutai, Law.—Justice of the Peace.—Pocket.—In acrimina! cause, it is not necessary for a justice of the peace to copy on his docket the affidavit charging the offence.</p> <p>Same.—Constitutional Law.—Title of Statute.—Giving Away Intoxicating Liquor. The offence of giving away intoxicating liquors to minors and to persons in the habit of getting intoxicated, as defined in the act of February 27th, 1873, is properly connected with the subject expressed in the title.</p> <p>Same.—Person in the Habit of Becoming Intoxicated.—A prosecution for giving away intoxicating liquors to a person in the habit of becoming intoxicated cannot be sustained, if the evidence shows that the defendant believed, and had reason to believe, that the person to whom the liquor was given was a sober man and not in the habit of becoming intoxicated.</p>

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

<p>Agreed Statement oe Facts.—New Trial.—Where a case has been prerented to the court below upon an agreed statement of facts, under sec. 386 of the code, 2 G. & II. 222, no motion for a new trial is contemplated or necessary. The facts being agreed upon, there is no question for decision except the law as it arises upon the agreed facts. It is like a demurrer to the evidence or a special verdict.</p> <p>Same.—Exception.—Unless an exception is taken to the decision of the court upon an agreed statement of facts, no question is in the record for the decision of the Supreme Court. The rule appears to he general, that where a party wishes to have a decision of a subordinate court reviewed in this court,, he must except to such decision, at the time it is made, in proper and legal form.</p>

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

<p>'Bill or Exceptions.—Judge.—Presumption.—Sixty days were given to file a bill of exceptions. The official tenure of the judge who tried the cause expired within twenty days. He signed the hill of exceptions, but when did hot appear, although it was filed after the expiration of his term of office.</p> <p>Held, that it should be presumed that he signed the bill before he ceased to be judge.</p> <p>‘Widow.—Descent.—A widow takes real estate as heir of her husband when the latter dies seized, but she takes by virtue of her marital rights, under sec. 27 of the statute of descents, when the husband was seized in fee during the marriage, but died disseized, and she did not join in a conveyance of such real estate.</p> <p>Same.—Dower.—Descent.—Statute of Limitations.—The law in force at the death of the husband, when the inchoate claim of the wife in his real estate becomes consummate, is the measure of her rights. The Revised Statutes of 1852 abolished dower, and gave the widow a fee instead of dower; consequently the widow of a man whose title was divested before 1852, but who died after the revised statutes took effect, could not take a dower estate in such lands; nor could she take one-third in fee as against the husband’s disseizor whose title had become complete by virtue of the statute of limitations before the statute of 1852 took effect. In such case the title of the disseizor was as complete against the wife as if the husband had conveyed before 1852 by a deed in which she did not join; but ordinarily the statute of limitations does not begin to run against the interest of a wife in her husband’s lands until his death.</p> <p>Statute oe Limitations.—Title by.—Twenty years adverse possession of real property not only fears the right of action, hut it also confers as complete a title as a written conveyance.</p> <p>Same.—Tenant in Common.—Adverse Possession.—The possession of one of several tenants in common is in law the possession of all, and the statute of limitations does not run in favor of the tenant in actual possession; but the rule is otherwise when the latter disclaims the tenancy in common and asserts a different claim and an exclusive right.</p>

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

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

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

<p>Eaieeoad,— Waiver.—Vendor and, Purchaser.—Injunction.—When a landowner enters into a written contract with a railroad company to sell and, within a specified time, to convey to such company a strip oí ground for her road bed, and gives possession to the purchaser, who thereupon proceeds to construct her road through such land, the vendor can not enjoin the use and possession thereof by the railroad company, when the latter-is not in default in performing the terms of the contract. By the agreement to sell and convey, the seller waives his constitutional right to-have his damages assessed and tendered before possession can he taken by the railroad company.</p>

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

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

<p>■Negligence.—Contributory Negligence.—JRmkoad.—Cattle Killed in City.— Fence.—It is negligence in the owner of cattle to allow them to run at large in a city, where a railroad is not required to be fenced; and by reason of such contributory negligence, he can not recover for cattle killed by trains of a railroad company at such place, when the company is guilty of negligence only; otherwise, where the cattle are wilfully killed.</p>

<p>¡ÉJbaedian and Wakd.—Final -Settlement.—Collateral Proceedings.—Tbefinal settlement of a guardian, made in tbe proper court, unless revoked, reopened, or appealed from, is conclusive upon tlie parties; it cannot be attacked collaterally in a suit by tbe ward on tbe guardian’s bond, for tbe allowance to a third person of an unjust and fraudulent claim in sucb settlement.</p>

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

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

<p>BEPltEVXtir.—Pleading.—Bailment.—Property in tlie defendant is a good answer in replevin, whether it be an absolute property or the qualified property of a bailee in the thing bailed; and such answer forms an issue without a reply; and a reply may be struck out on motion, or, which is the same in effect, a demurrer thereto may he sustained.</p>

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

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

<p>Peoceedings Sukpuementabv to Execution.—Where Instituted.—Parlies. The statute (2 G. & H. '260, sec. 518) provides for proceedings supplementary to execution against a judgment defendant, in the county where the judgment was rendered in case the defendant is a non-reBident. Proceedings against a person other than the judgment defendant, on the ground that he has property of the judgment defendant or is indebted to him, should be had in the county where they may he also had against the judgment debtor, who is a necessary party thereto.</p>

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

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

<p>Descent.—ERisbandand Wife.— Will of Wife.—Judgment.—Although a husband advise, counsel, and consent to the making of a will by his wife, whereby she devises her separate real estate to her children, to his exclusion, and upon the death of his wife become executor of such will, yet, by virtue of the statute (sec. 22,1 G. & H. 295) at her death one-third of said real estate descends to and vests in him in fee (subject to the debts of the wife contracted before marriage), and at the same time a judgment against him becomes a lien thereon.</p> <p>Practice.—Pleading.—Argumentative.—It is not error to sustain a demurrer to an argumentative pleading, though the better practice is to strike it out on motion.</p> <p>Bankruptcy.—Gommmcement of Proceedings.—Execution.—The filing by a judgment debtor, in the United States District Court, of a petition to be adjudged a bankrupt, is the commencement of proceedings in bankruptcy; and, if such filing is before a levy of execution, the sale upon such levy would be invalid, and no title would pass to the purchaser; if such filing is after a levy, the sale upon the levy would be valid.</p>

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

<p>'Tubnpike.—Failure to Repair.—Criminal Law.—An indictment will not lie against the directors of a turnpike company for a nuisancfe in failing to repair their road by building a new bridge in the place of one that has been swept away by a flood.</p>

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

<p>3?BACTICE.—Pleading.—Demurrer.—Amended. Complaint.—A demurrer filed to a complaint which is afterward amended is not a demurrer to the amended complaint, but goes out of the record with the original pleading.</p> <p>Bna> oe Exceptions.—Becord.—By Whom to he Signed.—Judge.—A bill of exceptions is a record, and the approval and signing thereof is a judicial act, and it is invalid unless signed by a judge who at the time possesses judicial power and who presided at the trial, or by one who succeeds by appointment or election such judge.</p> <p>Same.—A judge cannot sign a bill of exceptions by deputy.</p> <p>Same.—Agreement of Counsel.—A bill of exceptions was prepared by counsel, and opposing counsel wrote thereon and signed a statement that they had examined it, and it was satisfactory to them; and four days afterward the judge of the court who presided at the trial, being absent, telegraphed the clerk to have a certain judge of another court sign the bill for him, which was done accordingly.</p> <p>Meld, that the bill of exceptions was invalid because not signed by said judge-who presided at the trial.</p> <p>Meld, also, that the statement of opposing counsel indorsed on the bill did not waive their right or estop them to move to strike the bill of exceptions from the record.</p>

<p>Bird ov Exceptions.—Evidence.—Although a bill of exceptions states that it contains all the evidence taken in the cause, it will not be deemed to embrace all the evidence when it clearly shows on its face that such is not the fact.</p> <p>New Triad.—-Motion.—A statement, in a motion for a new trial, that the court erred in the improper admission of evidence, is too indefinite to present any question either to the court below or to the Supreme Court.</p> <p>Murder.—Evidence.—On the trial of an indictment for murder, the State gave in evidence the fact of a whispered conversation, two days after the homicide, between the defendant and the widow of the murdered man, she being jointly indicted with the prisoner.</p> <p>Held, that the defendant had a right to testify in his own behalf as to what was said in that conversation.</p>

<p>Promissory Note.—Fraud in Procuring Signature.—Carelessness of Maker.— Bights of Innocent Indorsee.—Where tbe maker of a promissory note, negotiable and payable at a bank in this State, was induced by tbe fraud and ch-cumvention of tbe payee to sign bis name to sueb note when bo honestly supposed and believed that be was executing a paper of an entirely different character, and bad no intention to sign a note ;</p> <p>Meld, that tbe maker was liable to a bona fide endorsee for value, if ho was guilty of negligence in failing to use reasonable care to inform himself of the contents of tbe paper so signed by him.</p> <p>Same.—When a man, who can without difficulty read, executes a negotiable note without reading it, trusting to tbe party to whom it is executed for a statement of its contents, or trusting to tbe reading of it by the latter, there being no substantial reasons shown for not reading it himself, he is guilty of negligence.</p> <p>"Verdict.—Special Findings.—When the special findings of the jury, in answer to interrogatories, are inconsistent with tho general verdict, judgment must be rendered in accordance with the special findings.</p>

<p>Decedents’ Estates.— Witness.—In an action by an executor to foreclose-a mortgage executed to his testator, another mortgagee filed a cross bill alleging that his mortgage was first delivered, though bearing date subsequent to the other, and offered the mortgagor as a witness to prove the-time of the delivery of the respective mortgages.</p> <p>Held, that he was properly excluded. 3 Ind. Stat. 560, sec. 2.</p> <p>Mobtgage.—Delivery of.—A mortgage lakes effect from its delivery, and not from its date, when not then delivered.</p> <p>Same.—Interest of Mortgagor's Wife.—Priority.—Where a husband and wifoexecute several mortgages of the husband’s land, to different persons, and she executes them at different dates, the mortgage she first executes will have priority as to her interest in the land in case she survives the husband..</p>

<p>Descent.—Life Estate.—Second Wife.—A widow, who was a second wife, without a child by hex late husband, who died leaving children alive by a former wife, is entitled to a life estate only in the real estate of such husband.</p> <p>Same.—A widow who is only entitled to a life estate in the lands of her deceased husband, if the lands are sold in proceedings for partition, can have of the x>roceeds only so much as her life interest was worth.</p> <p>Beeading.—Practice.—Cross Complaint.—A plaintiff in a partition suit can not file a cross complaint; and if filed, it should be struck out on motion, hut sustaining a demurrer to it is not error.</p> <p>Descent.—Life Estate.—If a widow, who is only entitled to a life estate in the real estate.of her late husband, in proceedings for partition, has set off to her one-third of the real estate, in value, for life, it is all she is entitled to.</p> <p>Pbactice.—Supreme Court.—Technical Errors.—For technical errors, a judgmeet will not be reversed, if on the examination of the whole case substantial right and justice have been observed and done.</p>

<p>Pkomissory Note.—Matei'idl AUercdion.—Suit on a promissory note, payable in a hank in this State six months after date, or before if made out of the sales of certain machines named, and having a condition annexed thereto that the same was not to ho paid if sales of said machines were not made equal to the amount of the note within the time limited for the payment thereof.</p> <p>Mdd, that if, after signing and delivery, without the knowledge or consent of the maker, the condition was taken from the note, this was a material alteration.</p> <p>'Same.—Liability of Maker.—The fact that such, promissory note was payable at a bank in this State did not make the maker liable upon it, as thus altered, in an action thereon by an indorsee.</p> <p>Same.—Presumption as to Who Made Alteration.—Pleading.—"When an instrument is altered after its execution, it will be presumed, until the contrary is shown, that the alteration was made by the party claiming under it, or by one under whom he claims; and it is not necessary, in an answer setting up that an instrument sued on has been altered, to allege that it was altered by the party claiming under it, or by one under whom he claims.</p> <p>Same.—Burden of Proof.—When the signing and delivery of an instrument sued on are admitted, but it is claimed in answer that it has been altered in a material part, the burden is on the defendant to prove its material alteration.</p> <p>¡Same.—Alteration by Stranger.—Where the alteration is shown to have been made by a stranger to the instrument, and is therefore a mere spoliation, the rights of the iDarti.es under the instrument as it was before the alteration will not be affected thereby.</p> <p>Same.—Questions of Law and Fact.—Whether an alteration is material or not is a question of law for the court. Whether the alteration was made or not, whether by consent or not, and whether fraudulently or not, are questions of fact.</p>

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

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

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

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

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

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

<p>From tlie Warren Circuit Court.</p>

<p>Set-O.E'I’.—A purchaser of personal property, sold with a warranty of soundness, executed his note for the purchase-money to the vendor, and the latter assigned the note. Pending a suit by the assignee, the maker sued the payee lor a breach of his warranty, and recovered judgment. Ho then pleaded the judgment as a set-off.</p> <p>Held, that the judgment was a proper set-off, the note not being negotiable by the law merchant.</p> <p>Waubantx.—Pleading.—It is a good reply to the defence of a breach of warranty pleaded to a suit upon a promissory note given for personal property, that a judgment has been recovered by the maker of the note for the damages sustained by such breach of warranty.</p>

<p>■ CeimutaIj Law.—Practice.—Motion to Quash.—A motion to quash an indictment can not he regularly made after pleading to the same.</p> <p>..Same.—Indictment.—Where the defendant is named in the caption as James A. Smith, and first in the body of the indictment as James Smith, and afterward in the body of the indictment he is referred to as the said James A. Smith, the difference in the name will create no uncertainty.</p> <p>. Same.—An indictment for murder, charging that the defendant, by means stated, inflicted “ a mortal injury, to wit, a fracture three inches long, on the head of ” A., “of which said mortal injury, or fracture, the said ” A. “then and there died,” sufficiently showed what caused the death of the deceased.</p> <p>'Same.—Description of Mortal Wound.—An indictment for murder, describing the mortal wounds in the following words: ‘“giving him, the said ” A., “ in and upon the head of him, the said ” A., “ divers and sundry mortal wounds.and injuries, which are too numerous to he more particularly described by said grand jury in this indictment, of which wounds and injuries the said ” A. “ then and there died,” was sufficient.</p> <p>• Same,—Practice.—Objection to Evidence.—Where the ground of an objection to the admission of evidence on the trial of a criminal causéis not stated or pointed out to the court below, the Supreme Court will .not examine the question of its admissibility.</p> <p>'Same.—Instruction to Jury.—Alibi.—On the trial of a criminal cause, where evidence has been introduced tending to show that the defendant was at a place other than the place where the crime was committed, at the time of its commission, hut where the exact time of the commission of the crime is not shown, but it is shown to have been committed during a night, or a part of a night, it is right to instruct the jury that evidence of an alibi must cover the whole of such time.</p> <p>*</p> <p>Same.—It is error in such case to instruct the" jury that they are to determine-whether it -was actually and physically impossiblefor the accused to-have been at the place where the crime was committed, and also at the place indicated by the evidence in support of the alibi.</p>

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

<p>Duress.— Witness.—Turnpike.—Claim against a decedent’s estate on a note executed by the decedent to a county treasurer and by him assigned to the plaintiff, a turnpike company. Answer, that it was given for the amount of an assessment on the maker’s land in favor of said company, on the tax duplicate; that the treasurer was threatening and about to levy on and sell the property of the maker to pay such assessment, which was illegal because of failure to assess all lands liable under the statute; and that, the note was given to prevent such levy and sale.</p> <p>Held, that the answer was sufficient.</p> <p>Held, also, that said treasurer was not a competent witness.</p> <p>Demurrer.-—A joint demurrer to several paragraphs of an answer must be overruled as to all the paragraphs, if either be good.</p>

<p>Pleading.—Written Instrument.—A plea of former adjudication is not a pleading founded on a written instrument.</p> <p>Same.—Answer to Part of Complaint.—An answer pleaded in bar of the whole action, but which is not good as to one paragraph of the complaint, is bad.</p> <p>Same.—Set-Off.—A debt cannot be set off against a tort.</p> <p>Same.—Practice.—Where a reply of general denial is filed, a special reply only setting up matters that may be given in evidence under the general denial should be struck out.</p>

<p>'Damages.—Inj-wry to Reputation.—Action for Personal Injury.—l’n an action by a husband and wife for a personal injury to the wife, it is error to instruct the jury that they may give damages to the plaintiffs for injury to the reputation of the wife.</p>

<p>"Wikl.—Attesting Witnesses.—Bequest of Testator to Witnesses.—The witnesses to a will must attest and subscribe the will in the presence of the testator' and at his request. It is not imperative, however, that the request should proceed directly and immediately from the testator himself. If the testator requests a person to prepare his will, informing him that he desires to make his will, and the will is prepared for execution in compliance with such request, and when ready for execution, the person who prepared the will calls upon persons present, in the presence and hearing of the testator, to attest and subscribe it, and in the presence of the testator, and with his knowledge, and without objection, they attest and subscribe it as attesting witnesses, it is, in contemplation of law, attested and subscribed by the request of the testator.</p> <p>ÍUSTRirOTioir.—Lorn Arising from Facts.—In instructing a jury, the court may inform them of the law arising on certain facts, if such facts are found from the evidence. It may also, without assuming that certain facts have been proved, allude to them to illustrate a principle or rule of law.</p> <p>Same.—Contest of WiU.—In a proceeding contesting a will on three grounds, unsoundness of mind, informality in execution, and undue influence, this court would not presume that the jury were misled by an instruction in reference to unsoundness of mind, and containing no reference to the other causes, informing the jury that they might take into consideration declarations made by the testator prior to the execution of the will, in regard to-the disposition he intended to make of his property, though the court did not expressly exclude the application of that part of the instruction to the other causes of contest.</p> <p>"Wi-KL.—Mental Capacity of Testator.—The law does not undertake to measure a person’s intellect, and define the exact quantity of mind and memory a testator must possess to authorize him to make a valid will, yet it does require him to possess mind to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment toward him, their capacity and necessity, and that he shall have sufficient active memory to retain all these facts in his mind long enough to have Ms will prepared and executed; and" even if tMs amount of mental capacity is somewhat obscured or clouded, still the will may he sustained.</p> <p>Same.—Instruction to Jury.—It is not error for a court to say to the jury that a large majority of wills are made when the testator is on his death-bed, and when the mind and body are more or less affected by disease and suffering, if the jury are, in addition, correctly instructed as to the mental capacity necessary to make a valid will.</p> <p>Same.— Undue Influence.—Influences that may be legitimately used to induce a person to make a will must be fair and reasonable.</p> <p>Same.—The undue influence that will invalidate a will may be accomplished by persuasions, importunities, force, threats, or coercion, of such character and degree that they can not be resisted.</p> <p>Same.—Legal Presumption.-—No legal presumption of undue influence arises from the fact that the testator was on his death-bed, and surrounded by certain ones of his children who are principally benefited by the will, wMlethe plaintiff contesting the will, also a child of the testator, was absent.</p> <p>IiTSEEtlTCTioir.—Harmless Error.—In an action to contest a will, where hut one medical witness, not personally acquainted with the testator, was examined as an expert, and was called by, and testified strongly in favor of, the defendants, the plaintiff was not injured by an instruction that such evidence was of little value.</p>

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

<p>PEEADiüro.—Instrument in Writing.—Exhibit. — Execution.—An execution need not be made an exhibit of a complaint to enjoin a sale by the sheriff of property levied on under the execution.</p> <p>Same.—Injunction.—Color of Might.—A complaint by A. to enjoin the sheriff from selling property alleged to be held in trust by B., on execution against B., should, by averments, set forth the judgment and execution under which the alleged sale is about to be made, with sufficient particularity to give color of right in the sheriff to make the levy and sale, and should sufficiently show color of right to the property in the person alleged to be such trustee.</p>

<p>Erom the Porter Circuit Court.</p>

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

<p>Pleading.—Complaint.—Prayer.—Damages Claimed.—It is not necessary to ■ state the amount of damages claimed at the conclusion of each paragraph of a complaint; it is sufficient to state the amount demanded at the conclusion of the complaint.</p> <p>Same.—Common Count for Money Received.—Demand.—A common count for money received, etc., alleging the amount and day on which it was received, is good without a hill of particulars or an allegation of demand.</p> <p>CoNTBACT.—Construction.—Ordinary Signification of Words.—A court must ascertain the ordinary signification of words in a written contract, without tho aid of witnesses.</p> <p>Custom.—Coextensive with State.—No particular custom, unless it is coextensive with the State, should be allowed to affect a general law.</p> <p>Same.—When Parol Evidence of Custom not Admissible.—When a written contract is expressed in plain and common words, and the subject-matter is familiar in the business of life, parol evidence of a local custom is inadmissible to change, modify, or aid in its construction.</p>

<p>CnmiNAii Law.—Indictment for Murder.—Conviction of Lower Orada of Crime, New Trial.—A person indicted for murder in tho first degree, on the trial, was found guilty of murder in the second degree, tho judgment was reversed on appeal by the defendant, the cause was again tried, resulting in a verdict of guilty of manslaughter, and the defendant again, at his request, was granted a new trial.</p> <p>Held, that ho took the new trial as to the whole cause, and might bo tided again for the higher grades of the crime, of which he was not convicted, as well as for tho lower grades, of which he was convicted.</p> <p>Same.—Practice.—Reversal of Judgment.—Tho reversal of a judgment in a criminal cause which results in a new trial has the samo effect as the granting of a now trial, on the application of the defendant, by the court below.</p> <p>Same.—Under sections 140 and 141 of tho criminal code (2 G. & EL 423), the granting of a new trial in a criminal cause places the parties in the same position as if no trial had ever been had.</p>

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

<p>Pleading.—Marriage Contract.—Breach of.—Complaint.—In an action for breach of a marriage contract, the complaint must allege that the promise was mutual; and the allegation that “ the defendant entered into a contract with her, * * by which it was agreed by and between them both that they would get married,’’etc., though not in the usual form, is sufficient.</p> <p>■Same.—Parlies.—Names of.—Where the names of the plaintiff and defendant were given in full in the caption and commencement of the complaint, but in a paragraph of the complaint the plaintiff was identified as “she” and “her,” without reference to the caption;</p> <p>Held, that the parties were sufficiently referred to and identified.</p> <p>Evidence.—Marriage Contract.—Action for Breach of.—Damages.—Seduction.— Evidence of seduction in an action for breach of a marriage contract, where the complaint contains no allegation of seduction, is inadmissible to enhance the damages.</p> <p>.Same.—Declarations and Distress of Plaintiff.—In an action for broach of a marriage contract, evidence of the declarations made by the plaintiff, while receiving the defendant’s visits, and the distress manifested by the plaintiff on hearing of the defendant’s intention not to marry her, in the absence of the defendant, are inadmissible to show the existence of the contract on the part of the defendant, and are also inadmissible to prove a promise on the part of the plaintiff, when made and manifested to persons in no way related to or interested in the plaintiff.</p> <p>;Same.—In an action for breach of a marriage contract, declarations or acts of the plaintiff so equivocal that they might mean one thing as well as another should not be allowed to go to the jury as tending to show a promise.</p>

<p>Cits’.—Taxation.—Stock in National Bank.—By the act of March. 4th, 1873 (Acts 1873, p. 214), a tax may be levied by an incorporated city on the shares of stock in a bank organized under the national banking law of the United States, held by any person on the 1st day of April, 1873, as well as subsequent years, at the same rate as on real and other personal property within the city, though there are still in existence branches of the Bank of the State of Indiana, the shares of stock in which are not subject to municipal taxation.</p> <p>Same.—The validity of such a tax is not impaired by the fact that the money paid for such stock may have'been-taxed for municipal purposes, to the same person, as money on hand on the 1st day of January.</p> <p>Constitutional Law.—Municipal Taxation.—Section 1 of article 10 of the constitution of Indiana ha,s no reference to municipal taxation.</p>

<p>Bubden op Issue.—Eight to Open and Close.—Where a suit is upon a note providing for reasonable attorneys’ fees, and there is a defence of set-off, payment, etc., an admission by the defendant that a certain sum would he a reasonable attorneys’ fee, if the plaintiff should recover the amount of the note, will not dispense with proof, if the plaintiff should be found entitled to recover a part only of the amount of the note; and hence the plaintiff is entitled to open and close.</p> <p>'Cohtbact.—Question of Fact.-—Evidence.—Where the tenant in possession of a farm worked out a gravel road assessment against the farm, and claimed the amount of the same, by agreement with the plaintiff, as a credit on a note given for the rent, and the evidence tended to show such agreement, the whole question of fact, as to the making of such agreement, should be left to the jury; and in such case a receipt given by the gravel road company in full of such assessment, on account of work done by the defendant, is competent evidence for the defendant.</p>

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

<p>Executob and Administbatob.—Partial Settlements.—Fraud.—Mistake.— Partial settlements of estates by executors and administrators, made to and approved by the court, are only prima faeie correct, and on final settlement may so far be ojiened up as to correct frauds or mistakes therein, though not excepted to at the time or appealed from.</p> <p>Same.—Appeal.—There is no statute authorizing an appeal from a partial settlement of an executor or administrator.</p> <p>Will.-—Bequest to a Class.—A bequest to a class includes all in existence at the death of the testator, unless by the will it appears that a more limited application was intended, and all who are embraced in the class at the time the bequest takes effect.</p> <p>Same.—Legacies.—Besiduary Legatees.— When Estate Vests.—Where the bequest of what remained of the estate, after paying expenses of administration and also certain legacies which were payable when the legatees named became twenty-one years of age, was to the children of certain sons of the testator that might be at the time living;</p> <p>Meld, that when the legacy payable last was due, the residuary legatees became entitle’d, and at that time the individual children only then living of said sons of the testator, whenever born, and no others, were entitled to share.</p> <p>Same.-—Purchase of Legacy by Executor.—Trustee.—The fiduciary character of an executor or administrator extends to all the legatees, and he cannot purchase the legacy of any of them for his benefit or the benefit of the other legatees; and any conveyance of, or receipt for, a legacy he may take for less than its value is void as to such difference, which he holds as trustee for the legatee.</p> <p>Same.—Evidence.— Witness.—Under the statute pro vidingthat “in all suits where an executor, administrator or guardian is a party in a case where a judgment may be rendered either for or against the estate represented by such executor,” etc., “ neither party shall be allowed to testify,” etc., an executor who has been allowed credit in his partial settlements for payment of a note made by himself, and a note made by himself, the deceased, and another, is not a competent-witness, upon the trial of an exception to said allowance, to testify as to the origin and nature of the claims as debts of the decedent and as to statements in reference thereto made to him by his testator.</p> <p>Pleading.—Behearing.—Pursuant to rule 24 of the Supreme Court, which prescribes, that “ rehearing must be applied for by petition in writing, setting forth the causes for which the judgment is supposed to be erroneous,” the errors supposed to have been committed in the decision must be pointed out particularly.</p>

<p>Common Carrier.—Beshipmnt of Freight.—A common carrier who undertook to transport freight by steamer to a designated point, but terminated his voyage at an intermediate port, and reshipped such freight on the steamer of another carrier, was liable to the owner for its loss, where the second carrier could not find the consignee at the place where the freight was to be delivered, and, because there was no safe place of storage there, returned it to the port where the reshipment was made, and there stored it in a proper warehouse, which, with the freight, was soon after accidentally destroyed by lire.</p> <p>Same.—Duty of in Case of Inability to Deliver Freight.—When a delivery can. not be made at the point of destination, such prudent care of the goods and their diligent and safe delivery, with notice to the consignee or owner, as best comports with the interests of the owner, according to the circumstances, will excuse the carrier; but it devolves on the carrier to. allege and prove such matter of excuse.</p>

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