Volume 49 — Indiana Reports

<p>Uonstitutionaii Law.—Legislative Power.—Approprwiwn, of Aid, by Counties and Townships, to Construction of Railroads.—The statute authorizing aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies (3 Ind. Stat. 389) is constitutional. Biddee, J., dissented, on the grounds, 1. That the taking effect of the law is made to depend on a majority of the local vote of a county or township; 2. That the act is local and special; 3. That the act takes the private property of the citizen against his consent, without the consent of Ms representative, and without compensation; 4. That the tax authorized by the act is not equal and uniform; 5. That the State can not tax particular localities to build a railroad owned as private property.</p> <p>Appropriation op Aid to Construction op Baidroad.—Petition for.— Order of Board of Commissioners for Vote on.—Where Expended.—Mode of Need not be Stated.—Construction of Railroad.—Tax.—Upon the petition of freeholders of a township to the board of county commissioners, setting forth that a certain railroad company was duly organized, that the line of the railroad of the company ran through the township, and the construction of the railroad would be of great benefit to the township, and praying an appropriation of a certain sum of money, not exceeding two per cent, of the taxable property of the township, to aid in the construction of the railroad, the said board ordered an election for the purpose of taking the votes of the legal voters of the township upon the subject of appropriating said sum by said township to aid in the construction of said railroad; and, upon the election, so ordered, resulting in favor of the appropriation, the board, at the session at which it determined the amount to be charged for county purposes for the year 1873, ordered that a tax be levied, of a certain per cent., to be collected on all the taxable property of the township, in all respects as other taxes are collected for state and county purposes.</p> <p>Held, that the intention being manifest to raise the money before the subscription or donation should be made, the action of the board was not in violation of sec. 6, article 10, of the constitution, prohibiting subscriptions unless the same be paid for at the time.</p> <p>Held, also, that it sufficiently appeared by the petition that the aid was to be given for the construction of the railroad in that township. Query, whether money given by a township in aid of the construction of a railroad must be expended upon that part of the road lying in that township.</p> <p>Held, also, that, although the road was already constructed through the township and the cars were running thereon, if the road was not thoroughly ballasted, and it did not appear that the full amount of aid proposed was not required to complete the road through the township, the question was not raised whether or not the aid was authorized for the construction of the road in the township.</p> <p>Held, also, that the prayer of the petition was in conformity with the statute requiring the vote “ to be taken upon the subject of appropriating money by such county or by such township for the purpose of aiding in the construction of such railroad as prayed for in said petition;” and that the mode of the appropriation of the money, by subscription or by donation, need not be specified in the petition or the order of the board, or be submitted to the vote.</p> <p>Held, also, that the intention was sufficiently expressed to levy the tax for the year 1873.</p> <p>Siite.—Payment of Amount of Tax to Company After it has been Enjoined.—Where the collection of a tax levied in a township in aid of the construction of a railroad had been enjoined, some of the persons taxed having voluntarily paid to the railroad company the amount assessed against them, and taken from the company stipulations that they should be released from an equal amount that might thereafter be levied against them;</p> <p>Held, that a tax thereafter levied upon new proceedings was not thereby vitiated as against persons who did not so pay to the company; and that the company had no legal right to the money thus paid, as the stock had not been subscribed for or the donation made.</p>

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

<p>Pleading.—Muniment of Title.—Where a defendant in a partition proceeding pleads by special answer a title derived through an executor’s sale, and alleges a will which forms a muniment of his title, the terms of the will and of the order of the court, directing the sale of lands by the executor, should be so stated in the answer as to enable the court to determine their legal effect, or copies of them should be filed with the answer.</p> <p>Will.— Widow.—Election by.—Under the statute of this State (1 G. &H. 299, sec. 41), if a provision made by will for the widow of the testator is declared to be in lieu of her right in her husband’s lands, she must elect whether she will take under the will. If the will makes provision for her in lands or money, or anything else, and it is not expressed to bo in lieu of her right in the lands of her husband, and it does not clearly appear by the will to have been the intention of the testator that she should have both, she must in such case elect whether she will take under the will.</p>

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

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

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

<p>'JPbomissoby Note.—Signing Blank—Notice of Non-Payment.—For the accommodation of A., B. signed his name with A. on the face of a promissory note payable in bank, a blank being left for the name of the payee. A. stated to B. that he expected to discount the note at the bank where payable, and that the names of the bankers could be inserted at the bank; but no restriction was imposed by B. as to the person to whom the note should be made payable. The note was not discounted by the bank, but was negotiated by A. to 0., and the name of 0. was inserted by A. as the payee.</p> <p>JEéld, that B. was liable on the note to 0.</p> <p>-Held, also, that as B. was a maker, and not an indorser, he waB not entitled to notice of non-payment.</p>

<p>Ofho&—County Treasurer.—Appointment.—Where a county treasurer, whose term would have expired on the 26th day of August, 1875, vacated his office on the 4th day of September, 1874, a person appointed treasurer on the same day could only hold the office until his successor was elected and qualified, and he was properly required to deliver the office to a person elected treasurer at the regular October election in 1874.</p>

<p>Oui’icxAn Boítd.—County Treasurer.—Relatw.—Practice.—Complaint on the . official bond of a county treasurer, on the relation of a township, alleging-as breaches, that the principal in the bond, while treasurer, received and had in his hands certain funds belonging to the relator, and that after he ceased to be treasurer orders were issued therefor, in favor of the trustee of the relator, upon the treasurer of the county, which the defendant refused to pay, and that he has refused to pay the amounts of the orders to ilia successor in office, and has converted the same to his own use.</p> <p>Held, that, on ceasing to be county treasurer, it was his duty to pay all the-public money in his hands to his successor in office, and he could not legally pay the same out on warrants thereafter drawn on the treasurer.</p> <p>Held, also" (Pettit, J., dissenting), that the suit should have been brought, on the relation of the county auditor, instead of the township.</p> <p>Kelatob.—Amendment.—A judgment in the name of a wrong relator cannot be affirmed on the ground that the complaint might have been amended by inserting the name of a new relator.</p>

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

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

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

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

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

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

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

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

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

<p>Town.—Trustees, how Elected.—A trustee must be elected for each district of an incorporated town, but each must be elected by the voters of the whole town, at one poll, or place of voting, and the preceding board of trustees, or a majority of them, must act as the inspectors at the election, and the certificates of election must be signed by the trustees present at the election who have acted as inspectors.</p> <p>'Same.—Tax.—A tax levied by the trustees of a town, to be valid, must be levied by a legally constituted board of trustees, upon property liable to be taxed, and those acting as trustees must each reside in his proper district, and be legally qualified; and the necessary forms in assessing the property, levying the tax, and placing it on the duplicate, must be complied with.</p> <p>Same.—Defects Cured.—The act approved March 9th, 1875 (Acts 1875, Bog. Ses., p. 153), cured the irregularities in the election of trustees and in the levy of the taxes complained of in this case. „</p>

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

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

<p>Partnership.—Judgment Against One Partner.—Suit Against the Others.— The recovery of a judgment against one partner bars an action against the other partners upon the same cause of action.</p> <p>Same.—Exeevlion of Note by One Partner.—The execution of a note by one of several joint debtors does not operate as a satisfaction of the original debt, in the absence of an express agreement that it shall be received in full satisfaction.</p> <p>Practice.—Appeal from Justice’s Court—Pleading in Appellate Court.—Where an action commenced before a justice of the peace is taken by appeal to a higher court, the defendant is not injured, nor will a judgment be reversed, by reason of the court’s sustaining a demurrer to good paragraphs of an answer, if the matters set up in the answers are provable under the general issue.</p> <p>Deposition.—Motion to Suppress Deposition.—A motion to suppress a deposition, because the names of the parties are not properly indorsed on the envelope,- cannot be made after the publication of the deposition.</p> <p>Same.—Where a party appears at the time and place given in a notice to take depositions, and consents that they may he taken at another place, he cannot afterward object that they were not taken at the place named in the notice.</p> <p>Same.—If a deposition shows that the taking was adjourned from day to day, without assigning any cause, where the notice provided for adjournments, a party who appeared at each adjournment without objection cannot afterward object.</p> <p>Same.—Parties are not injured by, nor can they complain of, questions and answers in a deposition that tend to sustain their theory of the case.</p> <p>Evidence.—Secret Partner.—In an action against partners, two of whom are alleged to be dormant, for goods sold to them, it is competent for the plaintiff to testify whether he was informed of the existence of the secret partners, and if so, when and how he received the information.</p> <p>Same.—A witness may be asked to describe a note, for the purpose of iden« tifying it, and such question will not call for the contents of the note.</p> <p>Same.—Where a letter is written, in the name of partners, by one employed, to act for them, it is competent for them to show by whom and under what circumstances it was written.</p>

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

<p>Supeeioe Couet.—Assignment of Error.—The Supreme Court cannot, on an appeal from a superior court, review any question which has not been raised by the assignment of errors in the general term of the lower court on the rulings at the special term.</p>

<p>Pleading.—Complaint to Subject Beal JSstate to SatisfaMwn of Judgment.—A complaint to set aside a credit entered on a judgment by reason of a sale of property on execution, which, was not the property of the judgment debtor, and to subject certain real estate to the satisfaction of the judgment, is good, though the plaintiff may not be entitled to have the credit set aside, if it shows that there is-still an amount due on the judgment over and above the credit.</p> <p>Pbacticb.—Supreme Court.—It is not the duty of the Supreme Court to examine a record in search of errors that are not pointed out.</p>

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

<p>Pleading.—Answer to Part of Complaint.—An answer pleaded to the whole complaint, hut which docsnot answer all the paragraphs of the complaint, is bad.</p> <p>Practice.—Special Finding.—Replevin.—A special finding in these words: “We, the jury, find that the plaintiff had a right to' replevy the mill,” amounts to no more than a conclusion of law, which the jury could not decide, and will not authorize a judgment for the possession of the property.</p> <p>Evidence.—Married Woman.—Chattel Mortgage.—A chattel mortgage alleged to have been made by a married woman and her husband, which is set out as an exhibit in a complaint for its foreclosure, and which is not denied under oath, may be read in evidence against the wife, without its execution having been proved.</p> <p>Same.—Mortgage of Real Estate.—So also may a mortgage made by ahusband and wife upon the real estate of the husband be read in evidence against the wife, under like circumstances, without proving its execution.</p> <p>Payment.—Commercial Paper Made by One for Debt of Himself and Others.— A party liable with others, on a promissory note, who, after default in payment, paid the original note by his own negotiable paper governed by the law merchant, may, before the payment of his note, sustain an action against the other parties to the original note for money .paid, etc.</p> <p>Practice.—Misjoinder.—A claim for the delivery of personal property ought not to be joined with a paragraph for money paid, but a judgment cannot be reversed for such misjoinder.</p> <p>Same.—Where no demurrer is filed to such complaint, but issues axe formed on each paragraph, and trial had, each should be governed by the rule» of law peculiar to itself; and where error intervenes under either paragraph and not under the other, the judgment, when it is capable of separation, should be affirmed in part and reversed in part.</p>

<p>Pbeaeqíg.—Departure.—A departure in pleading is when a party quits or departs from the case or defence which he has first made and has recourse to another.</p> <p>Same.—Where to a, complaint upon a promissory note an answer is filed setting up a failure of consideration, a reply that there had been differences in reference to the consideration, but that they had been compromised and settled, by the defendant agreeing to pay, and the plaintiff to receive, a certain sum, less than the face of the note, is not a departure. New Tbiab.—Motion.—Insufficient Complaint.—A defect in the facts of a complaint does not constitute a reason for a new trial.</p>

<p>Adjukistbatob as Mortgagee.—Duties and Disabilities of.—Widow.—An administrator, holding a mortgage on the lands of his decedent, foreclosed his mortgage and purchased the lands at sheriff’s sale, pending his petition in the proper court to sell all but the -widow’s interest in said lands to pay the debts of the estate, there being no other liens against the lands, and the personal estate, with the two-thirds of the lands, being ample to pay all the debts.</p> <p>Meld, that the widow could avoid the sale.</p> <p>Administration-.—The personal estate of a decedent is the primary fund for the payment of debts, unless a different provision be made by the will of the decedent.</p> <p>Same.—Widow's Bights.—A widow who joined with her husband in his lifetime in a mortgage of his lands has a right to have the personal estate and the residue of the decedent’s real estate applied, as far as applicable, to ■ the payment of the mortgage debt, before her interest, as widow, in such lands is subjected to sale.</p>

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

<p>Crimin'AX. Law.—Forgery.—Intent to Defraud.—On the trial of a defendant on an indictment for forgery, the intent to defraud may he inferred from the facts and circumstances proved in the cause.</p> <p>Same.—Evidence.—Part of Conversation.—On the trial of a criminal cause, where a conversation, part of which is admissible in evidence, contains admissions tending to show that the defendant was charged with, or was guilty of, a similar offence before, the whole conversation may be given if it cannot be separated, but the jury should be instructed that the admissions should not be considered for any purpose connected with the guilt or innocence of the defendant, or the extent of punishment, if found guilty.</p> <p>Same.—Character of Accused.—The law invests every person accused of crime with a presumption in favor of good character, and the State cannot offer evidence to impeach such character until the accused has put his general character in issue, by offering evidence in support of it.</p> <p>Same.—Impeachment of Witness.—In a criminal cause, a witness cannot be impeached or sustained by proof of general moral character.</p> <p>Same.—Argument of Counsel.—Where a defendant in a criminal cause has not produced any evidence to sustain his general reputation and moral character, it is improper for counsel to argue to the jury that his failure to do so may be considered against him.</p> <p>Same.—Practice.—Bid of Exceptions.—In a criminal cause, where a bill of exceptions is signed and filed during the term, and it shows that the exceptions were taken at the time of the ruling, and that time was given “until now ” to file the bill, it will he properly in the record.</p>

<p>Practice.—Demurrer.—Supreme Court.—The Supreme Court will not reverse a judgment for sustaining a demurrer to a good paragraph of a complaint when all the evidence admissible thereunder might have been introduced under a remaining paragraph of the complaint.</p> <p>Same.—Exception.—Where the record does not show an exception to the ' overruling of a demurrer, no question on such ruling can be presented to the Supreme Court.</p> <p>Same.—Striking out Pleading.—Bill of Exceptions.—A pleading struck out by order of the court cannot be made a part of the record, except by a bill of exceptions.</p> <p>Same.—Special Finding Without Bequest.—A special finding of facts by the court with conclusions of law upon them, made without request of one of the parties, must be regarded merely as a general finding.</p>

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

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

<p>Feaud.—Pleading.—Presumption.—An answer alleging that certain notes and a mortgage sued on were obtained by false and fraudulent representations in reference to the title of real estate for which they were given, but containing no averment of failure of title, is bad. In the absence of any averment to the contrary, the title will be presumed to be good.</p> <p>Hleading.-—Tide.—Promissory Note.—In a suit upon a promissory note given for the purchase-money of land, an answer setting up a failure of title, without showing breach of covenant or fraud, is bad on demurrer.</p> <p>Same.—Filing Copy.—In pleading failure of title in an action on a promissory note given for real estate, where no fraud is pleaded, a copy of the deed • must be filed with the answer.</p> <p>Same.—Possession.—Where a deed of conveyance of real estate has been made and accepted, and possession taken under it, want of title will not enable the purchaser to resist payment óf the purchase-money, or to recover more than nominal damages on his covenants, while he retains the deed and possession, and has been subjected to no expense or inconvenience on account of defect of title.</p> <p>Damages.—Nominal.—A judgment will not be reversed for failure to assess nominal damages.</p> <p>■Pbactice.—Form of Pearee.—Waiver.—An objection to the form of a decree cannot be made for the first time in the Supreme Court.</p>

<p>Judgment.—Relief from.—By section 99 of the code of practice, as amended by the act of March 4th, 1867, it is made the imperative duty of tho court, where application is made within the statutory period, to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect.</p> <p>Same.—An action was dismissed on call, because of the absence of the plaintiff and his attorney. It was afterward shown that the attorney had been misinformed as to tho time the cause was set for trial, and was therefore absent, and that the failure of the plaintiff and his witnesses to be present was caused by a delay of several hours of a railroad train, on which he depended for conveyance to the place where the court was sitting.</p> <p>Held, that this was a case of excusable neglect, and that the plaintiff was entitled to have the judgment of dismissal set aside.</p> <p>Same.—Imposing Conditions.—In granting relief under this statute, the court may impose conditions, but they must he reasonable. To require, as a condition of relief, that the plaintiff shall pay all the costs in thecase, including the costs taxable against the defendant for failing to perfect a change of venue, and the costs of a continuance asked by the defendant, for which judgment had been previously rendered in the plaintiff’s favor, and also the costs of various continuances had by agreement of the parties, was unreasonable.</p> <p>Same.—It would have been reasonable to require the plaintiff to pay the costs occasioned by his excusable neglect, and to render judgment therefor, but it was not competent for the court to make the actual payment of such costs a condition of granting relief. (Downey, J., dissented.)</p> <p>Same.—Administrator.—Costs.—By section 784 of the code, an administrator is not personally liable for costs in an action prosecuted by him in his fiduciary capacity.</p>

<p>Bill oj? Exceptions.—Amendment of.—After a bill of exceptions has been signed and filed, it is competent for the court, on notice and motion, to • order its correction by the insertion of omitted evidence.</p> <p>Baiuroad.—Injury to Child.—Negligence of Parents.—It is negligence in a parent to permit a child between three and four years of §ige to be upon a railroad track where trains are frequently passing; and if the child be killed by a train of cars, the parent cannot recover damages therefor, unless such killing be done purposely or wilfully.</p> <p>Supreme Court.—Buie of Decision.—Where, after allowing for all presumptions in favor of a verdict and of the rulings of the court below, it clearly appears that the, verdict is not supported by the evidence, the judgment will be reversed.</p>

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

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

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

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

<p>Erom tbe Jennings Circuit Court.</p>

<p>Supebme Coukt.—Certificate of Clerk to Transcript.—The certificate of the clerk to a transcript, on appeal to the Supremo-Court, which only certifies that the transcript contains a true and correct copy of the judgment and decree, is insufficient.</p>

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

<p>Cbimtnai. Law.—Constitutional Law.—Indictment.—In the act (2 G-. & H. 455) defining what shall constitute combining for the purpose of committing a felony, and fixing penalties therefor, the proviso that it shall not he necessary in the indictment to charge the particular felony which it was the purpose or object of the persons combining to commit is unconstitutional, against natural law, and void.</p> <p>Same.—Conspiracy.—Bobbery.—Pleading—The averments of an indictment for combining to commit a robbery should be as specific and full in describing the robbery as in an indictment for that felony; and to charge a combining for the purpose of taking from the person forcibly and feloniously is not sufficient, but it is necessary, also, to allege that it was to be done “ by violence” or “ putting in fear.”</p> <p>Same.— Overt Act.—It is well settled that, to constitute the offence of conspiracy, it is not necessary that any act should be done in. pursuance of the conspiracy.</p>

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

<p>Landlobd and Tenant.—Covenant to Repair.—Lease of Water-Power.— In a lease of water-power, as in other leases, no covenant by the lessor to repair will be implied, where none is expressed.</p>

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

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

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

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

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

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

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

<p>Stjeety oy the Peace.—Practice.—Judgment.—In a proceeding for surety of the peace, the parties agreed, in the circuit court, that the cause should be dismissed, at the costs of the defendant, without any trial of the issue or finding or verdict thereon.</p> <p>JETeld, that the court coxild not order the defendant to stand committed until the costs should be paid or replevied.</p>

<p>PnEADUsro.—Contract.—Common Carrier,—In a complaint against a railroad company for a breach of a contract to furnish, at a certain time and place, the necessary cars, and to transport a certain number of hogs, it is not necessary to allege that the defendant, at the time complained of, had the ability to transport or to furnish the means to transport said hogs.</p>

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

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

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

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

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

<p>Evrqnircfi—Hearsay,—Husband and Wife.—Where the question was as to whether a certain sum of money delivered by a person to his son-in-law, for which the latter gave his note to the former, was a’loan to said son-in-law or an advancement to his wife, a daughter of the payee of the note, since deceased, a witness was allowed, over objection, to testify that, after the maldng of the note and receipt of the money by said son-in-law, the latter told the witness that when he got the money he took it right home and handed it to his wife and said, “ there is your money.”</p> <p>Held, that his evidence was hearsay, and not admissible as the declaration of an agent, and that the judgmentcould not, in disregard of the errorin its admission, he affirmed on other evidence.</p>

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

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

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

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

<p>giiEAPrijra.—Demurrer to Complaint does not go to Damages.—Damages.—In an. action for the breach of a contract by ■ defendant, whereby, it is alleged, " plaintiff suffered damages in the loss of advantage he otherwise would have • realized from other contracts made by him, a demurrer to the complaint, - wherein the contract between plaintiff and defendant'and the breach thereof by defendant are averred does not raise the question of the liability of defend- ■ ant for consequential damages, by reason of the loss of such advantage suffered by plaintiff. The contract with defendant and its breach by him being alleged, the amount of damages is not to be decided by demurrer.</p> <p>■'Same.—Copy' of Written Instrument.—Demurrer.—Statute of Frauds.—Under - the code,- in an action upon a contract which is not alleged to be in writ- . ing, and the original or a copy of which is not filed with the complaint, the presumption is, that the contract is not in writing; andif the contract is such as is, by the statute, required to be in writing, the objection may be taken by demurrer.</p> <p>Same.—Contract.—Action On.—Telegraph Despatch.—Eoidmee.—In an action . against a telegraph company for failure to transmit a despatch, by reason ■of which the plaintiff lost the advantage of certain contracts made by him. with other parties, the action is not founded on such contracts, but on; the contract of the company to send and deliver the despatch; therefore said contracts with other parties may be proved, under the allegations of' the complaint, to have been in writing.</p> <p>Pbactice.—Excessive Damages.—Motion for New Trial.—That the damages assessed by the court upon the trial were excessive, cannot be presented for the consideration of the Supreme Court, except by making it a reason for a new trial in the court below.</p> <p>UviDEirCE.—Telegraph Despatch.—Secondary Evidence.—In an action against a telegraph company for damages for failure to transmit a despatch, the original despatch delivered to the operator must be given in evidence, or if not its absence must be properly accounted for before/secondary evidence thereof can be admitted.</p>

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

<p>'LiqtjobLaw op 1873.—Affidavit.—In a prosecution, under tlie tenth, section of the liquor law of 1873, for a sale of liquor after nine o’clock in the evening, it is necessary to allege that the liquor was sold to he drank on the premises where it was sold.</p>

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

<p>Circuit Court.—Proseevtion by Affidavit and Information.—In the absence of an indictment, there can he no prosecution commenced in the circuit court upon an affidavit without an information.</p>

<p>Highway.—Establishment by User.—To entitle a public highway, established by use for twenty years or more, to be entered of record, it should he ascertained and described with the samo certainty that would be ne'cessary in establishing a highway originally.</p> <p>Same.—If the evidence shows that the road was never surveyed or worked by authority, and that the track was continually changed to accommodate fields and to go around obstructions, it will be insufficient.</p>

<p>Husband and "Wine.—Mortgage.—Marriage of Female Mortgagor to Mortgagee.—An unmarried woman executed a note and a mortgage on her1 real estate to secure its payment, and afterward married the payee of the note, tlie mortgagee, who, after tlie marriage, assigned the mortgage and delivered the note to a third person, who brought suit to foreclose the mortgage.</p> <p>Held, that, by the marriage, the debt and mortgage were discharged, and the action could not be maintained.</p>

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

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

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

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

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

<p>Hew Tbiae.—Motion.—Newly-Discovered Evidence.—Where the cause assigned in a motion for a new trial is newly-discovered evidence, and it is not shown that the party making the motion had used diligence to discover the new evidence before the trial, the motion must be overruled.</p>

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

<p>Peeading-.—Suit on Appeal Bond.—A complaint against tbe surety on a bond, for an appeal to tbe Supreme Court, wbicb does not skew wben tbe judgment appealed from was affirmed by tbe Supreme Court, or wben tbe opinion and judgment of affirmance were filed in tbe office of tbe clerk of tbe lower court, is bad on demurrer.</p>

<p>Tax.—•Purchaser of Land Belonging to Congressional Township Fund.—Prior to the passage of the act of December 21st, 1872, Acts 1872, p. 57, the purchaser of land belonging to the congressional township fund was not, under-the sixth clause of section 6,1 G. & H. 70, liable for taxes assessed upon said land before it had been conveyed to him.</p>

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

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

<p>Liquor Law.—Act of 1875.—Pi'oviso of Seventeenth Section.—By the seventeenth section of the liquor law of March 17th, 1875, it is provided, “ that no prosecution shall he instituted or maintained against any person for any violation of the provisions of this act occurring between the time when it shall take effect and the close of the first regular session of the board of commissioners of the proper county, the beginning of which session not taking place in less time than four weeks after this act shall have taken effect.”</p> <p>JEIdd, that, if this proviso be void, there is no valid law making the selling, within the time excepted by the proviso, of intoxicating liquor in a less quantity than a quart at a time, without a license, to be drank at the place where sold, an offence; so that, whether it be valid or void, an indictment for so selling on the 6th of April, 1875, was properly quashed.</p>

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

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

<p>New Triad.—Motion.—Exclusion of Evidence.—That “the court erred, on the trial of the cause, in excluding evidence offered by the plaintiff, to the exclusion of which the plaintiff excepted at the time,” is too indefinite as a statement of a cause in a motion for a new trial.</p> <p>Pboceeding Suppdementaby to Execution—Special Deposit—A. delivered to B. a certain sum of money, on an express agreement that it was to be placed by B. in the hands of the clerk of the circuit court as a special deposit for the use of C., and for the sole purpose of redeeming certain land sold to C. under a decree of foreclosure against B., and that the ownership of the money was not to pass from A. unless it was used in such redemption, in which case A. was to have a mortgage on the land. The money was accordingly tendered to C., who refused to accept it, and it was then placed in the hands of said clerk for said purpose. In a proceeding supplementary to execution brought by D., an execution creditor of B., against B. and said clerk, to subject said money still in the clerk’s hands to D.’s execution, it did not appear whatright B. had to redeem, or whether such right had been judicially determined.</p> <p>JETeld, that until B.’s right of redemption should be determined, the money could not be taken from the clerk to be applied upon D.’s execution.</p>

<p>Street.—Railroad.—Action to Recover Real Property.—An action for the recovery of the possession of real estate may be maintained against a railroad company occupying such real estate, being a street in a city, by virtue of a grant from the city council.</p>

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

<p>Bajxeoad.—THU of Lading.—Ümtmctiom of.—Where a railroad company received freight to be transported partly by rail and partly by water, and it was stipulated in the bill of lading, that “ it is especially agreed and understood that the company is not responsible * * for loss or damage on the lakes or rivers, unless it can be shown that such damage or loss occurred through the negligence or default of the agents of the companyand the freight, after being carried by the defendant, was placed upon a wharf-boat, awaiting the arrival of a packet wherein to ship it, and the wharf-boat sunk without the fault of the railroad company, and the freight was lost;</p> <p>JMd, that the loss was not one occurring on the lakes and rivers within the meaning of the bill of lading..</p> <p>Held, also, that the bill of lading should be construed to mean, that the carrier was not to be responsible, in the absence of negligence, for loss or damage occurring in the navigation of the lakes or rivers.</p> <p>Same.—Contracts not clear in their meaning, by which common carriers seek to avoid the responsibility which the law imposes upon them, should be construed most strongly against them.</p>

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

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

<p>InJtracraON.—Appeal.—City.—A party cannot enjoin tbe collection of a fine and costs, assessed for tbe violation of a city ordinance, on tbe ground of there being no offence charged or cause of action filed before the mayor. The remedy in such case is by appeal.</p>

<p>‘CoxmraAncE.—Sufficiency of Affidavit.—An affidavit for a continuance, filed on bebalf of defendants, on tbe ground of tbe absence of a defendant who was also a witness, showing tbat be was not present at'tbe calling of tbe cause, but not showing tbat be would not or could not be present at and during tbe trial, or tbat any diligence bad been used by himself or his codefendantsto secure bis attendance, and giving no reason for bis absence, was insufficient.</p> <p>Subpbise.—A party cannot claim tbat be has been surprised by evidence tbat has been legally and properly given under tbe issues formed in a cause. He must be held to know what evidence may be given under tbe issues formed, and must be prepared to meet it.</p>

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

<p>Malicious Prosecution.—Surety of the Peace.—An action will lie for having, without probable cause and maliciously, instituted a prosecution for surety of the peace.</p> <p>Same.—Pleading.—Copy of Proceedings.—In an action for malicious prosecution, filing with the complaint a copy of the proceedings in the case alleged to have been prosecuted maliciously does not make such proceedings a part of the complaint.</p> <p>Heturn on Writ eor Arrest.—A writ for the arrest of a party, issued by a justice of the peace and returned, “ served as commanded, and the defendant is present,” shows the arrest of the party.</p> <p>Transcript.—Authentication.—Justice of the Peace.—A certificate of a justice of the peace to a transcript from his docket, that it is a' true and correct transcript of the proceedings had before him in the cause, together with a true copy of all the papers in the case, given under the hand and seal of the justice, without the certificate and seal of the clerk of the county, is a sufficient authentication to entitle the transcript to be received in evidence in the several courts of this State.</p> <p>Evidence.—Parol evidence that a person acted as a justice of the peace is admissible to prove him to be such officer, and the authenticity of his jurat may also be proved by parol. .</p> <p>"Witness.—Impeachment.—Parties.—Where a plaintiff who had testified as a witness was squarely contradicted by a witness for the defendant, and the plaintiff in rebutting impeached the defendant’s witness, by showing that he had made statements out of court different from those testified to on the trial, after which the defendant introduced evidence to show that the character of his witness for .morality, truth, and veracity, was good, it was not an abuse of the discretion of the court to then allow the plaintifi to prove his general character for morality and truth and veracity to be good.</p> <p>Surety on tiie Peace.—Diligence of Person Instituting Prosecution upon Information.—Where a prosecution for surety of the peace is commenced upon information, the person instituting it should use such diligence as a reasonably prudent' man would do under the circumstances to ascertain the truth of his suspicions, but he is not required to go to the person from whom he apprehends violence and inquire what are his intentions.</p> <p>Instruction.—Improper Use of the Word “ Testimony.”—Where the court, in an instruction, states to the jury the law arising upon certain facts, if they should be satisfied, from a fair preponderance of the “ testimony,” that such facts exist, it will not be presumed that the improper use of the word “ testimony ” has misled the jury.</p> <p>Same.—Statute.—Where the court, in an action for malicious prosecution, instructed the jury that the statute limited the maximum amount of damages that could he recovered to a certain sum, stating the amount claimed in the complaint;</p> <p>Held, that the use of the word “statute” instead of “complaint” did not injure the defendant.</p> <p>Damages.—Malicious Prosecution.—In an action for malicious prosecution,, an instruction to the jury that, in assessing damages, the jury might consider every circumstance of the act of arrest and prosecution, and alsot every act which injuriously affected the plaintiff, not only in his person, hut also in his peace of mind and individual happiness, did not authorize the jury to consider circumstances and acts not directly connected with, the arrest and prosecution of the plaintiff.</p>

<p>Statute oe Frauds.—Parol Agreement to Change Mortgage.—A parol agreement between a mortgagor and mortgagee and a third person that an indemnifying mortgage of real estate held by the mortgagee should he changed hy inserting therein a provision that such third person should also be indemnified, aa surety for the mortgagor, was equivalent to an agreement to execute a new mortgage, and was within the statute of frauds, and could not be enforced by such third person.</p> <p>•Same.—Part Performance.—Fraud.—The fact that such third person, in consideration of the promise to so change the mortgage, signed a bond as surety for the mortgagor, was not such a part performance of the agreement, nor was the refusal on the part of the mortgagor to change the mortgage such a fraud, as to take the case out of the statute of frauds.</p>

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

<p>'fiPTMTUAT. Law.—Evidence.—Falsely Personating Another.—To sustain an indictment under section 26, 2 G. & H. 445, the evidence must show that the money or property obtained by falsely personating another waa intended to be delivered to the party personated.</p> <p>Same.—Larceny.—Will not Liefer Obtaining Money by False Representations.—■ An indictment for larceny cannot be sustained, under section 19, 2 G. & H. 442, where the evidence shows that the defendant assumed the name of another person and falsely represented himself to be the person whose name he assumed, and on the faith of such representation obtained the money or property alleged to be stolen.</p>

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

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

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

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

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

<p>Erom tbe Morgan Circuit Court,</p>

<p>Practice.—Motion far New Trial.—A motion for a new trial on tie ground of the improper admission or exclusion of evidence, for the character and purport of which reference is made to a bill of exceptions not then filed, is too uncertain and indefinite to present any question.</p> <p>Husband and Wipe.—Proceedings to ¡Subject Beal Estate to Payment of Debt.—« A. bought certain real estate with, a mill thereon of B., and caused it to be conveyed to the wife of A. Certain real estate of tho wife of A. was given in part payment to B., and the notes of A. and wife secured by mortgage were given for the residue of the purchase-money. Before the notes were paid, the mill was burned, and thereafter the real estate was reconveyed to B., who accepted it as part payment of the notes. A. and wife had no money or property wherewith to pay the balance. C., abrother of A. had assisted him in running the mill before it was burned, and on certain contingencies was to have become the owner of a part of it. The citizens and neighbors raised some money to aid in starting another mill. C. procured another tract of real estate on his own credit, and on the suggestion of those proposing to aid in the erection of the mill, conveyed one-half of it to the wife of A., and the two brothers, with the assistance given them and on their credit, erected a mill, each of them working in the erection and running of the same.</p> <p>JIM, that B. could not subject the latter real estate to the payment of the balance due on his notes.</p> <p>Same.—Agency of Husband.—A wife may employ her husband to act as her agent in operating a mill owned by her, and such employment is not proof of an attempt on her part to defraud his creditors.</p> <p>Same.—The husband in such case has the right to give his personal service® and skill to the management of his wife’s property without any other compensation than the support and maintenance of himself and family.</p>

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

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

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

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

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

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

<p>Erom tlie Cass Circuit Court.</p>

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

<p>Liquok Law— Suit on Bond Given hy Person Holding Permit to Sell Intoxicating Liquor.—The damages which may he recovered in an action upon a bond executed in conformity to the third section of the act to regulate the sale of intoxicating liquors (Acts 1873, p. 151), must have been suffered by or inflicted upon some person by reason of the sale of intoxicading liquor by the person receiving a permit under said act, his agent, or employes.</p> <p>Same.—Pleading.—The complaint in such case must aver that the injury complained of and the damages sought to be recovered resulted in consequence of a sale of intoxicating liquors.</p> <p>Same.—An averment in such complaint, that whilst A. was intoxicated, by reason of liquor sold him by the person holding the permit, he inflicted a mortal wound on the husband of the plaintiff, causing his death, does not sufficiently show that the mortal wound was inflicted by reason of the intoxication of A.</p> <p>Same.—A complaint in such case, which avers that the intoxication was caused in part by liquor sold by the holder of a permit, and that while the purchaser was so intoxicated, and by reason of such intoxication, he-inflicted the mortal wound, etc., is bad.</p> <p>Practice.—Cause Tried on Complaint Containing hoth Good and Bad Paragraphs.—Where a cause has been tried on issues joined upon a complaint containing two or more paragraphs, some defective and others good, a demurrer to the former having been overruled, and the record not showing that the cause was tried and the judgment rendered exclusively upon the good paragraphs, the judgment will be reversed for error in overruling the demurrers to the defective paragraphs.</p>

<p>.'PmNCir al AND Surety.—Fairness to Surety.—Duly of Surely.—As a rule of . law, strict integrity and complete fairness are due from the creditors of a debtor to one who is about to become surety for such debtor; but this rule will not excuse the person about to become surety from reasonable attention to the circumstances under which he is called upon and reasonable diligence to inform himself as to the prudence of the act he is about to do.</p> <p>¡Same.—If a person who is asked to become surety for another is put upon his guard by the circumstances surrounding the party for whom he is asked to become surety,’ and can ascertain from the persons present all the facts necessary to shield himself from fraud, he should make the inquiry.</p> <p>Same.—Fraud must not he induced by the person who complains of it, nor must he suffer himself to become an indolent victim.</p> <p>Same.—Rigid of Surety to Rescind for Fraud.-—If a person is induced by fraud to become the surety of a debtor, and by the act ho takes the property of the debtor from the reach of his creditors by ordinary process of law, he must, upon the discovery of the fraud, at once rescind, if he would relieve himself.</p> <p>Payment.— Voluntary Payment.—Money voluntarily paid, with a full knowledge of the facts, cannot be recovered back.</p>

<p>Practice.—When, a demurrer has been filed and overruled, and the record does not contain the demurrer, it will be presumed that it was overruled on account of its own defects, or that it presented some objections to the pleading to which it was not liable.</p> <p>Same.—Pleading Struck Out.—When a pleading is struck out, it can only be brought into the record again by a bill of exceptions.</p> <p>Written Instrument.—Construction of for the Court.—It is the duty of the court to construe written instruments affecting the rights of parties, where there is no ambiguity, and an interrogatory submitting such question te the jury should not be propounded.</p> <p>Practice.— Uncertainty of Special Finding.—Where the special finding of a jury,- on account of the language of an interrogatory and the answer thereto, is so uncertain that the meaning cannot be definitely ascertained, such special finding will not warrant the court in disregarding the general verdict, and rendering judgment on the special finding.</p> <p>Pleading.—Correction of Written Instrument.—A pleading asking the correction of a written instrument must’ show that there was fraud or mistake in its execution.</p> <p>• Same.—A complaint in such case, for the correction of a'deed, which simply alleges that one estate was agreed for and another conveyed, is insufficient.</p> <p>Pleading.—Complaint for Review.—A complaint for a review of a judgment, on account of matter discovered since the trial, must show that the plaintiff could not, by the use of reasonable diligence, have discovered the alleged new matter before the former trial.</p>

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

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

<p>Practice.—Amendment of Pleading.—Discretion of Court.—New Issue.—Tha granting of leave to amend pleadings after the issues have been closed and before trial, and on the trial, is very much within the sound legal discretion of the lower courts, and, where the amendment makes a new issue or adds a new cause of action or ground of defence, should only be granted in a proper case and upon good cause shown by affidavit.</p> <p>Same.—Application for Delay by Season of Amendment.—When an amendment is made and the opposite party does not, by motion supported by affidavit, ask for delay to complete the issues when rendered necessary by such amendment, or to prepare for trial, the presumption will be indulged by the Supreme Court that such party was not prejudiced by such amendment ; but if an application is made for delay, either to plead or prepare for trial, and is overruled, then the Supreme Court will determine whether-there has been such an abuse of discretion as injuriously affected the rights of such party.</p> <p>Same.—Where a court overrules an application for leave to amend, in the cases above stated, the Supreme Court will, in the absence of a showing that there has been an abuse of discretion prejudicial to the rights of the party applying, presume that the action of the court was correct.</p>

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

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

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

<p>Liqtjoh Law.—Sale to be Branlc on Premises.—Information.—In an affidavit or information for selling intoxicating liquor to be drank upon the premises where sold, under the act of February 27th, 1873, it is not necessary to allege that the liquor was drank on the premises, or that it was drank anywhere.</p> <p>Same.—“Where there is an enclosure in the rear of, and in view of, a place where intoxicating liquors are sold, where persons can drink under the protection of a high fence, and where they are in the habit of drinking, and where liquor sold is delivered in vessels, and drank from glasses furn^hed by the person making the sale, and carried when bought in the direction of the enclosure, and the empty vessels are returned, it may he inferred that the liquor was sold to he drank on the premises, though the persons buying were told it must not he drank on the premises.</p> <p>Same.—Where one witness, who drank of liquor sold, testifies that in his opinion the liquor was intoxicating, and that it made him drunk, it will authorize a finding that the liquor was intoxicating.</p>

<p>Iiquob Law.—Justice of the Peace.—A criminal prosecution may be maintained before a justice of the peace for selling intoxicating liquor to aperson in the habit of getting intoxicated, in violation of the liquor law of 1873.</p>

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

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

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

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

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

<p>Dbaining Association.—Pleading.—Complaint to Recomer Assessment.—A. complaint to recover an assessment against lands, for tbe construction of a ditch, under the act of March 11th, 1867 (3 Ind. Stat. 228), must show a substantial compliance with all the requirements of the statute; and the sufficiency of the complaint cannot be determined by looking to the petition filed with the complaint.</p> <p>Same.—Such complaint must show that the appraisers .were residents of the county, and not of kin to any of the parties.</p>

<p>Liquob Law.—Indictment.—An indictment under the act of February 27th,, 1873, to regulate the sale of intoxicating liquors (Acts 1873, p. 151), alleging that the sale was made after the hour of nine o’clock p. m., need not aver that the defendant had a permit. Having a permit is no part of the offence, or description of the offence.</p> <p>Same.—Statute Construed.—Section 10 of said act creates no offence independent of that defined in section 1, and the two sections must be construed together.</p>

<p>ffaTumrAT. Law.—Ineesl.—Step-Mother and Step-Son.—Under the statute, 2 G-. & H. 452, sec. 45, to constitute the crime of incest from sexual intercourse between a step-mother and her step-son, they must each have had knowledge of their relationship, and the indictment must show such knowledge.</p> <p>Same.—The crime in such case is a joint one, and must be so charged, and one of the parties cannot be legally guilty unless the other is also guilty. They may be tried separately, and one may be convicted and sentenced before the other is tried. If one is acquitted, the other must be discharged, and the acquittal of one may be pleaded in bar of a prosecution against the other.</p>

<p>CbimuíAIi Law.—Instruction—Grand Lairceny.—Value of Property.-^On the trial of a defendant indicted for grand larceny, where the value of the property is clearly proved, so as to preclude any question whether the crime is grand or petit larceny, it is not necessary to instruct the jury specially, as to the value of the property.</p> <p>Same.—Instruction.—An instruction which states the law correctly, as far as it goes, will not be held erroneous for not stating other propositions of law applicable to the case, there being no special request for further instructions, unless the instructions already given are left in such form as to mislead the jury as to the whole law applicable to the case.</p> <p>• Same.—Where an instruction in a criminal cause expressly informs the jury that they cannot convict, unless the guilt of the defendant is proved beyond a reasonable doubt, a failure to use the same language in another-instruction will not be error.</p> <p>Same.—Possession of Stolen Property.—The law imposes upon one who is-found in the exclusive possession of property recently stolen the duty of accounting for or explaining how he came into possession of such property, and his failure, when required to speak, to give a satisfactory account of how he came into possession, or the giving of a false account, raises a. presumption that such person is the thief. This presumption may be overcome by direct evidence showing that the person accused honestly came into possession, or by the attending circumstances, or by the good character and habits of life of the accused.</p> <p>Same.—Evidence.—Where a person having stolen property in his possession, bases his defence upon the ground that he purchased the property alleged to have been stolen, of a stranger, and paid him therefor in cash, evidence-showing that the accused actually had the money to pay for the property ■ is admissible.</p>

<p>Liquor Law op 1873.—Penalties.—To an indictment for selling intoxicating liquor without a permit, the first penalty prescribed in section 14 of the act to regulate the sale of intoxicating liquors (Acts 1873, p. 151) is applicable,, and the penalty prescribed in section 10 of said act is applicable to an indictment for selling with a permit, but within the interdicted hours.</p> <p>Criminal Law.—Indictment of Two Counts.—General Finding.—Where there-are two counts in an indictment, under one of which, if the defendant be found guilty, the fine would be greater than under the other, and the verdict is general, and the fine assessed is the lowest that could be assessed, under the indictment, the defendant cannot complain because the verdict does not show under which count he was found guilty.</p> <p>Liquor Law.—Evidence.—Defence.—Under an indictment for selling intoxicating liquor to be drank on the premises, without a permit, it is not-necessary for the state to prove that the defendant had no permit. If the-defendant had a permit, he may show it in defence.</p>

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

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

<p>Erom tbe Boone Circuit Court.</p>

<p>Pleading.—Answer.—To a suit upon a promissory note an answer alleging that there was no valuable consideration for the execution of the note is-sufficient.</p> <p>Duress.—A promise extorted by terror or violence, whether on the part of the person to whom the promise or obligation is made or that of his agent,, may be avoided on the ground of duress.</p> <p>Same.—If a party execute an instrument from a well grounded fear of illegal imprisonment, he may avoid it on the ground of duress.</p> <p>Same.—To a suit upon a promissory note, it is a good answer to allege that, the plaintiff induced the defendant to go with him to a secluded place, and there accused the defendant of having performed an abortion upon the plaintiff’s wife, and that a certain person who was then present was an officer, having power to arrest and imprison the defendant,.and that the-plaintiff there threatened the defendant with immediate arrest and imprisonment, unless the note in suit was made, and fearing such arrest the defendant made the note, and that he had never committed the crime charged.</p> <p>Pleading.—Oral Promise.—Want of Consideration.—A want of consideration for an oral promise sued upon may he proved under an answer of general denial.</p>

<p>Motion nor New Trial.—Evidence.—Where the admission of evidence objected to is not assigned as a cause in a motion for a new trial, the ruling cannot be questioned in the Supreme Court.</p> <p>Costs.—Nwmher of Witnesses.—The Supreme Court will not presume, from the mere fact that seven witnesses were subpoenaed to prove a person’s habit of intoxication, material to the issue, that the process of the court was abused.</p>

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

<p>Sale.—Executory Contract.—A contract for the sale of a certain number of good, corn-fed hogs, to average a certain weight gross, to be weighed at one place and delivered at another, at or within a certain time in the future, and to be then paid for at a certain price per hundred pounds, the hogs being a lot at the time of the contract being fed by the seller, and including some to be thereafter received of another person, where the hogs were never weighed or delivered to the buyer, did not pass the title in the hogs to the purchaser.</p> <p>Same.—In a bargain and sale, the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded, without regard to the fact whether the goods are delivered to the buyer or remain in possession of the seller.</p> <p>Same.—In an executory agreement for a sale, the goods remain the property of the seller till the contract is executed.</p> <p>Same.—In the case of a sale, the buyer can claim the goods specifically, and they are at his risk.</p> <p>Same.—In the case of an executory agreement, the buyer does not become the owner of the goods, cannot claim them specifically, and they are not at his risk, and his remedy on the contract, if there be a breach of it, is confined to an action for damages.</p> <p>Same.—Whether a contract is a bargain and sale or an executory agreement for a sale, depends upon the intention of the parties, to be gathered from all the terms and stipulations of the contract, and is generally a question of fact.</p> <p>Same.—A sale of personal property may be complete, so as to pass the title, . without a delivery.</p>

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