Volume 50 — Indiana Reports

<p>Judge.—Bül of Exceptions.—Signing and Sealing a Ministerial Act.—Mandate.—The mere act of signing .and sealing'a bill of exceptions is a ministerial act, and the Supreme Court may. compel a jhdge to-sign and seal a bill of exceptions, where it is shown that he has refused so to do.</p> <p>Same.—Practice.—Application for Mandatei-The application for a writ of mandate to compel a judge to sign a bill of exceptions must be accompanied by the bill of exceptions presented to the judge, which he refused to sign; and such bill" of exceptions should be attached to the writ.</p> <p>Same.?—An absolute refusal- on the part of the judge to perform his duty . should be shotyn as a" condition precedent to granting a mandamus to compel the signing of a bill of exceptions. A mere qualified and temporary refusal or delay on the part of the judge does not amount to such a refusal.</p> <p>Same.—Where the return of a judge to an alternative writ shows that he is willing to sign a true bill of exceptions, but alleges that the bill as presented is not a true bill, the peremptory writ will be refused.</p> <p>Same.—Where a judge has settled, signed, and sealed a bill of exceptions, and alleges in his return to an alternative writ that such bill contains the truth, an appellate court will not, by a peremptory writ of mandate, com- ’ pel Mm to amend the same, either by striking out something which has been inserted, or by inserting something which has been omitted.</p> <p>Same.—Judicial Act.—The determination as to what facts should be stated in a bill of exceptions invokes the exercise of a legal discretion, and is therefore a judicial act.</p> <p>Same.—An officer cannot be compelled by mandate to do an act, where he has a discretion to do it or not to do it and as to the manner in which the act is to be done.</p> <p>Same.—Where conflicting questions arise concerning the facts to be inserted in a bill of exceptions, and where an inferior court has already signed one bill, it will not be compelled to amend it.</p>

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

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

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

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

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

<p>Liquor Law.—Information.—In ah information, under the liquor law of 1873, for selling intoxicating liquor to a person in the hahit of getting intoxicated, it was not necessary to allege that the defendant had notice of such habit.</p>

<p>Liquob Law.—Information.—In an information, under the liquor law of 1873, for selling intoxicating liquor to an intoxicated person, it was not necessary to allege that the defendant had notice of the intoxication of such person.</p>

<p>AppeaJj.—Justice of the Peace.—From a judgment of a justice of the peace, on default of the plaintiff, dismissing the action and adjudging costs against the plaintiff, an appeal may be taken by him.</p>

<p>Waiver.—Jurisdiction.—Justice of the Peace.—Where, in an action for the recovery of the possession of personal property before a justice of the peace, there has been a trial without any answer filed or objection made by the defendant, upon appeal to the circuit court an answer alleging the justice’s want of jurisdiction, because the replevin bond filed before him was executed on Sunday, is bad on demurrer.</p>

<p>Liquor Law.—Act of 1873.—Indictment.—To make an indictment good under the first section of the liquor law of 1873, it was necessary to allege that the liquor was sold “to be drunk” in, upon, or about the building or premises, etc.; and an indictment charging the sale of the liquor, and alleging that the defendant suffered and permitted it to be drunk in, etc., was bad.</p>

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

<p>Beae Estate.—Sale on Execution from, United States Court.— Void Sale.—A sale of real estate located in Shelby county, made in 1841, by a United States marshal, by virtue of an execution issued on a judgment obtained in 1838 in the United States Circuit Court for the District of Indiana, where the sale was made at the State House door in the city of Indianapolis, in Marion county, no notice of the sale having been given except in the counties of Marion and Laporte, though there were weekly-newspapers of general circulation published in Shelby county, was void.</p> <p>Same.—Such sale could not be made in Marion county.</p> <p>Same.—Effect of Such Sale.—Such sale did not divest the title of the judgment defendant to the real estate, but the title was in him unaffected by the statute of limitations, when, in 1852, dower was abolished by the legislature and an estate in fee simple substituted therefor.</p> <p>Same.—Right of Widow.—Statute of Limitations.—Upon the death of such judgment defendant, in 1858, his widow immediately became the owner of one-third of such real estate, and she had twenty years within which to assert her right, after the death of her husband.</p>

<p>Practice.—Supreme Court.—In the absence of a bill of exceptions containing the evidence, the overruling of a motion for a new trial on the ground that the verdict is not sustained by the evidence, that it is contrary to the law or the evidence, or that evidence was excluded, cannot be considered.</p> <p>Vendor and Purchaser.—Easement.—In a suit for the purchase-money of real estate, a claim for a deduction on the ground of the real estate's being subject to a right in the Wabash and Erie Canal Co. to flow a part of the land with water, cannot be sustained, if it is shown that the overflow was caused by the giving or wearing away of certain banks that once confined the water, that the purchaser knew this at the time of his purchase, and that there was no right or title in the canal company to overflow the land except such as resulted from its neglect to repair the banks, and that the company never claimed any title.</p> <p>Pbesgripiton.—To acquire a right by prescription, there must be an actual enjoyment, and only that which is possessed can be so acquired. In proving a prescription, the use of the right is the only evidence of the extent to which it has been acquired.</p> <p>Same.—The use and enjoyment of what is claimed by prescription must have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate in, over, or out of which the easement prescribed for is claimed, and while such owner was able, in law, to assert and enforce his rights, and to resist such adverse claim if not well founded; and it must moreover be of something which one party could have granted to the other.</p>

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

<p>Devise.—Masóme Lodge.—Trustees.—Where certain real estate is devised to a lodge of Free and Accepted Masons, for .the puipose of building a Masonic lodge on a portion of the same, and where' persons are named in the will as trustees to carry out the desires of the testator, and they are given full power to sell and dispose of the real estate except the portion upon which the building is to be erected, the trustees so named will be trustees of the lot upon which the building is to be erected, and competent to take the title of. the lot and preserve the use during their lives; and the court will supply other trustees, if the preservation of the trust should require it.</p> <p>Same.—-A devise in 1864 to a lodge of Free and Accepted Masons, organized under the act in the revised statutes of 1838, substantially re-enacted in the statutes of 1843 (pp. 394, 399), which lodge kept up its organization, but did not elect trustees according to section 35 of the statutes of 1843, . where competent trustees were appointed by the will containing the devise, was good as a devise to a charitable use, though the lodge was not a corporation de jure.</p> <p>SAME.'—If the lodge was a quasi corporation, or a corporation defacto, or an organization of persons having a name by which they could be identified, it was sufficient.</p> <p>Same.—Such devise was also good though the value of the real estate devised to be used for the purpose of building a lodge was more than the amount of personal property which the lodge might lawfully hold for its own use.</p> <p>Same.—Statute of 1843 not Repealed,.—The act of 1843 (Statutes 1843, p. 387), concerning private corporations, is among the exceptions made in the first clause of section 1 of the repealing act, 1 Q-. & H. 534, and is not repealed by said act.</p>

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

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

<p>Ultra Vires.—Parties.—Bailroad.—Transfer of Part of Bailroad.—The L., M. & B. Bailroad Company, organized to construct, own, and maintain a railroad from Muncie, Indiana, by way of Lafayette, to the western boundary of the State, in the direction of Bloomington, Illinois, by a written agreement with the L., B. & M. Bailroad Company, organized to construct a railroad from Bloomington, Illinois, to the eastern boundary of that State, in the direction of Lafayette, Indiana, transferred, granted, and conveyed to the latter company, its lessees, successors, and assigns, for the period of ninety-nine years, renewable at the pleasure of the latter company, the exclusive right to transport passengers and freight over that part of the railroad of the former company lying between Lafayette and the western state line, with possession thereof, thesaidlatter company to use and maintain said part of said road, pay the taxes thereon, perform certain contracts theretofore made by the former company, and pay to the former company, or for its use, certain sums of money, said agreement being made by the directors and officers of said companies, without the consent of their stockholders. Said latter company assigned said agreement to the T., W. & W. Bailroad Company, owning and operating a railroad running from Toledo; Ohio, to Quincy, Illinois, by the way of Lafayette, Indiana.</p> <p>Held, that said agreement was ultra vires and void.</p> <p>Held,, also, that an action would lie, on behalf of a stockholder of the L., M. & B. Bailroad Company, without previous demand by him for redress on the directors of said company and refusal by them, against all said companies, for an injunction and to declare void said agreement and assignment, and that the fact that after the commencement of such action the L., M. & B. Bailroad Company filed a cross complaint therein, seeking the same relief, was not a sufficient answer, on behalf of the other two companies, to the original complaint.</p> <p>Bleading.—Cross Complaint.—In the making up of the issues and in the trial of questions of fact, the court is governed by the same principles of law and rules of practice in reference to a cross complaint as in regard to the complaint.</p> <p>Same.—Abatement.—Where a suit has been properly brought in the commencement, the defendant cannot cause its abatement by afterwards cre- ■ ating a state of facts against the ability of the plaintiff to sue.</p> <p>Corporation.—Want of Power.—Where a want of power is pleaded in favor of a corporation to defeat the payment of the consideration for benefits which it has received and enjoyed, the courts will go as far as is c.onsistent with law to uphold the contract, for the purpose of maintaining justice, equity, and good conscience; but where the want of power is pleaded against the corporation to prevent wrong, the corporation will be held to the strictest rules of law.</p>

<p>Practice.—Parties.—Waiver.—Where a judgment creditor of a decedent’s estate orally objected to the confirmation of the final report of the administrator thereof, and the parties appearing, the objection was tried without any question as to said creditor being properly a party, and, said proceedings not having been entered by the clerk, at a subsequent term, on complaint filed by said creditor, reciting said proceedings and asking for a nunc protunc entry thereof, the parties appeared, and such question was not raised</p> <p>Held, that the question could not be first raised on appeal to the Supreme Court.</p> <p>Partnership.—Decedents’ Estates.-—Where, upon the dissolution of a partnership and the settlement of its affairs, one partner pays more than his. share of the partnership debts, or pays the other partner a certain sum,, for which the latter agrees to pay the former’s share of such debts, which sum the latter converts to his own use, there is created an individual liability in favor of the former against the latter, which upon his death will constitute a proper claim against his estate.</p>

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

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

<p>Injunction.—Railroad.—Track an Street.—A complaint against a railroad company, alleging that the plaintiffs are owners of lots abutting on a certain street in a city, that the defendant has taken possession of said street in front of said lots, and has laid down its track thereon and used the same, hut not alleging that the defendant intends or threatens to continue such use, to the injury of the plaintiffs, or at all, does not show a good ground for an injunction to prevent the defendant from continuing to maintain and use such railway.</p>

<p>Siaotjer.—Pleading.—Perjury.—A complaint for slander, charging the defendant with saying that the plaintiff swore to a lie on a certain trial before a justice of the peace, which does not show or allege that the justice had jurisdiction, or does not allege that the plaintiff was sworn to testify, is insufficient; but it is not necessary that the complaint should allege or show that the matter about which the charge of false swearing was made was material to the issue.</p>

<p>JTew Tbial.—On Condition of Payment of Costs.—In an action for an assault and battery and false imprisonment, the judgment against the defendant was set aside, and a new trial was granted, on condition that within thirty days he would pay the costs of the term at which said judgment was rendered.</p> <p>.Held (Downey, J., dissenting), that it was error to set aside such order because the costs had not been paid as therein required.</p>

<p>SlAmdeb.—Mitigation.— Words Spoken, in Passion.—In an action for slander, the defendant may set up, in mitigation of damages, that he spoke the words in a moment of heat and passion, induced by immediately preceding acts of the plaintiff.</p> <p>Same.—Evidence.—Mitigation of Damages.—All the immediate circumstances, under which slanderous words were spoken, may be shown, where it is' alleged they were spoken in heat of passion.</p> <p>Same.—To mitigate damages in an action of slander, it is not enough that the words were spoken in heat of passion. It must also appear that there was provocation, caused by the person of whom the words were spoken.</p>

<p>Raelboad.—Might of Passenger Purchasing Ticket for a Certain Train.—If a person purchase a ticket expressly for a particular train of cars, and at the time of the purchase he is informed by the agent of the railroad company that the train will stop at the station for which the ticket is purchased, he will have a right to take passage on such train, and it will be the duty of the railroad company to allow him to leave the train at that station.</p> <p>Same.—In an action against a railroad company for failing to stop a train, and let a passenger off, at a station for which he had purchased a ticket, where the evidence tended to show that the defendant ran two daily trains that stopped at the station for which the passenger held the ticket, and also ran a through train, which, by the rules of the company, was not allowed to stop at such station, and that when the ticket was taken up by the conductor on the latter train, he informed the plaintiff that he must get off at a station before reaching the one for which he held a ticket, or go to the next station beyond, and that the plaintiff voluntarily went on to the station beyond, it was error to instruct the jury that if the plaintiff^ purchased his ticket for the station at which he wished to stop, he had a, right to enter the first train due after he purchased the ticket, unless h.& was informed, before he entered the train, that it would not stop at thb station for which the ticket was purchased. j</p> <p>Same,-^Buiy in Bmrning Trains.—The duty of a railroad company to the public requires that she should run her trains according to her rules and regulations, without infringing upon them to accommodate a single pas■senger.</p> <p>Same.—Buty of Passengers.—It is the duty of a person about to take passage to inquire when, where, and how he can go or stop according to the regulations, and if he makes a mistake which is not induced by the. agents of the railroad company, he has no remedy.</p> <p>Same.—Buty of Mailroad Company as to Stoppage of Trains.—A railroad company is not bound to stop a train and allow a passenger to get off, except at a regular station or stopping place</p>

<p>Statute of Reatos.—Memorandum of Sheriff’s Sede.—On an order of sale issued on a judgment and decree of foreclosure of a mortgage of real estate, an indorsement made by a sheriff as follows: “ Sold to A-B-, for twenty-four hundred dollars, October 16th, 1869.” Signed, “ C-- D-, Sheriff,” was not a sufficient contract or memorandum of a sale made by a sheriff, within the statute of frauds.</p> <p>Same.—Sufficient Memorandum..—A memorandum, to be sufficient within the statute of frauds, must set out the contract with such reasonable certainty that its terms may be understood from the writing itself, without recourse to parol proof.</p> <p>Same.—The fact that such memorandum is indorsed on the order of sale, but without any reference to it for the ascertainment of the thing sold, is no better than if indorsed on any other paper.</p> <p>Same.—A memorandum, in order to make another writing a part thereof, so as to constitute a part of'the contract, must refer to such other writing, and parol proof of the connection of the papers is not admissible to establish a contract required by the statute to be in writing.</p>

<p>BAstAkdy.—Imprisonment of Defendant.—The prosecuting witness in a bastardy proceeding is not the plaintiff therein within the meaning of section 4,1 G-. & H. 410, which provides for the discharge of a defendant imprisoned by civil process, on failure of the plaintiff to pay the cost of keeping the defendant imprisoned.</p>

<p>Cits'.—Damages for (Mange of Grade, in Street.—Under the twenty-seventh section of the act for the incorporation of cities, 3 Ind. Stat. 63, where the city authorities have once established the grade of any street or alley, the grade thus established cannot be changed until the damages suffered by parties in consequence of the change shall have been assessed and tendered to them.</p> <p>Same.—The damages in such case should be assessed by the commissioners provided for by the sixty-second section of the act for the incorporation ■ of cities.</p> <p>Same.—Notice.—The notice to parties interested of the meeting of commissioners to assess damages, as contemplated by sections 62 and 63 of the act for the incorporation of cities, must show the place of meeting, and it must be shown that the notice was served twenty-one days before the time of meeting.</p>

<p>Evidence.—Former Judgment.—The bona fide holder of a promissory note, to whom it had been assigned by the payee, without indorsement, delivered it for collection to a justice of the peace, who brought suit thereon in the name of the payee against the maker, and rendered judgment in favor of the maker, said holder having no actual knowledge of the time of the trial, and the payee being a resident of another state, and having no knowledge of the proceeding.</p> <p>Held,, that said judgment was admissible in evidence in favor of the maker, in a subsequent suit on the same note brought by said holder against the maker.</p>

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

<p>Pbactice.—Demurrer.—It is not the office of a demurrer to bring into a case new facts. A demurrer must be sustained, if at all, for defects apparent on the face of the pleading to which it is addressed.</p> <p>Same.—Motim to StriJce Out,—It is not an available error to strike out a paragrapli of answer when there is another paragraph pleaded, under which the same facts may he given in eyidence.</p> <p>Same.—Assignment of Error.—Assigning as error the refusal to give, or the giving of, certain instructions to the jury, presents no question for review.</p> <p>Same.—A motion for a new trial, on the ground of error in giving or in refusing to give instructions, must designate the instructions given or refused, and if not so designated the defect cannot he overcome hy an assignment of error designating such instructions.</p> <p>Costs.—Action for Damages and for an Injunction.—"Where an action is for damages, and to enjoin the defendant from repeating the injury complained of, and a judgment is rendered for one dollar in damages, and an injunction is granted as prayed for, the plaintiff will be entitled to recover full costs.</p> <p>Practice.—Motion for New Trial.—Instructions.—Exception taken to all of a series of instructions, when the ruling of the court thereon is assigned as a cause for a new trial, will he sufficient to embrace each of them; hut where exception is taken to one or several of a series of instructions, and the ruling of the court thereon is assigned as a cause for anew trial, each should be designated hy number, or its identity.in some way clearly pointed out.</p>

<p>Criminal Law.—Arrest of Judgment.—In a criminal action, a motion in 'arrest of judgment lies for only two causes; first, that the grand jury which found the indictment had no legal authority to inquire into the offence charged, by reason of its not being within the jurisdiction of the ' court; and, second, that the facts stated do not constitute a public offence.</p>

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

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

<p>Practice.—Objectim to Evidence.—An objection to evidence introduced cannot be made for the first time in the Supreme Court</p>

<p>Pleading.—Bill of Particulars.—A complaint for work and labor performed and materials furnished in the erection of a house, and to enforce a mechanic’s lien therefor, which does not set out a special contract and allege its performance, but alleges the making of a contract for the furnishing of materials and the erection of the house, and avers the furnishing of materials and the performance of labor, under the contract, to the amount of a certain sum of money, without a specific statement of the claim and without a bill of particulars, is bad on demurrer.</p>

<p>Criminal Law.—Keeping Billiard Table.—Indictment.—An indictment does not charge the offence of being the keeper of a billiard table within the meaning of sec. 74, 2 Of. & H. 477, which does not allege that the table was kept for the purpose of wagering any article of value thereon.</p> <p>Same.—Keeping Gaming House.—Indictment.—Evidence.—On the trial of ,an indictment charging the defendant with keeping his house to be used for gaming, the only evidence as to wagering was, that persons played upon a billiard table and the loser paid for the use of the table twenty or twenty-five cents, and the only charge in the indictment which this evidence sustained was the charge that persons were permitted to play, etc., and bet and wager upon the result of the games “the hire of said billiard table.”</p> <p>Held, that the evidence was insufficient, as it sustained only a part of the charge which was not well made.</p>

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

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

<p>Supreme Court.—Evidence.—BUI of Exceptionsi-—Where it is shown by the bill of exceptions that all the evidence is not in the record, the Supreme Court cannot consider the question as to the sufficiency of the evidence to sustain the verdict.</p> <p>Criminal Law.—Alibi.—Instruction to Jury.—On the trial of an indictment for grand larceny, the court instructed the jury that if the evidence satisfied their minds that the defendant was in fact in the city of I. at the time that the witnesses for the State testified that he was in the town of N., named in the indictment as the place at which the crime had been committed, it would be their duty to acquit him.</p> <p>Held, that the instruction was erroneous. The jury should have been instructed that if the evidence raised a reasonable doubt in their minds as to whether the defendant was at I. or at N,, when, etc., they ought to find him not guilty.</p> <p>Same.—Instruction to Jury.—An erroneous instruction to the jury in a criminal action is not corrected by another which states the law correctly, unless the erroneous one be plainly withdrawn.</p> <p>Same.—-Reasonable Doubt.—It is a rule applicable to all criminal cases, that if a reasonable doubt of the guilt of the defendant be raised in the minds of the jury on any question as to the sufficiency of the evidence, he is to be acquitted.</p> <p>Same.—Possession of Stolen Goods.—Presumption.—In instructing the jury on the subject of the presumption arising from the possession of stolen goods, it is error for the court to assume that the goods in question have been stolen—a fact which the jury are required to find from the evidence.</p> <p>Same.—Instruction to Jury.—In an instruction to the jury, on the trial of an indictment for larceny, the court, in stating what must be proved to justify a conviction, said that it must be proved that the property was stolen, but failed to state that it must be proved that the defendant stole it.</p> <p>Held, that, because of the omission, the instruction was erroneous'</p>

<p>Constitutional Law.—Amendment of Statute.—An amendatory act under tlie constitution must profess to amend some act or section of an existing statute, and an amendatory statute which, attempts to amend a section which has already been amended is unconstitutional and void.</p> <p>Statute.—Effect of Amendment.—When a section in an existing law is amended, it ceases to exist, and is effectually repealed and obliterated from the statute, and the section as amended supersedes such original section, and becomes incorporated in and constitutes a part of the original act.</p> <p>Same.—School Trustees.—OiMes and Towns.—The' amendatory act of March 12th, 1875, in reference to the election of school trustees in incorporated cities and towns (Acts Keg. Ses. 1875, p. 135), superseded and took the place of the amendatory act of March 8th, 1873 (Acts 1873, p. 68), and to ascertain what the law is, the last act must be looked to solely and exclusively.</p> <p>Same.—By the amendatory act of March 12th, 1875 (Acts Beg. Ses. 1875, p. 135), the common council of each city and the board of trustees of each incorporated town, at their first regular meeting in June, 1875, were to elect three school trustees, who should hold their offices for one, two, and three years respectively, as might be determined by lot.</p> <p>Oppice.—Eight to Abolish.—-An office created by the legislature may be abolished, or the term thereof may be shortened.</p>

<p>Insukahce.—Assignment of Policy.—A policy of fire insurance was issued July 22d, 1871, to A., on a house owned by him, one-fifth of the premium being paid in cash, the remainder to be paid in four annual instalments, for which A. gave his notes. March 25th, 1872, A. sold the property to B., and June 26th, 1872, assigned to him the policy by indorsement. The house was destroyed by fire in June, 1873. The policy provided that “ assignments of policies must be made within ten days after the sale of the property, and this policy sent to the office of the company forthwith for the consent of the company, with fifty cents recording fee, and a new instalment note signed by the assignee; consent will then be given to the assignment. * *' * This policy is made and accepted on the above conditions, and the charter and by-laws of this company, which are to be resorted to and used to explain the rights and obligations of the parties hereto in all cases not herein otherwise specially provided for, and which are hereby made part of this policy.” The charter provided that the alienation of the insured property should render the policy void, “ provided, however, that the grantee or alienee having the policy assigned to him may have the same ratified and confirmed to him, her, or them, for his, her, or their own proper use and benefit, upon application to the directors, and with their consent, within thirty days next after such alienation, on giving proper security, to the satisfaction of said directors, for such portion of the deposit notes as shall remain unpaid; and by such ratification and confirmation, the party causing the same shall be entitled to all the rights and privileges and subject to all the liabilities to which the original insurer was entitled and subjected under this act.” The indorsement of the policy was made by A. in the presence and by the consent and direction of the local agent of the company, who had full knowledge of all the facts, and who, knowing that B. had agreed with A. to assume the payment of said instalment notes made by A., received of B. the amount . of the first instalment, which was all that was due on said premium before the house was burned, and said agent, in the presence of B., received from A. said policy, to be properly indorsed by the secretary of the company, B. telling said agent that when this was “ fixed up ” he would pay the company’s charges thereon, and said agent promising to have it all attended to in due time. The agent did not forward the policy to the secretary as promised.</p> <p>Held, that there was no assignment in conformity with the provisions of the charter and the policy, and that B. could not recover on the policy.</p>

<p>FeattouIiENT Conveyance.—Husband and Wife.—Pleading.—A complaint to subject real estate conveyed to a wife to tbe payment of tbe husband’s debt, on the ground of fraud, need not charge the wife with knowledge of the husband’s fraud, if it is alleged that she paid nothing for the land, and that the whole consideration was paid by the husband.</p>

<p>CoNSTmraioMAO Law.—Oily.—Homefor Friendless Women.—The act approved February 26th, 1873 (Acts 1873, p. 141), concerning the application of certain fines, etc., collected in <the enforcement of certain city ordinances in cities having incorporated homes for friendless women, applying such fines, etc., to the support of such institutions, is not unconstitutional.</p> <p>Same.—The Indianapolis Home for Friendless Women is so far a public corporation, or institution, that an appropriation by the legislature of certain fines, etc., collected for the violation of certain city ordinances, to its support, is not the appropriation of money to a private purpose.</p>

<p>Supreme Court,—Evidence.—The Supreme Court will not disturb a judgment upon the evidence, where the testimony is conflicting.</p>

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

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

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

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

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

<p>Vendob and Pubchaseb.—Fraudulent Representations as to Title.—"Where a vendor fraudulently represents that he has a good and perfect title to the real estate sold, and the vendee, relying on such representation, is induced to purchase, the collection of the purchase-money may he enjoined until the title shall have been made good, as represented.</p> <p>Same.—Pleading.—In seeking to enjoin the collection of the purchase-money in such case, the action is based on the fraud, and not on the covenants in the deed from the vendor to the vendee, and such deed need not be made a part of the pleading.</p> <p>Pleading.—JDemwrer.—Pleading not Signed.—An objection that a pleading is not signed by counsel cannot be made on demurrer</p> <p>Pbactice.—Bill of Exceptions.—■'Where a bill of exceptions shows that evidence was given which is not contained in the bill, the court cannot consider whether the finding is sustained by the evidence.</p> <p>Vendob and Pubchaseb.—Evidence.—Where the collection of purchase-money of real estate is sought to be enjoined, on the ground of fraudulent representations as to the title, where the real estate was school lands, it is competent for the vendor to show in evidence, to rebut the allegations of fraud, the loss of the certificate of sale made by the auditor, the register of the auditor showing the sale, payments made, and the institution of proceedings to obtain a new certificate.</p> <p>Pbactice.—Supreme Court.—After a cause is submitted by a written agreement, it is too late to object to the clerk’s certificate, on the ground of informality.</p> <p>Same.—Motion for New Tried.—A motion for a new trial may be made at any time after judgment, at the same term of court.</p> <p>Pleading.—Counter-Claim.—To a complaint on promissory notes, apleading alleging facts arising out of or connected with the cause of action, as a foundation of a claim against the plaintiff to enjoin the collection of the notes, is a counter-claim.</p>

<p>PbActice.—Assignment of Error.—Where a special finding of facts with conclusions of law is made, an assignment of error in overruling a motion for judgment on the special finding is not valid. The assignment should he that the court erred in the conclusions of law.</p> <p>Same.—A judgment will not be reversed on the evidence, where it is conflicting, but is sufficient to authorize and sustain the findings.</p> <p>Same.—That a decision is contrary to the special findings of the court, is not a reason for a new trial.</p>

<p>Supbeme Coubt.—Notice to Co-Parties.—Assignment of Errors.—Where, on . appeal to tbe Supreme Court from a judgment against several defendants, any one of tbem does not join in tbe assignment of errors, and be has not been notified as provided by section 551 of tbe code, tbe appeal will be dismissed.</p>

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

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

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

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

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

<p>Bromksory Bote.—Note Made as. Collateral.—A. and B. made their joint and several negotiable note to 0. The note was assigned to D. without indorsement. Suit by D. against B. on the note. The evidence showed that B. signed the note at the request of E., knowing that E. would deposit the note with D. as collateral security for money borrowed by E. of D. Afterward D. informed B. that the parties wished him to buy the note, and B. told D. not to buy it, that he only signed it “ as surety for a pledge,” and-for D. to make his money out of A.</p> <p>Held,, that the evidence entitled D. to recover of B.</p>

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

<p>Trespass.—Joint Trespassers.—Bight of Action.—An injured party may sue-several joint trespassers separately, and prosecute each, suit to final judgment ; hut then he must elect against whom he will take execution.</p> <p>Same.—Execution.—A final judgment and an execution, or an order for an execution, against one of several joint trespassers, is a discharge of all the others.</p>

<p>Pi/EADIXG-.—Complaint for New Trial.—Diligence.—Complaint for a new trial on the ground of the absence from the county, at the time of the former trial, of a material witness for the party applying for the new trial, who was unable, until after the trial, to learn the whereabouts of the witness, the only allegation of diligence being “ that he used due diligence to ascertain before trial the whereabouts of said witness.”</p> <p>Held, that the allegation as to diligence was insufficient.</p>

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

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

<p>Ceimtnai, Law.—Indictment.—Assault and Battery with Intent.—In an indictment for an assault and battery with intent to commit a felony, if an assault and battery be properly charged, it is not necessary to also charge an assault, as it would be described in an indictment for an assault with intent to commit a felony.</p> <p>Same.—Intent to Commit Bape.—“ Unlawfully.”-—Motion to Quash.—Where, in an indictment for an assault and battery with intent to commit a rape, the word “ unlawfully ” or an equivalent word is not used in charging the intent, the indictment is had as to the intent, but if there be a good charge of an assault and battery the entire indictment should not be quashed.</p> <p>Same.—Arrest of Judgment.—If the facts stated in an indictment constitute a public offence, judgment may not be arrested because the indictment is defective.</p> <p>Same.—Verdict Contrary to Law.—Under an indictment for an assault and battery with intent to commit a rape, in which an assault and battery is well charged, but the charge of the intent is insufficient, a verdict in which the defendant is found guilty, not only of the assault and battery, but also of the felonious intent, is contrary to law.</p>

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

<p>'Cbimektal Law.—Selling Articles Within One Mile of Eeligious Meeting, etc.— Information.—Exceptions.—"Where, in a prosecution hy affidavit and information for selling articles in violation of the act “ for the better protection of religious meetings, agricultural fairs, and other lawful assemblages of the people,” 2 G. & H. 469, as amended by the act of November ’30th, 1865, 3 Ind. Stat. 257, the affidavit does not negative the existence of facts by which under section 2 of said act the seller would be excepted, it is bad, and the information should be quashed on motion.</p>

<p>Criminal Law.—Keeping Gaming Apparatus.—Indictment.—In an indictment, under section 38, 2G.AE 450, for being the keeper of a gaming apparatus, it is not necessary to allege that any game was played with or on the apparatus, and therefore it is not necessary that any names should be stated as the names of persons who played.</p> <p>Same.—Statute.—Said section 38 of the chapter relating to felonies, so far as the keeping of a gaming apparatus called a "wheel of fortune” is concerned, was not repealed by section 74 of the subsequent statute relating . to misdemeanors, 2G.&E 477.</p>

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

<p>Liqtjor Law.—Act of 1873.—Indictment.—In an indictment under the first section of the liquor law of 1873 (Acts 1873, p. 151), it was necessary to allege that the liquor was sold “ to be drunk ” in, upon, or about the building or premises, etc.</p>

<p>Vendor and Purchaser.—Third Person Holding Title as Security for Purchase-Money Paid by Him.—In 1863, A. bought certain land of B. by parol, received possession, agreeing to pay B. a certain sum with interest from the date of the purchase, no definite time being fixed for payment, and made lasting and valuable improvements. In 1865, B. having demanded payment, C. by agreement with A. paid the purchase-money to B. and paid the taxes, and received a conveyance of the land from B., agreeing to hold the title as his security for repayment by A. within a reasonable time from July 1st, 1863.</p> <p>•Heíd/that an action could not be maintained by C. to enforce his lien, without first tendering to A. a deed for the land, to be delivered upon payment of the amount due.</p>

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

<p>Contract.—Refusal to Accept Property Gomiraatedfor.—Measure of Damages.— An action against a railroad company, based upon a contract under which the plaintiff has placed upon the line of the defendant’s road a quantity •of firewood, which, by the contract, the defendant was to measure, receive, and pay for at a certain price per cord, of which placing of the wood the defendant has been notified by the plaintiff, but as to a portion thereof has not measured, received, or paid therefor as agreed upon, which portion, having been insured by the plaintiff as his own after it should have been so accepted, has been destroyed by fire without the plaintiff’s fault, is not an action for the contract price of the wood, but is an action for not accepting the wood according to the contract; and the measure of damages is the difference between the contract price and the market price at the time and place at which the wood ought to have been accepted.</p>

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

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

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

<p>Supreme Court.—Evidence.—The Supreme Court will not reverse a judgment upon the weight of the evidence, where there is conflicting testimony.</p> <p>Same.—Olyectiion to Evidence.—An objection to evidence admitted will not be considered by the Supreme Court, where the record does not show a ground of objection presented to the court below.</p> <p>Costs.—Married Wonum.—Where a married woman sues in her own name for'her separate property, and fails to maintain her action, she is liable for costs as other persons in like cases.</p>

<p>Decedents’Estates.—Set-Off.—In a suit by an administrator on a note executed to Mm for an indebtedness to tbe estate wbicb he represents, wMcb originated after tbe death of tbe intestate, the defendant cannot set off a debt due to him from tbe decedent in bis lifetime.</p> <p>Pleading.—Answer.—Pcurty in Interest.—To a complaint by an administrator as such on a promissory note made payable to him as administrator, it is not a sufficient answer that tbe note is not tbe property of tbe estate ' represented by tbe plaintiff, but his individual property.</p>

<p>Dkainag-e of Land.—Assessment.—Pleading.—In a complaint upon an assessment against lands of the defendant to construct a ditch, under the act of March 11th, 1867, 8 Ind. Stat. 228, it is not necessary to show the specifications on which the assessment was made, the interest of the plaintiff in the work, the description of the defendant’s lands sought to be charged, and his ownership of the land, there being filed with the complaint a proper petition and the proceedings of the board of county commissioners thereon'.</p> <p>Same.—Schedule.—Description of Land.—In such case, the appraisers, having in their hands the petition and the proceedings thereunder of the board of commissioners, may, by reference' thereto, complete their otherwise incomplete description of the land in their schedule.</p> <p>Same.—Answer.—In such case, the defendant cannot complain that more land of another person is assessed than is mentioned in the petition.</p> <p>Same.—An answer of general denial, in such an action, puts in issue all the material matters presented by special paragraphs of answer alleging that the plaintiff could have drained all his wet lands without affecting the lands of the defendant, and that his whole proceedings were unnecessary for the drainage of his lands; or that the petition did not specify the character of the work; or that the appraisers did not, before the commencement of the action, make out a list of all the lands liable to be affected by the work; or that the petition did not describe and specify all the lands affected, with the names of the owners thereof.</p> <p>Same.—Evidence.—Record of Schedule.—Where the original schedule of assessment has been lost, the record thereof, in the record books of the county recorder’s office may be read in evidence.</p> <p>Same.—On the trial of such an action, the evidence will be insufficient, where it does not show the application to the county commissioners,’the appointment of appraisers, the notice of the meeting of the appraisers, or any demand of the amount of the assessment by the plaintiff of the defendant. '</p>

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

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

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

<p>Stbeet Ratlboad.—Sait on Subscription to Stock.—Articles of Association.— There can be no recovery upon a subscription to the capital stock of a street railroad company, made before its organization, where it is not shown that the defendant, after the subscription of the requisite amount of stock, subscribed articles of association in which were set forth, besides other requisites, the number of directors to manage the company and their names, as required by section 1, 3 Ind. Stat. 422, and it does not appear that he ever assented to the number or names of the directors.</p>

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

<p>Bauboad.—Injury to Animal.—Fencing.—In an action against a railroad company to recover the value of an animal killed by the cars of the defendant, the following instruction, given to the jury, applicable to the evidence, was correct: “ A railroad company is not bound to build and maintain a fence at a point in a town or village, if by so doing it will obstruct or interfere with the free use of a public street in the town or village; and it is not bound or required to build and maintain a fence at a point that would obstruct a public highway, or where it will interfere in any way with the free use of such highway, whether such highway is in a town or village or in the country. Neither does the law require a railway company to build and maintain a fence at a point where by so doing it will interfere with the free use of a switch or side-track, constituting a part of the road; nor is such company bound to build or maintain a fence at a point on its road where it will interfere with the free use of a piece or parcel of ground kept and used by the company as a coal or wood-yard, nor when it will interfere with the free use of a yard or lot kept for the purpose of loading or unloading staves, lumber, timber, wood, or other kinds of freight shipped or to be shipped on the cars of the company. And when there is a mill or hay-press on or near a railroad track, if the maintaining of a fence at or near the mill or press would interfere with the free use of the same, then the company is not required to build or maintain a fence so as to interfere with the free use of the mill or press. And if there is a lot or yard used in connection with the mill or press, the company is not bound to build or maintain a fence at any point where the same will interfere with the free use of such lot or yard. But whenever a company can build and maintain a fence without interfering with the rights of the public, or with the free use of property belonging to private , individuals, or of its own property, then it is bound to maintain a fence, whether it be in a town or village or in the country.”</p>

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

<p>Supreme Court.—Objection to Evidence.—Aground of objection to evidence admitted cannot be presented to the Supreme Court, when the record does not show that such ground of objection was presented to the court below.</p>

<p>New Triar.—Payment of Costs.—Where a new trial has been had, it cannot be objected to on the ground that it was granted to a party applying therefor upon his paying certain costs, and that such costa were not immediately paid.</p> <p>Practice.—Suit on Joint Contract.—Under the code, where several persons are sued upon what is alleged to be their joint contract, and on the trial it is shown to be the contract of one or more of them, but not of all, the plaintiff will be entitled to judgment against the one or more whose contract it is shown to be, the sáme as if such one or more only had been sued.</p>

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

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

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

<p>Por opinions on the petition for a rehearing in this case, see post,.p. 517.— Repobteb.</p>

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

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

<p>Descent.—Widow.—A. died in 1872, intestate, seized of lands in this State, leaving surviving him a widow, hut no child or father or mother, but leaving brothers and sisters and descendants of brothers and sisters.</p> <p>Held, that the widow was entitled to the whole of said lands.</p>

<p>Pleading.—Action to Qwiet Title.—A complaint to quiet title to real estate which alleges that the plaintiff owns the land in fee, and that the defendant is making an unfounded claim of title thereto, sufficiently shows that the defendant claims title “ adverse ” to the plaintiff.</p> <p>Same.—A complaint in such an action which alleged that the land in question was conveyed to the defendant and the ancestor of the plaintiff by an instrument which was executed to reimburse the plaintiff, in part, for payments made by him as surety of the grantor, and to secure both the grantees against other liabilities as sureties of the grantor, on which certain amounts were paid by each of the grantees after the execution of the instrument, did not show a claim of title by the defendant adverse to the plaintiff, and was, therefore, insufficient.</p>

<p>Negligence.—Instruction.—Where a complaint for an injury causing death alleges that the injury resulted from the explosion of a boiler, and charges that the boiler was composed of bad iron, that it was defectively made, and that it was old, decayed, and worn to unfitness for use, it is error to instruct the jury that they must find that the explosion resulted from all these causes, or they must find for the defendant.</p> <p>Evidence.—It is only necessary for a plaintiff to prove so many of the acts alleged by him as constitute a cause of action.</p> <p>Allegations and Peooe.—A plaintiff must recover according to the allegations and the proofs, and not according to either alone.</p> <p>Same.—Variance.—Aright to recover on a complaint charging negligence in the use of defective machinery cannot be supported by proof of negligence in employing unskilful men to run the machinery.</p> <p>Pbachce.—Interrogatories to Jury.—Interrogatories to a jury, not asked in the form contemplated by the statute, should be refused. • /</p>

<p>Justice oe the Peace.—Appeal.—A judgment was rendered by a justice of tbe peace on tbe 16th of December, and the defendant filed an appeal bond which was approved by the justice on the 15th of January following, and the transcript and appeal bond were filed in the circuit court on the 29th of the same month.</p> <p>Held, that the appeal was perfected within the required time. '</p>

<p>EaiuroAd.—Ejection of Passenger.—Damages.—The conductor of a railroad train took up the ticket of a passenger which entitled him to ride to a certain place, and, having given him no check, afterward when within a few miles of such passenger’s destination accused him of attempting to ride beyond the distance for which he had paid, charged him with falsehood, and treated him insolently in the presence and hearing of the other passengers, and, with the help of a brakeman, seized said passenger and put him off the train in a rude and angry manner, at aplace where there was no station or house, it being cold and dark and being about nine o’clock at night, and the passenger had to walk to his destination. In an action by said passenger against the railroad company for damages for such treatment, there was a verdict for the plaintiff for seven hundred dollars.</p> <p>JETeM, that the damages were not excessive.</p> <p>Same.—Evidence.—Where the complaint in such action did not allege any mental sufferings of the plaintiff, it was error to allow him, over objection, to prove the delicate condition of his wife awaiting his arrival at his destination and his consequent distress of mind on her account.</p>

<p>Supreme Court.—New Trial.—Where no exception has been reserved to any of the pleadings in an action or taken during the trial, and the evidence is not in the record, the Supreme Court cannot decide that “ the finding is contrary to law.”</p>

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

<p>Promissory Note.—Diligence.—The assignee of a promissory note not payable in bank must sue on the note as soon as it becomes due, if he would hold the indorser.</p> <p>Same.—Insolvency of Maker.—If the maker of such note is insolvent at the maturity of the note and at the time suit might be first instituted thereon, the indorser is not released by a failure to sue the maker.</p> <p>Same.—Maker and Indorser.—The assignee of such notéis only bound to use diligence against the maker, to enable him to recover against his immediate or more remote indorser. He is not bound to exhaust the property of a remote indorser before he can have his action against his immediate indorser.</p> <p>Peeatcmg.—Answer.—Reply.—To an answer alleging an ■ assignment of a part of a cause of action to a third person, a reply showing a reassignment to the plaintiff before the commencement of the suit is good.</p>

<p>Vendor and Purchaser.—Failure of Title.—Where, for failure of title to a portion of the land conveyed by a warranty deed, the purchaser recovers judgment against the vendor, it should include interest on the part of the purchase-money paid for such portion; or, where a note was given for the purchase-money, it should be regarded as having been credited, as of the day on which it was given, with the price of the portion the title of which has failed.</p>

<p>Liqttoe Law.—Damages.—Statute Construed.—The twelfth section of tbe act to regulate tbe sale of intoxicating liquors, Acts 1873, p. 151, gives a right of action against any person or persons who shall, by selling intoxicating liquors, have caused the intoxication, in whole or in part, of the purchaser, and it is no excuse that the person selling the liquor is only a clerk or salesman in a saloon, nor is it necessary that he should compel the purchaser to drink or use any artifice to cause him to drink, or that he should know that such person would get drunk.</p> <p>Same.—Owner-of Property.—That part of said section which provides for holding the owner of real estate liable for sales of intoxicating liquors does not apply to the owner of property who himself sells liquor therein, but applies to owners who permit others to occupy and use the property for such purposes, and in such case the complaint must show that the owner had knowledge that intoxicating liquors were to be or had been sold therein.</p> <p>Same.—Pleading.—A complaint by a wife under said section, alleging that her husband was intoxicated by liquor purchased of the defendants, and . thereby neglected his work, and squandered his money, and damaged the plaintiff in her means of support, sufficiently showed how shei was injured.</p> <p>Same.—Instruction.—Where a complaint is insufficient to hold the owner of a building liable for sales of intoxicating liquors made therein, it is error, under any state of tbe evidence, to instruct tbe jury that such owner may be liable.</p>

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

<p>Practice.—Postponement of Trial.—Absence of Witness.—Affidavit.—Upon an affidavit filed in support of a motion to postpone a trial on account of the absence of a witness, the adverse party indorsed an admission “ that said witness, if present, would give evidence as herein stated.”</p> <p>Meld, that this was substantially an admission “ that he will testify to said facts as true,” as provided by statute (3 Ind. Stat. 376).</p> <p>Same.—Irrelevant Evidence.—A judgment ought not to be rgyersed for the admission of evidence which is merely irrelevant.</p> <p>Same.—Motion for New Trial.—Bill of Exceptions.—Where a motion for a new trial on account of the admission of evidence, over objection, refers for the particulars upon which the objection is founded to a bill of exceptions not yet filed, such objection will not be considered by the Supreme Court.</p>

<p>Constitutional Law.—Publication of Sheriff’s Sale in German Newspaper.— The act oí March. 9th, 1875, “ providing forpublication of official matter in German newspapers,” Acts 1875, p. 75, so far as it applies to notices of sales of real estate on execution, is an act regulating the practice in courts of justice, and is local and special, and therefore is in conflict with sections 22 and 23 .of article 4 of the constitution of the State.</p> <p>Amendment on Laws.—Section 467 of the Gods.—Sheriff’s Sales.—Section 467 of the civil code was amended and entirely superseded by the act of February 2d, 1855, 2 G. & H. 249. Therefore, the act of March 11th, 1875, Acts 1875, p. 115, purporting to be amendatory of said section 467, is wholly inoperative.</p>

<p>Practice.—Motion for Continuance.—An affidavit for a continuance, alleging that notice to take depositions in a distant city, giving the time and place, was given to the opposite party, and that the notice was sent to the officer before whom the depositions were to be taken, in ample time to arrive and give the officer time to' serve the witnesses, and that, for some reason unknown to the affiant, the depositions have not arrived, is insufficient for not showing that the names of the witnesses or the facts to he elicited were given to the officer, or that he had any means to obtain their depositions, or that any depositions were in fact taken, or well grounded belief that they were taken.</p> <p>Evidence.—Infancy.—In a suit upon a promissory note given for the services of an attorney in defending the maker on a charge of homicide, where a plea of infancy is made by the maker, it is competent for the plaintiff to prove that on the trial of the defendant on the charge of homicide, no plea or defence was made by the defendant on the ground that . he was a minor.</p> <p>Same.—Opinion as to Age.—A witness, who has testified to the personal appearance of a defendant who pleads infancy at the time of making the contract sued on, may be allowed to state his opinion as to the age of the defendant.</p>

<p>Attorney.—Suspension from Practice.—Where a judgment has been recovered against two attorneys as partners, for money collected by them and not paid over to their client, and where the partnership has been dissolved, and the debts due the firm have been assigned to one of the partners, who has assumed to pay the judgment, a failure to collect and apply such debts to the payment of the judgment will not authorize the suspension of the attorney to whom the accounts have been assigned.</p>

<p>Tax.—Repayment by Comities of Rlegal Taxes.—Statute Construed.—When the legislature directed the repayment to the counties (Acts 1873, p. 210) of the taxes collected by reason of the illegal addition by the state board of equalization to the valuation of lands in 1869, the intention was, that the same should be refunded by the county to the parties who had paid the same.</p> <p>Same.—Presumption—It will be presumed that the money directed by the above act to be paid by the State to the counties has been so paid.</p> <p>Same.—A county to which such fund is paid stands in the position of a trustee for those who paid such illegal taxes.</p> <p>Same.—Township Tax.—Township tax paid on account of the illegal addition to the valuation of lands, made in 1869, cannot be recovered of the county.</p>

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

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

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

<p>Practice.—Supreme Court.—Where the finding of the court below is justified by tbe evidence, it will not be disturbed.</p>

<p>Variance and Amendment.—To an action' upon a promissory note, the defendant answered that he was a resident of the District of Columbia, and by the law of that district the action was barred by the statute of limitations, setting out the statute. On the trial, the statute offered in evidence was a statute of the State of Maryland, adopted by an act of Congress, and made applicable to that part of the District of Columbia where the defendant resided. The court excluded the evidence on the ground of variance. The defendant then asked leave to amend so as to avoid the variance.</p> <p>Meld, that there was no material variance.</p> <p>Meld, also, that the defendant should have been allowed to amend.</p>

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

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

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

<p>Jurisdiction.—Change of Venue.—Proceedings Must he Certified.—In an action commenced in the common pleas court of a county against a husband and wife, where, by agreement, the venue is changed to the circuit court of the same county, and where, by such agreement, the complaint, summons, and order for the change of venue are to be certified to the circuit court, if they are not so certified, the circuit court will acquire no jurisdiction of the wife, unless she appears in said circuit court, and any judgment or decree against her, in said court, will be void.</p> <p>Same.—Certified Record.—One court cannot speak officially to another court otherwise than by its seal.</p> <p>Same.— What will Constitute an Appearance.—To constitute an appearance, there must be some act done or word spoken in court by the party charged with appearing. The record, in such action, reciting that “now come the parties by counsel, and the plaintiff withdraws” a paragraph of his complaint, and that a certain one of the defendants (said husband) filed his answer, did not show an appearance by the wife of such defendant.</p> <p>Practice.—Default.—If there is an appearance, a default should not be entered.</p> <p>Jurisdiction.—Evidence.—Void Judgment.—Where the record of a cause shows that the court rendering the judgment and decree therein did not have jurisdiction of one of the parties, such record is not admissible in evidence against such party.</p> <p>Publication.—Sheriff’s Sale.—The law does not require that the last publication of an advertisement for the sale of land by a sheriff must be twenty days before the day of sale.</p>

<p>fim-MTwAT, Law.—False Pretence.—Statute Construed.—The gravamen of the crime defined by section 27, 2 G. & H. 445, consists in obtaining the signature of any person to any written instrument, or in' obtaining from any person any money, transfer, note, bond, or receipt, or thing of value.</p> <p>Same.—The offence -may be committed by two means: First. By color of any false token or writing. Second. By any false pretence.</p> <p>Same.—Token.—A printed business card purporting to be that of a firm, but which is not the business card of such firm, exhibited by one who claims to act as agent of such firm in making contracts, is a token or writing within the meaning of the statute.</p> <p>Same.—Indictment.—An indictment under such statute is not bad for using the word “pretend” instead of the word “represent.”</p> <p>Same.—An indictment, charging that the defendant procured a signature to a note by false pretences used to induce the person whose signature is thus obtained to contract for the purchase of an article of property, is bad, if it does not state that the person whose name was procured relied upon such pretences as true, and upon the faith thereof purchased the property, and in consideration thereof executed the note set out in the indictment.</p>

<p>Corporation,—Stockholder of Mmvfaeturing Corporation not Liable for Debts.—Statute Construed.—A stockholder of a private corporation, organized in 1870, is not liable for the debts of such corporation thereafter accrued, under the act of May 20th, 1852, 1 G. &H. 427, sec. 11.</p> <p>Same.—At the time of the passage of the act of 1859,1 .G. & H. 276, secs. 1 and 2, security for dues from private corporations for manufacturing purposes had been provided by the act of 1852, and hence such corporations were excluded from the act of 1859.</p> <p>Same.—The repeal in 1863 of the eleventh section of the act of 1852 did not have the effect to make the act of 1859 extend to and embrace a class of corporations excluded by the language of the act.</p> <p>Same.—Constitution.—The fourteenth section of article 11 of the constitution in no way affects the proper construction of the acts to secure dues from private corporations.</p>

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

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

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

<p>Practice.—Assignment of Error.—An exception taken to conclusions of law ■on a special finding of facts is not available, unless error is assigned upon it.</p> <p>Office.—Township Trustee.—-A township trustee who was elected at the April election in 1867, and who qualified and gave bond, and who was elected his own successor at the April election in 1868, but who did not then give a new bond, did not thereby vacate the office, and he was entitled to hold it until his successor was elected and qualified.</p> <p>Same.—Official Bond.—Sureties.—The sureties upon the bond of a township trustee, elected in 1867, were bound to know that his right to the office might extend beyond the year, and they bound themselves for whatever time he might continue in office by virtue of such election.</p> <p>Official Bond.—Immaterial Alteration.—The conditions of the bond of a township trustee elected and qualified in 1867 recited, when signed by the sureties, that he should correctly account to the board of commissioners at its March term, 1868; but either before or after it was accepted and approved by the auditor of the county, the deputy auditor altered it by inserting the word and figures “1869 and 1870” after the figures 1868.</p> <p>Held, that the alteration was not a material one, and, having been made by a stranger, would not have discharged the sureties if material.</p> <p>Same.—Alteration by Stranger.—An alteration made by a stranger to an instrument, without the participation of a party interested, is a mere spoliation, and the rights of the parties are not affected.</p> <p>Same.—Spoliation of Bond by Legal Custodian.—The alteration of an official bond-by an officer or his deputy, who is by law the mere custodian of it, will not destroy the validity of the bond.</p>

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

<p>Beal Estate.—Possession.—Statute of Limitations.—Void Sheriff’s Sede.—An action to recover possession of real estate, brought by a judgment debtor against one who holds through a purchaser at sheriff’s sale, will not lie after the expiration of ten years from the date of sale, though the sale was illegal and void, because of the land having been sold without appraisement, when it should have been appraised.</p>

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

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

<p>Criminal Law.—Alibi.—Instruction.—In a criminal cause, where the evidence tends to prove an alibi, the use of the words “ possible ” and “ impossible,” as applied to the ability of the defendant to have been ata certain place, other than where the crime was committed, and at the place where the crime was committed at the time of its commission, is erroneous.</p> <p>Same.—In a criminal cause, it is error to refuse to instruct the jury that the defendant is presumed to be innocent until the contrary is proved.</p> <p>Same.—Indictment.—An indictment for murder in the first degree need not state that the defendant is of sound mind.</p>

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

<p>Practice.—Supreme Court.—Where there is evidence in the record which, sustains the verdict, the Supreme Court will not disturb it, though the evidence may preponderate in favor of the party against whom the verdict is rendered.</p> <p>Payment.—Counterfeit Currency.—A paymentin counterfeit notes which pass as currency amounts in law to no payment, and does not satisfy the debt, when the personxeceiving such payment has not forfeited his right to have recourse by his delay and negligence.</p> <p>Same.—Offer to Return Counterfeit Curreney.—Diligence.—A person who receives curreney in payment from one who makes the payment in good faith is required to use diligence to ascertain whether it is genuine, and, if it is discovered to be forged, to return it within a reasonable time after such discovery, or, if it cannot be returned, to give notice of its character.</p>

<p>Pbaciice.—Supreme Court.—Where there is a direct conflict in the testimony, the Supreme Court will not invade the province of the court below by reversing its judgment on the evidence.</p> <p>Diligence.—Counterfeit Sill.—A counterfeit bill was paid to the plaintiff by the defendant in December, 1870, and retained in possession of the latter until the 24th day of January, 1871, when he paid it to a third party, from whom it was returned in a few days as counterfeit, and it was then tendered to the defendant.</p> <p>Held, that the plaintiff did not use sufficient diligence to ascertain whether the note was genuine, to enable him to recover of the defendant.</p>

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

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

<p>Town.—Incorporation.—Tom of Ohio Falls.—The town of Ohio Falla, situated on the land laid off and platted as the town of Clarksville, under the act of Virginia, is properly incorporated under the statute, 1 G-. & H. 619, and the amendments thereto. ■</p>

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

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

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

<p>Practice.—Motion for New Trial.—Error in ruling upon a demurrer, or on a motion to strike out parts of a pleading, or in refusing to try causes of action set up in different paragraphs of a complaint separately, are not reasons for a motion for a new trial.</p> <p>Same.—A motion for a new trial assigning as reasons tko improper admission or exclusion of evidence, or the giving or refusing of instructions, hut not pointing out the evidence admitted or excluded, or the instructions given or refused, cannot he made sufficiently specific hy reference to hills of exceptions not on file at the time the motion was filed.</p> <p>Same.-1-Assignment of Error.—Puling on a motion to strike out parts of pleas, or in refusing to try causes of action separately, must he assigned as error, else no question is raised thereon for review.</p> <p>Paktxebship.—Dissolution.—The death of a partner dissolves the partnership.</p> <p>Same.—Bight of Summing Partner to Beal Estate.— Widow.—A surviving partner has the right to control real estate held by the partners until the partnership debts are paid and the affairs of the firm finally settled, and until such time the widow of a deceased partner has.no separate share in the partnership property.</p>

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

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

<p>County Commissioner.—Term, of Office.—Where the districts of a county for purposes of electing county commissioners were changed in March, 1870, and in the new district number 2 there was no resident commissioner, and the term of office of two of the commissioners who resided in new district number 1 expired in November, 1870, and the term of the third commissioner who resided in new district number 8 expired in 1871, the term of office of a new commissioner elected at the October election in 1870, in district number 2, commenced in November, 1870, and expired November, 1873, and his successor elected in October, 1872, was entitled to take the office in November, 1873.</p>

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

<p>City.—City Judge.—Jurisdiction.—A city judge, elected in pursuance of an ordinance providing that he shall possess the judicial power and perform, the judicial duties possessed and'performed by the mayor under the provisions of the act of March 14th, 1867, in reference to the incorporation of cities (Acts 1867, p. 33), has no jurisdiction to arraign, try, and commit a person to jail for the violation of a city ordinance.</p> <p>Same.—Mayor.—Jurisdiction.—By the act of March 14th, 1867, in reference to the incorporation of cities, the mayor of a city has exclusive jurisdiction of cases for the violation of city ordinances.</p> <p>Same.—The act in reference to the incorporation of cities, approved March 14th, 1867, repealed the act of December 20th, 1865, though in the repealing section the year in which the act repealed (of which the title is correctly recited) is said to have been approved is given as 1863 instead of 1865.</p>

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

<p>Highway,—Sufficiency of Petition.—A petition to lay out and open a highway, which describes the beginning -point as “near” the corner between the north-west and north-east quarters of a certain section, without designating which corner, is bad, though it says the highway is to run from thence south “ between ” a certain eighty-acre tract of land.</p>

<p>Pleading.—Complaint to Recover Docket Fees of Cleric.—A complaint by the . State against a clerk of a circuit court, alleging that the clerk received a certain sum of money as docket fees and unclaimed witness fees, belonging to the State, which he has retained for more than one year, alleging a demand; or alleging that such clerk is indebted to the State in a certain sum for docket fees, witness fees, and unclaimed moneys belonging to estates, which he has retained for more than a year, and alleging a demand, is good, under the fourth section of the act of March 10th, 1873.</p>

<p>BastAkdy.—Release of Surety on Bond.—The surety on a bastardy bond, given before a justice of the peace, for the appearance of the defendant at the next term of the circuit court, is only bound that the defendant will appear at and during that term, and not depart without leave, and abide the judgment and orders of the court in the premises, and if the cause is continued without a new bond, the surety will be released.</p>

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

<p>Intoxicating Liqtjob.—Sale to Minor for Medical Purposes.—A person who sells intoxicating liquor, on a proper occasion, in good faith and with due caution, for medical purposes only, is as much shielded by the spirit of the act of February 27th, 1873, as if he were exempted from the penalties of the act by express words. This rule is applicable to sales to minors.</p>