Volume 51 — Indiana Reports

<p>Replevin. — Pleading.—Evidence.—Partnership.—In an action for the recovery of the ¡possession of personal property, the defendant may, under an answer of general denial, prove that he is a constable and holds the property as such by virtue of a levy made thereon by him under an execution in his hands issued on a judgment against a third person, and that the property is owned by the plaintiff and such third person jointly as partners; and under such facts the plaintiff cannot recover.</p> <p>SAME. — Form of Verdict mid Judgment. — The plaintiff in an action for the recovery of the possession of personal property cannot complain of a verdict and judgment against him therein because they do not provide for a return of the property taken under the writ.</p>

<p>Supreme Court. — -Jurisdiction.—Amount in Controversy. — Where the amount sued for before a justice of the peace is more than ten dollars, and the judgment is for the defendant, and the plaintiff appeals to the Supreme Court, the amount in controversy is the amount of the plaintiff’s claim, and the court will have jurisdiction.</p> <p>Jurisdiction. — -Justice of the Peace. — The jurisdiction of a justice of the peace in an action by a gravel road company to recover tolls, and also for a penalty prescribed by the by-laws of the company, is governed by the general law prescribing the jurisdiction of justices, and the action must be brought in the township where the defendant resides, if there is a competent justice residing theiein.</p> <p>Practice. — New Trial. — Finding against a plaintiff in bar, after having found against him on a plea to the jurisdiction, is not a reason for a new trial.</p> <p>Same. — Abatement.—Where there are issues in abatement and also in bar in the same action, and both are found for the defendant, judgment should be rendered exclusively on the issues in abatement, and not on those in bar.</p> <p>Corporation. — By-Laws.—The power to make by-laws resides in the members of a corporation at large, where there is no law or usage to the contrary.</p> <p>Same. — A by-law enacted by the directors of a gravel road company, regulating the payment of tolls and prescribing a penalty for violation of the by-law, is invalid.</p> <p>Gravel Road. — Liability for Toll. — A person who travels on a gravel road, between toll-gates, who does not reside on or near the line of the road, and who at the time is not passing thereon about his premises for common and ordinary business, is liable for toll on demand being made for the same, though he does not pass through a toll-gate.</p>

<p>Criminal Law. — Indictment.—Different counts charging felonies may be joined in the same indictment.</p> <p>Same. — Every separate count should charge the defendant as if he had committed a distinct offence.</p> <p>Same. — Practice.—Where an indictment contains more than one count, it is not error to overrule a motion to require the prosecutor to elect on which count he will proceed.</p> <p>SAME.- — Challenge of Grand Jtiror. — Any person under prosecution for crime and in custody or oh bail may, before he is indicted, challenge, for good cause, any person returned or placed upon the grand jury.</p> <p>Same. — Plea in Abatement. — Where a person is not under prosecution for an offence, he cannot be supposed to anticipate that he may be charged with an offence before a grand jury, and in such case he may plead in abatement of the indictment the disqualification of any of the grand jurors who found it.</p> <p>Same.- — An objection to a grand juror, whether on the ground of incompetency of the juror, or corruption on the part of an officer in selecting and impanelling him, when taken by plea in abatement, must show that the defendant had no opportunity to make the objection by challenge.</p> <p>Same. — Dsjidence.—On the trial of an indictment for murder, where the evidence was uncertain as to the name and identity of a man shown to have been a stranger, and shown to have been seen in the locality before, but not after, the night of an affray, in which a person not well identified was stabbed and taken away, apparently in a dying condition, there being no evidence that he was afterwards seen dead or alive, it was not competent to introduce in evidence statements made by said stranger on the day of the alleged murder, but before the affray, as to where he lived, where he had been, where he was going, -who were some of his relatives, that he had sold land, that he had lost a large sum of money, which had been restored to him, that he had been intoxicated, etc., neither for the purpose of identifying the man nor to show that the matters stated were true.</p> <p>SAME. — Impeachment of Witness who is a Defendant. — -Where, on the trial of a criminal action, the defendant testifies in his own behalf, the State may give evidence to impeach him by showing that his character for truth is bad.</p>

<p>Judgment. — Record.—Clerk's Enliy. — Bill of Exceptions. — Where it was stated in the record of an action that the cause was dismissed on motion, for the reason that the court had no jurisdiction of the action, and there was nothing to show that the statement of such reason was not merely the entry of the clerk, such statement could not, in a collateral proceeding, be regarded as apart of the record, or render a judgment for costs against the defendant in such action inadmissible in evidence in such collateral proceeding. In such case, the ground of dismissal should be shown by a bill of exceptions.</p> <p>Real Estate. — Action to Recover. — Evidence.-—Supersedeas.—In an action to recover possession of certain real estate sold by the sheriff to the plaintiff as the property of the defendant on certain executions and a certain fee bill against the defendant, a supersedeas granted by a judge of the Supreme Court on the judgment for the costs of which such fee bill was issued, could not defeat a recovery otherwise authorized by the evidence.</p>

<p>Life Insurance. — Descent 'of Policy. — A wife holding a policy of insurance on the life of her husband died, leaving surviving her husband and her father and mother and brothers and sisters. Afterwards the husband died, leaving surviving his father and also brothers and sisters. Neither left children.</p> <p>Held, that the wife had such an interest in, and ownership of, the policy, and such a right to the proceeds, as would, on her death, descend to her heirs, though her husband survived her.</p> <p>Same. — A policy of life insurance is a chose in action governed hy the principles applicable to other agreements involving pecuniary obligations.</p> <p>Same. — Repeal of Stattite. — The act of 1848 (Acts 1848, p. 31), providing how money received by a wife on an insurance upon the life of her husband should be disposed of, was repealed by the revision of 1852.</p>

<p>Reports of Supreme Court. — Price Received by Reporter. — The provision, of the act of March 13th, 1875, Acts 1875, Regular Session, 126,'that the reporter of the Supreme Court may not receive from a purchaser a greater price than three dollars pe’r copy for the volumes of Indiana Reports published after the taking effect of said statute, is constitutional and valid, and the reporter cannot recover more than that sum per copy for such books, though he may have sold them for a higher price ; notwithstanding the facts that the reporter is not required by the terms of said act to publish more than the five hundred copies to be delivered by him to the State, and if he does publish a greater number, such additional copies are his individual property, and he is entitled to the exclusive copyright of each volume published by him after the same is published, and has obtained the copyright for the volume of which he has sold such copies. By his continuing in the office, accepting the benefits of said act, and publishing the reports after the taking effect thereof, his consent to such restriction is implied.</p>

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

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

<p>Practice. — Lost Papers. — Appeal from Justice of the Peace. — On an appeal by the defendant to the circuit court from the judgment of a justice of the peace, if the papers have been lost from the files, and leave has been granted each party to substitute the papers, and time has been given for such purpose, if the papers are not substituted, a motion of the defendant to dismiss the action should be overruled, and, on motion of the plaintiff, the appeal should be dismissed.</p>

<p>Replevin Bail. — Mortgage.—Debt Payable in Instalments. — Where a judgment is rendered, and a mortgage is foreclosed, given to secure the payment of several notes, of which some are due and others are not due, and the judgment is that the plaintiff recover the amount due, and also the several instalments as they become due, and in default of payment of any instalment due, or to become due, that the mortgaged real estate be sold; and where it is also found that the property cannot be sold in parcels, a person who becomes replevin bail for the payment of the judgment “ on or before the time allowed by law for the stay of execution,” will only be bound for the amount of the debt due at the time he signs as bail. (Pettit, J., dissented.)</p> <p>Mortgage. — Debt Payable in Instalments. — Judgment.—Where a mortgage is foreclosed, which secures a debt payable- in instalments, of which some, are due and others are not due, the court can only direct, as to instalments not due, at what time and upon what default any subsequent executions shall issue to make the amounts of instalments not due. A personal judgment cannot be legally rendered for, a debt which is not due.</p>

<p>School Fund. — Relator.—The county auditor is a proper relator in a suit_ to collect money belonging to the common school fund, loaned by the county auditor.</p> <p>Same. — Surety.—A surety who signs a note given for a loan of the common school fund, made by the county auditor, is not released by reason of the-loan’s not being secured by a mortgage of real estate, as required by statute.</p> <p>Contract. — Illegal Contract. — The general rule that courts will not enforce contracts prohibited by statute, or allow the recovery of money paid in pursuance of them, but will leave parties in pari delicto without remedy, is not applicable where the contract is prohibited for the mere protection of one of the parties against an undue advantage which the othér party is supposed to possess.</p> <p>Evidence. — Harmless Error. —The admission of evidence which cannot be held to have prejudiced the party against whom it is introduced, if érror at all, is a harmless error.</p>

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

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

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

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

<p>Warranty. — Sale of Chattel. — A sale of personal property carries with it an implied warranty of title.</p> <p>Estoppel.. — A person who, having sold personal property, has notice of an action of replevin brought by a party claiming to own the property, and stands by and sees the property taken from the purchaser, cannot after-wards make the purchaser-pay for the property.</p>

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

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

<p>Pleading. — Railroad. — Killing Animal. — A complaint in an action commenced before a justice of the peace, against a railroad company, to recover the value of an animal killed by a train of cars, which does not. allege that the railroad was not fenced, and does not allege negligence on the part of the defendant, is insufficient.</p> <p>Supreme Court. — Assignment of Error. — The insufficiency of such complaint may be assigned as error on appeal to the Supreme Court, though the question has not been raised before.</p>

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

<p>Pleading. — Fraud.—Suit on a promissory note. Answer, that the note was given as part consideration for the purchase by defendant from plaintiff of a saw and planing mill; that at the time of said sale the plaintiff falsely and fraudulently represented to the defendant that “said machinery” was in complete order in every particular, and in good fix and condition; but, on the contrary, the same was in bad order and condition, and in bad repair, and worn out and worthless.</p> <p>Held, that the answer was bad.</p> <p>Same. — Ansaoer as to Pari. — An answer directed to tile whole complaint, but which answers only a part of the cause of action, is bad.</p> <p>Same. — Agreement to Pay Note by Instalments.- — Suit on a promissory note. Answer, that_ after the maturity of the note and before commencement of suit, the plaintiff, for value received, agreed with the defendant that if the latter would pay to the former on said note a certain sum at the beginning of each month, he would extend the time of payment accordingly ; and the defendant had been ready always since then and willing • to pay off said note by such instalments; but the “dft.” had failed and refused to accept the same, or to receive any pay less than the full amount of said note.</p> <p>Held, that the answer was bad.</p>

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

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

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

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

<p>Evidence. — Admissions of Seller After Sale. — In an action by A. against B., to recover possession of certain personal property bought by A. from C., the defendant was permitted, over objection, to introduce in evidence an instrument written by C. after the sale, directed to ID., from whom C. had bought said property, stating that it had been bought by C. for B., with B.’s money, and ordering D. to deliver it to B., and C. testified, over A.’s objection, that he had orally admitted at different times to B. and D. that the property was bought by him with money received from B., and belonged to B.</p> <p>Held, that A. could not be bound by said order of C. to D. to deliver the property to B., and that said written and oral admissions, made by C. after his sale to A., could not affect A.’s right, and, therefore, said evidence was inadmissible.</p>

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

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

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

<p>COSTS: — Judgment for Less than Fifty Dollars. — Where, in an action in the circuit court, upon a complaint on contract showing a cause of action for more than fifty dollars, there was a verdict for less than that amount, and it could not be ascertained whether the jury arrived at the amount of the verdict by the allowance of payments or by the allowance pf a set-off, by either of which modes the amount might have been reduced under the pleadings, there was no error in allowing the costs to follow the judgment for the plaintiff.</p>

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

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

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

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

<p>Executor. — Demurrer.—The right of a plaintiff to sue as an executor cannot be questioned upon demurrer to the complaint.</p> <p>Pleading. — Fraudulent Representations. — When it is intended to found a pleading upon fraud perpetrated by means of false representations made by a vendor to his vendee concerning the thing sold, the pleading must allege that the representations were fraudulently made.</p> <p>Same.— Vendor and Purchaser. — Deficiency in Land Sold'. — In an action on a promissory note, an answer alleging that it was given in part payment for a certain number of acres of land, and that, instead of there being that number, there were lacking a certain number of acres, of a certain value, greater than the amount of the note, and that, therefore, the consideration of the note had failed, was held' bad on demurrer.</p>

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

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

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

<p>Criminal Law. — Indictment.—Certainty.—Criminal charges must be preferred with reasonable certainty, so that the court and jury may know what they are to try, and of what they are to convict or acquit the defendant, and so that the defendant may know what he is to answer, and that the record may show, as far as may be, of what he has been put in jeopardy. The averments should be so clear and distinct that there can be no difficulty in determining what evidence will be admissible.</p> <p>Same. — False Pretence. — In an indictment for obtaining property by false, pretences, where it is charged as a part of the false pretences that éertain real estate was falsely represented to be free from prior incumbrances, the-prior incumbrances should be set out or described.</p> <p>Same. — Future Event. — No representation of a future event, whether in the form of a promise or not, can be a false pretence under the statute. Same. — Indictment.—Repugnancy.—The offence charged in an indictment must be proved in substance as charged, and if two material averments, are directly repugnant, the indictment is bad.</p>

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

<p>Record . — Default.—Summons.—-Where, on an appeal from a judgment taken by default, the action of the court in overruling a motion to set aside the default for want of a legal summons and proper service thereof is presented, and the summons does not appear in the record, the judgment will be reversed.</p> <p>Supreme Court. — Rehearing.—The supreme court will not grant a rehearing to enable a party to have the record corrected by means of a certiorari. Summons. — Service out of State. — Affidavit.—-When a summons has been personally served out of the State, it must be shown by affidavit that the person served is the identical person named in the action or proceeding; and it is not sufficient to show by affidavit that the person served acknowledged himself to be such identical person.</p>

<p>Practice. — Striking Out Pleading. — There is no available error in striking out a good paragraph of answer, if all the material facts stated in it are admissible in evidence under a remaining paragraph.</p> <p>Principal and Surety.- — Extension of Time of Payment. — An extension of the time of payment of a promissory note for a definite period after maturity, upon an agreement therefor, made, without the knowledge or consent of the surety, by the payee and the principal maker, in consideration of the payment by the latter to the former of a sum greater than the interest which the note would bear for such period, will discharge the surety.</p>

<p>Exception. — Instructions to Jury. — The failure of a' party to except to an instruction given by the court to the jury is a waiver by him of any objection to such instruction.</p>

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

<p>Statute op Frauds.— Contract to Pay Debt of Another. — The parol promise of A. to C. to sign a certain bond to C. as surety of B., for the return of certain United States Bonds, if C. would loan them to B., upon which promise C. relied, and accordingly loaned the bonds to B'., is a contract for the payment of the debt of another within the statute of frauds, and is not actionable on the failure of B. to return the bonds to C.</p> <p>Practice. — Appeal.— Cross Errors. — An alleged error of the court in overruling a demurrer to an answer, where there has been judgment for the plaintiff, from which the defendant has appealed to the Supreme Court,</p> <p>must be assigned as a cross error, to entitle it to consideration.</p>

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

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

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

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

<p>SUPREME Court. — Presumption in Absence of Evidence from the Recbrd.— Where there is a verdict for the plaintiff upon a sufficient complaint, and the evidence is not in the record, the Supreme Court will presume that the verdict is in accordance with the evidence and the law.</p> <p>Guardian and Ward. — Contract -of Former Guardian. — A guardian may - follow his ward’s money, and recover it from one who obtained it from a former guardian under a contract made by such former guardian in his individual capacity, and not as guardian.</p>

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

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

<p>Executor and Administrator. — Employment of Attorney for Estate.— Where an attorney has, under the employment of an executor, rendered professional service for the estate represented by such executor, and afterwards the will has b^en set aside, and another person has been appointed to represent the estate as administrator, he will be liable to pay for such service out of the estate.</p>

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

<p>Will. — Estate Upon Condition. — A testator devised certain real estate, a farm, to his wife for her life, desiring her to retain possession of certain parts of it, and that A. should remain on and cultivate the farm during the life of the testator’s wife, on condition that he would keep the farm in repair and pay annually one-half of the products thereof for the use of said wife and for the purpose of paying taxes, expenses, etc. And if A. should remain on the farm and comply with the requirements of the will, and should survive the testator’s wife, then he devised to A. the farm in fee simple; but if the testator’s wife should survive A., then he devised the farm to her in fee simple. After the death of the testator, A. sold and conveyed his right, title and interest in the farm to the widow of the testator, who in turn conveyed it to another person. Action, after the widow’s death, by the testator’s heirs, to recover possession of the land from one holding title through said conveyance of the widow.</p> <p>Held, that the will gave the widow an estate in fee simple, and A. an estate in fee simple on condition; but,</p> <p>Held, also, that whatever were the rights of said devisees as between themselves, the title passed out of the devisor by his will, and no title passed from him to his heirs, who could not have taken advantage of condition broken, the services being due to the widow, who waived them by the acceptance of said conveyance from A.; and the widow having conveyed the land in her lifetime, no title passed to her heirs.</p>

<p>Replevin. — Special Property in Officer. — It is a good defence to an action for the recovery of the possession of personal property, that it has been taken by the defendant by virtue of a writ of attachment in his hands as. sheriff against the property of a person not a party, who is the owner. Same.. — Instruction to Jury. — Evidence.—Admissions of Seller after Sale. — • Fraud. — When, in such an action of replevin, declarations of the plaintiff’s vendor, the attachment defendant, made after the sale, were introduced in evidence without proper objection and exception, it was not error to instruct the jury that such evidence might be considered by them in determining the validity and good faith of said sale, if they found that there was a conspiracy between the plaintiff and his vendor to defraud the creditors of the latter.</p> <p>Instruction to Jury. — At Request of Party.' — -In such case, if the plaintiff desired that the court should explain to the jury what was meant by a conspiracy to defraud creditors, he should have submitted to the court an additional instruction on that point to be given to the jury.</p> <p>Practice. — Exception.—Without an exception to a ruling in admitting evidence over objection, no question upon such ruling can be presented to the Supreme Court.</p> <p>Bill of Exceptions. — Objection to Evidence. — Where the ground of an objection to evidence admitted is not shown by bill of exceptions, no question with reference to the overruling of the objection can be presented to the Supreme Court.</p> <p>Same. — Statements in Motion for New Trial. — The statement, in a motion for a new trial, of an objection made to evidence admitted or of an exception taken to a ruling admitting evidence over objection, cannot 'be taken as true, though such motion be contained in a bill of exceptions.</p>

<p>Venue. — Change from Judge. — AVhere a change of venue from the judge: has been granted on account of his alleged bias and prejudice against the defendant in an indictment, another change from another judge for the same cause cannot be granted to said defendant.</p> <p>Instruction to Jury. — Evidence.—Alibi.—It is error to instruct the jury on the trial of a criminal action, that “ evidence of an alibi is evidence of a suspicious character.”</p> <p>Sams.. — 'Presumption of Innocence.- — It is error to refuse to instruct the jury on the trial of a criminal action, that the defendant is presumed to be innocent, and before he can be convicted the State must prove him guilty beyond a reasonable doubt.</p>

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

<p>Pleading. — •Common Carrier. — Ownership of Properly. — If a complaint against a common carrier, for failure to carry and deliver property, shows that the property was bought of the consignor by the plaintiff, that the consignor delivered it to the carrier, and that the carrier executed a bill of lading to the plaintiff, but failed to deliver the goods, it is sufficient.</p> <p>Common Carrier. — Goods Taken by Legal Process. — A common carrier is excused from liability for not carrying and delivering goods, when, without any act, fault or connivance on the part of the carrier, they are seized by virtue of legal process and taken out of his possession.</p> <p>Same. — Duly of Camer to Give Notice.- — -When goods in possession of a common carrier are taken out of the possession of the carrier by legal process, he should give immediate notice to the parties interested.</p>

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

<p>Criminal Law. — Intoxicating Liquor. — Sale by Sei-vant. — If a clerk or barkeeper in a saloon sell intoxicating liquor without the knowledge and against the instructions of his employer, the latter is not criminally responsible for the act.</p>

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

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

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

<p>Minor. — Contract.—.Recovery of Property Sold or Exchanged. — An infant may recover possession of personal property sold or exchanged by him, without returning the money or property received therefor; therefore, it was-no defence to an action by an infant to recover possession of a horse, that another horse received by him in exchange therefor had been so misused by him that, though sound and of equal value with the horse given by him in exchange at the time of the transaction, it became unsound and of no value, and that afterwards the plaintiff offered to rescind, then making known his infancy to the defendant, who had no knowledge thereof at the time of the exchange.</p>

<p>Pleading. — Negligence.—Injury to Person. — The complaint in an action for damages for injury to the person is sufficiently certain and particular in its allegations of the act of negligence, when from the averments it may be understood that the plaintiff was passing on the foot-crossing of a public street in a city, and the defendant, without any negligence on the part of plaintiff, carelessly and negligently drove his wagon against the plaintiff, and thereby injured him.</p> <p>Record. — Evidence.—Newly-Discovered Evidence. — On appeal, where the evidence is not in the record, -the presumption is that it was sufficient to support the finding; and, in such case, it cannot be determined whether evidence alleged to he newly-discovered would produce a different result, so as to authorize a new trial.</p>

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

<p>Bill of Exceptions. — Objection to Evidence. — An objection to evidence admitted cannot Ibe made available on appeal, where it is not shown by bill of exceptions what was the evidence, what the ground of objection, or that an exception was taken at the time.</p> <p>Same. — Objection to Witness. — An objection to a witness cannot be made available on appeal, when it does not appear by bill of exceptions what objection was made to him, or that an exception was taken at the time. Same. — Evidence.—Instructions to Jtiry. — Where the evidence is not in the record, the Supreme Court will presume in favor of the rulings of the court below in giving or refusing to give instructions to the jury, where such rulings would not be wrong under all evidence admissible.</p> <p>Practice. — Objections and Exceptions.— The excluding of offered evidence, the reading of law to the jury, or the conduct of counsel in argument will not be noticed by the Supreme Court, where the question is not reserved by objection made and pointed out and exception taken at the time.</p>

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

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

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

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

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

<p>Chattel Mortgage. — Description of Property. — A chattel mortgage described the property mortgaged as “all the stock, tools, fixtures and materials now on hand in the shop formerly occupied by” A., “on Central Avenue, in the city of Madison, Ind., and being the same property this day sold to us by said” A., “as in the invoice to us mentioned.”</p> <p>Held., that the description was sufficient to protect the rights of the mortgagee against the vendee of the mortgagors.</p>

<p>Pleading. — Abatement.—An answer in abatement, alleging that another person is liable jointly with the defendant for the debt sued for, which fails to allege that such other person is living, is bad, and there is no error in refusing to permit the filing of such answer.</p>

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

<p>Practice. — Petition for Change of Highway. — Arrest of Judgment. — Defects in a petition for a change in the location of a’highway may be made the ground of a motion in arrest of judgment, in the circuit court, on appeal. PIlGHWAY. — Description in Petition. — Where a highway is described, in a petition, for its change, as beginning at the state line, in a certain section, the description will be too indefinite, where the section lies a mile in extent on the state line; but if the point in the road where the proposed change is to commence is definitely pointed out, and the line of the change designated, it will be sufficient.</p> <p>Same.— Unceitainty. — Conceding that a person petitioning for a change in the location of a highway, and asking that it be located on aline between himself and an adjoining owner, may offer to give all of the land for the highway, or may offer to give the greater part thereof, the petition will be too uncertain, if it offers to give the land for one-half of the highway, or a certain number of feet, or that it may be located wholly on the land of the petitioner; and the report of viewers in such case will be too uncertain, if it fails to show the amount of land of the petitioner upon which the road is located.</p>

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

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

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

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

<p>Pleading. — Contract.—A. subscribed a certain sum to a corporation, payable in land, and the corporation assigned the subscription to B., and gave him a written order in his favor on A., for the amount thereof, which A. accepted and verbally agreed to pay; and upon demand of B. for compliance, A. made and tendered to B. a deed of conveyance of certain land, which B. refused to accept, on the ground that it was not of the value of the amount subscribed. Suit by B. against A., the corporation being made a defendant to answer as to its interest, the complaint alleging these facts and setting out a copy of said order, but the subscription not being made a part of said complaint.</p> <p>Held, that the complaint was not good as a complaint on the subscription, but was good as a complaint on the order and the acceptance thereof.</p> <p>Same. — Answer.—An answer in such case, relying upon the tender of a conveyance of land by the defendant to the plaintiff, was bad on demurrer for not alleging that the land was of the value of the amount subscribed.</p> <p>Evidence. — Proof of Acceptance of Order. — On the trial in such case, there being an answer of general denial, it was necessary for the plaintiff to prove the acceptance by the defendant of said order.</p>

<p>Payment.— Voluntary Payment. — Illegal Demand. — License to Sell Liqtiors in Town. — A complaint against a town to recover money paid by the plaintiff to the defendant for a license to sell intoxicating liquors, in compli-, anee with an invalid ordinance of the town adopted in pursuance of an invalid act of the legislature, must show that the money was not voluntarily paid.</p>

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

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

<p>Bill of Exceptions. — Motion to Dismiss. — The action of a court in overruling a motion to dismiss an action will not be reviewed by the Supreme Court, where there is no bill of exceptions showing the ground of the motion or of the ruling of the court.</p> <p>Draining Association. — Pleading.—In an action by a draining association to recover the amount of an assessment on lands for the construction of a drain, and to enforce it as a lien, the complaint must contain the-original assessment or a copy thereof.</p>

<p>•Corporation. — Sale of Stock. — Dividend.—One who owns stock in a corporation at the time a dividend is declared owns the dividend also, and a sale oí llie stock afterwards will not carry the dividend with it, though it may not be paid or payable until after the sale ; and, therefore, a buyer of such stock was not entitled to a dividend declared while, under a provisional ■contract between him and the seller, it was optional for a certain period with the buyer to purchase or refuse the stock, and before the purchase was completed, no reservation being made as to the dividends or earnings, though the time fixed for the payment of the dividend was after the date of the completion of the sale.</p>

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

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

<p>Married Woman. — Real Estate I-Ield in Virtue of Previous Marriage.— Removal of Disability to Alienate. — The statutory disability of a married woman to alienate real estate held by her in virtue of a previous marriage is removed by her divorce or the death of her husband.</p>

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

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

<p>Pleading. — Jurisdiction.—fustice of the Peace. — A judgment rendered by a justice of the peace of one township against asolé defendant, who is a resident of another township, where there is a justice, there being no legal reason that the action could not be brought in such other township, is void; and to an action on such judgment against said defendant in the township of his residence, the recovery of said judgment and the residence of defendant, as aforesaid, are facts to be pleaded in bar, and not in abatement.</p> <p>Same. — Amendment.—Appeal from Justice of the Peace. — Under section 67, 2 G. & H. 596, the circuit court, on appeal from a justice of the peace, may, on proper terms, allow an amendment of the cause of action by adding a new paragraph to the complaint.</p>

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

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

<p>Practice. — Power of Court to Compel Making of Affidavit. — Upon proper application by a party, the court will compel a refractory person to make his affidavit as to facts within his knowledge, in support of a motion for a new trial assigning such facts as cause. The court has the same power to compel such a person’s attendance and to require him to make his affidavit, as it has to compel the attendance of a witness and to require him to testify orally.</p> <p>Same. — Misconduct of Prevailing Party. — Tampering. With Jttror. —■ Where facts which cast upon the prevailing party suspicion that he has tampered with a juror are shown by affidavits in support of a motion for a • new trial assigning such misconduct as cause, and counter affidavits filed do not fully and fairly answer the charge, the motion should be sustained.</p> <p>Same. — Effect of Misconduct on Verdict. — For such misconduct of the prevailing party, the court will set aside the verdict, without inquiring as to what effect the misconduct had upon the verdict.</p>

<p>Vendor and Purchaser — Breach of Covenants. — Right of Way of Railroad. In an action to foreclose a mortgage on real estate, executed, to secure a promissory note, an answer alleging that said note was given for purchase-money ,of said real estate, which was conveyed by warranty deed, with covenants, etc., to the mortgagor by the mortgagee, and that the latter had previously conveyed to a certain railroad company a right of way for its railroad across said land, but not showing that the defendant had been evicted, or that he had suffered any damage or inconvenience on account of said right of way, was bad on demurrer.</p> <p>Statute of Frauds. — Promise to Pay Debt of Another. — A parol promise to-pay the debt of another, if not paid by himself, whereby the creditor is induced to suffer’the debtor to leave the State without paying the debt, taking his property with him, is within the statute of frauds.</p>

<p>Pleading. — Exhibit.—Where a complaint is founded solely on a written instrument, if such instrument, or a copy thereof, be not filed with the complaint and made a part thereof, the complaint will be bad on demurrer. .</p> <p>Same. — Striking out Pleading. — Action for the recovery of the possession of real estate. Cross complaint making an additional party defendant, who answered, disclaiming any interest in the real estate and showing that it was the property of the original plaintiff by devise.</p> <p>Held, that it was error to strike out said answer on motion of the original defendant.</p>

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

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

<p>SUPREME Court. — Evidence.—Bill of Exceptions.- — To present to the Supreme Court any question arising upon the evidence, the evidence should be set out in the record; and the testimony of a witness cannot be sufficiently set out by stating that he testified in substance the same as another witness named, whose testimony is fully set out.</p> <p>Same. — Instruction, to Jury Refused. — Where the evidence was not fully set out in the record, and it was not stated in the bill of exceptions that certain instructions refused were properly applicable to the case made by the evidence, it was presumed by the Supreme Court that they were refused because inapplicable to the evidence.</p>

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

<p>Pleading. — Fenner Adjudication. — It is not necessary, in pieading a former adjudication, to file a copy of the judgment.</p> <p>Same. — A junior mortgagee filed his complaint to foreclose, making a senior mortgagee a party and alleging that the senior mortgagee had been paid, and that he, with others named, was combining to cheat the junior mortgagee out of his debt by enforcing payment again; and there was judgment of foreclosure and sale was had; afterwards the senior mortgagee brought suit to. foreclose, and made the junior mortgagee a party, who, for answer, pleaded the former adjudication, and alleged that the senior-mortgagee was duly notified of the pendency of the former action, and by failing to answer or deny the facts alleged, confessed the same.</p> <p>Held, that the answer was good on demurrer.</p> <p>Same. — Where a valid judgment exists, although there may have been errors in the proceedings, it may be pleaded as a former adjudication of the matters embraced in the issues in the action wherein it was rendered.</p> <p>SAME. — Parties.—Any of the parties to an action, between whom issues have been formed and determined, may, in a subsequent action, where the same issues are tendered, plead a fprmer adjudication, as between them, although the parties to the different actions may not all be the same persons.</p>

<p>Practice. —■ Waiver of Demurrer. — Where, the court having sustained a defendant’s demurrer to the complaint, he, without asking for judgment on demurrer, files an answer, and there is a trial, the demurrer will be considered as waived.</p> <p>Same. — Demurrer.-—-Where, to a complaint on a note and to foreclose a mortgage, there was an answer-which contained no defence as to the note, and the finding was solely on the note;</p> <p>Held, that there was no error in sustaining a demurrer to the answer.</p>

<p>Fraudulent Conveyance. — Question of Fact. — Under the statute, the question of fraudulent intent in making a conveyance is not one of legal inference or presumption, but is one of fact, to be found from the facts and circumstances of the case.</p> <p>'Same. — A conveyance of real estate or charge on the same cannot be adjudged fraudulent as against creditors or purchasers solely on the ground of there having been no valuable consideration for the same. ■</p> <p>•Same. — Pleading.—Evidence.—Under the statute, a creditor seeking to set aside a conveyance, on the ground of its being fraudulent, must allege and show the facts and circumstances necessary to make out the case, in addition to the want of a valuable consideration.</p>

<p>Practice. — Misjoinder.—The Supreme Court cannot reverse a judgment on account of the overruling of a demurrer on the ground of a misjoinder of causes of action, or for the admission of evidence in support of each of the causes of action.</p> <p>Statute of Frauds. — Marriage Contract. — A parol contract of marriage, not to be performed within a year, is within the statute of frauds.</p> <p>Same. — A parol contract of marriage that may be performed at any time within three years, and consequently within one year, is not within the statute of frauds.</p> <p>Instruction. — Credibility oj' Witness. — After instructing a jury that, in deciding upon the credibility of a witness, they may consider certain specific things, it is error to further instruct that they may consider whatever else they may have seen or heard during the trial that should go to the credibility of the witness.</p> <p>Contract. — Allegations and Proof. — In a suit upon a contract, under an answer of general denial, the plaintiff cannot recover, unless he proves the contract alleged in the complaint.</p>

<p>Will.. — Inconsistent Provisions. — Where there are two provisions in a will which are inconsistent, that which is posterior in local position must be taken to denote the intention of the testator.</p> <p>Same. — A testator bequeathed to seven persons, numbering and naming them, his mortgages, notes and cash, to be divided among them so that the first four should “get their shares right off, as soon as the affairs” could be settled; while the fifth was “to have her share if she returns cured from the hospital; if she does not return cured, or not at all, her children are to inherit her share in equal parts when they are of age.” The sixth was to get “ five dollars in his own hands, while his children ,are to have the balance of his share when they are of age, also equally-divided amongst them.” The seventh and last numbered “ share is also to be equally divided among his children when they are of age.” By a subsequent clause the testator directed that his son H. should have “ the authorization and power to collect all said money, due me by mortgages or notes, and shall divide and distribute the same as above mentioned.”</p> <p>Held, in an action by said seventh and last numbered legatee, as guardian of his minor children, against said H., who, as executor, had made final settlement and had been discharged, to recover the amount of the last numbered legacy, that the plaintiff had, personally, no right to any part of said share, and that neither of his children was entitled to claim his or her share until arrived at majority.</p>

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

<p>Pleading. — Replevin.—^-In an action for tire recovery of the possession of personal property, it is not a good answer that since the commencement of the action the plaintiff, by his use of the property, has realized more than the amount of his claim, and has sold the property for a certain sum, for which he has not accounted.</p>

<p>Principal and Surety. — Supreme Court. — Evidence.—A note made by A., B. and C. was paid by B., who, in this action, recovered judgment for the full amount so paid against C., the court finding from the evidence that while B. and C. were both sureties for A., yet B. was also surety for C. ; and the Supreme Court refused to reverse the judgment upon the evidence.</p>

<p>Turnpike. — Amended List and Assessment. — Injtmction.—When, in listing- and assessing lands for the construction of a turnpike, lands within the-prescribed limits have been omitted, they may be embraced by the assessors in an amended list and assessment, which may be set up in answer to a complaint to enjoin the collection because of such omissions.</p> <p>Same. — County Commissimiers. — Jurisdictional Facts. — The organization of a turnpike corporation, including the sufficiency of its articles of association, the estimate of the cost of construction, and the fact that the company has the requisite amount of stock to entitle it to have an assessment of benefits made, must be passed upon by the county commissioners, before they can order an assessment, and cannot be questioned in an action to enjoin the collection of the assessment.</p> <p>Same.. — Articles of Association. — Location of Road. — It is not necessary that the exact location of a turnpike appear in its articles of association; the directors may fix the exact route within the general description given in said articles.</p> <p>Same. — Completion of Road. — The fact that a turnpike has been completed is not a reason why assessments on lands for its construction should not be collected, if the road be not paid for.</p> <p>Practice. — Special Finding.- — Correction of. — Where, at the request of a party, the court has stated the facts in writing and the conclusions of law thereon, and it is claimed that the special finding is not sufficiently specific and complete, if it be the proper practice to move that the court make it more full and complete, the supposed omissions should be pointed out to the court.</p>

<p>Statute of Frauds. — Partnership to Deal in Real Estate. — A valid agreement of partnership for the purpose of dealing in real estate may be made by parol.</p>

<p>Injunction. — Where promissory notes, not payable in bank, were given for the purchase-money of the business and good-will of a printing establishment, and the property purchased was mortgaged to secure the payment of the notes, and an agreement was made by the seller that he would not engage in the same business for a certain length of time, or if he did so, that he would pay the purchaser a certain sum, greater than the amount of the notes, as liquidated damages, and allow the same to be set off against the notes; if the agreement was violated on the part of the seller, he, or his assignee of the notes, might be enjoined from prosecuting an action to obtain possession of the mortgaged property on the failure of the purchaser to pay the notes.</p> <p>Pleading. — Liquidated. Damages. — Where damages for the breach of an agreement are liquidated, it is not necessary for the plaintiff to show in what manner, or to what extent, he has been damaged.</p> <p>Practice. — Motion to Dissolve Injunction. — On a motion to dissolve an injunction, each party may read affidavits, and it does not follow that where the defendant has answered under oath, denying the equity, he is entitled to have the injunction dissolved.</p> <p>SAME.— Temporary Injunction. — On an application fora temporary injunction, it is not necessary that a case should be made out that would entitle the plaintiff to relief at all events at the hearing. It is enough if the court finds, upon the pleadings and the evidence, a case which makes the transaction a proper subject for investigation in a court of equity, or if,</p> <p>' from the merits, to be gathered from the pleadings and conflicting affidavits, there appears, on the whole, a case proper for the investigation of the court, and a fair question to be reserved till the final hearing.</p>

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

<p>Attachment.— Undertaking of Attachment Defendant. — Subsequent Claimant. — A. commenced his suit and caused a writ of attachment to be issued and levied on the property of B., who thereupon filed an undertaking, with surety, payable to A., conditioned for the safe-keeping of the attached property and its delivery to the sheriff on demand, etc., as required by statute; and thereafter B. filed his motion to quash the attachment, on the ground of the insufficiency of the affidavit; and while said motion was pending, C. filed his complaint, affidavit and undertaking against B., and became a party under the original proceedings in attachment ; and thereafter the court sustained the motion of B. and quashed the original attachment proceedings, and rendered a personal judgment in favor of A. against B., and continued the case of C. against B.; and “ ¡thereafter a judgment was rendered in favor of C. against B., the attachment was sustained, and the attached property was ordered to be sold to satisfy the same.</p> <p>Held, that when C. became a party to the action, he acquired an interest in, or lien upon, the attached property, which could not be lost by the quashing of the original attachment, and the undertaking filed by B. enured to the benefit of C.</p> <p>Same. — It is not necessary that a creditor filing under proceedings in attachment should sue out a writ of attachment, in order to acquire a right to resort to the attached property.</p>

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

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

<p>Evidence. — Promissory Note. — In an action on a promissory note, where there is an answer of general denial, if the note be not read in evidence on the trial, there can be no recovery thereon.</p>

<p>PLEADING. — Answer to Assignment of Error. — Where, after the allowance of a claim against an estate, in favor of the administrator, and after appeal therefrom to the Supreme Court by the heirs and legatees, the claim was paid, and a final report was filed by the administrator, and final settlement was made by him, and he was allowed the amount of the claim as a credit and was finally discharged as administrator, these facts could not be pleaded by him in bar of the assignment of error' and appeal! Witness. — Cmitract with Administrator. — A party holding a claim against an estate, based on a contract made with the administrator, ism competent witness in his own behalf.</p>

<p>Contract. — Construction.—A. and B., partners in trade, made a written agreement, whereby the former, in consideration of a certain sum of money to be paid him, and of a certain amount of goods to be.withdrawn by him from the stock of the firm, and of the assumption by the latter of all contracts and debts of the firm, sold and transferred to B. all the interest of A. in the assets of the firm, including money on hand, notes, accounts, stock, machinery and material, the instrument reciting that the object and purport of the contract was the withdrawal of A. from the firm and the release of A. by B. “ from any and all liabilities on account thereof,” and that if B. should fully and completely release A., in accordance with the provisions of the contract, the sale should be valid and binding in law, else void and'of no effect.</p> <p>Held, in an action by A. against B., on said contract, to recover said stun of money as stipulated therein, that A. was released by said' contract from all liability on account of any claim against him or debt due from him in favor of said firm, as well as released from and secured against any liability of the firm to any other person.</p>

<p>Promissory Note. — Certificate of Deposit. — Suit on Lost Instrument. — Bond of Indemnity. — Suit against a bank upon a stolen certificate of deposit given by the defendant to the plaintiff, reciting that he had deposited in said bank a certain number of dollars, payable to his order in current funds, on the return of the certificate properly indorsed.</p> <p>Held, that the instrument should be regarded as the promissory note of the bank, assignable under the statute, but that it was .not negotiable as an inland bill of exchange, being made payable, not in money, but “in current funds.”</p> <p>Held, therefore, that .the payee could recover on said stolen certificate without giving a bond to indemnify the bank against a subsequent claim thereunder by another person.</p>

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

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

<p>Mechanic’s IXES. — Stib-cimtractor.—A sub-contractor, who has furnished materials or performed labor in the erection of a new building, may, by filing proper notice within the time required by law, secure a lien on the building and the land on which it is erected, though before the filing of • such notice the owner may have paid the contractor all that was due him under the contract.</p> <p>SAME. — Notice.—Description of Premises. — A notice of intention to hold a ■mechanic’s lien addressed to the mayor and city council of a city named, within the county, and to all others whom it might concern, recited that the signer of the notice had “ furnished materials and labor in the erection of the city building now erected on part of lot No. no on the original plat of said city,” to a certain amount, and then gave notice that he would hold his lien “on the aforesaid part of lot No. no and the improvements and building thereon,” etc.</p> <p>Held, that the land was sufficiently described.</p> <p>Supreme Court. — Petition for Rehearing. — If, after a petition for a rehearing has been granted by the Supreme Court, and the cause has been again decided, the same party may file another petition for a rehearing, it can only reach the questions upon which the first rehearing was granted.</p>

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

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

<p>Criminal Law. — Motion to Require Prosectiior to Elect Between Counts of Indictment. — There is no error in overruling a motion to require the prosecuting attorney to elect on which count of an indictment, containing more than one count, he will put the defendant on trial.</p> <p>Same.- — Forgery.—Evidence.—Proof that a defendant had in his possession, and uttered and published as true, a commercial instrument with the forged endorsement of the name of the payee thereon, does not raise the presumption that the defendant made the forged endorsement.</p>

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

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

<p>•CRIMINAL Law. — Obtaining Goods by False Pretence. — Crime Committed Outside of State. — A person is not liable to conviction and punishment in this State for obtaining property by a false pretence, where the property has been obtained outside of this State, though the false pretence may have been made within this State.</p>

<p>County Commissioners. — Poor.—The board of commissioners of a county cannot maintain an action against the husband of an insane wife for her board, attendance upon her, and the use of a room for lodging her, in the county asylum for the poor, though the husband promised to pay for the same.</p>

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

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

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

<p>Vendor and Purchaser. — Specific Performance. — Contract of Father with Minor Son. — A parol contract made by a father with his infant son, that if the son would remain with the father and assist him until the marriage of the son, the father would convey to the son certain land of which the father was seized in fee, was not invalid for uncertainty, nor was it without consideration or obligation on the father because of the minority of the son, and if it was performed on the part of the son, and he was put in possession, and lasting and valuable improvements were made by him, he might enforce specific performance.</p> <p>§ame.— Witness. — Heirs.—Practice.—On the trial of an action by said son for specific performance of said contract, against the other heirs of his deceased father, one of the defendants was called by the plaintiff as a witness in regard to said contract. After he had testified in chief, he stated on cross-examination, that he had a similar suit pending in the same court, and that he supposed that he would gain it, if the plaintiff in this action should gain his suit. The defendants then objected to the competency of this witness, for the reason that he had testified that he was interested, and had been a party to this suit, and had suffered a default.</p> <p>Held, that the objection was properly overruled.</p>

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

<p>Criminal Law. — Motion to Require Prosecuting Attorney to Elect Between Counts of Indictment. — Where, in an indictment of more than one count, the several counts are evidently based on the same alleged felony and inserted to avoid the consequences of a possible variance, it is not error to overrule a motion to require the prosecuting attorney to elect on which count he will try the defendant.</p> <p>Same. — Homicide.—Self-Defence.—Instruction.—On the trial of an indictment for murder, it is sufficient to establish a case of self-defence, if the defendant, being without fault, believed, and had reasonable ground to believe, from the acts of the deceased, that his own life was in danger, or that he was in danger of great bodily harm; therefore, on the trial of such an indictment, where the evidence was such as to entitle the defendant to a correct instruction tó the jury as to the law on this subject, it was error to charge, that “ there can be no successful setting up of the plea of self-defence in a case of homicide, unless the necessity for taking life is actual, present and urgent; in a word, unless the taking of his adversary’s life is the only reasonable resort of the party who kills his antagonist, and he is compelled to do so in order to save his own life or his person from great harm and severe calamity;” or to charge, that “self-defence can only be resorted to in a case of absohite necessity.”</p>

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

<p>Motion for. New Trial. — Bill of Exceptions. — No question can be presented to a court by a reference in a motion for a new trial to a bill of exceptions not yet filed.</p> <p>Supreme Court.— Evidence. — Where the evidence is not all in the record, the Supreme Court cannot pass upon the question of the sufficiency of the evidence.</p>

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

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

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

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

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

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

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

<p>Will. — Construction.—A testator bequeathed a certain sum to his daughter A., directing in his will that it “ is not to be paid to her as long as she remains the wife of her present husband, but is to be put at interest by my executor, and the interest paid to her in person. If her husband dies before her, said money is then to be paid to her. If she dies before her said husband, then said money is to go to her children, if any ; and if she leaves no descendants, then the same to revert to my estate.” After the testator’s death, A. procured a divorce from her said husband, and intermarried with another man, and subsequently, after demand, sued the executor of said will to recover the amount of said legacy held by him.</p> <p>Held, that, as she was no longer the wife of the husband alluded to in the will, she was entitled to recover.</p>

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

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

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

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

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

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

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

<p>Railroad. — Killing A/iiizials. — Pi-oceeding after Judgment. — A motion for a writ provided for by secs. 5 and 6, 3 Ind. Stat. 415-6, to be directed to an employe of a railroad company, against which a judgment had been rendered for the value of an animal killed, concluded with a request that the court would “order said agent to pay into the clerk’s office of said court one-half of said moneys, or so much thereof as will pay the judgment and costs herein.” No objection was made to the motion.</p> <p>Held, that, on the proceedings under said writ, the introduction of the record of said judgment in evidence could not be objected to on the ground that “ the motion did not show that there was such a judgment rendered, or that a transcript of it had been filed and recorded in the clerk’s office.”</p>

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

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

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

<p>'Supreme Court. — Assignment of Error. — Co-Parties.—Where a joint judgment has been rendered against two or more persons, some of whom appeal therefrom to the Supreme Court and assign errors in their names only, without joining their co-defendants, the appeal will be dismissed.</p>

<p>Supreme Court. — Brief.—Rule 14. — Under Rule 14 of the Supreme Court, where a cause is submitted on call or by agreement, and the appellant fails to file his brief within sixty days thereafter, the appeal will stand dismissed; and the operation of the rule will not be affected by the subsequent filing of a brief by the appellant and the,failure of the clerk to . enter the dismissal.</p> <p>Same. — Divorce.—Subsequent Marriage. — It is a good ground for the dismissal of an appeal to the Supreme Court from a decree of divorce, that the appellant and another person, not the appellee, have intermarried since the rendition of said decree, and are still living together as husband and wife.</p>

<p>County Commissioners. — Claims.—A claim filed before a board of county-commissioners for allowance need not possess all the essentials of a complaint in an action.</p> <p>Same. — Contract •with Board of Commissioners. — Where county commissioners have made a written contract employing an attorney for the board for a certain period, at a stipulated price, to be paid quarterly, the board cannot afterwards rescind the contract without the consent of the attorney, if he be without fault, and he may claim each quarter’s pay as it becomes ,due under the contract, or he may .claim for several quarters after they become due.</p>

<p>New Trial as of Right.— Waiver. — In an action to quiet title to real estate, where a new trial was granted within a year, as a matter of right, but without any written motion for the same, and thereafter the opposite party entered a full appearance to the action, without objecting to the order granting the new trial, and continued such appearance thereafter for four years, he waived all right to object.</p>

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

<p>Practice. — Bill of Exceptions. — Motion to Strike Out Pleading. — Where a motion to strike out part of a pleading, setting out the words to be struck out, has been sustained, if the motion be embodied in a bill of exceptions, this will be sufficient to bring the words so struck.out into the record, and .the clerk, in making up the transcript, should copy the pleading as it was after tire motion to strike out had been sustained; but if the.clerk copy the parts struck out, this will not vitiate the record.</p> <p>'Statute of Frauds. — Agreement Between Sureties. — Where a party who is surety for the maker of a note procures others to sign as sureties by promising to indemnify them and save them .harmless, such promise is an original undertaking, not within the statute of frauds, and may be proved by parol.</p>

<p>County Commissioners. — Power to Sell Stock. — County commissioners have power to sell shares of stock owned by the county in a railroad company.</p>

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

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

<p>Supreme Court, — Sinking out Pleading. — Bill of Exceptions. — The Supreme Court will hardly ever reverse a judgment because of the refusal of the court below to strike out irrelevant matter from a pleading; and to present such question on appeal, it must be reserved by bill of exceptions.</p> <p>Slander.— Words.- — Complaint for slander, alleging that the defendant had said that the plaintiff “ had a roll of money,” at a certain place, “ a short time after the death of my father; and this was the money that he” (plaintiff meaning) “ robbed my father of.”</p> <p>Held, that the words were actionable per se.</p> <p>Same. — Complaint.—In a complaint for slander, it is not necessary to allege that the words were spoken in the presence and hearing of any person.</p> <p>Bill of Exceptions. — Refusal to Suppress Deposition. — The refusal of the court to suppress a deposition cannot be made available as error, if the question be not reserved by bill of exceptions.</p> <p>Evidence. — Slander.—Mitigation.—On the trial of such action for slander, it was not error to refuse to permit the defendant to introduce in 'evidence the papers and entries of record in a former suit by him as administrator of his father’s estate against the plaintiff, for the purpose of showing that, if the words charged were spoken, they were spoken when the defendant was engaged in duties as administrator, in trying to get the property of which the deceased was the owner, for the purpose of mitigating the damages and to rebut the presumption of malice in the defendant and to show malice on the part of the plaintiff.</p> <p>Veísiue. — Change from Judge.— Practice. — UjDon an application for a change of venue from the judge because he was a material witness in the cause, he appointed another judge to try the cause, who failed to attend, and the judge of the court in which the cause was pending appointed still another judge, who appeared and tried the cause.</p> <p>Held, that there was no error in such second appointment.</p> <p>Same.— Time of Trial. — The judge granting such change did not fix the 'time for the trial within sixty days, but allowed more than that time. Held, that this was not error.</p>

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

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

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

<p>Appeal. — Justice of the Peace. — Bastardy.—Where a justice of the peace, in a bastardy proceeding, enters a judgment of not guilty, an appeal will lie from such judgment, although there be no finding.</p> <p>Supreme Court. — Evidence.—-The Supreme Court will not reverse a judgment upon the weight of evidence consisting of conflicting testimony.,</p>

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

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

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

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

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