Volume 52 — Indiana Reports

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

<p>Conveyance.—To Heirs.—A deed made to the heirs of a living person named therein, without giving the names of the heirs, is void.</p> <p>Pleading.—Action for Partition and to Quiet Title.—Answer.—To an action for partition and to quiet title, an answer alleging that the defendant has been for more than twenty years before the commencement of the action in the exclusive and peaceable possession of the real estate, claiming title by conveyance from the person under whom the plaintiffs claim, is not bad for not alleging that the action was not commenced within twenty years after the cause of action accrued; but it is bad for not alleging that the adverse possession was continuous and uninterrupted.</p> <p>Same..—Cross Complaint.—To a complaint for partition and to quiet title, an answer by way of cross complaint, alleging that the ancestor under whom the plaintiffs claim, in consideration of a certain sum of money and for love and affection, agreed to convey the real estate in question to the defendant, and did put him in possession, and that he is still in possession, is good as a cross complaint for the specific performance of the contract.</p> <p>Same.—An answer in such case, by way of cross complaint, alleging that the plaintiffts ancestor, under whom they claim, gave the real estate in question to the defendant as an advancement, put him in possession, and that he has made lasting and valuable improvements thereon, and paid the taxes, and that he has ever since remained in possession, is bad.</p> <p>Same.—Parties.—An answer seeking affirmative relief should be in the form of a cross complaint, and where affirmative relief is sought against the plaintiff and the co-defendants, they should be made parties to the cross complaint.</p> <p>Contract.—Reformation of Contract.—Where the terms of a contract are uncertain and loosely stated, a judgment reforming it will not be rendered.</p>

<p>Practice.—Master Commissioner.—Report.—By an agreement, entered of record, and an order of court thereon, a cause was submitted to a master commissioner, under the act of March 2d, 1853, 1 G. & H. 433, to report the evidence and his findings at the next term. He made a Teport which did not contain the evidence, though there was evidence given before him.</p> <p>Held, that, for such failure to report the evidence as required, the report, upon exception and motion, should have been set aside.</p>

<p>Mortgage.—Deed of Conveyance and Bond for Reconveyance.—A deed of conveyance of real estate was made by a debtor to his creditor, and at the same lime the latter executed to the former a title-bond, conditioned for the reconveyance of the land, if the grantor, within a certain time, should pay the amount of said indebtedness and interest thereon and the taxes on the land; otherwise the grantee should be put in full possession. Upon the death of the grantee, leaving no debts unpaid, his heirs, all being of age, divided his property among themselves without administration.</p> <p>Held, that if the heirs of said grantee, by conveying said land, treated said transaction as a sale and conveyance, they or their assignee could not afterwards treat it as a mortgage.</p> <p>Held, also, that if said grantor delivered up said title-bond to the heirs of the grantee, in consideration of the conveyance by them of a portion of said land to the son of the grantor, this was a confirmation of the original transaction as a sale, and said heirs or their assignee could not after-wards, by foreclosure, treat it as a mortgage.</p>

<p>Turnpike.—Subscription of Stock.—When the articles of association of a proposed gravel road company define the sum of the capital stock, the number of the shares, and the amount of each share, and stipulate that the subscribers thereto agree to take the number of shares set opposite-their names, a promise is implied that each subscriber will pay the amount specified per share, as assessed after the organization of the company as a corporation shall be perfected.</p> <p>Same.— Complaint on Subscription.—Articles of Association.— Where and When Recorded.—A complaint on a subscription of stock in a gravel road company, which alleges that the articles of association were recorded in a certain county named, is pot defective on demurrer, because it does not allege that said articles were recorded in the county through which the road was to pass, if an inspection of the termini and course of the road specified in the articles shows that the road was not to run elsewhere than in said county named. Nor is it ground of demurrer that such complaint alleges the articles of association to have been recorded in a certain year; if a more definite and certain time is required to be stated, a motion to make more specific is necessary.</p> <p>Same.—Board of Directors.—Where such complaint alleges that the calls were made by the board of directors of the company, it is not defective for not alleging that a board of directors was elected and qualified.</p> <p>SAME.—Articles of Association.—Names of Directors.—The articles of association of a gravel road company, organized under the statute, i G. & H. 474, need not set forth the names of the directors of the company.</p> <p>SAME. — Terminus of Road.—-The terminus of a gravel road is sufficiently' defined in the articles of association, if they state that the road starts from a definitely described point and runs specified courses and distances to the end.</p> <p>Same.—Exhibit.—A paper containing a description and survey of a gravel road, although detached from the body of the articles of association, yet is a part thereof, if it is referred to in the articles as a certain exhibit and is expressly made a part of them and is recorded as part thereof.</p> <p>Same.—Steps Necessary to Incorporation.—A complaint on a subscription of stock in a gravel road company organized under the statute (i G. & H. 474) is not objectionable for not alleging, in terms, all the steps to have been taken which were necessary to bring the corporation into existence, if it alleges that certain articles of association, which are set out by copy as containing the contract, and which contain all that is required by law, were entered into by defendant, and, also, that the necessary amount of stock has been subscribed, and that the articles have been duly filed for record.</p> <p>Same.— Tender of Certificates of Stock.—It is not necessary for a gravel road company to tender certificates of the stock subscribed for before suing the subscriber, when it is not expressly stipulated in the contract that the stock is to be issued on the payment of the money.</p> <p>Same.—Board of Directors.—Bond of .—Section 7, 3 Ind. Stat. 540, requires the board of directors of a gravel road company to file a bond before the receipt by the company from the county treasurer of money collected on assessments of benefits; it has no reference to collections of stock subscriptions.</p> <p>Same.—Designation of Place of Residence of Subscriber to Articles.—The use of the double comma following the name of a subscriber of articles of association of a gravel road company, and under a certain named county and state designated by a heading as a place of residence, sufficiently indicates the place of residence of the subscriber to be that county and state.</p> <p>Same.—-furor.—Stockholders and directors of one gravel road company are competent jurors to try issues between another gravel road and third parties.</p> <p>Same.—It is not error for the court to overrule an objection to the competency of a juror based entirely upon the mere supposition and presumption by the juror of the existence of facts which might render him incompetent.</p> <p>Same.—Evidence.—Oral testimony may be given as to what was done to organize a gravel road company, but not to prove the contents of the articles of association.</p> <p>Same.—Solvency of Subscribers.—Under the statute for the incorporation of gravel road companies (i G. & H. 474), the solvency or insolvency of the subscribers to the capital stock of the company is immaterial to affect the legality of the corporation.</p> <p>Practice.—Appeal.—Objections to Evidence.—The ground of an objection to evidence must be stated in the court below, and shown by bill of exceptions to have been so stated, or the objection will not be noticed on appeal.</p> <p>Evidence. — Conversation.—When a conversation is given in evidence, the opposing party is entitled to have all that was then said in relation to the same matter given in evidence; but where a conversation about a given matter is introduced in evidence, the door is not thereby opened for the introduction of what was said in relation to a different matter, although in the same conversation.</p> <p>Turnpike.—False Representations.—Location of Road.—Agent.—The representations of a solicitor of subscriptions to the stock of a gravel road company, made before the organization of the company, concerning the location of the road, and that the stock would not have to be paid for, do not bind the company, and their falsity is no defence, as a failure of consideration or otherwise, in an action by the company on the subscription of a person to whom such representations were made.</p> <p>Arrest of Judgment.—Interest of Judge.—The interest of a judge in a cause is not ground for a motion in arrest of judgment.</p>

<p>Parent and Child.—Divorce.—Custody of Children.—Revocation of Order.— Practice.—In decreeing a divorce, the court gave the custody and guardianship of a minor child of the marriage to the mother until the further order of the court, ordering, among other things, that she should not, without the consent of the court, permanently remove said child beyond its jurisdiction. Afterward, the mother filed a motion in said court to modify the decree so as to give her the custody of the child without condition or restriction as to her place of residence. The father filed an answer, or “ cross motion,” asking the court to revoke said order. The mother then withdrew her motion.</p> <p>Held, that there was no error in refusing to dismiss the motion of the father upon the withdrawal of that of the mother.</p> <p>Same.—The mother answered said motion of the father, and, upon the hearing, the court revoked said order, and gave the custody of the child to the father, which action the Supreme Court refused to disturb upon the evidence.</p>

<p>JUROR.—Challenge.—Opinion Formed and Expressed.—It is not a good cause for the challenging of a juror, that he testifies that he has formed and expressed an opinion upon the merits of the cause and the rights of the parties, as the result of a conversation with one of the parties or from rumor, biU that the opinion formed will readily yield to the evidence presented on the trial, and that he can hear the evidence and decide the case as impartially as though he had not formed and expressed an opinion.</p> <p>Evidence.—Privileged Communication. — Attorney.—•Husband and Wife.— On the trial of an action brought by a married woman to recover possession of her separate real estate from her vendee, a witness may not, over her objection, detail a conversation had with her by him as the attorney of her husband in relation to the sale of certain personal property purchased with money derived from the sale of such real estate. In such case the attorney will be regarded as the attorney of both the husband and wife.</p> <p>SAME.—-Judgment Procured by Fraud.—Where a court may ascertain by inspection of its own records that a judgment, the record of which is offered in evidence, valid on its face, was procured by fraud, it is error to admit such evidence over objection.</p> <p>Married Woman. — Infancy and Coverture.—Contract.— Disaffirmance.— A deed of conveyance of the separate real estate of a married woman, or of an infant married woman, executed by her alone, is void; if her husband join therein, the disability of her coverture is wholly removed, and, if she be an infant, that of her infancy renders the joint conveyance not void, but voidable, and vests the title to the land in the grantee, subject to the female grantor’s right of disaffirmance upon her arrival at the age of twenty-one years, and until divested by some act done-by her to disaffirm the contract; which, though she remain a feme covert, must be done by her within a reasonable time after her arrival at age, although she is not required to bring her action to recover possession during the continuance of her coverture.</p> <p>Same.—Act of Disaffirmance.—A written notice given by such feme covert after her arrival at age, that she disaffirms such executed contract, is a sufficient act of disaffirmance.</p> <p>Same. —Reasonable Time.—Such an act of disaffirmance done within three years and a half after the female grantor’s arrival at age was held to have been done within a reasonable time.</p> <p>Same.—Evidence.—Ratification.—On the trial of an action brought by a married woman to recover possession of her separate real estate, conveyed by her and her husband to the defendant, on the ground that when the conveyance was made she was an infant and a feme covert, and that she had given to the defendant written notice of her disaffirmance of the conveyance within three years and a half after her arrival at age, acts and declarations of the plaintiff done and made after her arrival at age and before her disaffirmance of the contract, tending to prove a ratification of her conveyance to the defendant, were admissible in evidence.</p> <p>Same.—Estoppel.—In such case, the fact that when the female grantor became of age the defendant was indebted to the husband of the female grantor upon notes given for the purchase-money of said real estate, in a large sum, which was afterwards paid by the defendant, would not estop her from subsequently disaffirming the contract, unless she knew that such purchase-money was unpaid and the defendant was ignorant of the fact that the plaintiff was an infant when she executed the conveyance.</p> <p>New Trial.—As of Right.—Practice.—When a motion for a new trial for cause, in an action for the recovery of the possession of real estate, is overruled, and an order is thereupon entered that the party who made such motion shall have a new trial as of right upon payment of costs within one year, such order is nugatory, the maker of such motion not being precluded by the overruling thereof from taking a new trial as of right, as provided by section 601 of the code.</p>

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

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

<p>Pleading.—Conditions Precedent.—In an action to recover damages for the breach of a contract, if the complaint contain a general averment of performance by the plaintiff of conditions precedent, specific allegations of performance are not necessary, under our code.</p> <p>Same.—Harmless Error.—There can be no available error in sustaining a demurrer to a paragraph of answer which merely amounts to a partial denial, where an answer of general denial is pleaded.</p> <p>EVIDENCE.—-Parol evidence which tends to vary a written contract in suit is inadmissible.</p> <p>WORDS.—Meaning of Ascertained by the Court.—It is the province of the court, without the aid of witnesses, to ascertain the signification of ordinary words in a written contract, su'ch as the word “feeding,” in axon-tract for the sale of cattle.</p>

<p>Pleading.—Negligence.—Injury to Person.—A complaint against a railroad ' company to recover damages for an injury to the person of the plaintiff, a child of the age of seven years, caused by the negligence of the defendant’s employes in the course of their employment, which failed to show, either by direct averment or by the allegation of facts, that there was no contributory negligence, was bad on demurrer.</p>

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

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

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

<p>Turnpike.—Condemnation of Right of Way,—Notice to Justice of the Peace.— The charter of a turnpike company, in providing the mode of assessing damages for the condemnation of the right of way, directed the giving of notice to a justice of the peace of the county, without prescribing the form or contents of such notice.</p> <p>Held, that the fact that a written instrument filed before a justice by said company, in a proceeding to condemn the right of way over land, after giving notice to the justice, assumed the form of a complaint against the owner of the land, did not vitiate the notice or render it bad on demurrer.</p> <p>Same.—Construction of Branch Roads.—Said charter authorized the construction of branch roads, but did not prescribe the mode of condemning land therefor and assessing the damages.</p> <p>Held, that in the construction of branch roads the regulations prescribed in ' the charter for the construction of the main road were applicable.</p> <p>Same.—Practice on Appeal. ■—■ In such proceeding to condemn the right of way, the land-owner demurred to said notice, or complaint, before the justice, the justice sustained the demurrer, and the turnpike company appealed to the circuit court, the charter giving either party the right to such appeal without prescribing the mode of trial in the circuit court. The demurrer was refiled in the circuit court, and was overruled, and the land-owner thereupon moved to remand the cause to the justice of the peace for the assessment of damages in the mode provided by the charter.</p> <p>Held, that there was no error in overruling this motion.</p> <p>Held, also, that the cause stood for trial in the circuit court de novo, as other appeals from justices, and it having been tried, without objection, by a jury of twelve men, no objection could be made to the mode of trial.</p> <p>New Trial.—Motion.—“That the court erred in admitting testimony offered by the plaintiff and objected to at the time by the defendant,” is too indefinite a statement of a cause in a motion for a new trial.</p> <p>Evidence.—Inspection of Premises by Juiy.— Turnpike.— The impressions ma|e upon the minds of jurors by the examination of premises to which the jury has been sent for such examination do not constitute a part of the evidence in the cause; and, therefore, it was error to instruct the jury, on the trial of a proceeding to condemn the right of way for a turnpike company, that, in determining the damages, the information derived from the view had by the jury of the premises through which it was proposed to construct the road should be considered as a part of the evidence.</p>

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

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

<p>Highway.—Proceeding to Lay Out and Establish.—Parties.—The fact that one who filed a petition before a board of county commissioners to lay out and establish a highway, in whose name, with the names of others who were petitioners, the case was carried on before said board and in the circuit court on appeal, did not sign said petition, was not a good ground for dismissing the case in the circuit court.</p> <p>Same.—In a proceeding to lay out and establish a highway, the fact that only two of the three viewers appointed by the board of commissioners took the required oath, acted and made the report, did not render the view and report insufficient.</p> <p>Same.—Oath Taken by Viewers.—Failure to Subscribe Oath.—In such case it is not required by statute, and therefore is not necessary, that the oath taken by the viewers shall be subscribed by them.</p> <p>Same.—Trial on Appeal.—Practice.—In the circuit court, on appeal in a proceeding to lay out and establish a highway, it is not the practice to appoint viewers, but to try the cause de novo by the court or a jury.</p> <p>Same.—Assessment of Damages.—Where, in such proceeding, the person who appeals to the circuit court has not filed a claim for damages, either before the board of commissioners or in the circuit court, he is not entitled to an assessment of his damages; and where he is entitled to an assessment of damages, they are properly assessed by the court or jury trying the cause on appeal, and it is not error for the court to refuse to appoint three disinterested freeholders, on his motion, to assess his damages.</p>

<p>Will._Legacy Charged on Land Devised.—A devisee who has accepted real estate devised to him is personally liable for the payment of legacies expressly charged thereon.</p> <p>Vendor, and Purchaser.—Obligation of Grantee Under Stipulations of Deed. Stipulations contained in a deed of conveyance of real estate, to be performed by the grantee, are not obligatory upon him unless he accepts the conveyance.</p>

<p>Practice.—New Trial.—-Costs.—The defendant in an action having moved for a new trial for cause, the plaintiif consented that a new trial should be granted upon such terms as the" court in its discretion might think just.</p> <p>Held, that, in granting such new trial at the costs of the defendant, it was error to require the payment of the costs within a certain time.</p> <p>Same.—Husband and Wife.—Action Founded on Tort of Wife.— Death of Husband Before Judgment.—Action against husband and wife for slanderous words spoken by the wife; after verdict and before further proceedings, the male defendant died, and his death was suggested to the court.</p> <p>Held, that the widow was liable to judgment against her alone.</p> <p>Amendment.—Slander.—On the trial of an action for slander, the court permitted the plaintiif to amend the complaint by Inserting, instead of the words, “Jennie (meaning plaintiff) is a nasty, dirty whore,” the words, “she (meaning plaintiif) is a dirty whore.”</p> <p>Held, that there was no error in permitting the amendment.</p> <p>Statute of Limitations.—Slander.—Infancy of Plaintiff.—To a complaint for slander, alleging the infancy of the plaintiif, it is not a good answer that the defendant has not been guilty within two years next before the commencement of the action.</p> <p>Pleading.—-Slander.—Justification.—In an action by a female for slanderous words containing a general imputation of whoredom against the plaintiff, an answer of justification was bad which, not alleging any specific act of whoredom on the part of the plaintiff, alleged that she was of notorious bad character for chastity, and that the words charged in the complaint were true.</p>

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

<p>SUBROGATION.—Equitable Assignee of Mortgage.—A. mortgaged certain land to B., a school commissioner, to secure the payment of a loan from the school fund. Upon default, B. sold the land to C. at public sale, to pay the debt. C. sold and conveyed it, with covenants of warranty, to D., who took possession. At the suit of the heirs of A., the sale made by B. was declared void, and said heirs recovered possession. D. then sued the heirs of C. on said covenants of warranty, and recovered judgment against them, which they paid. The heirs of A. afterwards conveyed the land to E., who conveyed to F., said E. and F. having notice of all said proceedings.</p> <p>Held, in an action brought by the heirs of C. against E. and F., for the sale of the land to pay the amount of the mortgage, that said heirs of C. were entitled to be regarded as the equitable assignees of the mortgage, and to be subrogated to the rights of the mortgagee.</p> <p>Held, also, that the complaint of the heirs of C. against E. and F. was not bad on demurrer for not alleging facts showing that said heirs of C. were, as such heirs, actually liable to D. for the breach of said covenants of warranty in the deed made by C. to D., though E. and F. were not parties to said action of D. on said covenants.</p>

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

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

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

<p>Motion for New Trial.—Motion for a new trial, “because of errors of the court in admitting evidence at the trial which prevented the defendant from having a fair trial.”</p> <p>Held, that the cause assigned was too indefinite.</p> <p>Supreme Court.—Evidence.—The Supreme Court will not reverse a judgment upon the weight of oral evidence.</p>

<p>Railroad.—Appropriation of Land.—Evidence.— In a proceeding to condemn and appropriate land for the way of a railroad company, the inquiry as to the value of the land should relate to the time of the appropriation, and not to the time of the trial of such proceeding.</p> <p>Same.—Practice.— Waiver.—If such a proceeding may be dismissed, on the motion of the land-owner, because the instrument of appropriation deposited with the clerk of the circuit court, as provided in section 15, I G. & H. 509, is not signed by any-person in behalf of the railroad company, .such objection will be waived if not made until a late stage of the proceeding.</p>

<p>Bill or Exceptions.—Objection to Evidence.-—Where it is not shown by bill of exceptions that a ground of objection to evidence admitted over objection was pointed out to the court below, the Supreme Court will not consider the objection.</p>

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

<p>Bail.—Suit on Forfeited Recognizance.—Surrender of Principal.—Where suit had been commenced upon a forfeited recognizance, and the principal had been again arrested by the sheriff, and again bailed by the same person, the bail, by his surrender of the principal in open court and payment of all costs, before final judgment upon the forfeited recognizance, was entitled to be discharged from further liability thereunder.</p>

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

<p>Contract.—Cotmty Commissioners.—Pleading.—Judgment.—Presmn-ption.— Husband and Wife.—Parties.—A., being the owner of certain land, on which there was a mortgage, executed a warranty deed of conveyance thereof to B. Afterwards, the mortgage was foreclosed, and, upon the sale under the decree, the land was bid off by the county commissioners for the amount of the judgment, the land being worth a much larger sum. It being claimed by A. and denied by B. that said deed of A. to B. was intended as a mortgage, or a deed of trust, it was agreed by and between A., B. and the county commissioners, at a regular meeting of the board of commissioners, after the expiration of the year for the redemption of the land from the sheriff’s sale, the agreement being entered of record, that said county commissioners would pay to either A. or B., whichever should establish title to said land by an action in a court of law or equity, a certain sum, deducting therefrom the amount of the bid of the commissioners at said sale under the decree of foreclosure; that A. and B. should make deeds of conveyance of said land to the county; and that A. (who was a married woman) and her husband should deliver possession to said commissioners; and thereupon said deeds' were executed, and possession was given to the commissioners, who received the sheriff’s deed for the land. Afterwards, an action for possession was brought by B. against A. and her husband, which resulted in a judgment of the circuit court in favor of the defendants, who notified said commissioners of said result, and that A. was the proper person to whom to pay said balance. Suit by A. and her husband against said commissioners to recover said balance.</p> <p>Held, that said judgment of the circuit court, which must be presumed to be in force, in the absence of any showing that it had been set aside or reversed, settled the title to the land, and entitled A. to the payment to her of said balance by the commissioners, according to the terms of said agreement.</p> <p>Held, also, that it was not necessary to show in said complaint that the land was purchased by the commissioners for any of the purposes for which they were authorized to purchase land, a fact which must be presumed, in the absence of a contrary showing, and one which could not be inquired into except by the State.</p> <p>Held, also, that the execution of the deed of conveyance by A. and her husband to the commissioners and the delivery of possession thereunder constituted a sufficient consideration for the agreement to pay said balance to A., which agreement was not affected by the fact that the year for redemption had expired.</p> <p>Held, also, that it was not necessary to show in said complaint that .there was an order of the board of commissioners authorizing said purchase at sheriff’s sale by the commissioners.</p> <p>Held, also, that said action against the commissioners was properly brought in the name of the husband and wife.</p> <p>Bill of Exceptions.—Evidence.-—A bill of exceptions, when signed by the judge, did not contain the evidence, but stated that “upon the trial of the cause the following evidence was given, 'to wit: (here insert), which was all the evidence given upon the trial of said cause.”</p> <p>Held, that the clerk, in making out a transcript of the record, had no right to insert in such bill what he supposed to be the evidence given in the cause.</p> <p>Practice.— Evidence. —Judicial Discretion.—It is discretionary with the court to permit the plaintiff to introduce proper evidence, over defendant’s objection, after the close of the evidence and the argument in the cause, except the plaintiff’s closing argument; and it will be presumed that evidence so introduced was competent, in the absence of a contrary showing.</p>

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

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

<p>Criminal Law.—Indictment Charging Distinct Offences.—Election Between Charges.—Where a count of an indictment charges more than one substantive offence, or where different counts charge different substantive offences, the election of the State to place the defendant on trial for one of the offences so charged amounts to an abandonment of the other charges, which thereupon cease to be parts of the indictment, as if, as to the counts or parts of counts containing them, the court had sustained a motion to quash, or the prosecutor had entered a nolle prosequi.</p> <p>Same.—Rape.—Assault and Battery. — New Trial. — Indictment charging that, at, etc., on, etc., A. B. “ did, in a rude, insolent and angry manner, unlawfully touch, strike and wound” C. D., “a woman, and did, then and there, her, the said” C. D., “a woman, unlawfully, forcibly and against her will, feloniously ravish and carnally know.”</p> <p>Under an order of court requiring the prosecuting attorney to elect whether he would put the defendant on trial for a rape or for an assault and battery, he elected to try him for a rape. There was a verdict of guilty of an assault and battery; and, on the defendant’s motion, a new trial was granted.</p> <p>Held, that the indictment charged only one substantive offence, that of a rape.</p> <p>Held, also, that the election to place the defendant on trial for a rape, with the order requiring such election, was a nullity, and did not take out of the case the charge of an assault and battery necessarily included in the charge of a rape, which minor offence need not be separately charged in an indictment for the greater.</p> <p>Held, also, that the defendant took said new trial as to the whole case, and it was error to sustain his objection to being tried thereon for a rape, and to put him on trial for an assault and battery.</p>

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

<p>Parties.—Pleading.—Surplusage.—Where a cause of action exists in favor of the State, and the action is brought in the name of the State for a certain specified use, the words designating such use will be considered as surplusage, and the action will be regarded as an action brought by the State. «</p> <p>Contract.—Pttblic Policy.—House of Refuge.—A written promise to pay to the State of Indiana a certain sum of money upon the condition that the empowered authorities of the State should locate at Plainfield, in said State, the reform school for juvenile offenders, the authority to locate said school being vested in the Governor and certain commissioners, who had no personal interest in the matter, and who complied with said condition, was not against public policy; and though by the act of March 8th, 1867 (Acts 1867, p. 137), “to establish a house of refuge,” etc., no authority to receive such donations of money was expressly given or denied, yet the act of 1855, 2 G. & H. 660, expressly authorizing such donations for such purpose, was not in this respect repealed by said act of 1867.</p>

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

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

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

<p>Practice.—Action to Compel Foreclostire of Mortgage.—Jurisdiction.—Inter-pleader.—Process.—A., the owner in fee simple of certain real estate, on which there were two mortgages, one executed by A. to B., a former owner, and a prior one executed by B. to C., who was B.’s vendor, brought an action in the county wherein said real estate was situated, against B. and C., to compel the defendants to interplead and litigate matters in dispute between them in regard to said prior mortgage, and to cause satisfaction of said mortgages to be entered.</p> <p>Held, that the court was not deprived of jurisdiction of C. because he resided in another county.</p> <p>Held, also, that the complaint in such action was not bad on demurrer because there was no affidavit attached thereto denying collusion of the plaintiff with either of the defendants.</p> <p>Held, also, that the defendants having been brought into court to inter-plead, no further process was necessary against C. upon the filing of a cross complaint by B.</p> <p>Bill of Exceptions.—Time of Filing.-—Preceding a bill of exceptions in the transcript of the record on appeal was the following : “ Nofsinger’s ' bill of Ex., No. 7, filed Nov. 13th, 1871.”</p> <p>Held, said date being within the time allowed for the filing, that it was sufficiently shown that the bill was filed, and that it was filed in time.</p> <p>Motion FOR New Trial.—Instructions to Jtiiy.-—Bill of Exceptions.—A cause assigned in amotion for a new trial was, “ error in refusing to give to the jury instructions numbered one to eleven inclusive, asked by the defendant, as shown by his bill of exceptions.” The bill of exceptions was not yet filed.</p> <p>Held, that the cause assigned was sufficiently definite, without the aid of the bill of exceptions.</p> <p>EXCEPTIONS.—Instructions to Jtiry.—In a bill of exceptions, following certain instructions to the jury given by the court were certain instructions signed by counsel, immediately preceded by a statement that they were asked by the defendant and refused by the court, after which instructions refused was the following: “To the giving of each of which instructions and the refusal to give those asked, defendant at the time objected and excepted.”</p> <p>Held, that the exception was not too general or indefinite, but was properly taken.</p>

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

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

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

<p>Fraud.—Action to Set Aside Fraudulent Judgment.—Pleading.—Where, in a proceeding to foreclose a mortgage on land, judgment had been fraudulently taken for a larger amount than was due, the plaintiff in a subsequent judgment, which was a lien on the same land, not a party to such foreclosure suit, might maintain an action to set aside such judgment of foreclosure as void, and it was not necessary that his complaint should set out a complete record of the foreclosure suit.</p>

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

<p>Partnership.—Sale of One Partner's Interest.—Indebtedness of Such Partner to Firm.—A. and B. being partners, tbe former owning an undivided five-sixths interest, and the latter an undivided one-sixth interest in the property of the firm, A., by a written agreement, sold his said interest to C., being the undivided five-sixths of certain specified property “and generally all property of every name, or kind, or description, belonging or appertaining to ” said firm, with all the interest of A. in all notes and book accounts belonging to said firm, C. paying therefor a certain sum and giving his notes to A. for a balance of the purchase-money, and agreeing to assume and save A. harmless from “ all debts, liabilities and contracts of” said firm, growing out of or connected with its partnership business, whether such debts and liabilities appeared on the books of the firm or otherwise ; it being agreed that said sale embraced the interest of A. “ in all assets of every kind belonging to said firm and appertaining to said partnership business.”</p> <p>Held, in an action brought by A. against C. on said notes given for purchase-money, that, in the absence of fraud or warranty as to the interest of A., said sale did not transfer to C. as assets of the partnership a debt due to the firm from A. as a partner, not appearing on the partnership books; and that such indebtedness of A. to the firm could not constitute a set-off or counter-claim in such action on said notes, though at the time of the action the debts of the firm had been paid, and the assets had been divided and the business settled between B. and C., and B. had received his share of said indebtedness of A. to the firm.</p>

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

<p>Parties.—School Corporation.—An action to recover for materials furnished and services rendered by the plaintiff in the erection of a school-house, under the employment of the school trustees of a city, should be brought, not against such trustees, but against the school corporation, by the name and style of “ The School City of -,” filling the blank with the name of the city.</p>

<p>Assignment of Error.—On appeal to the Supreme Court, causes for a new trial cannot properly be assigned as errors.</p> <p>Bill of Particulars.—Motion to Make More Specific.—Where, in a bill of particulars filed with a pleading, the account set out consisted of the fees of a district attorney in a number of cases, and the items were merely statements of the names of the parties in each case, with the amount of the fee carried out in figures, a motion of the adverse party to require the pleader to make such bill more specific, by giving the dates of the prosecutions and tlie courts in which they were prosecuted, it was held, presented a reasonable request, and should have been sustained.</p> <p>Justice of the Peace.—Jurisdiction.—Amendment on Appeal.—Where, on an appeal from a justice of the peace to the circuit court, the parties had leave to amend their pleadings, and the plaintiff filed an amended complaint setting out a cause of action for an amount larger than that of which the justice had jurisdiction, he could not complain of an answer thereupon filed, because the claim of the defendant therein set out, was for a larger amount than that of which the justice had jurisdiction.</p> <p>Demurrer.—Reply.—There is no error in sustaining a demurrer to a special paragraph of reply which puts in issue nothing not put in issue by a remaining paragraph of general denial.</p>

<p>Slander.— Words. — Provincial Meaning. — Words not slanderous per se spoken concerning a woman, which, at the time and place have, when spoken of a woman, a provincial meaning imputing to her the keeping of a whore-house, and which are spoken in such provincial sense and are so understood by the persons to whom they are spoken, are actionable.</p> <p>Same.—Evidence.—On the trial of an action for slander, there was no error in refusing to permit the defendant to prove that, about the time of the commencement of said action, the plaintiff said she intended to bring suits against the defendant and prosecute the same until she broke him up.</p> <p>Evidence.—Instruction Concerning.—The failure of a court to instruct the jury as to the proper purpose for which evidence introduced has been admitted cannot render erroneous the admission of the evidence.</p>

<p>Liquor Law.—indictment.—Indictment under the act of March 17th, i875> for selling intoxicating liquor in a less quantity than a quart, the defendant “not then and there being licensed, according to the laws of Indiana in force at the time, to sell intoxicating liquor at retail.”</p> <p>Held, on motion to quash, that such allegation of the defendant’s not having procured a license, though not in the words of the statute, was sufficient.</p>

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

<p>CRIMINAL Law.—Robbery.—Description of Money.—An indictment for robbery, the property alleged to have been taken being bank notes, or bills, or United States treasury notes, or bills, which, in describing such notes, or bills,- does not state their denominations by the use of the word denomination or equivalent words, is bad on motion to quash.</p>

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

<p>Pleading.—Counter-Claim.—Injtiry to Properly in Possession of Bailee.—In an action against tlie keeper of a livery and feed stable, who had been employed by the plaintiff to keep, feed and take care of'his horse, to recover for an injury to said horse, occasioned by said bailee’s failure to take proper care of him, the defendant may set up, by way of counterclaim, an indebtedness of the plaintiff to the defendant for the keeping and taking care of said horse under said contract.</p>

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

<p>Criminal Law.—Staitito^y Description of Offence.—An indictment under a statute, and therefore every indictment in this State, must embrace a charge of all the particulars that enter into the statutory description of the offence, either in the language of the statute or other equivalent language.</p> <p>Same.—Assault and Battery.—An indictment for an assault and battery which fails to allege that the unlawful touching, etc., was done either in a rude or insolent or angry manner, is bad.</p>

<p>Criminal Law.—Obstruction of Highway.—On the trial of a prosecution for obstructing a highway, it was not error to instruct the jury that before they could convict they must be satisfied, beyond a reasonable doubt, that there was a public highway where it was claimed that the obstruction had been placed, that there was an obstruction, and that the defendants, or some one or more of them, caused the obstruction.</p> <p>Highway.—Dedication.—The fact that a road has been used by the public for a considerable length of time, with the knowledge of the owners of the land, does not create a presumption of dedication, unless such use be also with the consent of said owners.</p> <p>Same.— Obstruction.—It was not error to instruct the jury, on the trial of a prosecution for obstructing a highway, that it was proper for them, in determining the question whether a highway existed by prescription, to inquire whether it was shown by the evidence that one of the defendants assisted in cutting out such road, and whether one of the defendants, while owning land over which it passed, admitted the existence of the highway.</p> <p>Criminal Law.—•Instruction to Jury.—Reasonable Doubt.—Where, on the trial of a criminal action, the court instructed the jury that “ a reasonable doubt arises when the evidence is not sufficient to satisfy the minds of the jury to a moral or reasonable certainty of the defendant’s guilt; ”</p> <p>Held, that this was correct, and that if the defendant desired a more particular definition, he should have submitted to the court such an instruction.</p>

<p>Liquor Law.—Intoxication in Public Place.—If a person be found in a state of intoxication at a social party held at the residence of another, he is not thereby rendered liable to prosecution for being found intoxicated in a public place.</p>

<p>Fraudulent Conveyance.—Answer.—Complaint by a judgment plaintiff to set aside as fraudulent a conveyance of certain real estate made by the judgment defendant to a trustee, in trust for the grantor, after the accruing of the indebtedness and before judgment, and a conveyance by said trustee to the wife of the judgment debtor, executed after the rendition of the judgment, and to subject said real estate to sale, etc. Answer, admitting said conveyances, but alleging that said first conveyance was. in trust for said wife, and averring the payment of a consideration by the wife by the conveyance of her separate real estate, denying notice of the indebtedness of her husband to the plaintiff, and denying fraud.</p> <p>Held, that the answer was sufficient on demurrer.</p> <p>Statute of I,IMITATIONS.—Concealment of Cause of Action.—Fraud.—The .provision of tlie statute that, if a person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action^ may be commenced at any time within the period of limitation after the discovery of the cause of action, applies to causes of action for fraud, as well as to other causes of action; but the concealment contemplated by the statute is something more than mere silence ; it must be of an affirmative character, and must be alleged and proved so as to bring the case clearly within the meaning of the statute.</p>

<p>Liquor Law.—Agent of Licensee.—A license to vend intoxicating liquors is not transferable, but a licensee who has not forfeited his license may-carry on the business by an agent at the place designated in the license, and the agent will not be responsible as for selling without license.</p>

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

<p>Criminal Law.—Indictment.-—Suffering Minor to Play a Game.-—-An indictment against the owner of a billiard table for permitting a minor “ to play a certain game said table, called pool,” was bad because of the omission of the word “at” or “upon” before the words “said table.”</p> <p>Same.—Name of Person Playing with Minor.—An indictment for permitting a minor to play a game upon a billiard table is defective, if it does not state the name of the person with whom the minor was permitted to play the game.</p>

<p>Exception.—Demmrer.—The action of a court in overruling a demurrer cannot be presented to the Supreme Court, when no exception has been taken to the ruling.</p>

<p>Descent.—Adopted Child.— Widow.—An unmarried man, who had been married and whose wife had died, leaving surviving her said husband and one child, the issue of said marriage, which afterwards died, leaving surviving its said father, subsequently adopted a son in due form of law, and afterwards married again, and died intestate, seized in fee of certain real estate, leaving surviving said second wife and said adopted son.</p> <p>Held, that said real estate descended, under section 23 of the statute of descents, one-half to said adopted son and the other half to the widow; and her share was not affected by the proviso of section 24 of said statute, and at her death would not descend to said adopted son, he not being the child of her said husband “ by a previous wife.”</p>

<p>Bastardy.—Cosí of Keeping Defendant in Prison.—The relatrix in a prosecution for bastardy is not required to pay the cost of keeping the defendant, when he is imprisoned on the final order or process of the court.</p>

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

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

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

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

<p>Name.—Christian Name.—Initial Letters.—Criminal Law.—The law knows and recognizes as applicable to a person but one Christian name, and if, in a criminal prosecution for an assault and battery, in stating the name of the person injured, in charging the offence, one Christian name be properly stated, and the initial letter of another Christian name be inserted, such initial letter will be regarded as surplusage, and it will be sufficient to prove the Christian name as stated, with the surname, and without such initial letter.</p>

<p>Reports of Supreme Court.—Price.—-The limitation fixed by the act of March 13th, 1875, of the price at which the reports of the Supreme Court of Indiana published under that act may be sold by others than the reporter is valid; and no more than three dollars per copy can be recovered for such reports by any seller thereof, .though the buyer may have contracted to pay a higher price.</p>

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

<p>Railroad.—Assessment of Damages to Land-Otoner.—A proceeding to assess against a railroad company damages sustained by a land-owner from the appropriation of his land for the construction of the railroad of such company cannot be maintained by such owner, under sec. 15, 1 G. & H. 509, where there has not been an instrument of appropriation filed by the company, as provided in said section.</p>

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

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

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

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

<p>Assignment of Error.'—Sufficiency of Complaint.—If any paragraph of a complaint containing several paragraphs be sufficient, a judgment for which such paragraph forms a proper foundation will not be reversed by the Supreme Court on an assignment of error that the several paragraphs of the complaint, specifying them by their numbers, do not either of them state facts sufficient to constitute a cause of action.</p> <p>Pleading.-—Statute op Limitations.—Answer.—An answer which, instead of alleging that the cause of action did' not accrue within the prescribed period ’before the commencement of the action, alleges that the defendant did not, at any time within the prescribed period before the commencement of the action, undertake, promise or agree, etc., is bad as an answer of the statute of limitations.</p> <p>Bill of Exceptions.—Setting Aside Order for New Tidal.—The Supreme Court will not review the action of a court in setting aside an order granting a new trial, in the absence of a bill of exceptions showing the grounds of such ruling.</p> <p>Same.—Overruling Motion for New Trial.—The action of a court in overruling a motion for a new trial, a bill of exceptions reserving the questions presented in such motion being on file at the time of such ruling, may be presented to the Supreme Court without a bill of exceptions showing the grounds of such ruling.</p> <p>Resulting Trust.—Where a person caused certain land to be conveyed to another, the consideration moving from the former, upon an agreement that the latter should sell and convey the land and with the proceeds pay certain debts of the former, and account to him for the residue;</p> <p>Held, that the trust was valid, as a resulting trust, without any declaration or acknowledgment thereof in writing.</p> <p>Held, also, that, the trustee having sold and conveyed the land to a third person, and having received the purchase-money, and having paid a portion thereof in discharge of said debts and a part of the residue to the cesiui que trust, the remaining part, which he refused to pay, might be recovered in an action against him by the cestui qtie trust.</p>

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

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

<p>Record.—•Bastardy.—Plea.—Where, in a bastardy proceeding, there has been a trial by jury, and the defendant has had all the benefit of a denial of the charge, he cannot, on appeal to the Supreme Court, object to the judgment against him because the transcript of the record shows no formal plea filed by him, and none entered of record in his behalf.</p> <p>Same.—Nunc Pro Tunc Entiy.-—Notice.—Where, upon the hearing of a motion of a party to correct the record of an action by a nunc pro tunc entry, it is proved that the adverse party has had notice of the motion, and this is shown by the transcript of the record on appeal to the Supreme Court, it is not necessary that the notice itself and the service thereon should be incorporated in the record.</p>

<p>Trust.—Gift Inter Vivos.—A person delivered certain United States bonds and money to another, with directions for the latter to give the same to certain children of the former upon his death, and the person to whom said bonds and money were so delivered received them and agreed to execute the trust.</p> <p>Held, that this was a sufficient delivery to constitute a gift inter vivos, and that, upon the death of the donor, an action would lie in favor of said children, against said trustee, upon his refusal to execute the trust, and against the administrator of the estate of the donor, to whom said trustee had delivered said bonds and money, it not appearing that the donation was void as against creditors..</p> <p>PLEADING.-—Amended Complaint.— Clerk's Certificate.—A complaint may be an amended one.without appearing on its face to be such, and the certificate of the cleric that the complaint copied by him into the transcript of the record is an amended complaint is conclusive.</p>

<p>"Will.—Heirs.— Widow.—A testator by his will disposed of all of his property, leaving nothing to go by descent, making certain devises and bequests to his wife and four children, naming them, and directing that the Residue of his estate should be equally divided among his “ above named heirs.”</p> <p>Held, that the widow was one of the residuary legatees.</p>

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

<p>Assignment of Error.—Special Finding.—Where the court, at the request of a party to an action, has stated the facts in writing and the conclusions of law upon them, no question as to the correctness of the conclusions of law will be presented on appeal by assigning as error that the court erred in its special finding.</p> <p>Same.—Sttperior Court.—Supreme Court.—On an appeal from a superior court to the Supreme Court, only such questions can be considered as were presented by the assignment of errors in the general term of the lower court.</p> <p>Partnership.—Payment to One Partner.—Payment of a debt due to a firm may be received by any one of the partners.</p>

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

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

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

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

<p>Criminal Law.—Abduction for Prostitution.—Evidence,—To sustain^ prosecution for the abduction of a female for the purpose of prostitution, under section 16, 2 G. & H. 441, the female must have possessed actual personal virtue, and therefore acts of illicit sexual intercourse committed by her previous to the alleged abduction may be shown in evidence on behalf of the defendant.</p>

<p>Railroad. — Street. —A railroad company is liable in damages for injury occasioned by reason of the construction of a raised railroad track along a street of a city, thereby causing the water from rains and freshets to flow upon adjacent real estate, and also for injury occasioned by reason of the construction of an embankment, on a street approaching a street crossing of said track, in front of a lot in a city occupied by a dwelling-house, thereby rendering the approach to the lot in the front on such street impossible for carriages, wagons and vehicles and inconvenient for foot-passengers.</p>

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

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

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

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

<p>Supreme Court.—Evidence.—Instructions to Jury.-—Where, on appeal to the Supreme Court in a criminal action, it does not appear by bill of exceptions that all the evidence is in the record, the question as to whether the verdict is contrary to the evidence cannot be considered; and the judgment cannot be reversed on instructions given to the jury which might have been right under evidence that might have been legally and properly given on the trial.</p>

<p>Criminal I,aw.—Permitting Minor to Play a Game.—Evidence.—On the trial of an indictment under the act of March 8th, 1873 (Acts 1873, p. 30), for unlawfully permitting a minor to play a game of billiards with another person, upon a table of which the defendant had the control, 'it is not necessary to a conviction that it should be proved that anything was wagered on the game which was played.</p> <p>Same.—Oath of Grand Jury.—The form of the oath to be administered to the grand jury, found on page 387, 2 G. & H., has been superseded by that provided in the act of December 31st, 1865, 3 Ind. Stat. 279.</p> <p>Same.-—•Arrest of Jtidgment.—It is not a cause for arrest of judgment in a criminal action, that the grand jury was not sworn according to the statutory form.</p>

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

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

<p>Criminal Law.—Larceny.—Possession of Stolen Goods.—The possession, by one not the owner, of personal property alleged to have been stolen, does not raise a presumption that such possessor is guilty of larceny, unless a previous larceny of the property has been established by proper evidence. If the larceny has been so established, and the exclusive possession of the property by one not the owner soon after the larceny has been proved, such possession, if not explained by direct evidence, or by attending circumstances, or by the character and habits of life of the possessor, or otherwise, is conclusive of his guilt as the thief.</p> <p>SAME.—Appropriating Lost PropeHy.—If personal property be lost by the owner and found by another person, and by the latter be taken and appropriated to his own use, the finder knowing the owner, he is guilty of larceny; but if he do not know, and have not the means of ascertaining, who is the owner, he is not guilty of larceny, even though he may not have advertised the property, and however reprehensible his conduct may be afterwards, in attempting to appropriate it to his own use.</p>

<p>Corporation.—Assignment of Properly for Benefit of Creditors.—A corporation, unless restrained by its charter or by general law, and therefore a manufacturing corporation of this State, by a majority of its board of directors, without the express authority or consent of its stockholders, may cease to do business and assign its property to a trustee, to be sold, the proceeds to be applied to the payment of the debts of the corporation, and the surplus, if any, to be divided pro rata among the stockholders. Such action of a corporation will not constitute a surrender of its franchises as a corporation, or work its dissolution:</p> <p>Same.—The good faith of the directors in the passage of the resolution to make such an assignment and the necessity or expediency of the assignment are questions for the jury.</p> <p>Instructions to Jury.—When a court, in its instructions to a jury, has fully presented the questions involved in the cause on trial, giving them all the information necessary to a full understanding of the law of the case, it is not error to refuse to give other instructions asked by a party, though they be correct.</p>

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

<p>Name.—Idem Sonans.—Criminal Law.—Prosecution by affidavit and information for assault and battery, the surname of the defendant being stated in the affidavit as “McGloflin,” and in the information as “McLaughlin.”</p> <p>Held, that a motion to quash the information for variance in the name was properly overruled.</p> <p>SAME.—•Recital of Name by Record.—Evidence.—Where the record on appeal recites a name as that of a witness who gave testimony set out, but the name is not contained in what purports to be the statement made by the witness, it does not constitute a part of his testimony.</p> <p>SAME.—Evidence.—Proof of an assault and battery on the person of Mrs. Grubbs could not sustain a prosecution for an assault and battery on the person of'Caroline F. Grubbs.</p>

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

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

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

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

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

<p>Liquor. Law.—Keeping Disorderly House.—Indictment.—An indictment under section 17 of the act of March 17th, 1875 (Acts 1875, Spec. Sess., 58), for keeping in a disorderly manner a house, etc., wherein intoxicating liquors are sold, which, besides averring that the defendant had a license, does not also aver the place to which his license was applicable, and that that place was kept in a disorderly manner, is bad on motion, to quash.</p>

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

<p>Sheriff’s Sale. — Redemption of Real Estate. — Rents and Profits. — Where the rents and profits of real estate for a term of years, not exceeding seven years, are sold by the sheriff on execution, the interest so sold may be redeemed within one year from the date of the sale, under the provisions of the act of June 4th, 1861, 2 G. & H. 251, and the purchaser at such sale is not entitled to possession during such period; the provisions of said act being applicable in such case, as well as where the fee simple is so sold.</p>

<p>Sheriff’s Sale.—Properly Sold Subject to Incumbrance.—Redemption Law of 1861.—The provision of the first clause of section 452, 2 G. & H. 244, that “when any property shall be sold subject to liens and incumbrances, the purchaser may pay the liens and incumbrances, and hold the property discharged from all claims of the execution-defendant,” is not repealed by the redemption law of 1861, 2 G. & H. 251, so far as it affects the right of redemption existing by the general principles of law and held by one not a party to the judgment on which the sale was made.</p> <p>Same.—Sale Under Junior Judgment.—Certain real estate subject to the lien of two judgments, rendered in favor of different plaintiffs at different times, against the owner of such real estate, was sold on execution issued on the junior judgment to one not a party to either judgment, who, after he had received the sheriff’s deed, sold and conveyed the land to the senior judgment-plaintiff, who took and kept possession of the land, still holding said senior judgment, which remained unpaid and unsatisfied on the record.</p> <p>Held, that said senior judgment remained in force against the land and against the judgment-defendant, and execution might be issued thereon, notwithstanding said purchaser at sheriff’s sale elected, in his mind or in expressed words, to take and hold the land subject to said senior judgment, and to pay off and satisfy the same, and hold the property, and his vendee, said senior judgment-plaintiff, purchased with notice of such election, himself electing in like manner.</p> <p>Same.—Redemption of Land.—Statutes.—There is no common law right to redeem land sold on a judgment at law, where the lien is general; and the provision of the second clause of section 452, 2 G. & H. 244, that the purchaser of property sold subject to liens and incumbrances “ may hold the property subject to be redeemed,” without limitation as to time, “ by the execution-defendant, his heirs or assigns, by paying to the purchaser, his heirs or assigns, the purchase-money, with interest” at the legal rate of six per cent, per annum, was repealed by the act of 1861, 2 G. & H. 251, which provides that the redemption must be within one year from the date of the sale, by paying the purchase-money, with interest thereon at the rate of ten per cent, per annum.</p>

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

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

<p>Principal and Surety.—Bank.—Deposit Under Special Agreement.—A person, who was indebted as principal upon a promissory note to a banking firm, after the maturity thereof deposited in the bank of said firm, where said note was payable, and checked out, sums amounting to more than said indebtedness, under a special agreement between the depositor and the bank that the former should buy cattle and give the sellers checks payable or to be presented after the buyer had sold the cattle and deposited the proceeds in the bank, and that the bank should apply the money so deposited to the payment of such checks exclusively.</p> <p>Held, that the money so deposited could not have been applied by the bank to the payment of said note, and that a surety thereon, who was not a party to said agreement, was not released by the failure of the bank to so apply said deposits.</p>

<p>Criminal LAW. — Concealed Weapon. — Evidence. ■—• Negative Averment. — Under an indictment charging the defendant with carrying a concealed weapon, he not being a traveller, it is not incumbent on the State to prove such negative, the affirmative being matter of defence.</p>

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

<p>Liquor Law.—Indictment.—An indictment under section 12 of the liquor law of 1875 (Acts 1875, Spec. Sess. 55) charged that the defendant “did then and there unlawfully sell to” a person named “ one gill of intoxicating liquor, for” a sum of money stated, “ to be drank upon the premises,” the defendant “not then and there having a license to sell intoxicating liquors to be drank upon the premises,” without alleging that the defendant had not a license to sell intoxicating liquors in a less quantity than a quart at a time, and without other or more particular designation of the place of drinking in the affirmative allegation and the negative averment as to the want of license.</p> <p>Held, that the indictment was bad on motion to quash.</p>

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

<p>Statute of Limitations.—Recovery of Possession of Real Estate.—To a complaint for the recovery of the possession of real estate on the ground' that a deed of conveyance thereof, executed by the plaintiff to the defendant, was intended as a mortgage, and that the debt secured thereby has been paid, an answer of the statute of limitation of six years is bad.</p> <p>Bill of Exceptions.—Filing.—Where time has been given in which to file a bill of exceptions, the record must show that it was filed in time. ame.'—Evidence.—Instructions to Jury.—Where the evidence is not properly in the record, the Supreme Court will not consider the evidence, or instructions given to the jury with reference to the evidence, unless they are injurious to the party complaining of them under any state of the evidence admissible.</p>

<p>Will. — Lost or Destroyed Will. — Concealed Will. — Practice. — Pleading.— Assuming that the circuit court has jurisdiction, under proper circumstances, to establish a will which has been duly executed, but afterwards lost or destroyed, yet a complaint to establish a will which did not allege that the will had been lost or that it had been destroyed, but alleged that, after the testator’s death, the defendant got access to his papers and there found the will and got it into his possession and “ concealed and suppressed or destroyed the same,” was held insufficient on demurrer, it not being certain from its averments that the will was not in existence and could not be brought before the court to be proved by a citation under sections 25 and 26, 2 G. & H. 556.</p>

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

<p>Railroad.—Diligence of Passenger.—It is the duty of a person about to take passage on a railway train to inform himself when, where and how he can go or stop, according to the regulations of the railway company; and if he make a mistake, not induced by the company, against which ordinary diligence would have protected him, he has no remedy for the consequences against the company.</p> <p>Same.—Refusal to Stop Drain Contrary to Regulatio7is.—Where a person who had purchased of a railroad company a ticket for passage to a certain station, by his own fault or mistake, got upon a train which, by the regulations of the company, did not stop at that station, he could not recover damages of the company for the refusal and failure of the conductor to stop the train and let him off at said station.</p>

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

<p>City.'—Bonds Donated to Railroad.—Bona Bide Holder.—It is settled that section 6o of the general law of March 14th, 1867, for the incorporation of cities in this State (3 Ind. Stat. 93), providing that cities incorporated under said act have power to borrow money to subscribe to the stock of any plank road, macadamized road or railroad running into or through such city, to make donations in money or the bonds of such city to aid in the construction of such roads, on petition of a majority of the resident freeholders thereof, etc., is constitutional; and bonds regularly issued and delivered by the authority of said section, in the hands of a bona fide holder, for a-valuable consideration, without notice, must be regarded as public securities and placed on a footing with bills of exchange.</p> <p>Same.— Consolidation of Railroads After Order of Donation and Before Issue of Bonds.—Injunction.—The common council of a city incorporated under the general law for the incorporation1 of cities in this State, upon peti- „ tion of a majority of the resident freeholders of the city, made an order for the donation of a certain amount in the bonds of the city to a railroad company, incorporated under the laws of this State, to aid in the construction of its railroad running into said city. Before the bonds had ' been actually issued, said company was consolidated with another railroad company, incorporated under the laws of an adjoining state, the consolidated company taking a new name; and afterwards, without further petition or further orfler of donation, the bonds of said city so ordered weré issued and. delivered to the consolidated company, being made payable to bearer, and reciting that they were issued by authority of said act of March 14th, 1867, and in pursuance of the proper petition and order of the common council of said city, of a given date, making a' subscription in bonds of said city to aid in the construction of the railroad named in said petition and order, “ now consolidated with and forming apart of” said consolidated company, giving its name; and afterwards said bonds were sold to a purchaser without notice, and the city for some years regularly paid the interest thereon. Suit by a taxpayer of said city for an injunction, to restrain the collection of a certain amount of tax assessed against him for the payment of the interest on said bonds and to create a sinking fund for the payment of the principal, no irregularity in the petition of the freeholders or in said order of the common council making the donation being shown, and no irregularity in the consolidation of said railroad.companies being claimed.</p> <p>Held, that an injunction would not lie.</p>

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

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

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

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

<p>Practice.—Supreme Court.—Appeal in Name of Deceased Party.—Motion to Set Aside Judgment After Term.—Assignment During Pendency of Action.— After the death of the plaintiff in an action, an appeal was taken to the Supreme Court from a judgment rendered against him in said action, error being assigned by counsel in the.name of said plaintiff, and a joinder in error being filed in behalf of the defendant by counsel, and there was judgment of reversal and for costs in favor of said plaintiff, the counsel who assigned error and the defendant and his counsel being ignorant of the death of said plaintiff until after the rendition of said judgment of reversal.</p> <p>Held, that if said judgment of reversal was not void, the Supreme Court never having acquired jurisdiction of said plaintiff, it was erroneous in fact and voidable, and, whether void or voidable, it ought to be set aside upon motion of the defendant, though such motion was not filed until after the expiration of the term at which said judgment of reversal was rendered.</p> <p>Held, also, that said appeal could not be prosecuted in the name of said plaintiff by one to whom, during the pendency of the action in the court below, the plaintiff had made a written assignment of the cause of action.</p> <p>Same.—Construction of Statute.—The provision of section 21 of the code, 2 G. & H. 51, that, in case of any transfer of interest, other than such as arises from the death, marriage or other disability of a party, “the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in .the action,” means that when such transfer of interest is made, the action may be continued in the name of the original party if he be living, but does not mean that it may be continued in his name after he is dead.</p>

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

<p>Constitutional Law.-—Judicial Office.—Justice of the Peace.—City Clerk.— The office of city clerk is not an office “under the State,” within the meaning of section 16, article 7, of the constitution of Indiana; and one who has been elected to the office of justice of the peace, and has qualified and entered upon the duties of said office, is not ineligible to the office of city clerk during the term for which he was elected justice of the Deace.</p>