Volume 53 — Indiana Reports

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

<p>Partnership.—Real Estate.—In order that real estate purchased by partners may be treated as not subject to sale as real estate to satisfy the personal debt of one of the partners during the continuance of the partnership and until all partnership debts have been paid, it must have been, purchased for partnership purposes.</p> <p>Demurrer.—Practice.—Sustaining a demurrer to a good paragraph of answer is not an available error, if, on the trial, all the evidence that would be admissible thereunder be introduced without objection.</p> <p>Fraud.—Not to be Presumed.—Fraud is not to be presumed, but must be established like any other fact in controversy.</p> <p>Same.—Fraudulent Conveyance.—Evidence.—In an action to set aside as fraudulent a conveyance of real estate, and to subject the real estate to sale to satisfy a judgment against the grantor, the necessity of resorting to sijch real estate should be proved.</p>

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

<p>Pleading.—Departure.—Complaint for money paid, laid out and expended by the plaintiff for the defendant, at his special instance and request, a bill of particulars filed with the complaint being an account for a certain amount of corn purchased at a certain price.</p> <p>Held, that a reply claiming for money paid by the plaintiff to satisfy a purchaser for a contemplated non-performance of a contract for the delivery of corn by the defendant to such purchaser was not a departure. Contract.—Performance.—A request made by a principal to his commission merchant to buy corn to fill the balance of a quantity of corn which the former had contracted to sell to a third person did not authorize the commission merchant to pay money to the purchaser to discharge the obligation of the seller, it not appearing that the corn was deliverable Under the contract at the time the money was so paid.</p>

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

<p>Highway.—Obstruction..—■Pleading.—In an action under section 24, p. 592, 1 G. & H., for obstructing a highway, the complaint should allege that the defendant “unnecessarily and to the hindrance of passengers,” obstructed the highway; and it is not sufficient to allege that he obstructed the highway so as to make it impassable, and so that it could not be travelled and used by the public.</p>

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

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

<p>Bastardy.—Complaint Sworn to Before Notary Public.—The complaint in a bastardy proceeding may be sworn to before a notary public.</p> <p>Same.—Evidence.—Alibi.—Where, on the trial of a bastardy proceeding, the relatrix testified positively that the child was begotten by the defendant on a certain night, at a certain place, and there was evidence that she had sexual intercourse with other men in the same month, it was error to refuse to permit the defendant to introduce evidence that he was not at said place on said night, but was at another place.</p>

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

<p>Criminal Law.—Arson.—Indictment.—Ku indictment for arson which charged the defendant with setting fire to “ the barn of one Laura Wolf’ was not liable to the objection that it did not sufficiently allege that the barn was in the actual possession of the person named, in her own right.</p>

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

<p>Misjoinder of Causes.—Action to Recover Real Estate.—Damages.—In an action for the possession of real estate, mesne profits may be recovered as damages; but damages for waste or injury to the freehold are not incident to such action, and the uniting of a suit therefor with such action is a misjoinder of causes, for which, however, the judgment will not be reversed.</p> <p>Same.—Former Recovery.—A complaint, the body of which was in the usual form of a complaint for the recovery of the possession of real estate, demanded judgment for the recovery of the land and a certain sum as damages for the detention thereof, and for injuries and waste committed thereon by the defendant, and for other proper relief.</p> <p>Meld., it not appearing that any objection was raised in said action to the misjoinder, that the recovery of the plaintiff therein might be pleaded in bar of a subsequent action by the same plaintiff against the same defendant for the recovery of the rents and profits of said land accrued, and damages for timber cut and carried away, and for waste committed on said land, prior to the commencement of said former action.</p> <p>F.ormer Adjudication.—Presumption.—Evidence.—The presumption that whatever matters were embraced in the issues in an action were determined in the adjudication is not conclusive; and where a former adjudication is relied upon by a party, it is competent for the adverse party to allege and prove by parol what questions were considered and determined by the court or jury in the former action.</p>

<p>Turnpike.—Assessments on Land.—Repeal of Statutes.—By the act of March 13th, 1875, Acts 1875, Reg. Sess., 80, repealing the statutes authorizing the making and collecting of assessments on lands for the construction of plank, macadamized or gravel roads, the remedy for the collection of such an assessment and also the lien or right itself were taken away, and the collection of an assessment already placed upon the tax duplicate at the time of the passage of said repealing act could not be enforced ; and the fact that the road had been completed on the faith of such assessment could not affect the operation of the statute. .</p> <p>Same.—Constitutional Law.—The general statutes authorizing assessments on lands for the construction of plank, macadamized and gravel roads were not contracts between the State and the companies constructing such roads, and the repeal thereof and the divesting, by the repealing statute, of an acquired lien on land did not violate the provision of the Constitution of the United States prohibiting the slates from enacting laws which impair the obligation of contracts.</p>

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

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

<p>Railroad. — Receiver. — Injtirv io Person. — Pleading.—To a complaint against a railroad company for injuries received by the plaintiff in being run over by a train of cars of the defendant, it is a sufficient answer that, when the injuries were inflicted on the plaintiff, the railroad, engines, cars and all other property of the company were in the hands and under the control of a receiver duly appointed and acting; and such answer need not set forth a copy of the order of court appointing the receiver.</p> <p>Bill of Exceptions.—Motion io Strike Out.—The action of a court in refusing to strike out a paragraph of a pleading cannot be presented to the Supreme Court without a bill of exceptions.</p>

<p>Review of Judgment.—Pleading.—Complete Record.—A complaint to review a judgment must set forth a complete record of the former action. Same.—Exception.—A complaint to review a judgment for alleged error of the court during the trial must show that in the original action exception to such erroneous ruling was taken by the party seeking to have the judgment reviewed.</p>

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

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

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

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

<p>Pleading.—Action on Judgment.—Answer.—Payment.—Collaterals.—In an action upon a judgment, under a general answer of payment, proof may be made that the plaintiff has received the amount of certain collaterals placed in his hands, or that he has become chargeable therewith, as payment on the judgment; and, therefore, in such an action, there is no error in striking out of a paragraph of answer such special matter of defence, or in sustaining a demurrer to a paragraph of answer which relies thereon, where there remains such a general answer of payment.</p>

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

<p>Practice.—Substituted Papers.—Clerk.—Authority to order or allow the filing of substituted papers belongs, not to the clerk, but to the court. Same.—Bill of Exceptions.—When a bill of exceptions is filed as a substitute for one for the filing of which time beyond the term was given, it should appear that the original was filed within the time allowed.</p> <p>Bile of Exceptions.—Oral Evidence.—Clerk.—After a bill of exceptions has been signed, oral evidence cannot be inserted therein by the clerk, in places wherein he is directed to insert it.</p>

<p>Bill or Exceptions.—Filing.—Where, time beyond the term having been given in which to file a bill of exceptions, a bill has been filed, but it does not appear at what time it was filed, or that it was filed within the time limited, it does not constitute a part of the record.</p> <p>Instructions to Jury—Exception.—Where general instructions are given by the court to the jury, embracing several distinct propositions, an exception cannot be taken to the entire series by noting at the close thereof an exception as provided in section 325 of the code; but such exception must be noted at the close of each distinct proposition. Such distinct propositions should be numbered as separate instructions, and either party may require that this be done.</p>

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

<p>Demurrer.—Amendment.— Waive?'.—Error in sustaining a demurrer to a pleading is waived by subsequent amendment of the pleading.</p> <p>Principal and Surety.—Extension of Ti??ie of Stay of Execution.—Appeal Bond.—Burde?? of Proof.—Upon an appeal from a justice of the peace by the defendant, judgment was rendered against the defendant for a certain sum, being more than five dollars less than the amount of the judgment rendered against him by the justice, and, including costs, which were adjudged against the defendant, less than one hundred dollars, it being further adjudged that execution should not issue until the expiration of six months, said judgment being rendered by agreement of parties, without the knowledge or consent of the surety on the appeal bond.</p> <p>Held, that such extension of the time of stay of execution discharged said surety.</p> <p>Held, also, in an action on said appeal bond, the surety relying on such defence, that the burden of proving thatihe had notice of said extension and consented thereto was upon the plaintiff.</p>

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

<p>Bill of Exceptions.— Time of Filing.—A bill of exceptions, for the filing of which no time has been given, cannot be filed after the term.</p> <p>New Trial. — Motion.—Striking Out Pleading.—Error in striking out a pleading is not a cause for a new trial.</p> <p>Sale.—Sale of Goods by One Not the Owner.—The fact that one has purchased goods from another and received them as the goods of the latter, will not, if, in fact, they were the property of a third person, relieve such purchaser from liability to pay such third person for said goods.</p>

<p>Review of Judgment.—Partition.—Infancy.— An infant defendant in a proceeding for the partition of real estate, who is not served with summons notifying him of its pendency, and whose guardian does not attend and approve the partition, he and his guardian having no actual knowledge of the proceeding until after its determination, may not have a review of the partition within one year after the removal of his disability, without showing sufficient cause.</p> <p>Same.:—Appeal.—FinalJudgjneni.—A judgment in a proceeding to review a former judgment, either granting or refusing the review,-puts an end to the action for a review, and is a judgment from which an appeal will lie to the Supreme Court.</p>

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

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

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

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

<p>PLEADING.—Review of Judgment.—In an action to review a judgment for error of law appearing in the proceedings and judgment, the complaint should set out a complete record of such judgment, and the error must appear on the face of the record, the truth of which cannot be contradicted by such complaint.</p> <p>Bill of Exceptions — Striking Out Pleading, —A pleading or a part of a pleading struck out by the court cannot be presented to the Supreme Court without a bill of exceptions setting it out.</p>

<p>Bill of Exceptions.—Amendment' of Complaint After the Sustaining of Demurrer for Want of Jurisdiction.—The ruling of a court in granting leave to amend a complaint, after a demurrer thereto assigning want of jurisdiction of the court over the subject of the action has been sustained, can be reserved for the consideration of the Supreme Court only by a bill of exceptions setting out the original complaint and showing the ground of objection to the amendment and the action of the court thereon.</p> <p>Demurrer.—Harmless En-or.—Where demurrers to paragraphs of answer have been sustained, and there is afterwards filed an additional paragraph of answer, under which all evidence may be admitted on the trial that would have been admissible under those to which demurrers have been sustained, errors in such rulings on the demurrers cannot be available on appeal.</p>

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

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

<p>Guardian AND Ward. —Judgment. — Practice. —■ The complaint in an action by a minor against his guardian did not ask any relief, except that the court “discharge and remove the defendant from his said trust as such guardian,” and did not allege that the guardian had any specific sum of money in his hands for which he ought to account; and the court found merely that the defendant was the guardian of the plaintiff, a minor, and that it would be to the interest of said ward to have said guardian removed.</p> <p>Held, that the court could not order the guardian to immediately make report and pay into court the assets in his hands belonging to said ward. Held, also, that, to reserve such an error in the judgment for the consideration of the Supreme Court, a motion for a new trial was not necessary.</p>

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

<p>Pleading.—Striking Out Pleading.—Complaint for the value of goods sold and delivered by the plaintiff to the defendant. Answer, that there was a defect of parties, in that the plaintiff had no interest in the cause of action ; that said goods were sold by the plaintiff to a third person named, and by him to the defendant; and that the defendant never purchased of the plaintiff any portion of said goods.</p> <p>Held, that there was no error in striking out this answer on motion, there being an answer of general denial remaining.</p> <p>Supreme Court.—Instructions to Jtiry. — The Supreme Court cannot review the action of the court below in giving or refusing an instruction to the jury, where there is no bill of exceptions in the record, and it does not appear that any exception was taken to the ruling of the court below.</p>

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

<p>Vendor and Purchaser.—Purchase-Money,—Rescission.— Where, by the terras of a contract for the sale of real estate, it is not provided that the purchaser shall have possession, and the legal title remains in the vendor, to whom a portion of the purchase-money has been paid, and the purchaser, having received possession of the land, has failed to pay an instalment of purchase-money due, and the vendor has by suit recovered possession of the land (which, under such circumstances, he may do), such recovery will not amount to a rescission of the contract or entitle the purchaser to recover the part of the purchase-money paid by him.</p>

<p>County Auditor.—Salary.—Comtitutional Lam.—That portion of section ii of the act of March 12th, 1875 (Acts 1875, Spec. Sess. 31), which provides for an increased compensation to a county auditor where the population of the county exceeds fifteen thousand, is not in conflict with the constitutional prohibition of the passage of local or special laws in relation to fees or salaries.</p> <p>Same.—Construction of. Statute.—In determining the amount of the allowance to a county auditor under said section II, the last census taken by the United States must be looked to, for the purpose of determining whether there is an excess of population over fifteen thousand, and also the amount of the excess; and the increase of compensation provided for by said section can be made only by adding to the allowance of fifteen hundred dollars, provided for each county without regard to population, the sum of one hundred and twenty-five dollars for each one thousand inhabitants in excess of fifteen thousand, no addition being authorized for a fractional part of one thousand inhabitants.</p> <p>Same.—Stamps.—Post-office Box.—No allowance can be made to a county auditor for stamps for the use of his office or for post-office box rent.</p> <p>Same.—School Fund—Construction of Statute.—By the words “school fund of the county,” used in section 12 of said act of March 12th, 1875, providing that “ auditors shall receive one per cent, for managing the school fund of the county,” reference is made to that fund only which by section 2 of the act of March 6th, 1865, 3 Ind. Stat. 440, is made a permanent fund never to be diminished in amount; and it was not intended by said words to embrace state taxes for school purposes, special school taxes, local school taxes, interest on common school -fund, interest on congressional school fund, or taxes distributed to the county.</p> <p>Büskirk, J., dissented, holding that under said words, “school fund of¿ the county,” it was intended to include the income of the various permanent school funds.</p>

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

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

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

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

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

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

<p>Vendor and Purchaser.—Recording of Deeds.—Subsequent Purchaser.— Subrogation.—In September, 1856, A. sold and conveyed by warranty deed certain land to B. for a valuable consideration, and said deed was not recorded till November, 1861. B. conveyed, January 23d, 1869, to C., who was not to pay the purchase-money unless he could recover possession of the land by suit. His deed was recorded April 19th, 1869. In March, i860, the sheriff sold and conveyed said land to D., under a decree of foreclosure and judgment, to which B. was not a party, against A., rendered in 1857 and assigned to D., on a mortgage which was prior in date and lien to said deed of A, to B.; and in April, i860, A. ' conveyed said land by quitclaim to D., who, at the time he received said conveyances, had neither actual nor constructive notice of said conveyance to B. In May, 1862, in an action brought by A. against D.. said foreclosure sale and said quitclaim were confirmed, and it was decreed that D. was vested with the legal title to said land, and held it in trust for A., and that A. should pay D. a certain sum before the 1st of January, 1864, upon which the title in fee to said land should be vested in A., discharged of all claims of D., who should then convey to A., or his assigns, by quitclaim, and in default thereof the decree should operate as such conveyance. Afterwards, in March, 1863, E. purchased said decree of D., and D., upon written request of A., entered on the order book following said decree, conveyed said land by quitclaim deed to E., upon payment by him of a certain sum to D., who acknowledged said payment in writing on the order book after said decree, and A. conveyed said land to E. by quitclaim deed, said deeds to E. being duly recorded within ninety days after their date. E., for a valuable consideration, conveyed said land to F. by quitclaim deed, dated July 3d, 1869, and recorded August 17th, 1869. Neither E. nor F., at the time of purchase, had actualnotice of the conveyance to B.</p> <p>Held, in an action by C. against F. to recover possession of said land, that whether the conveyance to D. be regarded as giving him a title in fee simple or as operating as a mortgage, the conveyance of A. to B. was void as to D. and his grantees.</p> <p>Held, also, that said decree in said action of A. against D., purchased by E., would, if necessary, be regarded as in force for the protection of E. and his grantees.</p>

<p>Mortgage.—Defective Description of Note.—In a suit on a promissory note and to foreclose a mortgage on real estate given to secure said note, the note and mortgage being filed with the complaint and made part thereof, the note so filed, which was read in evidence on the trial, did not correspond with the description of the note in the mortgage.</p> <p>Held., that the note so pleaded and proved controlled and cured the defective description in the mortgage.</p>

<p>New Trial.—Complaint for New Trial.—Newly-Discovered Evidence.—Cumulative Evidence.—Where, on the trial of an action, admissions of a party tending to show his liability in such action have been proved, proof of other admissions made by him having the same tendency is cumulative evidence, and the discovery of such evidence after the term at which the verdict or decision was rendered cannot support a complaint for a new trial.</p> <p>Same.—Surprise.—Diligence.—Attorney.—Where a party to an. action, being side, was absent from the trial thereof, knowing the issues, and not hav, ing asked a continuance, but having entrusted the management of his cause to his attorney, and, in a complaint for a new trial, on the ground that he was surprised by the evidence of the adverse party, alleged that he was not informed of such evidence till after the term, but did not how that, by the use of diligence, his attorney could not have informed him;</p> <p>Held, that the complaint was bad for its failure to show reasonable diligence.</p>

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

<p>Principal and Agent.—Special Agent.-—-Authority to Sign Note.—Where a person authorizes another to sign the name of the former to a promissory note for a specified sum, the payee will be charged with knowledge of the extent of such authority, and the person conferring it cannot be bound for a larger sum.</p>

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

<p>Bonds.—Coupons.—Municipal Corporation.—Where a municipal corporation has power to issue and negotiate bonds for a certain purpose, with interest payable at stated intervals, the payment of the interest may be provided for by coupons attached to the bonds, executed at the same time, referred to in the bonds, and themselves referring to the bonds to which they are attached, of which they, in substance, constitute parts.</p> <p>Same.—Suit on Cotipon.—Such a coupon, detached from its bond, is negotiable, and, when matured, forms, by itself, a cause of action against such corporation.</p> <p>Pleading.—Payment.—Special Finding.—Where, in an action upon a money demand on contract, there has been no answer of payment, the court, in its conclusions of law upon a special finding of the facts sliow- ' ing partial payment, cannot allow such payment.</p>

<p>Vendor AND Purchaser.—Incumbrances.— Will.—Discretionary Power of Executor.—-It was provided by a will that the executor named therein, acting upon his best judgment, should sell the real estate of the testator, and convey the same by good and sufficient title to the purchaser. Said executor sold said real estate, without any contract as to incumbrances, and conveyed it by deed without covenant against incumbrances.</p> <p>Held., that the fact that after said conveyance, taxes, in a certain amount, upon said real estate, being a lien thereon at the time of said sale and conveyance, were paid by the purchaser, to save the real estate from sale therefor, and to remove the incumbrance thereof, constituted no defence to an action against him for purchase-money.</p>

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

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

<p>Principal and Agent.—Attorney.—Ratification.-—An account having been placed in the hands of an attorney by the creditor for collection, and the attorney having presented it to the debtor for payment, the debtor after-wards paid a part of the claim to another person who occupied the same office with said attorney, and who gave a receipt for the money so paid, signed by him as for said attorney, but who had no business connection with said attorney, and had no authority from him or from said creditor to receive said payment, which act was not ratified by said creditor, but was ratified by his said attorney, who never received the money so paid, and who afterwards repudiated said act, on learning that his client had never received the money so paid.</p> <p>Held, in an action on said account, that the creditor was not bound by said payment.</p>

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

<p>Pleading.—Exhibits.—Where a written instrument, made an exhibit to a complaint, does not constitute the foundation of the action, it cannot supply necessary averments of the complaint, or be noticed as a part thereof.</p> <p>Same.—Action to Quiet Title.—Recording of Mortgage.—Subsequent Purchaser. A complaint to quiet title to real estate alleged, that an owner thereof conveyed it with full covenants to the plaintiff and put him in possession thereof; that the defendant was asserting title, thereto through a subsequent conveyance thereof to him made by the governor in pursuance of a .sale by the auditor of state under a mortgage of said real estate executed to the treasurer of state by one who owned it before the plaintiff’s grantor became such owner; that though said mortgage had been recorded in the county, before the plaintiff’s grantor became the owner •of the real estate, yet it had never been acknowledged by the mortgagor, nor was its execution ever proved, to entitle it to be recorded; and that the plaintiff had no notice of said mortgage until after said sale and conveyance to the defendant. Prayer, that the plaintiff’s title be quieted, etc.</p> <p>Held, that the complaint was sufficient.</p>

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

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

<p>Pleading.—Set-Off.—Principal and Surety.—In an action upon a contract against two or more defendants, a claim in favor of one of the defendants cannot be pleaded by him as a set-off, without alleging that he is the principal in said contract and that his co-defendants are sureties therein.</p> <p>Same.—.Tort.■—-In an action upon a contract, a claim in favor of the defendant against the plaintiff arising out of tort cannot be made a set-off.</p> <p>Arrest of Judgment.—Where there is one good paragraph in an answer, which will uphold a judgment for the defendant, the judgment cannot be arrested because the answer contains other paragraphs which are not good.</p>

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

<p>Contract.—Promissory Note.—Pteading.—Answer.—Suit by an assignee on a promissory note not payable in bank. Answer by the maker, that the note was given in consideration of a certain horse, purchased by said maker for himself and his father, named, and was to be signed by said maker and his father as a joint obligation; that at the time of the execution of the note, the payee was indebted to said maker and his father for work done and materials furnished at the payee’s request, a bill of particulars thereof being made part of the answer, in a certain sum greater than the amount of the note; that while the payee held the note, he agreed with the maker and his father, in consideration of said indebtedness, that said horse should go in payment of said indebtedness, if the payee did not pay the same by doing certain labor; and the answer proposed to set off said indebtedness, and prayed judgment for costs and other relief.</p> <p>Held, that this answer was not good as an answer of set-off, or as showing a want or failure of consideration, or as showing an accord and satisfaction, but was bad on demurrer for want of sufficient facts.</p> <p>Same.—Evidence.— Written Contract.■—■Parol Contemporaneous Agreement.— It could not constitute a defence to such note, that at the time of the execution thereof, the maker and payee verbally agreed that if the latter should not, by performing certain labor, pay a certain debt which the payee owed to the maker and a certain third person, and which the payee had promised to so pay, the consideration for which said note was given, being a certain horse then sold by the payee to the maker, should be regarded as paid for and should be applied as a credit upon said indebtedness of the payee; and that no part of said labor to be performed by the payee had ever been performed.</p>

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

<p>Landlord and Tenant.—Forfeiture.—Certain real estate being occupied under a written lease reserving rent payable at stated intervals, no place of payment being stated, with a clause of forfeiture upon nonpayment of rent as stipulated, the landlord, on a day on which rent became due, but not just before sun-set, at the tenant’s place of business, but not on the demised premises, demanded of the tenant the rent due, in general terms, without specifying the amount. The tenant then refused payment, but the next day the rent was paid by the tenant and received and accepted by the landlord, who then gave the tenant notice in writing to quit the premises, which the tenant refused to do.</p> <p>Held, that the landlord could not recover possession upon the ground of a forfeiture for non-payment of rent upon the day on which it was due.</p>

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

<p>Evidence.—Promissory Note.—Justice of the Peace.—On the trial of an action commenced before a justice of the peace, where there is no answer, the defendant has the benefit of the general denial; and if the action be upon a promissory note, the plaintiff cannot recover if the note be not given in evidence.</p>

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

<p>Recognizance.—Statute of Frauds.—A recognizance in a criminal proceeding, taken in open court and entered on the order book, is not within the statute of frauds, but is valid and binding without the signature or seal of any of the cognizors.</p> <p>Same.—Evidence.—On the trial of an action upon a forfeited recognizance taken in open court and entered on the order book, it is not necessary to prove that the court required the principal to enter into the recognizance.</p> <p>Same.—Fixing Amount.—No other fixing of the amount of bail than specifying it in the recognizance is necessary, when the recognizance is so taken by the court.</p>

<p>Pleading.— Variance and Amendment.—Promissory Note.—Where a complaint on a promissory note alleges it to be payable at a certain period after date, and the copy of the note filed with the complaint shows it to be payable at a certain other period after date, the pleading may be regarded as amended so as to avoid the variance.</p> <p>Husband and Wife.—Separate Property of Wife.-—Promissory Note.—A husband cannot, without the consent of his wife, receive payment of a promissory note made payable to her by a third person, for money, which, being her separate property, has been used or borrowed by her husband, or so made payable to her as a gift of the amount thereof from her husband, such note being her separate property. ^</p> <p>Same.—Payment to Husband.—Where a husband gets possession, without the consent of his wife, of a promissory note made to her by a third person, and being her separate property, payments made to him, while he has such possession, by the maker, will not discharge the note or any part of it, unless said wife subsequently sanction such payment.</p> <p>Same.—Agency of Husband.—Payment.—Where a married woman has placed in the hands of her husband, for collection, a promissory note, made to her by a third person, and being her separate property, her husband is not thereby authorized to receive payment in anything but money; and other property received by him cannot be applied as payment, unless his wife has authorized it, or' afterwards acquiesces in it; and the burden is on the maker seeking such application to prove such authority or agency.</p> <p>Same.— Trust.—-Where a-husband causes a promissory note, given in consideration of the sale and conveyance of his real estate, to be made to his wife, though without her knowledge, and delivers it to her, whether as a gift to her (which, in the absence of anything to the contrary, would be inferred), or for the purpose of repaying her for money or other property of her separate estate used by said husband in the purchase of said real estate, she does not hold said note as the trustee of her husband, so as to render valid as against her a payment thereon made to him, but such note is her separate property.</p>

<p>Attorney.—Proceeding to Disbar.—-Jurisdiction.—Construction of Statute.— The provision of the code, section 777, 2 G. & H. 329, that “any court of record may suspend an attorney from practising therein ” for causes there stated, means that any court of record having jurisdiction may suspend an attorney from practising therein for such causes.</p> <p>Same.— Criminal Circuit Court.—A court having jurisdiction of criminal actions alone, as the Marion Criminal Circuit Court, cannot suspend an attorney from practice at the suit of a person from whom said attorney, has obtained money to pay a fine and costs adjudged against another, which the attorney has not 'so used and refuses to restore to the plaintiff.</p>

<p>Will.—Fee Simple Reduced by Subsequent Clause.—An estate in fee simple given by a will may, by a subsequent clause of the will, be cut down to a life estate.</p> <p>Same.— Construction.—At the time of the execution of a will, and at the death of the testator, he had a wife and three children living, and there were living the widow and children of a deceased son of the testator. In the will, the testator directed that all his property, both real and personal, should be and remain the absolute property of his said wife, if she should be living at the time of his death, except the money that he had on hand and at interest. After certain bequests of such money, he directed that the balance thereof should be divided equally between his lawful heirs, naming as such his said three living children and his said deceased son “or his heirs.” He then directed that the balance of his-estate, both real and personal, should be equally divided between his “four above named heirs,” after the decease of his wife, and that if any of liis said heirs should die leaving heirs, they should be entitled to the share of their respective ancestors, as if then' living. Suit by said widow of said deceased son for partition of the real estate of the testator, the widow of the testator and the children of said deceased son being dead.</p> <p>Held, that the petitioner was the owner of one-fourth of said real estate.</p>

<p>Evidence.—Age.—Personal Appearance Before Jury.—The appearance of a person in respect to his age, as seen by the court or’-jury, cannot be considered as evidence.</p> <p>Same.—Selling Liquor io Minor.—Instruction to Jury.—On the trial of a prosecution for selling intoxicating liquor to a minor, it was not permissible for the jury to look at the personal appearance as to age of the alleged minor, who had testified as a witness in their presence, and to regard such inspection, either with or without competent evidence of his age, in determining whether or not the defendant acted in good faith in selling him the liquor.</p>

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

<p>Contract.—Purchase of Partnership Interest.—Assuming Liabilities.— Taxes. One member of a firm sold his interest in the partnership to one who, by the terms of the contract, agreed to pay a certain sum to said member and to take his place in said firm and to pay his share of the debts and liabilities of said firm, said member at the time of the sale exhibiting to said purchaser a written statement purporting to contain a showing of the liabilities of the firm, nothing being said about taxes in said written statement or orally.</p> <p>Held, that said purchaser was bound for the payment of the retiring member’s share of state and county taxes assessed against the firm at the tima of the sale.</p>

<p>Promissory Note. — Payable in Bank. — Locality of Bank Not Stated.— Where a promissory note is made in this State, payable at a bank named, the locality of the bank not being stated, in an action on the note in a court of this State, the bank will be presumed to be located in this State, unless the contrary appears, and, therefore, on demurrer to the complaint, the note will be regarded as negotiable by the law merchant.</p> <p>Practice. — Pleading. — Striking Out Relevant Mailer. — In an action on a promissory note stipulating for ten per cent, attorney’s fees if suit should be instituted thereon, an allegation in an answer, that such stipulation was intended to enable the plaintiff to receive usurious rates of interest on the note was relevant and pertinent, as tending to constitute a defence as to a part of the plaintiff’s claim, and it Was therefore error, whether the matter was well pleaded or not, to strike such allegation out on motion; and where, by such striking out, the defendant was deprived of the right, which he otherwise would have had, to introduce evidence of the fact so alleged, such error could not be regarded as harmless.</p> <p>SAME.— TriaC in Absence of Defendant.—Where a cause at issue has been reached for trial, and the defendant and his attorney are absent, it may be submitted to the court for trial of the issues joined, without the intervention of a jury, without calling the defendant.</p> <p>Same..—Relief from Neglect, etc.—Prior to the adjournment of a court for a holiday recess, an attorney for the defendant in a cause, which he knew was the next cause for trial, informed the court, in the hearing of the plaintiff’s counsel, that he would be absent during the recess, and could not return until an hour after the usual time for the meeting of the court; and upon the meeting of the court, pursuant to adjournment, the defendant and his attorney being absent, the court required that ■ said cause be tried or passed; and the plaintiff’s attorney having notified the resident partner of said defendant’s attorney that said cause had been called for trial, and said partner, who, as was afterwards shown, was not prepared in said cause, having refused to appear, the plaintiff’s attorney submitted the cause to the court for trial; and said defendant’s attorney, upon his arrival at the hour so announced by him, found that the cause had been tried, and that a finding had been rendered for the plaintiff.</p> <p>Held, upon affidavits showing these facts and a partial defence, that the defendant was not entitled to any relief.</p>

<p>Will.—Constniction.—Life Estate.—A testator in his will directed that the whole of his personal property should be and remain the absolute property of his wife, if she should be living at the time of his decease; and he then directed that all his real estate should be and remain the absolute property of his wife, “ as long as she lives.”</p> <p>Held, that, as to the land, the widow took only a life estate.</p> <p>Waste.—Growing Trees.—;For a tenant for life to sell and authorize the cutting and removal of valuable timber trees growing on the land constitutes waste.</p>

<p>Continuance.—Absence of Witness.—Diligence.—Where notice of an action was given to a defendant by service of summons on the 13th of March, and he appeared to the action on the 25th of the same month, and made no substantial eifort to obtain the testimony of a certain absent witness, until the 21st of October following, five days before the next term of the court in which said action was pending, there could be no error in refusing, at said next term, to grant said defendant a continuance of the cause on account of the absence of said witness.</p>

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

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

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

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

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

<p>Promissory Note.—Suiton Indorsement.—Insolvency of Maker.—Where the maker of a promissory note, which was indorsed after its maturity by the payee to a third person, was insolvent at the time of such indorsement, and so continued, it was not necessary for the indorsee to sue the maker before suing upon the indorsement, though the maker was solvent at the maturity of the note.</p>

<p>Railroad.—Ejection of Passenge7 fro7/i Train.—A person who had purchased of a railrbad company, at one of its stations, a first class ticket for passage from said station to another on the railroad of said company, started upon a mixed train, composed of freight and passenger cars, the conductor of which, upon taking up said ticket, gave the passenger a card, on which said conductor had written the number of the station to which said passenger was to be carried, and the initial letters of said conductor’s name. At an intermediate station, said passenger left said mixed train and got upon an express train, which there passed said mixed train, and which would arrive at his destination sooner than said mixed train, he having been assured by the conductor of the mixed train that said card would he received by the conductor of the express train, and would be as good as his ticket, and a hrakeman on the mixed train, upon reaching said intermediate station, having announced the approach of said express train, and having told the people in the car in which said passenger was, on said mixed train, to get out and go to the station, to be ready to take the express train. The conductor of the express train refused to accept said card, and upon the refusal of said passenger to-pay again, caused him to be forcibly put off the train, at night, and not at a station or house; and when said mixed train came along, said passenger was taken upon it and carried to his destination.</p> <p>Held, that said passenger was entitled to damages for his said ejection, though said card was merely the private mark of the conductor who gave it, used only by himself, on his own train, for his own convenience; and said passenger, when he purchased his ticket, made no inquiry as to the rules of the company in relation to carrying passengers, and transferred himself from the mixed to the express train without having a stop-off check, such as the company sanctioned; and the conductor of the mixed train had such stop-off checks at the time he gave said card; and the passenger did not call on said conductor for such a check, and refused to-pay his fare on the express train or leave said train unless put off by force; and he was taken upon the mixed train in about five minutes after he was so put off, and carried safely to his destination ; and the company was not in the habit of carrying passengers from the mixed train, upon the express train, on the private checks of the conductor of the former train, but on the regularly authorized stop-off checks of the company, which represented nothing more than the original ticket represented.</p> <p>Held, also, that damages in the sum of four hundred dollars were not excessive.</p>

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

<p>Pleading.—Bill of Particulars.—Waiver.—Evidence.—When an answer is not accompanied by a bill of particulars, the plaintiff, by failing to demur or to move for a bill of particulars, waives objection to the fact that no bill of particulars accompanies the answer; and on the trial, such fact cannot constitute a reason for sustaining an objection to a question propounded to a witness by the defendant.</p> <p>Record.—Bill of Exceptions.—Exclusion of Evidence.—The ruling of a court upon the trial of an action, in refusing to permit a question to be answered by a witness, will not be reviewed by the Supreme Court, where the record does not show the particular facts which it was proposed to elicit by the question.</p> <p>Evidence.—Expert.— Value of Board.—The fact that a witness who testifies to the value of board is not an expert cannot constitute an objection to his evidence.</p> <p>Same.—Hypothetical Question.—Where, on the trial of an action, the value of services rendered by one of the parties for the other, in boarding and taking care of certain persons, was in issue, it was not error to admit, over objection, the answer of a witness to a question asking what such services would be worth under supposed circumstances stated, there being evidence tending to prove the existence of such circumstances.</p> <p>Instruction to Jury.— Contract.—Quantum Meruit.—On the trial of an action, the court refused to instruct the jury, at the request of the defendant, that there could be no recovery under the complaint, which - was a common count for services rendered, if there was a contract between the plaintiff and the defendant that such services should be performed by the plaintiff, and that he was to take his pay in the real estate of the defendant when the latter was “done with it.”</p> <p>Held, that there was no error in refusing the instruction, as it did not show sufficiently that it was based on an executory contract subsisting at the time; and if, as evidence introduced tended to prove, the defendant was “done with” his real estate, and had refused to make payment under the contract, before suit, the plaintiff might recover under such complaint.</p> <p>Same.—Evidence—It is error for a court, on the trial of an action, to instruct the jury as.to the weight of evidence before them.</p> <p>Same.—Request to Instruct More Fully.—Where an instruction given to ,■ jury is correct as far as it goes, a party desiring that the jury should be more fully instructed should request an instruction embracing his views, and it will not avail him to object that such instruction given does not ' sufficiently state the law.</p>

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

<p>Grand Jury. — Selection After Commencement of Term. — Answer in Abatement.—It was not a sufficient reason for the abatement of an indictment, that the grand jury which presented it—selected under a statute (2 Rev. Stat. of 1876, p. 417) providing that the persons chosen thereunder 4‘shall constitute the grand jury of the county for the next ensuing two terms of the circuit court”—was selected after the commencement of the term of the circuit court at which the indictment was found.</p> <p>CRIMINAL Law.—Instruction to Jury.—Manslaughter.—On the trial of an indictment for murder, the court, in its charge to the jury, stated, “ If you should find from the evidence, beyond a reasonable doubt, that the defendant, without malice, either express or implied, and with no intent to murder, unlawfully, involuntarily killed the decedent,” naming him, “ this would be manslaughter,” the context of the charge giving the full statutory definition of manslaughter.</p> <p>Held, that the defendant could not complain of the omission, in the portion of the charge quoted, of the words, “ but in the commission of some unlawful act.”</p> <p>Same.—Murder.—Indirect Cause of Death.—Where wounds have been inflicted by one person upon another, and the latter afterward dies, it is not indispensable to a conviction of the former of murder or manslaughter, under an indictment based upon the infliction of such wounds, that' they were necessarily fatal, and were the direct cause of the death ; but if they caused the death indirectly, through a chain of natural effects and causes, unchanged by human action, it is sufficient in this regard.</p> <p>Same.-—Where a person has inflicted wounds upon another, which are fatal, and of which the latter dies, or which are dangerous in themselves, though not necessarily fatal, and cause congestion of the brain, of which the wounded person dies, or congestion of the brain, so induced, causes the exposure of the injured person to the inclemencies of the weather, by' which he dies, it must be held that the person who gave the wounds caused the death by the infliction of them.</p>

<p>Maintenance.—Contract.—By a contract between A. and B., the former agreed to pay the latter, or order, or bearer, a certain sum “ as soon as a certain case or dispute” should be decided between A. and C., wherein C. claimed damages of A., if B. should manage said case, “as he has done,” and a suit should be commenced, and B. should, by himself and ■counsel, defend said cause, all at his own expense, and A. should have no damages to pay ; said sum to be paid when said claim should be settled by law or otherwise, in favor of A., and nothing to be paid if A. should have any damages to pay. Suit on said contract against A. by B.’s assignee, the complaint alleging the execution and assignment thereof; that, at the time of its execution, B. was acting as the agent of A. ; that B. had faithfully performed his part of the contract; that said suit and dispute mentioned therein had been settled and determined in A.’s favor; that B., by himself and attorney, had managed and defended said cause at B.’s expense; that A. did not have any damages or costs to pay, etc.</p> <p>Held, on demurrer to the complaint, that the contract was void for maintenance.</p>

<p>Principal and Surety.—Guardianes Bond.—In an action on a guardian’s bond, it is not a sufficient defence for a surety, that he signed the bond on the express condition that the principal obligor, before delivering it to the clerk, would have it signed by one or more other good, solvent men, as sureties with him, which was not done.</p> <p>Same.—Fraud.—Pleading.—In such an action, an answer by a sole surety is insufficient, which alleges that the bond was obtained from him by the principal obligor by fraud, covin and misrepresentation, by his stating that it should not be delivered to the clerk or to the judge, until it was executed by one or two other good, solvent persons as sureties.</p> <p>Guardian’s Bond.—Extent of Liability Theretmder.—The bond of a guardian, conditioned for the faithful discharge of his duties as guardian of the person and property of a person therein named and designated ■ as the minor heir of a deceased person named, covers moneys of said ward’s estate received by said guardian from other sources, as well as those received from the estate of said decedent; and the recovery in an action on such bond cannot be limited to the value of the estate mentioned in the statement made on the application for the appointment of the guardian, but may extend to the value of the whole estate of the ward, then held or afterward acquired, not exceeding the amount of the penalty of the bond, except proceeds of the sale of the ward’s real estate by order of court.</p>

<p>Pleading.—Demand.—In an action upon a written contract for the payment of money at a time and place specified therein, the complaint will not be rendered bad on demurrer by a failure to allege therein a special demand of ¡payment made upon the promisor before the commencement of the action.</p> <p>Same.—Allegation that Claim Remains Unpaid.—In an action upon a written agreement to pay money, it must appear from the complaint that the sum demanded remains unpaid; but in a complaint upon a subscription of money to the building fund of a college, this requirement was sufficiently complied with by an allegation that, “ though often requested, the defendant has failed and refused and still fails and refuses to pay the same or any part thereof.”</p> <p>Consideration.—Mutual Promises.—When a number of persons subscribe an instrument, whereby they agree to pay certain sums of money, severally, to be expended in the erection of a college building, their mutual promises constitute a sufficient consideration for the promise of each.</p>

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

<p>Liquor Law.—Selling Intoxicating liquor to Minor.—Affidavit.—In a prosecution by affidavit, under section 13 of the liquor law of 1875, (Acts 1875, Spec. Sess. 55) for unlawfully selling intoxicating liquor to a minor, the affidavit was not rendered bad by the fact that the liquor alleged to have been sold was described therein as “ intoxicating liquor,” and not as either spiritous, vinous or malt liquor. '</p>

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

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

<p>New Trial.—Motion.—Motion for a new trial in a criminal action assigning as cause, that “ the jury has received evidence that was illegal, admitted by court.”</p> <p>Held, that this was too indefinite.</p> <p>Criminal Law.—Larceny.—Lost Goods.—When a finder of lost goods takes possession thereof and appropriates them to his own use, without knowing, at .the time of first taking possession, who is the owner, and without having reasonable means of then knowing that fact, such taking and conversion cannot constitute larceny.</p>

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

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

<p>Fraud.—Rescission.—Consideration.—Where a promissory note has been procured by false and fraudulent representations, the party defrauded cannot rely on the fraud as a defence in an action on the note, if, as the consideration for the note, he received anything of value which he has not restored or offered to restore.</p>

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

<p>Divorce.—Evidence.—Residence of Petitioner.—On the trial of an action for a divorce, it is not necessary that there be formal and express proof of the residence of the petitioner required by the statute, or such proof that two witnesses testifying to such residence are resident householders and freeholders of the State; but it is sufficient, if, by the evidence in the cause, these facts be proved to the satisfaction of the court trying the cause.</p>

<p>Supreme Court.—Second Appeal.—If a cause be appealed to the Supreme Court, and by that court the judgment be reversed, and the cause be remanded to the court below for a new trial, and a second appeal be taken, it brings up for review and decision nothing but the proceedings subsequent to the reversal; none of the questions which were before the . court and decided on the first appeal can be reheard or re-examined upon the second appeal.</p> <p>Same. -—Second Trial on Same Facts.—Law of the Case.—The decision of the Supreme Court, rendered upon a given state of facts, becomes the law of the case as applicable to such facts; and if the cause be remanded for a new trial, the parties have the right to introduce new evidence and establish a new state of facts; and when this is done, said decision ceases to be the law of the case, and the court, in the trial of such case, is not conclusively bound by such decision, but should apply the law applicable to the new and changed state of facts; but if such cause be submitted to the court or jury for a re-trial upon the same identical facts on which said decision was rendered, such decision remains the law of the case, and the trial court must apply the law as laid down by the appellate court to the facts so submitted to the court or jury.</p> <p>Instruction to Jury.—Directing Verdict.—Where, upon the trial of an action by a jury, there is no evidence submitted to the jury which shows a cause of action in the plaintiff, it is the duty of the court to direct the jury to find for the defendant.</p>

<p>Insurance.—Life Insurance.—Assignment of Policy.—During the lifetime of a person who has a policy of insurance on his own life, payable after his death to his personal representative, another person, who has no insurable interest in the life of the insured, cannot purchase said policy and take an assignment of it to himself from the insured, and hold the title thereof in himself for his own benefit.</p> <p>Same.—Pleading.— Conclusion of Law.—Action by an administrator upon a policy of insurance on the life of his decedent. Answer by the insurance company, showing that the insured, in his lifetime, assigned the policy to another person, and that the company indorsed upon the assignment its consent thereto. Reply, that the assignee had not any insurable interest in the life of the insured.</p> <p>Held, that the reply averred a conclusion of law, and not matter of fact, and was therefore bad on demurrer.</p> <p>Same.—Forfeiture for-Non-payment of Premium.—Evidence. — Statements of Agent.—A policy of life insurance, by the terms of which renewal premiums were to be paid by the insured annually on a certain day, stipulated that, “in case the first renewal premium shall not be paid at the time it becomes due, then this policy shall be absolutely forfeited; ” and upon the policy was indorsed, “ Agents of this company will receive premiums, when due, but are not authorized in any case to make, alter or discharge contracts.” The first renewal premium ivas not paid until fifteen days after it became due¡ when it was paid to a person acting as agent of the company. The insured died afterwards, during the second year. On the trial of an action on said policy, brought by the administrator of the estate of the insured, certain letters written by the secretary of said company to the widow of the insured, admitting the liability of the company on the policy, were admitted in evidence on behalf of the plaintiff, over the objection of the company, it not being shown that the secretary had authority to adjust losses, or that he was authorized by the company to write the letters, or that his act in writing them was ratified by the company.</p> <p>Held, that the letters were not competent evidence.</p> <p>Same.—Evidence.—Custom.—On the trial of such action, the fact that it was the custom or usage of said company to receive payments of premiums after they were due, was not admissible in evidence on behalf of the plaintiff, to control the terms of the policy, or as affording an inference that in the case in question the premium was received by the company after it was due and that the forfeiture was thereby waived.</p> <p>Same.—Agent.— Ratification. — Under such a policy, the acceptance of a renewal premium by an agent of the company after it became due could not bind the company, without its ratification of the act.</p>

<p>Contract.—Promise to Make Provision in Will.—Damages.—Where a person promises that, at his death, he will leave, give and bequeath a certain share of his estate to another, in consideration of certain service to be performed by the latter, an action for damages will lie for the violation of such promise, against the personal representative of the former, on behalf of said other person, he having performed said service under the contract, and the damages may be measured by the value of the portion promised, and the plaintiff will not be limited to the’ value of the service so performed by him.</p> <p>Statute of Frauds.—Contract to be Performed at Death.—A contract, which by its terms is to be performed at the death of one of the parties, is not within the provison of the statute of frauds which requires contracts not to be performed within a year from the making thereof to be in writing.</p>

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

<p>Descent.— Widow.—Action to Recover Possession of Real Estate.—A person died intestate, in 1861, seized of certain real estate in this State, leaving surviving him a widow and a child by her, and also children by a previous wife ; and one-third of said real estate was set apart to said widow as such. Afterwards, her said child died, and she intermarried again, and had another child by her second husband, and joined her second husband in a conveyance of her said portion of said real estate.</p> <p>Held., that said widow inherited one-third of the intestate’s said real estate in fee simple, and that, without regard to the question as to her right to alienate her said portion during her subsequent marriage, said children of the intestate by a previous wife, or those representing their interests, could not recover the real estate so conveyed from one holding under said conveyance.</p>

<p>Pleading.—Negligence.—In an action to recover for an injury caused by negligence or carelessness, whether it be an injury to the person or an injury to property, the complaint must show by direct averment, or it. must appear from the facts therein alleged, that the plaintiff, or party injured, was himself guilty of no negligence which contributed to the injury.</p>

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

<p>Change of Venue.—Counter Affidavits.—ffitdicial Discretion.—Motion by a defendant in a criminal action for a change of venue, founded on his affidavit that he could not have a fair and impartial trial because of the excitement and prejudice against him and his defence in the county, which affidavit was met by the affidavit of sixty citizens residing in different parts of the county, that they had a general acquaintance with the citizens of their respective neighborhoods, that they had heard of no excitement or prejudice against the prisoner, and that, from their knowledge and acquaintance with the citizens of the county, the prisoner could have a fair and impartial trial of his case at that term of the court.</p> <p>Held, that the question was one within the sound discretion of the court, and that there was no abuse of such discretion in overruling the motion.</p> <p>Criminal Law.—Murder Committed in the Perpetration of Burglary.—Where, after a person had burglariously broken and entered into a house, and while he was yet within the house, and immediately after a watchman, who came to the door by which said person had so entered, had shot at such person, he shot and killed the watchman;</p> <p>Held, that the homicide, being committed within the res gesta of the burglary, was committed “in the perpetration” of the burglary, within the meaning of section 2, 2 R. S. 1876, p. 423.</p> <p>Instructions to Jury.—A defendant in a criminal action cannot complain of an instruction given to the jury which is favorable to him, or of ' the refusal of the court to give an instruction asked by him, where the court in its charge fully and correctly instructs the jury upon the question involved in the instruction refused.</p> <p>Same.—An instruction to the jury which, as far as it is given, is not wrong, will not be held erroneous merely because it is not more complete.</p> <p>Same.—Not Applicable to Evidence.—It is not erroneous to refuse to give to the jury an instruction asked, though it correctly expresses an abstract principle of law, if .there is no evidence in the case to which it is applicable.</p> <p>New Trial.—Surprise.—A new trial will not be granted to the defendant in a criminal action, on the ground of surprise in the testimony of a witness, where the testimony alleged to be a surprise is immaterial.</p> <p>Same.—Newly-Discovered Evidence.—-A new trial will not be granted because of newly-discovered evidence, where no diligence is shown, and no reason why the evidence was not discovered sooner, and no reasonable probability that it can be produced.</p> <p>CRIMINAL Law.—Conviction Under One Count and Acquittal as to Another.— On the trial of an indictment containing two counts, the first charging a homicide committed by the defendant “purposely and with premeditated malice,” and the second charging the killing to have been done “ purposely and with premeditated malice, in the perpetration of burglary,” an acquittal as to the first count and a conviction on the second did not acquit the defendant on the whole indictment.</p>

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

<p>County Commissioners.— Allowance by. — Collateral Proceeding.—County Treasurer.—To a suit by a board of county commissioners against a late treasurer of the county for money received by him as such treasurer and not paid over, it wás a good defence that, the defendant having lost said money by burglary and larceny, the board of commissioners of the county, in a settlement with him as such treasurer, allowed him the amount so lost, and ordered that he be relieved and discharged from the payment thereof, which action of the board of commissioners had not been appealed from and remained in force.</p>

<p>Descent.— Widow.—Effect of Statute of 18js as to Land of Husband Theretofore Conveyed by Him Atone.—Where a husband conveyed land which he owned in fee simple, his wife not joining in the conveyance, before the taking effect of the statute of 1852, which abolished dower and gave a surviving wife an interest in fee in real estate so owned and conveyed, and said husband died after the taking effect of said statute, leaving his said wife surviving him, she was not entitled to any interest in said land.</p>

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

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

<p>Promissory Note.—Payable in Bank.—To give the character of commercial paper to a promissory note, under sec. 6, I Rev. Stat. 1876, p. 636, it is not necessary that the bank in which it is made payable shall be a national bank or a chartered bank.</p> <p>Same.—Accommodation Paper.—Application to Particular Purpose.—That the application of commercial paper tp a purpose other than that for which it was executed by an accommodation party may constitute a good defence thereto as to such party, he must have an interest in its application, to the particular purpose for which he executed it; and in an action on a promissory note governed by the law merchant, by an indorsee against the maker, it could not constitute a good defence, that the defendant executed the note as an accommodation note only, upon an agreement ■between him and the payee that it should be sold to the bank at which ii was payable, and not otherwise, and that the payee sold and transferred it to the plaintiff, not said bank, the plaintiff taking the assignment with knowledge of all the facts.</p>

<p>Supreme Court.—Appeal in Name of Deceased Party.—Motion to Strike Cause from Docket.—Motion to Substitute Name.—The Supreme Court, having set aside its judgment of reversal in an appeal, upon the petition of the appellee, showing that the person named as appellant had died before the taking of the pretended appeal, overruled a motion to substitute as appellant the name of one to whom said deceased had in his lifetime assigned his interest as plaintiff in the cause of action, and sustained a motion of the appellee to strike the cause' from the docket.</p>

<p>Pleading.—Counter-Claim.—Where it appears from the facts alleged in an answer that it contains a statement of new matter arising out of or connected with the cause of action, which might be the subject of an action in favor of the defendant, this need not also be directly averred, to constitute a counter-claim.</p> <p>Same.—Action to Recover Real Estate.—Sheriff's Sale.—Counter-Claim.— Demurrer.-—Action for the recovery of the possession of real estate. Answer by way of counter-claim, seeking to quiet the defendant’s title to said real estate, by setting aside a sale thereof made to the plaintiff by the sheriff under an execution issued on a judgment in favor of the plaintiff against the defendant, it being alleged that before said sale the defendant pointed out and surrendered to the officer who held said execution for collection personal property to be levied on and sold by him under the execution, of a certain value, and sufficient to satisfy the execution, which the plaintiff knew, but that said officer, confederating with the plaintiff to injure the defendant, refused and neglected to accept said personal property, and, in lieu thereof, without the knowledge or consent of the defendant, levied on and sold for a certain sum to the plaintiff the real estate in question, under said execution; that said real estate consisted of a farm of a certain number of acres; that it was susceptible of division into, etc., several portions, each of which was worth more than said sum bid by the plaintiff, and more than sufficient to satisfy said execution; but that said officer, confederating with the plaintiff as aforesaid, advertised the whole tract for sale and sold it as a whole, as aforesaid, without offering it in the subdivisions into which it was divisible as aforesaid; and the defendant offered to pay the purchase-money and ten per cent, interest thereon and all costs, or such sum as the court might find due to the plaintiff.</p> <p>Held, that it was not necessary to make an exhibit of the judgment, etc., on which the sale was made.</p> <p>Held, also, that the answer was good on demurrer.</p> <p>Held, also, that if the facts alleged in the counter-claim might have been given in evidence under the general denial, which was also pleaded, yet the sustaining of a demurrer to the counter-claim was an available error.</p> <p>Evidence.—Sheriff's Rehirn.—Evidence that on the day on which an execution was levied upon land, and before the levy was made, the execution-defendant pointed out and gave up to the officer who held the execution unincumbered personal property of a certain value, consisting of certain chattels, sufficient to satisfy the execution, which the officer refused to receive, was not evidence tending to contradict a statement in the officer’s return that at a certain date the officer demanded payment of the execution defendant, and he directed the officer to levy on real estate, and in pursuance of said direction, on a certain date, nearly two-months after the former date, he levied on certain real estate described.</p>

<p>Execution.—Exemption of Property from Sale.—Inventory.—Evidence.—An execution-defendant, who demanded the exemption of certain articles from sale under the execution, presented to the officer holding the execution, before sale, an inventory purporting therein to be “ an inventory of,” etc., following the language of section I of the act of March 5th, 1859, as amended in 1861, 2 Rev. Stat. 1876, p. 352, except the omission of the words “within or without this State,” and the commas before and after them, after the words “real estate;” and the affidavit attached thereto, made and subscribed by the execution-defendant, stated that “ the foregoing inventory” contained “a full and true account of all the property held by him on,” etc., the date of the issuing of the execution, and that none of said property had been since disposed of, except, etc., showing how certain articles mentioned in the inventory had been disposed of, and what disposition had been made of the proceeds.</p> <p>Held, that the inventory was sufficient, and constituted material evidence to sustain an action by the execution-defendant against said officer and the execution-plaintiff, to recover possession of articles sold by the officer to the execution-plaintiff under said execution, in disregard of the execution-defendant’s demand for their exemption from such sale.</p> <p>Same. — Constitutional law.—Construction of Exemption Statutes and Proceedings.—Statutes to carry into effect the provision of the constitution, that “ the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property,” etc., and proceedings in carrying such statutes out practically, should be liberally construed.</p>

<p>Patent.—State Legislation.—No state legislation should he so construed as to interfere with the enjoyment of property in inventions, as secured by letters-patent of the United States, or to annex conditions to such a grant.</p> <p>Same.—Act Respecting Foreign Corporations and their Agents.—The provisions of the act “respecting foreign corporations and their agents in this State” (r Rev. Stat. 1876, p. 373) do not apply to a foreign corporation which is the owner, either as patentee or as assignee, of letters-patent issued by the United States, or to its agents in this State, in its transactions in this State, connected with the manufacture, use or sale of the invention described in such letters-patent.</p>

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

<p>Jurisdiction.—Of Person.—Appearance.—Jurisdiction of the person of a defendant in a civil action can only be acquired by the issuing of summons and the service thereof in one of the modes provided by statute, or by his voluntary appearance in court in person or by attorney and submission to the authority of the court. An appearance is a proceeding in court, and must constitute a part of the record of the cause in which it is entered.</p> <p>Same.—Indorsement on Complai7it.—Review of Judg77ieni.—Upon the back of a complaint, in an action of ordinary adversary character, filed in term, was indorsed the following, signed by the defendants in vacation r “We hereby enter an appearance to the foregoing action, and waive the issuing and service of process.”</p> <p>Held, that this did not amount to an appearance of said defendants, and, no summons having been issued, and one of said defendants not having-appeared in court in person or by attorney, the court had no jurisdiction of the person of such defendant, and a proceeding to review a personal judgment rendered against him upon said complaint would lie in his behalf, without his having taken an exception to any ruling in'the original action.</p>

<p>Principal and Surety.—Extension of Time of Payment.—Alteration of Written Instrument.—Where, by agreement between the maker and payee of a promissory note bearing eight per cent, interest, without the knowledge or consent of a surety thereon, in consideration that the payee would extend the time for the payment of the note for an indefinite period after its maturity, until he should demand payment, the maker endorsed on the note the following: “I hereby agree to pay ten per cent, interest on this note hereafter,” dated the day before the maturity of the note, and signed by the maker; and, in pursuance of the agreement, the payee did extend the time for a long period after the maturity of the note;</p> <p>Held, that the new contract, viewed as a contract for the extension of time, did not discharge the surety.</p> <p>Held, also (Biddle, J., dissenting), that said agreement endorsed on the note was not a merger and abrogation of the contract contained in the note in respect to the payment of interest, or such an alteration of the original contract as would discharge the surety in an action on the original contract.</p> <p>Same.—Alteration of Note.—Spoliation.—Negligence of Payee.—Where, a short time before the maturity of a promissory note bearing eight per cent, interest, the payee required the payment of ten per cent, interest for such time as the note should run after maturity; and the maker thereupon altered said note, so as to make it stipulate that it should bear interest at the rate of ten per cent., instead of eight per cent.; and the payee, being unable to write or read writing, and having no knowledge of the alteration thus made, and not assenting thereto, received the note again from the maker and retained it after maturity, receiving from the maker the increased rate of interest, without knowledge of said alteration or assent thereto;</p> <p>Hell, that the alteration was a mere spoliation of the note, and did not affect the payee’s right to recover on the nóte as it existed before the spoliation, against a surety thereon, and the payee could not be regarded as guilty of such negligence as would deprive him of such right to recover.</p>

<p>Supreme Court. —Jtirisdiction. — Action Commenced Before Mayor. — The Supreme Court has no jurisdiction of an appeal in an action commenced before the mayor of a city to recover a penalty for a violation of a city ordinance, where the amount in controversy in such appeal, exclusive of interest and costs, does not exceed ten dollars.</p>

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

<p>Decedents’ Estates.—Pleading.—Exhibit.—Where a claim is filed against a decedent’s estate for money collected on a note belonging to the claimant by the deceased in his lifetime and appropriated to his own use, such note need not be filed with the claim.</p> <p>Same.—Where a claim was filed against a decedent’s estate, founded on an alleged agreement by which the claimant sold certain lands to the deceased in his lifetime for a certain sum, on condition that the latter should resell said lands, and that whatever he should realize over said sum, deducting expenses therefrom, should be refunded to the claimant; and it was alleged that the deceased sold the lands for a certain sum, larger than the price paid by him to the claimant, and refused to pay the difference;.</p> <p>Held, that it was not necessary to file such agreement with the claim.</p>

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

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

<p>.Sheriff.-—Liability for Defatüt.—Compulsory Payment.—Execution for Use of Sheriff.— Where a sheriff, by neglecting or refusing to return an execution within the period required by law, has become liable, under section 482 of the code, to the judgment-plaintiff in the amount which he might and should have levied by virtue of the execution, and the judgment-plaintiff has claimed payment of such amount of the sheriff, who has accordingly paid the judgment-plaintiff, such payment is compulsory, within the intent of section 676 of the code, and the judgment on which such execution was issued is not thereby discharged, but remains in force, the lien thereof on real estate unaffected, for the benefit of the sheriff, who is entitled to execution thereon for his use, to reimburse him for the amount he has thus been compelled to pay.</p>

<p>Bond.— Consideration.—A bond for the payment of money imports a consideration, like a bill of exchange or promissory note, and therefore need not recite any consideration.</p> <p>Same.— Cotmty Commissioners. — Power to Contract.— Where a penal bond for the payment of money (and therefore importing an executed consideration) has been taken by a board of county commissioners, the obligor having authority to make it, the right of the board to recover in an action thereon cannot be denied on the ground of want of authority to take it, where it does not appear but that the money, for the payment of which the bond was given, is due the board as a corporation in the exercise of its legitimate power.</p>

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

<p>Pleading.—Performance*—Where a pleading is based upon an agreement, either as a cause of action or as matter of defence, performance or a suflicient excuse' for non-performance of the stipulations to be performed by the party so relying on the agreement must be averred.</p>

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

<p>Divorce.—Evidence.—Residence.—Where, in an action for a divorce, the residence of the petitioner is not proved as required in section 7 of the act of March 10th, 1873, regulating the granting of divorces (2 Rev. Stat. 1876, p. 326), the court has no power to decree a divorce.</p> <p>SAlfe.—Alimony.—Custody of Children.—Judicial Discretion.—In an action for a divorce, the questions of the amount of alimony and the temporary custody of infant children of the marriage are matters largely within the discretion of the court trying the cause; and the abuse of this discretion must be very clear, to justify the Supreme Court in interfering with its exercise.</p>

<p>Liquor Law.—Act of 1873.—Section 8.—Compensation for Taking Care of Intoxicated Person.—Section 8 of the act of February 27th, 1873, Acts 1873, Reg. Sess. 151, which provided that any person who should, by the sale of intoxicating liquor, cause the intoxication of another, should be liable “ to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person,” must be construed as authorizing a recovery only for the time during which such person may have remained intoxicated.</p> <p>Same.—Section 12.—Injury in Consequence of Intoxication.—Proximate Cause.— Where a person, by selling intoxicating liquor to another, caused the intoxication of the latter, so that he became insensible and unable to take care of himself, and while in that condition, in going home, lying down in his wagon in consequence of his intoxication, he received an injury from a barrel which was in said wagon, and, if he had not been intoxicated, he would not have received said injury, from which he died;</p> <p>Held, in an action by his widow, who by his death was injured in her means of siipport, against said seller, that she was not injured “ in consequence of the intoxication,” and was therefore not entitled to recover under section 12 of said act of 1873.</p>

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

<p>Principal and Surety.—Notice of Surety Requiring the Institution of Suit.— . A surety upon a contract in writing, on which the right of action has accrued, cannot avail himself of the remedy provided by sections 672 and 673 of our code of practice, by giving notice in writing to an attorney of the creditor or obligee directing such attorney forthwith to institute an action upon the contract.</p>

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

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

<p>Justice of the Peace.—Pleading.—Action.—The complaint in an action commenced before a justice of the peace, by its statement of facts, showed a cause of action in favor of the plaintiff against the defendant in replevin and in trover. No writ of replevin was asked or issued, and no bond was filed, but the demand of relief and the writ issued were as in assumpsit for the value of the goods.</p> <p>Held, that it was proper to treat the action, not as a suit for the recovery of the possession of the goods, but as an action for their value, the tort being waived.</p>

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

<p>Bastardy.—Evidence.—Interest of Relatrix. — Instruction to Jury.—On the trial of a prosecution for bastardy, the court, in instructing the jury in relation to the consideration to be given to the interest of the relatrix, in determining her credibility as a witness, stated, “ that she has an interest in establishing the paternity of her bastard child, and also in recovering a judgment for money for the maintenance of said child. And of such recovery, if any,” she “gets nothing, and has no interest other than that arising from her relationship to the bastard child, such recovery being solely for the support and maintenance of said child.”</p> <p>Held, that the last sentence, when considered in connection with the former portion of the instruction, could not mislead the jury, and that the instruction, taken as a whole, was not erroneous.</p>

<p>Criminal Law. — Grand Jury. — Presumption. — The Supreme Court, on appeal in a criminal prosecution by indictment, will presume, where the contrary does not appear, that the grand jury which found the indictment was legally impanelled and sworn.</p> <p>Same.—New Trial.—Misconduct of Juror.—Evidence.—Where a motion for a new trial in a criminal action is based upon alleged misconduct of a juror, in falsely stating, on his examination under oath as to his competency as a juror, that he had not formed or expressed any opinion as to the guilt or innocence of the defendant, and, such alleged misconduct being controverted, the evidence, either oral or written, offered on this point to the court in connection with the motion, is conflicting, the question of such alleged misconduct should be determined upon the weight of the evidence ; and the Supreme Court will respect the conclusion arrived at, as it does the decision of a question of fact upon conflicting evidence in a civil action.</p>

<p>New Trial.—Application for, When and How Made.—An application for a new trial in a civil action cannot be made except by motion, upon written •cause filed at the time of making the motion, and the application must be made at the term at which the verdict or decision is rendered, except it be for cause discovered afterwards; and the court cannot, without the agreement or waiver of the parties, grant time beyond the term to make the application, for a cause other than one discovered afterwards. But when a trial is pending at the close of the term, the court may proceed, with it until it is concluded, and the additional time thus required will be held to be within the legal term.</p> <p>Partnership.—Suit Against Surviving Partner by Personal Representative of Deceased Paitner.—A complaint by the administrator of the estate of a ■deceased partner, against the surviving partner, to recover the value of •assets of the partnership, which the defendant has refused to account for, misapplied and converted to his own use, should contain proper traversable averments that the partnership debts have been paid, that the affairs of the partnership have been finally settled, and that the shares of the partners have been ascertained, and should show a demand made, or a proper excuse for not making a demand, before the bringing of the action.</p> <p>Fraud.—Rescission of Contract.—Diligence.—An unexplained delay of over four years in disaffirming an agreement was held fatal toan action to rescind the agreement on the ground of fraud.</p> <p>Evidence.—Receipt.—Contract.—A receipt is a written acknowledgment of having received money or a thing of value, without containing any affirmative obligation upon either party to it,—a mere admission of a fact in writing; when it contains stipulations which amount to a contract, it' must be governed by the law of contracts, and can be avoided only as •contracts are avoided.</p>

<p>Canal.—Sale and Conveyance of Central Canal.—Contiguous Land Set Apart for Canal.—The Governor and Auditor of State, on behalf of the State in pursuance of authority conferred on them by law, sold and conveyed to the purchaser by their deed, made in conformity with such authority therein referred to, “ all the right, title, interest, claim and demand which the State may hold or possess in the Northern Division of the Central Canal, north of Morgan county, * ■*' * and the water-power and appurtenances thereunto belonging, including its banks, margins, towpaths, side-cuts, feeders, basins, right of way, dams, water-power, structures and all the appurtenances thereunto belonging, to have and to hold the same in as full and ample a manner as the undersigned are authorized by the laws aforesaid to convey the same.”</p> <p>Held, in an action by the State against the Indiana Central Canal Company, holding through said deed of conveyance, to recover possession of certain land in the city of Indianapolis, lying contiguous to the portion of the canal conveyed by said deed, that said deed covered any land of the State, so situated, that had been set apart by the State for the use of the canal or water-power in their occupation and enjoyment, or that was necessary to their use and enjoyment.</p> <p>Held, also, that though the State, by the sale of the canal, abandoned it as a proprietor, yet, the course of legislation showing an intent to encourage its completion and use as a canal, and there being nothing in the case showing that the purchaser or purchasers of the several parts were not to take all that was essential to the use and enjoyment of the whole as. a canal, the purchaser of the part in question took the title of land pertaining to the portion conveyed by said deed essential to the use and enjoyment of the canal viewed as a whole and considered as an entirety, though not essential to the complete enjoyment of the isolated portion so conveyed.</p> <p>Held, also, that if the land in question, so. lying contiguous to the portion of the canal conveyed by said deed, was set apart by competent Slate authority for the use of the canal or water-power connected therewith, and it did not appear that the purchaser was notified, before he purchased, that the dedication had been revoked, the State could not, in said action, claim that said land was not essential to the enjoyment of the portion of the canal- conveyed by said deed, and the title to said land passed by the deed without reference to the question whether it was essential to the full enjoyment of said portion of the canal.</p> <p>Held., also, that the word “margins,” as used in the statutes conferring the authority to sell and convey, and in said deed, in specifying the things included in the sale, should be construed as meaning something distinct from the other terms employed to designate what was to be sold and what was conveyed (as the “banks,” “tow-paths,” etc.) ; and it should not be interpreted as meaning a mere water-line, but should be regarded as covering any property belonging to the State adjacent and oh the margin of the canal, which had been appropriated or set apart or occupied by the State, for canal uses, or was reasonably necessary for such uses.</p> <p>Same.—Statutes Passed at Same Session.—Construction of.—The act of January 19th, 1850, and that of January 21st, 1850, Acts 1850, pp. 21, 22, in relation to the Northern Division of the Central Canal, having been both passed at the same session of the legislature, should be regarded as both standing, to be construed together, the earlier not repealed by the later.</p> <p>Same.—Extrancotis Evidence to Apply Deed to Subiect-Matier.—The property not being described by numbers or by metes and bounds, either in the statutes conferring the authority to sell and convey or in the deed of conveyance made in conformity with such authority, extraneous and parol evidence was admissible to ascertain whether a particular piece of property, definitely described and ascertained, constituted a “margin,” or “basin,” etc.</p> <p>Same.—Principal and Agent. — Acts of Special Agent of the State in Excess of Authority.—Estoppel —Rescission of Contract.—As, under said statutes, said officers must be regarded as the special agents of the State, with power to sell and convey said property, and as said property could not be precisely identified by reference to the statutes conferring said power, it was the right and duty of said agents to identify and point out to the purchaser the particular property to be sold; and if either of said agents pointed out or designated to the purchaser particular property belonging to the State, as included in or being part of the property to be sold, that would be competent and prima facie evidence that it was such, and con-elusive until shown by the State not to have been such; but the State was not estopped to show that property thus pointed out or designated was not a part of the property which said officers were authorized to sell; and in such case, the purchaser would not be entitled to hold such property, although the State should not rescind the contract and place the purchaser in statu pio.</p> <p>Power. — Implied Power. ■—• Delivery of Possession. — The power to sell and convey implies a power to deliver possession of the property to the purchaser.</p> <p>Vendor and Purchaser.—Delivery of Key of Premises.—-The delivery of a key by a vendor to a purchaser, at the conclusion of a treaty for the sale of property, is a symbol indicative of the delivery of the possession of the house or premises purchased, to which the key belongs.</p>

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

<p>Practice.—Removal of Came to United States Court.—Affidavit.—Under an act of Congress providing for the removal of causes in certain cases from state courts to the circuit court of the United States, and requiring, for that purpose, among other things, the making and filing of an affidavit in the state court by the party seeking the removal, “ stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court,” an affidavit in which the affiant stated, “that he has reason to believe,” etc., omitting the words “ and does,” was held insufficient.</p> <p>Same.—Repeal of Law.—Revised Statutes of United States.—The act of Congress of March 2d, 1867, amendatory of the act of July 27th, 1866, “for the removal of causes in certain cases from state courts” (14 Stat. at Large, 558), was repealed by the Revised Statutes of the United States, approved June 22d, 1874.</p>