Volume 54 — Indiana Reports

<p>Railroad.—Appropriation to.—Vote by County.—Aid to two Railroads.—Injunction.—Tax.—Where an appropriation to aid in the construction of two railroads has been voted by a county in one entire sum, to be apportioned in the amounts specified in the petition asking for such appropriation,</p> <p>Held,, that such vote is a nullity, and the collection of a tax levied to pay-such appropriation may be enjoined.</p>

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

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

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

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

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

<p>Criminal Law.—Indictment for Murder.—Certainty.—Motion in Arrest.—The defendant was convicted of murder. The indictment upon which he was tried alleges that the defendant, “on,” etc., “at,” etc., “did then'and there feloniously, purposely and with premeditated malice, kill and murder” the deceased, “by then and there and thereby feloniously, purposely and with premeditated malice, firing a large sized Colt’s revolving pistol, loaded with gunpowder and leaden halls, which he,” the defendant, “then and there had and held in his hands, contrary,” etc.</p> <p>Held, on motion in arrest of judgment, that the indictment is bad for want of certainty in charging the mode and manner in which the deceased came to his death.</p>

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

<p>Real Estate.—Action to Quiet Title.—Complaint.—Where the alleged owner of real estate brings an action to quiet his title thereto, as against an adverse claimant, it is unnecessary for him in his complaint to particularly describe the title or claim thereto of the defendant, if it is shown therein that such title or claim is adverse to, or a cloud upon, the title of the plaintiff.</p> <p>Same.—Same.—Defence.—In an action to quiet the title of the plaintiff to real estate, the title or claim of the defendant, if any he has, being better known to himself than to a person claiming adversely to him, is a matter of defence which he must assert in such suit, if he would protect it.</p>

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

<p>Practice.—Demurrer to Evidence —Where a party to an action which, is being tried by a jury, upon the conclusion of the evidence, files a demurrer thereto, it should be overruled, if, from such evidence, the jury might have found a verdict for the opposite party.</p> <p>Same.—Pleading.—Joint Demurrer.—To an answer containing several paragraphs the following demurrer was filed, viz: The plaintiff demurs to the second, third, fourth, fifth and sixth paragraphs of the answer of the defendants, and assigns for cause that neither of said second, third, fourth, fifth or sixth paragraphs of answer alleges facts sufficient to constitute a defence to the plaintiff’s cause of action.”</p> <p>Held, that this demurrer is a joint one to the five paragraphs of the answer, and should be.overruled if any one is good.</p> <p>Promissory Note.—Consideration.—Failure of.—Verlal Promise.—Where the • consideration of a promissory note, not payable in bank, was the verbal promise of the payee to the maker to procure the execution to the latter of a lease, for a definite'time, of a building belonging to a third person,</p> <p>Held, in a suit upon such note, that a paragraph of answer, setting up such verbal promise and alleging a breach thereof, is good as a plea of failure of consideration.</p>

<p>Parties.—Revivor of Judgment.—Insolvency.—The insolvency of the judgment-defendant is no excuse for a failure to make him a party to an action to revive and enforce a judgment against the replevin-bail.</p> <p>Pleading.—Demurrer.—Amgnment of Judgment.—Husband and Wife.—In an action to revive a judgment, brought by the administrator of the deceased assignee’s estate, the judgment-plaintiffs, a wife and her husband, were made parties to answer as to their interest therein, and the complaint, as to them, alleged that the wife, as the real owner of such judgment in a trust capacity, with the consent of her husband, but without his joining her therein, had assigned it, in writing, on the entry thereof in the order-book, to plaintiff’s intestate, who was her successor in such trust.</p> <p>Held, that a demurrer by such defendants, for want of sufficient facts, should be overruled.</p>

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

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

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

<p>Judgment and Decree.—Misdescription of Lands in.—Reformation of.— Lien.—Enforcement of.—Notice.—Where a judgment and decree have been rendered against certain realty, therein attempted to be, but erroneously described, and subsequently thereto, a person, having both actual and constructive notice of the lien of such judgment, purchases said realty, the judgment-plaintiff, in an action therefor against such purchaser, may have a correction, of the description of such realty in such decree, and enforce the collection of an unpaid balance of such judgment.</p> <p>Same.—Lien on Reed Estate.—Recital of in Leed.—Binds a Person Claiming Thereunder.—In lieu of a widow’s right of dower in certain real estate formerly belonging to her deceased husband, which had been sold to a purchaser at a sheriff’s sale thereof, on an execution against such deceased husband, in his lifetime, by the agreement of such widow and such purchaser, a judgment was rendered by the circuit court in her favor and against said real estate, decreeing the payment to her, at a certain time, annually, during her lifetime, of a certain sum, and that on default being made in any such payment, a writ should be issued to make the sum due out of such real estate, which was therein described very vaguely and loosely. Such purchaser subsequently sold and conveyed such real estate, by a warranty deed, which correctly described said real estate, and mentioned, as excepted from the covenant of warranty, said judgment in lieu of dower, and which deed was duly recorded.</p> <p>Held, that a person claiming title to such real estate, through and by a chain of title which included such warranty deed, was bound to take notice of the recital and exception in said deed, in relation to such judgment.</p>

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

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

<p>Payment.—Voluntary Payment.—Illegal Demand.—Incense to Sell Intoxicating Liquors.—Invalid Town Ordinance—Where the plaintiff had paid money to the defendant, an incorporated town, for a license to sell intoxicating liquors, pursuant to the provisions of an invalid, penal ordinance of such town, adopted under an invalid statute,—such payment having been made without protest, and not to procure the release of his person or property, and without the use of any force, fraud, menaces or intimidation by the defendant or her agents, he can not recover back the money so paid.</p>

<p>Pbactice.—Trial.—Burden of Proof.—Open and Glose.—A suit was brought upon a written contract in which there were mutual agreements to be performed by the parties thereto, the complaint alleging full performance of each of his agreements by the plaintiff, but alleging a breach of such' contract by the defendant, and claiming damages therefor. The answer of the defendant contained no general denial, but consisted of several special paragraphs, each alleging affirmative matter, amongst which was a counter-claim, specially denying the alleged performance by the plaintiff, averring a breach of such contract by him and demanding damages therefor.</p> <p>Held, that the answer admitted the allegations of the complaint, and the burden of proof being upon the defendant as to the affirmative matter alleged by him, he was entitled to open and close’ the case on the trial.</p> <p>Pleading.—Answer.—Gan not be Double.—No single pleading can be made to perform the double function of alleging matter in bar of an action, and, at the same time, setting up a cause of action entitling the party pleading it to affirmative relief. It may do one or the other, but can not do both.</p>

<p>Cbtmtnai. Law.—Statute Construed.—Section 9 of “An act to limit the number of grand jurors,” etc., approved March 4th, 1852, 2 B. S. 1876, p. 417, is directory merely, and for the purpose of getting a grand jury into court.</p> <p>Same.—Abatement.—Grand Jury.—Empanelling.—Where grand jurors, regularly selected, are returned into court upon a day subsequent to the first day of the term for which they were selected, upon a venire that day issued for them, or if, without the issuing or service of a venire, they appear at such time and are empanelled, sworn and charged, such want of venire and service thereof will not make their subsequent proceedings irregular, nor sustain a plea in abatement to an indictment found by such grand jurors.</p> <p>Same.—Abatement.—Indictment.—Grand Jury.—Where a grand jury, after finding an indictment and returning it into court, is discharged, and at a subsequent day of the same term is recalled, and some vacancies therein are filled with talesmen, and they again return into court the same indictment, it will not be presumed, in the absence of proof thereof, that no amendment of such indictment was made, nor that it was not signed by the prosecutor and indorsed by the foreman.</p>

<p>Pleading.—Written Instrument.—One Copy Sufficient for Several Paragraphs.— "Where more paragraphs than one of a pleading are based upon the same written instrument, each professing to set out a copy thereof, one copy, attached to such pleading, is sufficient.</p> <p>Supreme Court.—Practice.—Harmless Error.—Where, on appeal to the supreme court, the record affirmatively shows that the appellant has suffered no injury from an alleged erroneous ruling of the court below, it is unnecessary for the supreme court to inquire as to the correctness of the ruling complained of.</p> <p>Mortgage on Land.—Not Recorded.—■Notice.—Subsequent Purchaser.—Where a person has procured the conveyance to himself of a tract of land, with Knowledge of the existence of an unrecorded, valid mortgage thereon, in favor of another, he takes it subject to the lien of such mortgage.</p> <p>Same.—Pebt Seemed by.—Payment.—On Condition.—Failure of Condition.— Foreclosure.—A. owed B. a certain sum, and, to secure its payment, executed to the latter a mortgage upon certain land, and afterwards conveyed the same to C., who received such conveyance with the knowledge of the existence of such mortgage, which had never been recorded. D., upon a sufficient consideration moving to him from A., executed his promissory note for the amount of A.’s debt to B., and B. received it with the agreement that upon its payment, and upon that condition alone, A.’s debt to him should be thereby paid and discharged.</p> <p>Held, that upon D.’s failure to pay said note, B. may have foreclosure of ■ such mortgage as against C.</p> <p>Practice.—Depositions.—Taken Before, may be Used After a Complaint is Divided.—The complaint, in a suit by two persons as joint plaintiffs, contained but one paragraph, and depositions were taken by them to be used on the trial. Afterwards, on motion of the defendant, the name of one of the plaintiffs was struck out, and the cause ordered to be docketed in the name of the remaining plaintiff, who then filed, without objection by defendant, an amended complaint of several paragraphs. To this, a demurrer for misjoinder of causes of action was sustained, the complaint divided, and separate actions docketed.</p> <p>Held, that such depositions, if relevant, may be used on the trial of either or all of such actions.</p> <p>Same.—Supreme Court.—Damages.—Mistake in Assessing.—Where the amount of damages assessed by a jury trying a cause differs but slightly from the real amount due, and judgment is rendered for the amount of such finding, the supreme court, on appeal, will not reverse such judgment on that account.</p>

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

<p>Pashes.—Suit by Partners in Firm Name.—An unincorporated company can not maintain an action brought by it in its firm name and style alone, but must proceed in the individual names of its members.</p> <p>Pleading.—Complaint.—Must Set Out Names of Parties.—Demurrer.—Motion in Arrest.—A complaint by an unincorporated company in its firm name and style alone, not setting out the individual names of the members thereof, is bad, both on demurrer and on motion in arrest of judgment.</p>

<p>Mechanic’s Lien.—Notice of.—Several Liens Combined.—Pleading.—Motion, to Strike out Part.—Practice.—In an action to enforce a lien for building materials furnished for the construction of a number of different buildings, the notice relied upon, of the intention to hold such lien, was a joint one on all of the buildings, for the unpaid balance of the gross price of the materials furnished for all. The complaint contained as many separate paragraphs as there were buildings, each setting out a copy of such notice and seeking to enforce a separate lien, against a separate building, for a proportionate part of the whole amount due.</p> <p>Meld, that a motion to strike from the complaint each copy of such notice and all the parts seeking the enforcement of such lien, should be sustained.</p> <p>Held, also, that both the complaint and the notice are defective, in that neither shows that such materials were furnished for the particular building in which they were used.</p>

<p>Erom the Owen Common Pleas Court.</p>

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

<p>CRIMmAl Law.—Indictment.—Murder by Poisoning.—Attempt to Commit Pape.—Surplusage.—Cause of Death.—Purpose to IHU.—An indictment for murder commenced by charging that the defendant “unlawfully, feloniously and with premeditated malice, did kill and murder one” A. B., “a woman over the age of fourteen years, in an unlawful attempt, forcibly,' feloniously and against her will,” etc., “to ravish and have,” etc., “carnal knowledge of her,” etc., “by,” etc., “purposely, wilfully, unlawfully, fe-</p> <p>- loniously and with premeditated malice, administering and causing to be administered unto” her “a large quantity of deadly poison.” Then followed allegations that the defendant had mingled the poison with wine and had caused her to drink it, with the intention that such poison should create in her an uncontrollable desire for sexual connection, so that the defendant thus could carnally know her himself. The concluding allegations were that the defendant, unlawfully intending to satisfy his sexual passions upon her body, as before set out, “in the manner and by the means aforesaid,” etc., “feloniously, wilfully, unlawfully and of premeditated malice, did kill and murder her,” A. B., etc., but there was no allegation in the indictment of any attempt by the defendant to have sexual connection with her.</p> <p>Held, that the indictment is sufficient as charging a murder by the administering of poison, but not of a murder in an attempt to commit a rape; the allegations in respect to the attempted raj)e being treated as mere surplusage.</p> <p>Held, also, that such indictment sufficiently shows that the woman died of the poison administered to her.</p> <p>Held, also, that a purpose to kill the woman, on the part of the defendant, is sufficiently alleged.</p> <p>Same.—Murder in the First Degree.—By Poisoning.—Puipose to Kill.—Statute Construed.—Under section 2 of “an act defining felonies,” etc., 2 B. S. 1876, p. 423, a purpose to kill is an essential ingredient in the crime of murder in the first degree, where the killing is effected by administering poison.</p> <p>Same.—Maliee.—Where a purposed killing is charged in an indictment for murder by administering poison, it is not necessary to allege that it was done with malice, in order to constitute murder in the first degree.</p> <p>Same.—Instruction to Jury.—Where a defendant was on trial for haying committed murder in the first degree by administering poison, it was error for the court to refuse to instruct the jury trying the cause, that if they found that the poison was administered to the deceased, a woman, only to exciie her sexual passions and thereby enable the defendant to carnally know her, and without any purpose or intention to kill her, they could not find the defendant guilty of murder.</p>

<p>Contract.— Verbal Agreement.—Decedent’s Estate.—Liability of Administrator.—Special Findings ■—•Conclusions of Law.—On the trial of a suit upon the bond of the administrator of the estate of a deceased intestate, brought on the relation of an heir at law of such decedent, the court trying the cause found, specially, that such administrator and relatri? were children of the decedent; that during the lifetime of the decedent she conveyed, by deed, certain land to her son, the defendant, in consideration of his acceptance of a condition, imposed upon him in such deed, that he would support his mother during her lifetime ; that subsequently, upon his promise to provide other means for her support, she joined him in a conveyance of such land to another; that by direction of the son, a portion of the purchase-money of such sale was paid to the mother, and promissory notes for a certain amount, secured by mortgage, were executed to her, by such purchaser; that this was done pursuant to an agreement between the mother and son that she should use so much of such money and the proceeds of such notes as was necessary to her support during her lifetime, and that on her death the residue thereof, if any, should become the property of the son individually; that the mother died, leaving an unexpended portion of such money and notes, all of which came into the hands of the son, who became the administrator of his deceased mother’s estate; that such sum, and no other, remained in Ms hands as such administrator, and that he refused to charge himself with such sum as such administrator, claiming the same as his individual property.</p> <p>Held, that the conclusion of law arising upon these facts is, that such residue is the individual p2-operty of such son, and that he is not liable to such relatrix for any portion of it.</p> <p>Held, also, that such agreement, being one merely as to the disposition of the proceeds of such notes, is not invalid as changing their legal effect.</p>

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

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

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

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

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

<p>Pleading.—Promissory Note.—Conditional Promise.—A promissory note, wherein the maker promises to pay a certain sum “six months after date, or before, if made out of the sale of” an article therein named, is absolute at the expiration of the six months, whether the amount has been made by such sale or not; and a complaint in a suit then brought thereon need not aver that the amount of the note has been made by such sale.</p> <p>Same.—Promissory Note.—Payable in Bank.—Suit by Indorsee.—The maker of a promissory note therein agreed to pay a certain sum “ six months after date, or before if made out of the sale of” an article named, at a certain bank.</p> <p>Held, in a suit thereon by the indorsee thereof, that such note contains an unconditional promise to pay the amount thereof at the expiration of the six months, and is negotiable by the law merchant.</p> <p>Same.—Promissory Note.—Payable in Bank.—Law of Place.—Presumption.— In a suit in a court of this state upon a promissory note, it will be presumed, until the contrary appear, that such note was executed in this state. And where, in such suit, such note specifies a particular hank at which it is made payable, but does not specify the state in which it is located, it will he presumed, until the contrary appear, that such bank is located in this state.</p> <p>Same.—Answer.—Failure to Beply.—Failure to Object.— Waiver—In a suit upon a note,'one paragraph of defendant’s answer averred “that the promissory note in said complaint mentioned is not his (defendant’s) note, and this he is ready to verify.” No reply was filed to this paragraph, and the defendant went into trial without objecting to such failure to. reply.</p> <p>Held, that such paragraph only amounted to a denial of the allegation of the complaint that the defendant had executed such note.</p> <p>Held, also, that by his going into trial without objecting to such failure to reply, the defendant waived his right thereto, and the answer, even had it alleged matter requiring a reply, would be deemed controverted as if a reply in denial had been filed.'</p> <p>Practice.—Bill of Exceptions.—Filed too Late.—Where a motion for a new trial was overruled and judgment entered in a cause on the 23d day of May by the court below, and sixty days were granted in which to file a hill of exceptions, hut it was not filed until the 23d day of July following, it was</p> <p>Held, that the filing was too late and such bill of exceptions formed no part of the record on appeal.</p>

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

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

<p>Malicious Prosecution.—Pleading.—The complaint in a suit for malicious prosecution need not allege that the defend ant fa hely, as well as “maliciously and without probable cause ”, made the accusation upon which the plaintiff was arrested, tried and acquitted.</p> <p>Same.—Justice of the Peace.—Appointment of Special Constable.—Arrest by.— On issuing process against the defendant in a criminal prosecution, a . justice of the peace made and signed an entry of record in such cause that a “warrant issued to” A., “special constable”; but the warrant itself, on its face, was addressed to said A., as “deputy constable”, and A., in making his return of arrest thereon, signed himself as A., “special constable.”</p> <p>Held, that such entry of appointment was sufficient, and such appointment was not vitiated by such use of the word deputy instead of special.</p> <p>Same.-—Instructions to Jury.—Damages.—Construction of Statute.—Criminal Law.—A person who has instituted a criminal prosecution against another, consummated by the acquittal of the defendant, is not liable to prosecution under section 18 of the act defining misdemeanors, etc., 2 K. S. 1876, p. 465; and therefore in a suit for malicious prosecution, growing out of such criminal prosecution, there is no error in instructing the jury trying such cause that they may award punitive as well as compensatory damages against the defendant.</p> <p>Same.—Damages.—May Include Attorney's Fee.—In a suit for malicious prosecution, the damages assessed may include a reasonable attorney’s fee, for which the plaintiff became liable in defending himself in the criminal prosecution against him, though he has not yet paid the same.</p>

<p>Statute of Frauds.—Contract.—Pleading.—A verbal promise, by the payee to the maker of a promissory note, that if the latter will forbear, for a reasonable time, to issue execution upon a judgment in his favor and against a third person, then he, such payee, will then pay such judgment by giving to said maker a credit for the amount thereof upon such promissory note, is within the statute of frauds and void; and, in a suit upon such note against said maker, a paragraph of answer setting up such agreement as a defence is bad on demurrer.</p> <p>Same.—Contract.—Consideration.—A verbal agreement, made upon a valuable consideration, may nevertheless be void by the statute of frauds, because it is not in writing.</p> <p>Pleading.—Contract.—Presumption.—A promise set up in a pleadiúg, without an averment therein that it is in writing and without any copy of such promise attached thereto, is presumed to have been made by parol.</p>

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

<p>Township Trustee.—Contract.—Civil and School Township.—The trustee of a civil township, as such, has no authority to execute a contract, or incur a liability for the benefit of the property of the school township of which he is also trustee.</p> <p>Same.—Contract by.—Particular Words and Phrases.—Where a township trustee executes a contract, therein describing himself as acting for the “ township,” such description is held to mean the oivil—not the school— township.</p>

<p>Landlord and Tenant.—Action for Possession.—Damages.—In an action by a landlord against his tenant to recover the possession of the leased premises and damages for the unlawful detention thereof, sec. 11 of the act of May 13th, 1852, 2 R. S. 1876, p. 662, authorizes the assessment of damages for such detention until the time of such trial, and there is no error, simply in the assessment of greater damages than the amount claimed in the complaint in such case.</p> <p>Practice.—Supreme Court.—Amendment.—Where an amendment might have been allowed in the court below upon motion, on appeal to the supreme court such amendment will be deemed as made.</p>

<p>Decedent’s Estate.—Husband and Wife.—Wife’s Separate Property.—Suit by Administrator.—Action to Recover Personal Property.—The administrator of a deceased person’s estate sued another to recover the possession of certain promissory notes alleged to be the property of such estate. From the evidence given upon the trial of such cause it appeared that during deceased’s lifetime he caused a third person, the owner of certain personal property, to convey an interest in the same to his wife, the defendant paying for the same; that she and her husband subsequently sold such property to a purchaser, who, without her knowledge or consent, executed the notes in controversy to her husband, for the unpaid purchase-money on such sale; and that the defendant held such notes as the agent of the widow of decedent, who claimed the same as her own property. There was no evidence of any indebtedness against such estate, nor as to how the defendant obtained possession of such notes.</p> <p>Held, that the title to such notes is in such widow, as against the plaintiff.</p> <p>Evidence,—Declarations of Deceased Vendor.—Impeaching Venders Title.— Suit by Administrator.—On the trial of a suit by an administrator to recover of the vendee personal property alleged to have been conveyed to him by plaintiff’s decedent to defraud his creditors, declarations of such decedent as to the character of such sale, made subsequently to its completion, are not admissible in evidence to impeach such vendee’s title to such property.</p> <p>Sade.—Transfer of Property to Defraud Creditors.—Action to Recover.—Suit by Vendor’s Administrator.—A transfer of property by a debtor to defraud his creditors is binding upon such debtor, and, on his decease, his administrator is likewise bound by such transfer and can not recover the possession of such property.</p> <p>Husband and Wipe.— Gift by Husband to Wife.—Can not be Revoked.—An executed gift by a husband to his wife can not be revoked by him.</p>

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

<p>Practice.—Special Findings Inconsistent with General Verdict.—Where the special findings of fact by a jury, in answer to interrogatories propounded to them on the trial of a cause, are clearly and irreconcilably inconsistent with their general verdict, judgment must be rendered, notwithstanding such general verdict, in accordance with such special findings.</p> <p>Same.—Same.—Action for Damages for Injury.—Contributory Negligence.— Where, on the trial of an action for damages for injuries alleged to have been inflicted upon the plaintiff by the wrongful and negligent act of the defendant, the jury, with their general verdict in favor of the plaintiff, returned special findings of fact, in answer to interrogatories propounded to them, showing that there was negligence on the part of the plaintiff, contributing to, if not altogether causing the injuries complained of, judgment was properly rendered, notwithstanding such general verdict, in favor of the defendant, on such special findings.</p>

<p>Infant.—Conveyance By.—Disaffirmance.—Liability for Purchase-Money.— "Where, during his infancy, a person has conveyed his land to another by deed and received the purchase-money therefor, he may, on coming of age, disaffirm such conveyance and recover back such land without returning, or offering to return, or thereby becoming liable to repay, such purchase-money.</p> <p>Same.—Married Woman.—Conveyance.—Joint Covenant of Married Woman and Another.—Breach of.—Two owners in, severalty of a tract of land, with the husband of the younger owner, wno was a minor, jointly conveyed such land, by a warranty deed, to a purchaser thereof, and said minor, after having received her full share of the purchase-money therefor, dis-affirmed such deed and recovered back her portion of such land; whereupon, said other owner, in view of such breach of such joint warranty, paid to said purchaser the damages accrued by reason of such breach, and brought suit against said minor and her husband to recover such sum so paid.</p> <p>Meld, that the plaintiff can not recover therefor, said married minor not being liable to said purchaser on her warranty.</p>

<p>Master and Servant.—Articles of Indenture.—Assent of Judge.—Acknowledgment.—Articles of indenture apprenticing a minor child, whose parents are unable to support it, executed by the proper overseers of the poor, and binding as a servant to another, are void unless assented to by the proper judge and his assent endorsed thereon, and unless acknowledged hy the parties thereto before some officer authorized to take acknowledgments of deeds.</p> <p>Same.—Invalid Indenture.—Liability of Master to Servant.—Suit for Worh and Labor.—Pleading.—Where a . minor has performed work and labor for another under invalid articles of indenture purporting to bind such minor to such other person as an apprentice, the performance by the latter of his covenants in such articles is no bar to an action by the former for such work and labor; and an answer, in such action, setting up such articles and alleging performance of its covenants by the defendant, in bar of such action, is bad on demurrer.</p> <p>Practice.—Supreme Court.-—■ Weight of Evidence.—Where a judgment is rendered by the court below on the trial of a cause in which the evidence is conflicting, on appeal, the supreme court will not reverse such judgment on the weight of such evidence, merely.</p>

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

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

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

<p>Practice.—Motion for New Trial.—Causes.—The ruling of a court upon a demurrer to a pleading is not a ground for a motion for a new trial.</p> <p>Same.—Supreme Court.—Harmless Error.—Error of the court below in sustaining a demurrer to a paragraph of a pleading, is not available as error on appeal to the supreme court, where the matters therein alleged could have been given in evidence under a remaining paragraph of such pleading.</p> <p>Same.—As to such paragraph in such pleading, the better practice in the court below is, by a motion to strike it out, rather than by a demurrer thereto.</p> <p>Same.—Supreme Gourt.—Finding.—Partition.—Partial Intestacy.—Devise during Dife.—Where an intestate, leaving no father or mother or child, devises to his widow the whole of his real estate, so long as she shall remain his widow, and, after her death, to another, but fails to devise the same to any one in case she should remarry, during the time elapsing between her remarriage and her death, and such widow elects to take under the law and not under such will, and, in an action by her against such other devisee for partition of such real estate, the court decrees to her the one-third thereof in fee and the remaining two-thirds during her life, on appeal to the supreme court from such decree by such other devisee, assigning as error the overruling of a motion for a new trial, it was held, the evidence not being in the record, that, evidence to sustain such finding and decree being admissible under the complaint in such cause, it will be presumed, the contrary not being shown, that such evidence was given.</p>

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

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

<p>Practice.—Supreme Court.—The action of the court below in overruling a motion to strike out part of a pleading is not available as error on appeal to the supreme court.</p> <p>Same.—Same.—Where the complaint upholds the general verdict, which is not contradicted by the special findings, in the absence of the evidence, the supreme court, on appeal, will presume such verdict to be right.</p> <p>Same.—Pleading.—Reply of Set-off to Answer of Set-off.—Matter of set-off may be pleaded in reply to an answer of set-off pleaded to the complaint, even where such matter of reply might have been included in the complaint.</p> <p>Same.—Interrogatories to Jury.—Where either affirmative or negative answers. to interrogatories requested but refused to be put to a jury could not have affected the general verdict rendered by them, such refusal is not error.</p> <p>Same.—Argument to Court in Hearing of Jury.—The refusal of the court to allow the counsel of a party to read to the court, in the hearing of the jury trying such cause, an adjudged case from a volume of law reports is not a sufficient cause for a new trial.</p> <p>Same.—Supreme Court.—Where, on appeal to the supreme court, the evidence is not in the record, such court can not consider an alleged error of excessive damages.</p>

<p>Pleading.— Combining Two Written Instruments in one Paragraph.—Evidence.—Practice.-—Jury Consulting Written Evidence.—Instructions to Jury.— In an action against the widow and only heir of a deceased intestate, to foreclose a mortgage upon land, executed by such intestate in his lifetime to secure the payment of certain promissory notes executed by him to the plaintiff, there was no error in combining such notes and mortgage all in one paragraph of complaint. And, there being no answer of denial, there was no available error in admitting such notes in evidence on the trial of such cause, and permitting the jury to take them to their private room whilst they deliberated on their verdict. And, in such case, no evidence having been introduced by the defendant, there was no error in instructing the jury to find for the plaintiff the amount of the principal and interest due on such notes.</p> <p>Practice.—Continuance.—An affidavit for the continuance of a cause, on account of the absence of evidence, must show such evidence to be material, and the use of due diligence to procure the same.</p> <p>Same.—The refusal of a court to grant time to prepare and file an affidavit for the continuance of a cause pending for trial, on account of the absence of a witness, is a matter in the discretion of such court.</p> <p>Same.—Change of Venne.—A party to an action is not entitled to more than one change of the venue of such cause.</p>

<p>Promissory Note.—Payable in Bank.—Law of Place.—Presumption.—Where a promissory note is executed in this state, payable at a certain hank therein named, but not specifying the state in which such bank is located, it will be presumed, the contrary not appearing, that such bank is located in this state; and such note is negotiable as an inland bill of ex-' change.</p>

<p>Attachment.—Pleading.—Practice.—Trial.—An answer of general denial of the allegations of the complaint and affidavit in an attachment proceeding need not be sworn to. And in such case, if no evidence to support the allegations of such affidavit is offered on the trial of the cause, judgment on the attachment should be rendered for the defendant.</p>

<p>Practice.—Appeal to Supreme Court.-—Record.—A motion for a new trial is properly a part of the record on appeal to the supreme court, without being made so by a bill of exceptions.</p> <p>Alteration of Written Instrument.—Promissory Note.—The alteration of a promissory note, by the direction of one of several joint makers thereof, by increasing the rate of interest therein, without the consent of the other makers, discharges the latter from all liability thereon.</p> <p>Same.—Authority of a Joint Maker.—The fact that one of several joint makers of a complete written instrument for the payment of money, is intrusted with it by the others, after they have signed it, to deliver it to the payee thereof, does not authorize such maker to add thereto anything increasing the liability of such makers.</p> <p>Same.—Void in Part, Void in Att.—Where, by the act of the payee and one of several joint makers of a written instrument for the payment of money, a material alteration therein has been made, without the consent of the other makers, such instrument can not be held void as to the part inserted and valid as to the original, but is entirely void.</p>

<p>Promissory Note.—Principal and Agent.—Agent’s Contract.—Signature.— A promissory note in the usual form “we promise to pay”, etc., executed by the makers thereof in their individual names, with the addition thereto'of “trustees of the”, etc., “church of”, etc., is the note of said makers, personally, and not of such church.</p> <p>Same.—Parties.—An action upon a promissory note in the usual form “we promise to pay”, etc., executed by the makers in their individual names, with the addition of the phrase “trustees of the”, etc., “church of”, etc., was properly brought and judgment therein properly rendered, jointly, against the surviving makers thereof and the administrator of the estate of a deceased maker.</p>

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

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

<p>New Trim.—Action to Recover Real Estate.—Payment of Costs.—"Where judgment has been rendered against a party to an action for the recovery of real estate, such losing party can not make an application, nor the court make an order, for the vacation of such judgment and the granting of a new trial therein, unless such applicant has first paid all costs adjudged against him on such former trial.</p> <p>Same.—Motion to Set Aside Order for New Trial.—An order vacating the judgment and granting a new trial, as of right, in an action for the recovery of real estate, made before the payment of all the costs adjudged against the applicant on the former trial, should be set aside and the cause struck from the docket on motion in writing, and proof of such non-payment of costs.</p> <p>Same.—Trial by Affidavit.—The issue made as to whether such costs have been paid before the making of such application and order for a new trial, may be tried upon affidavits to be filed by the parties to such cause, where no objection is made.</p>

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

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

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

<p>Practice.—Supreme Court.—Pleading.—Warner.—Agreement of Record.— 'Suit against Administrator after Final Settlement.—Where, after the administrator with the will annexed of the estate of a testator has made final settlement and been discharged from his trust, the widow brings suit against him to set aside such settlement and obtain an order on him to pay her the five hundred dollars allowed her by law, and alleging that, • though sufficient assets came into his hands to pay her the same, and although he had reported its full payment to her in such final settlement, the same had never been paid to her, and no demurrer or other objection is interposed to the complaint, and on the trial of the same all the material facts alleged in such complaint, except the fact that anything is due to the plaintiff, are admitted by the defendant in open court, and it is in like manner agreed that if upon trial anything is found due to the plaintiff, as alleged, from such estate, that judgment may be entered therefor against the defendant, personally, and on the trial a finding and judgment are rendered by the court for the plaintiff, on appeal to the supreme court by the defendant, alleging as error the insufficiency of such complaint, all defects in such complaint will be deemed cuz'ed by such agreement, findiizg and judgment.</p>

<p>Practice.—Supreme Court.—Harmless Error.—Where a demurrer to one paragraph of a pleading consisting of several paragraphs is overruled, and on the trial of such cause a finding and judgment are had on a different paragraph, on apjieal to the supreme court such ruling is not available as error.</p> <p>Principal and Agent.—Pleading.—Evidence.—Estoppel.—Where, during a delay occurring between the date of the sale and the conveyance oí the real estate of the defendant to a third person, the plaintiff, being the tenant of the defendant on such real estate, makes certain improvements thereon without any authority from any one, and the defendant undertakes with the plaintiff to collect, and does collect, of such third person the value of such improvements, for the plaintiff, the defendant thereby becomes the agent of the plaintiff and is liable to the latter for the amount so collected in an action therefor, and can not introduce evidence on the trial of such cause, to show that such improvements were made without authority.</p>

<p>Ei’om the Howard Circuit Court.</p>

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

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

<p>Practice.—Trial.—Disagreement of Jury.—Where the jury trying a cause have difficulty in agreeing upon a verdict, and report such fact to the court trying such cause, the court has no right to ask of such jury, nor the jury to inform such court, as to how much they lack of agreeing.</p>

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

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

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

<p>Replevin-.—From Officer Attaching Goods.—Defence.—Pleading.—Demurrer. —Banb'wptcy Proceedings.—Assignee in.—Order of Bankrupt Court.—To the complaint in an action to recover the possession of goods alleged to have been unlawfully taken and converted, the defendant answered alleging that such goods were taken by him as sheriff upon a writ of attachment issued to him against the property of a third person, at the suit of certain of his creditors; that subsequently thereto, but prior to the bringing of this suit by the plaintiff, a petition was filed in the proper court by certain creditors to adjudge such third person a bankrupt; that subsequently to the bringing of this suit by the plaintiff such third person was adjudged a bankrupt, by such court, and an assignee in bankruptcy appointed; that on the application of such assignee, representing that plaintiff pretended to claim such goods by a conveyance from such bankrupt, and that they were in the possession of the defendant, as aforesaid, such court ordered that such goods be seized and sold by such assignee, as the property of such bankrupt, subject to the right of the plaintiff to claim the proceeds of the sale instead of such goods; that thereupon the defendant on demand surrendered such goods to such assignee who holds them subject to the claim of plaintiff. Prayer that the action abate until the plaintiff’s rights are determined by such bankrupt court.</p> <p>Held, on demurrer, that such answer does not state facts sufficient to constitute an answer either in bar or in abatement.</p> <p>Held, also, that if such answer is good, then a reply thereto, averring that the order of such bankrupt court was made without any notice to the plaintiff, is also good.</p> <p>Held, also, that the plaintiff could not be required to follow such goods into the bankrupt court, but had a right to prosecute his action to final judgment in the oourt where it was commenced.</p> <p>Held, also, that the defendant had a right to show that the plaintiff’s title to such goods was void, as obtained under a sale made in violation of the law of this state, but not that it was void under the bankrupt law.</p> <p>Same.—Bankruptcy Proceeding.—Order of Bankrupt Court.—Proceeding by Assignee against Third Person.—Notice.—Under the bankrupt law of the United States, (sec. 5063, B. S. U. S., p. 983,) in a proceeding by the assignee of the estate of a bankrupt to obtain an order of the proper bankrupt court to seize and sell property claimed by him to belong to such estate, where the title thereto, is also claimed by another person, the latter is entitled to reasonable notice of such proceeding.</p> <p>Same.—Such section of the bankrupt law does not authorize the seizure and sale of property in the possession of another person under claim of title.</p> <p>Same.—Bankrupt Lem.—The bankrupt law of the United States can not be administered in the courts of this state in proceedings in attachment.</p> <p>Same.—Attachment.—Cause for.—Sale.—A violation of the bankrupt law of the United States-by a debtor, in making a sale of his property, is no ground for an attachment by creditors under the law of this state, as a sale of goods may be in violation of the former law and yet be valid under the latter.</p> <p>Practice.—Appeal to Supreme Court.—Objection to Evidence.—An objection to certain evidence, given on the trial of a cause, on the ground that it is “incompetent”, simply, presents no question to the supreme court on appeal.</p> <p>Same.—Where the record does not show what fact was proposed to be proved by a witness on the trial of a cause, on asking him a question which was excluded by the court below, such exclusion is not available as error on appeal to the supreme court.</p> <p>Evidence.—Parol Evidence of Writing.—Where, under the issues of a cause on trial, it becomes material as to whether a certain sale has been made, the validity of which is not in question, such fact may be proved by parol, even where such sale was made on an execution or a decree.</p> <p>Practice.—Trial.—Instructions to Jury.—Where, before evidence is introduced, the court trying a cause is requested to instruct the jury in m-iting, and during such trial evidence is introduced which has no force unless connected with another fact to be, but not yet, proved, it is not error for such court, at the time of its introduction, to verbally direct the jury that such evidence is not to be regarded unless such other fact he proved. Such direction not being an “instruction” to the jury.</p> <p>Same.—New Trial.—Surprise.—Where a party to a cause asks for a new trial thereof on the ground that he was surprised by the evidence of one of his own witnesses, and it does not appear that any steps had been taken by him before the trial to ascertain what such witness would testify to, nor that on another trial he will testify differently, such new trial should be refused.</p> <p>Same.-—Misconduct of Jury.—Where the affidavit of a party to a cause asks for a new trial thereof on the ground of alleged misconduct of certain of the jurors who tried the cause, but does not state how he obtained his information of such alleged misconduct, and avers that if it had not been for such misconduct of said jurors the verdict of the jury would have been in affiant’s favor, “as he believes”, such new trial should be refused.</p> <p>Same.—Affidavit of Juror.—The affidavit of a juror can not tie used to impeach the verdict of a jury upon which he sat at the time such verdict was rendered.</p>

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

<p>CeuedstAl Law.—Margery.—Indiclment.-r-An indictment for forgery may be predicated upon the unlawful and felonious publishing and uttering as true, with knowledge of its character and intent to defraud, of a written instrument for the' payment of money, which embraces all the usual parts of a promissory, note except the naming therein of a payee.</p> <p>Same.—Erroneous Designation of Writing.—An indictment for forgery, based upon, and setting out therein a copy of, such written instrument, with the proper allegations as to the acts constituting the crime, is not invalidated by the fact that such instrument is therein erroneously designated as to its commercial title or character.</p> <p>Same.—Evidence.—Upon the trial of a defendant indicted for forgery, there is no error in the admission in evidence, with the forged instrument alleged to have been uttered, of other forged writings uttered by the defendant in connection with the perpetration of the crime charged.</p> <p>Same.—Admissions.—Admissions by a defendant in a criminal action, made by him, while under arrest for the crime charged, voluntarily, and not induced by fear, force, threats or promises, are admissible in evidence against him on the trial of such cause.</p>

<p>Vendor and Purchaser.—Mistake.—Conveyance by Metes and Bounds.—In a suit upon the only unpaid promissory note, of a number of such notes, given for the purchase-money of a tract of land sold for a sum in gross and conveyed to the mater by the payee, by a warranty deed, wherein the land is described by metes and bounds, and as containing a certain number of acres, more or less, and in the mating of the contract for the sale of such land there was no fraud practised, no mutual místate nor representation made as to the number of acres, and the land purchased for no particular purpose requiring the number of acres mentioned in the deed," the defendant is entitled to no relief or abatement of price because, on survey of such land, it is found to contain a less number of acres than is specified in the deed.</p>

<p>County Clerk.—Power of.—Ministerial Act.—Issuing Writ of Replevin.—The issuing of a writ for the seizure and delivery of personal property, in an action in the circuit court to recover the possession of the same, is merely a ministerial act, which may be performed by the clerk, in term time, upon the filing of the proper affidavit, without an order therefor of the court.</p>

<p>Guardian and Ward.—Suit on Guardian’s Bond.—Pleading.—In a suit upon a guardian’s bond, by tbe ward, to recover for money received on a sale of the ward’s real estate and alleged to have been converted, it is not necessary to aver in the complaint that the guardian’s report of such sal® was approved by the court.</p> <p>Same.—Demand.—Upon the resignation of a guardian without paying over the money belonging to his ward’s estate, a suit may be maintained therefor, on his bond, against the guardian and his sureties, without having made any demand upon him for the payment of the money.</p> <p>Query.—Can the failure of the court to approve a guardian’s report of the sale of his ward’s real estate be made a defence to an action on the former’s bond to recover for the money received on such sale ?</p>

<p>Constitution ax. Law.—Impairing Obligation of Contracts.—Act in Fetation to Attorneys’ Fees.—The act approved March 10th, 1875, 1 E. S. 1876, p. 149, in relation to agreements contained in hills of exchange, drafts, acceptances, promissory notes, etc., for the payment of attorneys’ fees, is not unconstitutional, as being an act impairing the obligation of contracts.</p> <p>Pkomissoby Note.—Attorney Fees.—Payable on Condition.—An agreement contained in a promissory note to pay a certain per centum as attorney fees, “if suit be instituted” thereon, is illegal and void, and can not be considered in estimating the amount of the recovery in a suit upon such note.</p> <p>Same.—Payable in Gold on Condition.—In an action upon an unpaid, matured promissory note, payable “in the gold coin of the United States”, a condition, therein expressed, that “if this note is paid at maturity, or before suit is brought thereon, then it shall be payable in any lawful money of the United States,” does not take away the plaintiff’s right to recover judgment payable in such gold coin.</p> <p>Same.—Error of State Court.— Writ of Error.— United, States Supreme Court.— In a suit in a state court upon a promissory note, payable in the gold coin of the United States, if such court refuses to render a judgment thereon payable in such coin, the Supreme Court of the United States has jurisdiction of such cause on a writ of- error to such state court.</p> <p>Same.—Legal Tender Act.—The legal tender act of the United States applies only to debts payable in money, generally, and not to debts payable in coin.</p> <p>Same.—Jurisdiction.—-Where the question involved in a cause appealed to the supreme court of this state arises under the constitution and laws of the United States, and has been decided by the supreme court of the United States, that decision is binding upon the former court.</p> <p>Same.—Expenses of Collection.— Usury.—A clause in a promissory note, providing for the payment of a certain per centum thereon as “expenses of collection,” or as “exchange and other expenses incident to the collection thereof”, “other than attorney fees, if suit be instituted on this note”, is valid, is not usurious, and may be enforced in a suit thereon.</p> <p>Same.—Attorney Fees.—Unconditional Promise.—A clause of a promissory note, promising to pay a certain per centum attorney fees, unconditionally, is valid, and in a suit upon such note, the judgment must include such percentage.</p>

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

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

<p>Criminal Law.—Indictment.—Attempt to Extort Money by Threatening to Accuse of Immoral Conduct.—Blackmail.—An indictment which, properly lays the venue and time, and alleges that the defendant, naming him, had unlawfully and feloniously, verbally and orally, threatened to a certain person, naming him, that he, the defendant, would falsely accuse him, such person, of having had illicit, sexual intercourse with a certain woman, naming her, by causing such accusation to be printed and published in the public newspapers circulated among the citizens of a certain place, naming it, and by printing and circulating among such citizens handbills containing such accusation, with intent thereby to extort of such person money and other valuables of a description unknown to the grand jurors, all of such facts being specifically alleged, is good as a charge of an attempt to extort or gain from such person money or other valuable security by threatening to accuse such person of immoral conduct which, if true, would tend to degrade or disgrace him.</p> <p>Same.—Evidence.—Mitigation of Punishment.—Former Imprisonment.—Where a defendant is on trial for a crime, he may give evidence of the fact that, prior to such trial, he has already suffered imprisonment in the county jail or state-prison, whilst under arrest and awaiting trial for the charge upon which he is being tried or serving a previous, erroneous sentence, and the court or jury trying such cause must consider this evidence in mitigation of the punishment to be inflicted upon the defendant.</p> <p>Same.—Instructions to Jury.—Character of the Defendant.—On the trial of a defendant in a criminal prosecution, in connection with a charge to the jury that “evidence of good character is admissible in criminal cases, and, when proved, is to be taken into consideration, in determining the guilt or innocence of the accused”, asked by the defendant to be given, it was error in the court to give the same modified by adding thereto the sentence, “but where the guilt is positively proved, then good character will not benefit the defendant.”</p> <p>Same.'—Proof of the previous good character of the defendant in a criminal prosecution is an ingredient to be considered, on the trial thereof, without reference to the apparently conclusive or inconclusive character, of the evidence of the defendant’s guilt.</p>

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

<p>Liquor Law.—Indictment.—Retailing Without License.—An indictment for retailing intoxicating liquor without license must aver some price for which it was sold, but need not aver the quantity thereof sold more specifically than that it was less than a quart.</p>

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

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

<p>Winn.—Certainty as to the Devisee.—Devise to a County.—A devise of the property of a testator to a county, designated as “the county of”, etc., “in the State of”, etc., is sufficiently certain as a designation of the devisee.</p> <p>Same.—Charitable Use.—Capacity of a County to Take.—A county lias the legal capacity to take a devise of the property of a testator, as a permanent fund, the income from which is to be used in educating a specified class of the children of such county.</p> <p>Same.—Certainty as to the Beneficiaries.—A will devising the property of the testator to a devisee, to be used in the education of a specified class of the children of a particular county and state, is sufficiently certain as to • ■ the beneficiaries of such trust or devise.</p> <p>Same.—Where a will devises property to a certain county as a permanent fund, the income from which is to be used in the education of a certain class of the children of such county, a clause thereof directing “that'the said school fund is to be placed in the hands of two judicious” persons of such class, of said “ county, to have control and to manage the same for the benefit of ” said children, and directing that such persons give bond to such county “for the,faithful performance of said trust”, is simply an appointment of such persons to control the expenditure of such income for such educational purpose.</p>

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

<p>Ceimtktal Law.—Pleading.—Demurrer.—The defendant in a criminal prosecution, in addition to the general plea of not guilty, may file a special defence, in writing; and the proper method to test the sufficiency thereof is by demurrer.</p> <p>Same.—Reply.—Where a demurrer by the state, to a special plea filed by the defendant in a criminal cause, has been overruled, the former may file a reply to such plea.</p> <p>Same.—Judgment on Demurrer.—Discharge of Defendant.-—The overruling of a demurrer to a special plea by the defendant in a criminal cause does not entitle the defendant to a judgment discharging him from custody.</p> <p>Same.—Practice.— Waiver.—Pending the decision of a demurrer to a pleading, the filing of an answer or a reply to such pleading by the party demurring is a waiver of the demurrer.</p> <p>Same.—Office of a Demurrer.—The office of a demurrer to a pleading is to question the sufficiency of the facts contained therein, not to admit them as proved for the purposes of the trial.</p>

<p>Crtmtnax Law.—Appeal to Supreme Court.—Bow and When.—Filing Transcript.—An appeal to the supreme court by the defendant in a criminal prosecution is considered as taken on the day on which notice of such appeal is served on the proper officers, and the transcript of the record must be filed within thirty days thereafter or such appeal will be dismissed.</p>

<p>Erom tbe Allen Criminal Circuit Court.</p>

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

<p>Decedents’ Estates.—Emblements.—The emblements and annual crops with, which an administrator is chargeable do not include those planted and grown after his decedent’s death.</p> <p>Same.—Estate not Liable for Trespass of Administrator.—An administrator, by taking and charging himself with property not belonging to his decedent’s estate, does not thereby render such estate, nor himself as such administrator, liable to the owner of such property, for the value thereof.</p> <p>Same.—Claim Against Estate.—Jurisdiction.—Where the objection is made for the first time, in the supreme court, that the circuit court had no jurisdiction of a claim against a decedent’s estate, because the record does not affirmatively show that such claim had been entered on the appearance docket, there refused, and thence transferred to the issue docket, hut the record does show its filing in the clerk’s office in time to have been thus disposed of, it will be presumed that such steps were duly taken.</p>

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

<p>Sheriff.—Sheriff’s Sale.—Sale of Same Property on Different Executions.—Priority.—Liability to Purchaser at Void Sale.—Several executions against the same person, having priorities oí lien upon the real estate of such person in the order of the rendition of the judgments upon which they were severally issued, were levied upon such realty, at the same time, by a sheriff in whose hands they were. He sold a portion of such realty upon .the execution having priority, for a sum sufficient to satisfy it and the execution next in priority, but instead of applying such surplus to satisfy said execution next in priority, as by law he ought, he applied the same on another execution, subsequent in priority to the other two, and sold another portion of such realty, by virtue of such execution next in priority, received the purchase money therefor and applied it to the satisfaction of such execution. Upon a suit brought by the execution-defendant against the purchaser at such second sale the circuit court declared such sale vacated by reason that the surplus received at such first sale ought to have been used to, and in law did, satisfy such execution next in priority.</p> <p>Meld, in a suit on such sheriff’s bond, by the purchaser as relator, to recover the purchase-money of such second sale, that neither such sheriff nor his sureties can be held liable therefor.</p> <p>Same.—Ministerial Officer.—Warranty.—A sheriff is only a ministerial officer, and does not warrant anything in connection with the sale by him of property upon an execution lawfully in his hands.</p> <p>Same.—Mistake.—Where a sheriff acts in good faith, in selling property on an execution, though by his mistake or oversight the purchaser thereof obtains no title thereto, neither he nor his sureties can be held liable therefor.</p> <p>Same.—A purchaser at a sheriff’s sale is bound to know whether or not the latter had authority to make such sale.</p>

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

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

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

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

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

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

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

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

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

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

<p>Railroad Company.—Killing Stock.—Negligence of Owner.—Fence.—Where ■a railroad company securely fences its track, and the owner of animals, for his own accommodation or through his own negligence, makes a change in such fence, whereby his animals reach such track and are killed by the cars of such company, the latter is not liable therefor.</p>

<p>Practice.—Evidence.—Exclusion of.—Where the party asking it does not state, and its form does not disclose, what is proposed to be proved by a question put to a witness on the trial of a cause, its exclusion is not error.</p> <p>Same.—Evidence Struck Out.—Where the issue in a cause was as to the fraudulency of representations made by the defendant to the plaintiff as to the solvency of a certain corporation, on the sale, by the former, to the latter, of certain shares of the capital stock of such corporation, there was no error in striking out evidence of a statement of the defendant that he “had no confidence in the concern”, where it appears from the other evidence in the cause that such statements only referred to a want of confidence, not in the solvency, but in the board of directors, of such corporation.</p>

<p>Sherut’s Sam.—Action to Enforce.—Statute of Frauds.—Where real estate of a debtor is sold on execution at sheriff’s sale, but no certificate of such sale nor deed for such land is ever executed to the purchaser by said sheriff, and no memorandum in writing of such sale is made by him on striking off such real estate, though the purchase money therefor be paid and said sheriff makes due return of such sale, it is within the statute of frauds and can not be enforced.</p> <p>Same.—Pleading.—Counter-Claim.—Demurrer.—Where the grantee, by quitclaim, of such purchaser brings suit against the widow of such debtor to enforce such sale and quiet his title, a counter-claim filed by her, alleging title in herself as widow and sole devisee of such decedent, illegality of such sale by reason of the non-execution of such memorandum, certificate and deed, and want of title in the plaintiff, and asking that her title to such real estate be quieted against the plaintiff, is good on demurrer for want of sufficient facts.</p> <p>Same.—Evidence.—Sheriff’s Return.—Memorandum of Sale.—The fact that such sheriff testifies that his return was made on such execution “immediately after” such sale is but a statement of his conclusion and is not sufficient evidence, in connection with such return, to take the sale out of the statute of frauds.</p> <p>Query.—Has the court trying such cause and rendering a judgment setting aside such sheriff’s sale, a right to decree the amount of such purchase-money as a lien on such real estate, collectible by execution and sale thereof ?</p>

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

<p>Practice.—Supreme Court.—Weight of Evidence.—Where the evidence given on the trial of a cause is conflicting, the supreme court, on appeal, will not disturb the finding or verdict.</p> <p>Same.—Evidence.—Objection to.—Where the grounds of objection to evidence admitted on the trial of a cause do not appear from the record on appeal, the supreme court can not examine the correctness of such ruling. Same.—Exclusion of Evidence.—Where, on appeal to the supreme court, it does not affirmatively appear from the record that written evidence, offered on the trial of a cause and excluded, was competent, such exclusion is not available as error.</p> <p>Same.,—Instructions to Jury—Where a party to a cause on trial has asked the court to instruct the jury generally and orally, and also asks such court to give a certain instruction presented by such party, he can not complain that such court gave such instruction, modified, in writing, in such manner that both that asked and the modification thereto fully appeared so that exception could be taken to either or both, nor because, as he alleges, the court did not fully instruct the jury.</p> <p>Same.—Motion for New Tidal.—Bill of Exceptions.—A motion for a new trial is part of the record on appeal, without a bill of exceptions, but the truth of the grounds of such motion must appear by a bill of exceptions, unless otherwise shown.</p>

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

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

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

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

<p>WELL.—Charitable Uses.—Certainty as to Trustees and Beneficiaries.-—Action to Revoke Prohate of Will and Redare it Void.—The will of a deceased testator devised certain property, specifically described, to certain persons, therein named, as trustees to control such property and apply the rents and profits thereof to-the support, by weekly instalments not exceeding a certain specified sum to each, of poor widows having no certain income and women whose husbands had abandoned them unprovided for and without just cause, of the age of fifty years and upward, and of irreproachable character, having had a residence for not less than a certain time, fixed, within a specified distance from a certain town, named.</p> <p>Held, on demurrer to a complaint by the administrator of the estate of the testator’s deceased widow, to revoke the probate of such will and declare it null and void, that such will is certain as to the appointment of such trustees, and as to the beneficiaries thereof, and creates a valid trust.</p>

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

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

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

<p>Promissory Note.—Action Against Endorser.—Diligence.—Delay in Issuing Execution.—Where the endorsee of a promissory note secured by a mortgage on real estate, after the rendition of a judgment in his favor, against the maker thereof, for the amount of such note and the foreclosure of such mortgage, delays to issue an execution thereon for the space of forty-five days, and the amount realized on the sale of such mortgaged premises, and of all other property of the judgment defendant subject to execution, is insufficient to satisfy such judgment, the endorser of such note is discharged from all liability on his endorsement, for any unsatisfied balance.</p> <p>Same.—Execution.—Lien.—Leroy.—An execution issued on such judgment is a lien upon the personal property of the judgment defendant, though a levy thereon and sale thereof can not be made until the mortgaged premises are first exhausted without satisfying such judgment.</p> <p>Same.—An execution may be issued upon such judgment, in term time, im- • mediately upon the signing of the minutes thereof by the judge.</p>

<p>Continuance.—Absent Witness.—Affidavit.—Continuance for Absence of Witness whose Deposition is on File.—Where the deposition of a witness, residing in a county beyond those adjoining that where the cause in which it was taken to be used is pending, is on file, an affidavit for the continuance of such cause on account of the absence of such witness, which discloses no reason for the retaking of his deposition or for his personal presence at such trial, is not sufficient.</p> <p>Same.— Witness Residing in Adjoining County.—Where a competent witness to material issues in an action is prevented from attending upon the trial thereof by any unavoidable and sufficient cause, the fact that he resides in a county adjoining that where such cause is pending, and that he was not subpoenaed and fees tendered him until the day prior to that on which such cause is to be tried, though in time to enable his attendance but for such cause, is no reason for refusing a continuance of such action, if an affidavit, sufficient as to other necessary allegations, be duly filed.</p>

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

<p>Husband and Wipe.—Alienation of Beal Estate.—Fraudulent Conveyance.— A conveyance of his real estate may be made by a husband, to his wife, either by a deed therefor, directly to her, or, indirectly, through a third person, and will be upheld against all, except creditors sought to be defrauded.</p> <p>Same.—Other Property Must First be Exhausted.—A voluntary, fraudulent conveyance of his real estate, by a debtor, to defraud his creditors, can not be attacked by them until they have first exhausted all his other property subject to execution.</p> <p>Same.—Action to Set Aside Fraudulent Conveyance.—Pleading.—Evidence.— In an action by a creditor, to set aside a conveyance of the real estate of his debtor and to subject the same to -execution, for the alleged reason that such conveyance was made by said debtor and received by his grantee, without consideration and to cheat and defraud his creditors, it must be alleged in the complaint and proved on the trial, not only that such debtor had no property subject to execution at the commencement of such suit, but, that, at the time such fraudulent conveyance was executed, he had not sufficient other property subject to execution, to satisfy all his debts.</p> <p>Same.—The fact that a debtor voluntarily conveys away his "real estate, without consideration, and for the purpose of thereby defrauding his creditors, gives to the latter no right of action to attack such conveyance, unless at the time it was executed he had not sufficient other property, subject to execution, to satisfy all his debts.</p>

<p>Guarantor.—Promissory Note.—Demand.—The payee of a promissory note assigned it to another by executing an endorsement thereon reading, “ For value received I assign this note to ”, etc., “ and guarantee the payment of the same when due”, and when such note matured suit was brought against said payee, on such endorsement, by a subsequent assignee.</p> <p>Held, that such endorsement was not a collateral guaranty, nor ordinary endorsement, but was a direct agreement, by said payee, to pay such note when due, depending upon no demand of payment or other condition, and upon which he was liable at the suit of the original or any subsequent assignee.</p>

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

<p>Specific Performance.—Contract to Convey Seal Estate.— Uncertainty of Description.—Pleading.—Demurrer.—A written contract for the conveyance of real estate, which is therein described as “one lot of ground lying and being the corner lot of the south-east side of” a certain railroad and a certain highway, “to be fifty feet front and running back one hundred feet”, is void for uncertainty in such description. And a complaint for the specific performance of such contract, alleging no mistake in, and praying for no reformation of, such description, though alleging the payment of the purchase-money for such real estate by the plaintiff, and his possession and improvement thereof, is bad on demurrer for want of sufficient facts.</p>

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

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