Volume 55 — Indiana Reports

<p>Statute of Frauds.— Verbal Agreement to Convey Seal Estate.—Part Performance.—A., the owner of certain real estate, in order to procure means to purchase certain other real estate of B., would he compelled to dispose of his own real estate, which could only be done at a certain sacrifice, of which he informed B. B. verbally agreed with A., that, if the latter would so dispose of his property and apply the proceeds of such sale to purchasing B.’s real estate, he, B., on a certain day, for a fixed price, would sell and convey his real estate to A. The latter thereupon disposed of his real estate, making such sacrifice, tendered to B. the proceeds of such sale, demanded of him that he so convey his said real estate to A., and, upon B.’s refusal to so sell and convey, brought an action for damages for a breach of such agreement.</p> <p>Held, on demurrer for want of sufficient facts, that B.’s agreement to convey was within the statute of frauds, and that such action could not be maintained.</p> <p>Held, also, that A.’s disposal of his property, at such sacrifice, was not such a part performance as would take B.’s agreement out of the operation of such statute.</p>

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

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

<p>Misjoinder.—Practice.—Supreme Court.—Error, in overruling, a demurrer to a paragraph of a pleading, for a misjoinder therein of several causes of action, is not available on appeal to the Supreme Court.</p>

<p>Costs.— When Judgment should carry Costs.—Where the plaintiff, in an action for a money demand on a contract, recovers a judgment against the defendant, for a sum exceeding fifty dollars, exclusive of costs, he is also entitled to recover judgment for the costs of such action.</p>

<p>Statute op Feauds.— Verbal Promise.—Satisfaction of Execution.—A verbal promise by one person, to the creditor of an execution on a judgment against a third person, that, if such creditor will satisfy such execution, such promisor will deliver certain personal property, and pay a certain sum of money, to such creditor, is not a promise to pay the debt of another, and is not within the statute of frauds, but is a valid contract, for a breach of which an action may be maintained and damages recovered by such creditor, upon his satisfying such execution.</p>

<p>Payment.—Voluntary Payment.—Pleading.—Cities and Toms.—Liquor License.—In an action to recover moneys, paid by the plaintiff to the defendant, a town, for a license to sell intoxicating liquors, under an invalid penal ordinance of the latter, adopted under a void statute, the complaint averred that such payment was made “ for the purpose of avoiding the penalty and forfeiture,” etc., “ and to save himself from arrest and imprisonment for violating the provisions of said ordinance, as provided for by statute.”</p> <p>Held, that such complaint does not show that such payment was not voluntary, and is therefore bad on demurrer for want ot sufficient facts. Same.—Cases Overruled.—The cases of The Town of Princeton v. Vierling, 40 Ind. 340, and The Town of Ligonier v. Ackerman, 46 Ind. 552, are overruled, in so far as they conflict with the above decision.</p> <p>Cities and Towns.—Pleading.—Presumption.—In an action against a town, the contrary not appearing by the complaint or otherwise, it will be presumed that such defendant was incorporated under the general law of this State for the incorporation of towns.</p> <p>Stjpbeme Coubt.—Practice.—Sufficiency of Complaint.—The sufficiency of the complaint in an action may be questioned, for the first time, in the Supreme Court, on appeal thereto, by assigning, as error, its insufficiency.</p>

<p>New Trial.—As of Right.—Foreclosure of Mortgage.—Statute Construed,— An order of the circuit court, setting aside a judgment rendered by it in an action to foreclose a mortgage, on payment of costs, and granting a new trial of such causé, as of right, is void; such new trial not being authorized, in such an actiofi, by section 601, 2 R. S. 1876, p. 252.</p> <p>Same.—Notice.—An order of the circuit court, vacating a judgment rendered by it in a cause, at a previous term, and granting a new trial thereof, made on the application of one party but without notice to the opposite party, is void.</p> <p>Same.—Record.—An order of a court, vacating a judgment rendered by it in a cause, at a previous term, and granting a new trial thereof, is no part of the original case.</p> <p>Appeal to Supreme Court.—When.—An appeal to the Supreme Court, from a judgment rendered in the lower court, in a civil action, must be taken within three years, not from the decision of a motion to set aside an order granting a new tidal of the cause, but, from the rendition of such judgment.</p>

<p>Heal Estate.—Action to Quiet Title.—Defence.—In an action to quiet the title to real estate, the defendant, under the general denial, can give in evidence all defences, either legal or equitable.</p> <p>Same.—Conveyance.-—Deed.—Mortgage.— Vendor and Purchaser.—Notice.— Where a deed of conveyance of real estate, though absolute on its face, is executed and intended simply as security for the payment of a debt owing from the grantor to the grantee, it amounts to a mortgage only, and confers no title upon a person who, having notice of such fact, obtains a conveyance of such real estate from such grantee.</p> <p>Yebdict.—Special Finding.—Supreme Court.—Where, under the issues formed in a cause, evidence could have been given of a state of facts which would reconcile an apparent inconsistency between the general verdict and a special finding returned by the jury trying such cause, on appeal to the Supreme Court, from a judgment on such general verdict, it will be presumed, the evidence not being in the record, that such state of facts had been proved.</p> <p>Estoppel.—Conveyance.—Title Acquired after Conveyance by Quit-Claim.— Where one, who, by a quit-claim deed, has conveyed real estate to which he had then no title, afterwards acquires title thereto, he is not es-topped, by such quit-claim, from asserting his after-acquired title to such land.</p>

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

<p>Inpast.—Contract.—Disaffirmance.— Marriage Contract.—Judgment.—Satisfaction Of.—Where an infant judgment creditor, by the promise of the judgment defendant and his replevin bail, that, upon her entering satisfaction of such judgment, the former will marry her, is induced, upon that consideration, alone, to enter such satisfaction, she may, upon her arriving at the age of twenty-one years, and upon the failure of said defendant to marry her, disaffirm such contract, and, in a suit against such judgment defendant and his replevin -bail, have such entry of satisfaction vacated, notwithstanding the fact that at the time of making such marriage contract she was of the age of eighteen years.</p>

<p>Contract.—Payment.—Suit for Money Paid for Use of Another.—Evidence.— In a suit to recover for money alleged to have been paid by the plaintiff, to a third person, for, and at the request of, the defendant, it is immaterial as to whether such third person had or had not a valid claim upon the defendant, for such, or any sum of money. But to recover therefor the plaintiff must establish the facts that he had made such payments, and that it. was made on the authority of the defendant.</p> <p>Same.—Condition.—Performance.—Where A. subscribes a certain sum of money, for a certain purpose, to be paid, on a certain condition, to B., who is to procure, therewith, a certain writing for A.; and B., without the express request of A., advances such sum, and procures such writing for A., and then institutes suit for such sum, against A., the latter may introduce evidence that such condition has never been performed; but, in the absence of proof of such request, or proof of the performance of such condition, B. can not introduce such writing in evidence.</p>

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

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

<p>Decedents’ Estates.—Removal of Administrator.—Mow Procured.—An administrator of a decedent’s estate, which is in process of settlement, can only be removed upon the verified petition of a person interested in such estate, or of a co-administrator, or of the surety of such administrator, specifying one or more of the causes for such removal, as enacted in sec. 22 of the act concerning “ the settlement of decedents’ estates,” etc., 2 E. S. 1876, p. 491.</p> <p>Same.—Pleading.—Where a petition for the removal of an administrator of the estate of a decedent is filed by a person claiming an interest in such estate, the petition must show the nature of such interest, by alleging the facts constituting it.</p> <p>Same.—Upon the petition of a creditor asking an order upon such administrator to pay off a claim, held by the former, against such estate, but neither asking, nor assigning any statutory reason, for the removal of such administrator, the court can not order his removal, nor appoint a successor for him, in such trust.</p>

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

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

<p>Highway.—Amendment of Petition For.—County Commissioners.—During the pendency of a proceeding, before a county board, to establish a highway, or on appeal therefrom to the circuit court, the petitioners are entitled to amend their petition so as to show to whom each separate tract of land to be affected by the proposed highway severally belongs, upon proof that all of the owners or occupants of such lands have been duly notified of the pendency thereof.</p> <p>Same.— Variance.—Where all the owners of lands which will be affected by the construction of a proposed highway have been duly notified of the pendency of a petition to establish such highway, but the petition and notice are defective in not averring to whom each separate tract of such lands severally belongs, an amendment of such petition, so as to show such ownership, will not constitute a fatal variance between such petition and notice.</p> <p>Same.—Description of Route Proposed.—The description of the route of s, proposed highway, petitioned for, was, “passing over and upon the line dividing the lands of ” certain owners, named.</p> <p>Beld, that such description was sufficient, and was equivalent to an averment that sueh route was over and upon such lands, and along the line dividing them, such line to be the center of the highway, and the owners of the lands, on each side thereof, to give half of the bed of the proposed highway.</p>

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

<p>Real Estate.—Alienation Of.—Conveyance.—Monuments.—Measurements.— A. owned a quarter section of land, across which, running north and south, at a distance of less than twenty-five rods from the west line thereof, a highway was located. He conveyed to B. a portion of such land,' by a' • deed describing the portion conveyed as the whole quarter section, “ less a strip, twenty-five rods in width, off the east side of said premises; and, also, less a strip, twenty-five rods in width, off the west side of said described quarter section, containing one hundred acres, be the same more or less; expressly reserving a right of way, from the east side of said premises, across said premises, to the highway on the west side of said premises.”</p> <p>Held, that, though thereby including a portion of the strip reserved on the west side of said quarter section, yet, such highway constitutes the western boundary line of the portion conveyed.</p> <p>Same.—Where a tract of land, conveyed by deed, is therein described in one way by measurements, and in another and different way by monuments, the latter description must control.</p>

<p>Real Estate.—Judicial Sale of.—.Redemption of.—Action for Rent by Purchaser at Sheriff’s Sale.-—Parties.—Where, by virtue of a decree of' court against one defendant in an action, his real estate is sold to satisfy a judgment against a codefendant, for the payment of a sum of money, and, the same remaining unredeemed for the year immediately following such sale, it is conveyed, by the proper officer, to the purchaser at such sale, the latter, and not the former, defendant is liable to such purchaser, for the rent thereof for such year.</p> <p>Same.—Landlord and Tenant.—A conveyance of the land of a judgment debtor, by virtue of a sale thereof upon an execution or decree; does not create the relation of landlord and tenant, between the person receiving such conveyance and such debtor.</p> <p>Same.—Pleading.—Complaint.—Justice of the Peace.—In a suit commenced in the court of a justice of the peace, the complaint is sufficient if it states the cause of action in such manner that the defendant is thereby informed of the nature of the plaintiff’s claim, and that a judgment thereon will be a bar to another suit for the same cause, though, if filed as a complaint for the same cause, in an action commenced in the circuit court, it might be insufficient.</p>

<p>Ceiminai, Law.—Keeping Gaming Apparatus.—The keeping of a gaming apparatus, commonly called a “trick knife,” for the purpose of wagering, winning and gaining money and articles of value thereon, is a misdemeanor, and not a felony.</p> <p>Same.—Repeal of Statutes.—Construction of Statutes.—Section 38 of the act of 1852, defining felonies, (2 R. S. 1876, p. 442 ) so far as it relates to the keeping of gaming apparatus, is repealed, by implication, by the act of March 15th, 1875, (2 R. S. 1876, p. 480 ) amending the 74th section of the act of 1852, defining misdemeanors.</p>

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

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

<p>County Commissioners.—Powm of.—Statute Construed.—Bridges.—Donation to County by Individuals.—Under section 3d of “An act to provide for the erection and repair of bridges,” etc., approved March 3d, 1855, the board of commissioners of a county have the right to receive, and to collect by suit, a subscription of money, in writing, made by an individual, as a donation to such county, to assist in the erection of a bridge over a stream in such county.</p> <p>Same.—Appeal.—The decision of the hoard of commissioners of a county, as to whether public convenience demands the erection of a bridge over a stream in such county, is final, and can not be appealed from.</p> <p>Same.—Pleading.—Building Bridge\ on Private Property.—To an action by the board of commissioners of a county to recover the amount of a subscription of money, made by an individual to such county, as a donation to assist in the erection of a bridge over a stream in such county, it is not sufficient to answer that such board had no power to erect such bridge, because the same was erected upon, and became a part of, the road-bed of a private corporation, and for the use of which, since its erection, such corporation charged and collected toll, and that such bridge connected no highways controlled by such county or any township or road district therein.</p> <p>Same.—Besmssion.—In such action, to an answer averring that such subscription was made without consideration and that, before the erection of such bridge, or the taking of any steps therefor, the defendant had notified the plaintiff that he had rescinded and withdi’awn such subscription, a reply was sufficient, which averred that the plaintiff, upon the faith of the defendant’s subscription, had incurred great expense in preparing and advertising for proposals for letting, and had let, the contract for the erection of such bridge, which, since such notice of rescission and prior to the bringing of the action, had been erected.</p>

<p>Contract.—Construction of,—Mortgage.—Condition.—Demand.—Gift.—Decedents’ Estates.—By the terms of a mortgage which, itself, was the only evidence of the indebtedness secured by it, the debt was “to be paid by the mortgagor, to the mortgagee, when called on by said mortgagee; and the mortgagor does not agree to pay the above sum, to no ” (any) “one else except said mortgagee. And the mortgagor expressly agrees to pay the sum of money, above secured, without any relief,” etc.</p> <p>Meld, in a suit upon such mortgage, by the administrator of the estate of the deceased mortgagee, that it must be alleged in the complaint, and proved on the trial, that a demand for the payment of the debt secured was made, on such mortgagor, during the lifetime of such mortgagee, by him or his agent.</p> <p>Meld, also, that proof of a demand, made by such administrator, as such, was not sufficient.</p> <p>Meld, also, that, on the death of such mortgagee, without having demanded payment of such debt of such mortgagor, the consideration for such debt became a gift to the latter.</p>

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

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

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

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

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

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

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

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

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

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

<p>Supreme Court.—Practice.—Defective Record.—Improper Evidence.— Unavailable Eiror.—Where the court trying a cause, over the objection and exception of a party thereto, permits an improper question to be put to and answered by a witness testifying therein, yet, if, on appeal to the Supreme Court, the record does not show what the answer was, such ruling is not available as error.</p> <p>Evidence.—Witness.-—Impeachment.—Contradictory • Statements.—Sustaining a Witness.—-Where, on the trial of a cause, declarations by a witness, made out of court, contradicting testimony given by. him in such cause, are given in evidence to impeach him, the party calling him may give evidence of other declarations, made by him out of court, in harmony with his testimony, for the purpose of supporting it.</p> <p>Same.—What Declarations — When Made.—Evidence of declarations in harmony with the testimony of a witness is not limited to those made before the time when his declarations, given in evidence to impeach him, were made.</p>

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

<p>New Triae.—Cause.—Master Commissioner.—Report.—Where judgment is rendered in a cause, upon the report of a master commissioner to whom it was referred, material error in such report is good ground for a new trial.</p>

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

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

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

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

<p>Fixtdbes.—Realty.—Personalty.—The fact that a stationary mill, belonging to two persons, jointly, has been placed upon and affixed to the real estate of one of them, for manufacturing purposes, under a temporary shed, the posts of which are let into the soil, does not constitute it part of such realty, if treated by such owners as personalty.</p> <p>Same.—Judgment Creditor.—The fact that such personalty was so attached to such realty, without the agreement of a judgment creditor, having a judgment lien upon such land, that it should be treated as personalty, will not give to the latter the right to treat it as a part of the realty, if it can be removed without injury thereto.</p> <p>Same.—Execution.—Exemption.— What May he Exempted.—In such case, where an execution against the owner of such real estate is levied thereon, he may demand that such realty be set off to him as exempt from execution, by an appraisement which will not include such mill property.</p> <p>Same.—Sheriff’s Sale.—Mandate.—Appraisement.—Where, in such case, the sheriff holding such writ has caused such realty to be appraised, without including such mill property, and set off to such execution defendant, the execution plaintiff is not entitled to a writ of mandate to such sheriff, to compel him to have such realty so appraised as to include such mill property.</p>

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

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

<p>Promissory Note.—Fraud.—Waiver.—Ratification.—Parol Contract.—In a suit upon a promissory note, against the maker, by an endorsee, where the answer QÜ the defendant alleges facts showing that the execution of such note was procured by fraud, and without consideration, a reply thereto is sufficient which alleges, that, after the assignment and the maturity of such note, the defendant verbally agreed with such endorsee, that, in consideration that the latter would extend the time of payment thereof for a specified period, he would then pay the same, and that such extension had been given; such agreement being a waiver of such fraud and a ratification of the execution of such note.</p> <p>Same.—Variance.—Held, also, that such reply is not a variance.</p> <p>Supreme Court.—Practice.—Pleading.—Demurrer.—Where the evidence is not in the record on appeal to the Supreme Court, the sustaining of a demurrer to a sufficient paragraph of a pleading is available as error.</p>

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

<p>Assessment oe Taxes.—Removal of Taxpayer.—Cities and Toms.—The fact that a person, who was the owner of personal property, had been assessed thereon, on the first day of April, for taxation for State and county purposes, will not prevent his being assessed upon the same property, for city purposes, upon his removing into a city of the county where he had been so assessed, prior to the first day of June, following, carrying such property with him.</p> <p>Pleading.—Presumption.—Cities and Towns.—In an action wherein a city of this State is a party, it will be presumed, unless the contrary is alleged,, that she is organized under the general law of this State for the incorporation of cities.</p>

<p>Promissory Note.—Set-off.—Payment.—Partnership.—Phidencc.—Where, prior to the maturity of a promissory note, executed by the defendant to the plaintiffs, in their copartnership name as a banking firm, one of the plaintiffs withdraws from such copartnership, which is continued by the .other partners, in the old firm name, evidence that money was deposited . with such firm by, or on behalf of, the defendant, after the maturity of such ■ note, will not support a plea of set-off against, or payment of, such note.</p> <p>Same.—Abatement.—Discontinuance.—Where, in a suit against two joint makers of a promissory note service of process is had upon one, but not upon the other, “abatement of the action” as to the latter does not discontinue such suit.</p>

<p>• Guardian and Ward.—Conversion of Ward’s Estate.—Purchaser with Notice. —Insolvency.—Where a guardian has become insolvent, and the penalty of his bond has been exhausted, in a suit thereon, by a judgment against him and his surety, leaving an unsecured deficiency in the amount yet due to the ward, nevertheless the latter, in an action therefor, is entitled to a decree against such guardian such surety, and the assignee and judgment defendant, vesting in the ward the title to a judgment for an amount not exceeding such deficiency, against such defendant, wrongfully procured by such guardian, in his own name, upon a chose in action belonging to his ward’s estate, and unlawfully assigned to such assignee, who received the same with knowledge of such conversion.</p> <p>Same.—•Defence.—Tender.—In such an action it is no defence, that, prior to its commencement, and prior to his procuring such judgment, the guardian had offered to transfer such chose in action to the ward, upon condition that the latter would receipt the former for the amount thereof as so much cash upon the amount due to the ward, if such tender is not made good by bringing it into court.</p>

<p>Mechanics’ Liens.—Material Man.—Lien.—Personal Liability.—Statute Construed.—Remedy.—Section 647 (2 R. S. 1876, page 266) gives to a material man a right to acquire a lien upon a building for which he has furnished material, and section 650 prescribes the means by which it is to he acquired; while section 649 gives to him a right, by taking the steps therein required, to hold the owner' of such building personally liable for the value of such material: being separate and independent remedies, either or both of which may be acquired.</p> <p>Sams.—Pleading.—Action to Enforce Personal Liability.—Notice.—-To hold such, owner personally liable for the price of such material, he must have, been served with the notice required by such section 650, of an intention to hold him so liable; and, for this purpose, a notice of an intention to acquire a lien upon his property is insufficient.</p> <p>Same.—Pleading.— Complaint to Enforce Lien.—Arrest of Judgment.—Where, in an action to enforce a lien against the defendant owner’s real estate, for the price of material sold to, and used by, a contractor in the erection thereon of a building, the complaint alleges simply, that such material was furnished by the plaintiff to such contractor, and used by him in the construction of such building, it is bad on motion in arrest of judgment.</p> <p>Same.—To hold the property of a person liable to a lien for the value of material used by his contractor in erecting a building thereon, the material man must have furnished it expressly for UBe in such building.</p> <p>Same.—Practice.—Striking Cause from Locket.—Parties.—Where, in such action, a motion in arrest of judgment is properly sustained on account of the insufficiency of the complaint, the fact that such contractor is a party defendant therein is no reason that the cause should not be struck from the docket on motion.</p> <p>Same.—Amendment.—An amendment to a complaint to enforce a material man’s lien, changing the nature of the action to one to enforce a personal liability against the defendant owner, but leaving the complaint fatally defective for want of an allegation that the proper notice had been given by the plaintiff, to the defendant, of the intention of the former to hold the latter thus liable, can not be made.</p> <p>Same.—Arrest of Judgment.—The filing of an amended complaint in a cause, after a motion in arrest of judgment has been sustained, does not bring the defendant back into court, as such arrest puts an end to the cause.</p> <p>Supreme Court.—Practice.—Presumption —Where, from the record on appeal to the Supreme Court, it does not appear that the party complaining of a ruling has been injured thereby, such ruling will be presumed to have been right.</p>

<p>Interest,— Usury.—Becoupment.—Tender.—Costs—Action to Cancel Note and, Satisfy Mortgage.—Statutes Construed.—During the operation of the act of May 27th, 1852, fixing the lawful rate of interest at six per cent, and allowing usurious interest to be recouped, and of the 51st section of the act of June 14th, 1852, declaring the bargaining for a greater rate of interest than that allowed by law to b§ a misdemeanor, a person executed a promissory note which included, as part of its principal, a usurious \ amount for interest, and also a mortgage upon real estate to secure it ; during the operation of the act of December 19th, 1865, providing that where usurious interest had been voluntarily paid it could not be recouped, the maker voluntarily paid such usurious interest to the payee; and, during the present law of this State upon such subject, approved March 9th, 1867, providing for the recoupment of usurious interest, such maker instituted suit to cancel such note and mortgage, and seeking to recoup such usurious interest, so paid by him.</p> <p>Held, that the latter act governs as to the remedy in such action, and that such usurious sum can be recouped.</p> <p>Held, also, that upon a tender by the maker, to the payee, of the amount of the .real principal of such note, with ten per cent, interest thereon, demanding the surrender of such note, and the release of such mortgage, prior to the bringing of such action, and the bringing of such tender into court, the maker is entitled to a decree satisfying such obligations, and to a judgment for costs.</p>

<p>Sveeeme Cotjkt.—Appeal.—Cause Commenced Before Justice.—Set-Off.— Where, in an action commenced in the court of a justice of the. peace, and appealed to the circuit court, to recover for a sum less than ten dollars, the defendant files a set-off for an amount exceeding that sum, an appeal lies to the Supreme Court from a judgment rendered therein.</p> <p>Same.—Costs.—Presumption.—Witness.—Where the fees of witnesses subpcenaed, but not used, by the successful party are taxed to the losing party as costs, on appeal to the Supreme Court, it will be presumed, where the evidence is not in the record, that they were rightly taxed.</p>

<p>Supreme Court.—Practice.—Appeal.—Notice of.—Where an appeal to the Supreme Court is taken by one of several defendants, without notice thereof to the others, it will be dismissed.</p>

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

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

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

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

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

<p>Slander.— Words not Actionable Per Se.—How made Actionable.—Pleading. ■—-Words, not actionable per se, spoken of the chastity of a woman, may he shown to have been spoken in an actionable sense, by an averment, either, 1st, that they were intended, when used, to impute to her a want of chastity, or, 2d, that, in the place where and at the time when used, their common meaning was such as to render them, in that locality, actionable per se.</p> <p>Same.-—That “ she was getting fat,” and that “ some one had slipped up on the blind side of her,” spoken of an unmarried woman, are not actionable per se.</p> <p>Same.—Colloquium.-—Words, not actionable per se, and, to render them actionable, requiring the use of a colloquium and innuendo, are thereby sufficiently shown to have been used in the hearing of another.</p> <p>Same.—Words not actionable per se, set out in a complaint for slander with an averment, that, in the place where and at the time when used, they had an actionable meaning, are, prima facie, presumed to have been so intended and understood, without its being so alleged.</p> <p>Same.—Pleading.—Arrest of Judgment.— Venue.—Where, in an action for slander, for the speaking of words not actionable per se, the complaint contains a sufficient colloquium and innuendo, and the necessary averment, that, at the place where and the time when spoken, they had a provincial, actionable meaning, but does not name such place, such omission does not render it bad on motion in arrest of judgment.</p> <p>Same — Words Actionable Per Se.—Evidence.—That words, actionable per se, were spoken in the hearing of a third person need not be alleged in the complaint, but must be proved on the trial, in an action for slander.</p> <p>Same.—Constitutional Law.—Title of Act.—The statute of this state, authorizing an action for slander for words charging a woman with whoredom, is not unconstitutional for want of a proper title.</p>

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

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

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

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

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

<p>Contract.—Construction — Option.—Notice.—Pleading.—By the terms of a written contract, one party thereto bound himself to deliver to the other a specified amount of a certain kind of chattels, at a place therein designated, “ at the option of the ” latter “ at any time ” during a specified period.</p> <p>Held, in a suit by the former, against the latter, for a breach of such contract, that it was the duty of the latter to have notified the former as to what time during such period such delivery should be made.</p> <p>Held, also, that it was sufficient for the former to aver in his complaint, that, during all of such period, he had had the amount and kind of chattels agreed upon in his possession, ready for delivery, but that, though the latter had notice thereof, he never notified the former to deliver the same, whereupon, after the expiration of such period, he sold the same to a third person, to his damage.</p> <p>Bill op Exceptions.—Record.—Supreme On-rl.—Practice.—Unless, upon appeal to the Supreme Court, the record shows that the hill of exceptions was filed in time, it constitutes no part of the record.</p>

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

<p>New Trial.—Cause for.—Evidence Excluded,.—Practice.—Where the evidence intended to be elicited by a question put to a witness, but excluded on objection, is not made known to the court, at the time such objection is made, such exclusion is not a sufficient cause for a new trial.</p> <p>Same.—Surprise.— Affidavit.—Supreme Court.—Practice,—Where “surprise” at evidence given upon the trial of a cause is relied upon as ground for a new trial, if the affidavit which must be made in support thereof be met by counter affidavits, the decision of the court upon the question of fact, thereby presented will not be reversed by the Supreme Court, on appeal, on the mere weight of such evidence.</p> <p>Supreme Court.—Practice.— Weight of Evidence.—Where the evidence given on the trial of a cause tends to support the finding therein, the Supreme Court, on appeal, will not disturb such finding on the mere weight of evidence.</p>

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

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

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

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

<p>Promissory Note.—Date.—Pñneipal and Surety.—Authority to fill Blanks.— "Where a promissory note, perfect in all its parts except that the date thereof is left blank, is signed by the makers as principal and surety, and entrusted by the latter to the former, for delivery to the payee, such principal has an implied authority to fill such blank by inserting therein the true date of its execution, hut he has no authority to insert a date prior to the true one; nor has such payee, if he have knowledge of the true date of its execution and of the signing by such surety, as such, a right to accept such note with knowledge that such false date has been inserted in such blank.</p> <p>Same.—Alteration.—Pleading.—A verified plea, by a codefendant in an action upon a promissory note, alleging that he had executed the same as surety only, and that since he had signed the same, it had been altered by inserting a false date, prior in point of time to the true one, but not alleging that such alteration had been made since the delivery of said note, nor that it had been done with the knowledge of the payee, is insufficient on demurrer.</p> <p>Same.—Continuance.—Affidavit.—In an action upon a promissory note, where issue was made by one defendant, as surety, by a verified denial of its execution, he asked a continuance of the cause, upon his affidavit, alleging the absence of a witness by whom he could prove, that, after he had signed such note, while it was in the possession of his codefendant, the principal, the latter, in the absence of the affiant, but in the presence of the payee, caused a false date, prior to the true one, to be inserted in a blank left for the date, and had then delivered the same to the payee.</p> <p>Held, that such facts were material to the issues in the cause, and that a continuance should have been granted.</p> <p>Supreme Court.—Practice.—Harmless JSiror.—Error, in sustaining a demurrer to a good paragraph of a pleading, is not available on appeal to the Supreme Court, if the matters therein alleged could have been given in evidence under a remaining paragraph.</p>

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

<p>Fraud.—Conveyance to Defraud Creditors.—Action to Subject La/nd to Execution.-—Husband and Wife.—Lands purchased with the means of a judgment debtor having no property subject to execution, and by him procured to be conveyed to himself and wife jointly, with the right of survivorship, for the purpose of defrauding his creditors, may be subjected to an execution upon such judgment, in an action for that purpose,» against such grantees.</p> <p>Same—Alteration of Conveyance.—Such action may be in like manner sustained, where such conveyance has first been so procured and made to the debtor himself and afterwards changed by inserting the name of his wife, with a clause of survivorship.</p> <p>Same.—Evidence.—On the trial of such cause, if the evidence does not identify such land nor show any title thereto in such debtor, nor by whom the purchase-money therefor was paid,' judgment should be rendered for the defendants.</p> <p>New Tbiae.-—Cause.—Where the cause relied upon in a motion for a new trial is error of law occurring on the former trial, such error must be particularly specified in such motion.</p>

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

<p>Damages.—Measure of.—Nominal. — Contract to Publish Legal Notice.— Breach.—Newspaper.—Liquor Dealer.—A complaint for damages alleged that the plaintiff, a retailer of intoxicating liquors, licensed under the law of this State, to obtain a renewal of such license, then about to expire, paid to the defendant, the proprietor of a weekly newspaper, a certain sum, for which the latter agreed to publish, in such newspaper, a sufficient, timely notice of the plaintiff’s intention to apply to the proper county board for such license; but that, on account of the defendant’s failure so to do, the plaintiff had failed to obtain such license, and was compelled to suspend' such.business for a certain period.</p> <p>Held, on demurrer, that such cause of action is sufficient to entitle the plaintiff to more than nominal damages.</p> <p>Held, also, that the plaintiff is entitled to damages in at least the amount of such price so paid.</p> <p>Held, also, that such price, though but three dollars and fifty cents, is not so small as to bring the cause, on appeal to the Supreme Court, within the rule, de minimis non curat lex.</p> <p>Held, also, that the fact that the plaintiff’s business property was rendered useless during and by such suspension of business should be considered in estimating his damages.</p> <p>Held, also, that mere speculative profits which the plaintiff might have realized during such suspension of his business, if it had not been suspended, are not a proper basis upon which to assess his damages.</p> <p>Same.—Custom.—Surplusage.—An allegation in such complaint as to a custom in the defendants of themselves furnishing copies of the forms of such notices is mere surplusage.</p>

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

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

<p>Judgment.—Appraisement.— Waiver.—Supreme Court.—Practice.-—In an action upon a promissory note, not containing any waiver of relief from valuation laws, judgment without such relief should not be rendered; but if the defendant appear to the action and allow such judgment to be rendered without objecting, he can not raise such question, for the first time, in the Supreme Court, on appeal.</p>

<p>Married Woman.—Oovertwe.—Pleading.—If, in an action against a married woman, upon a contract made by her, the complaint docs not affirmatively show that such coverture existed at the time of making such contract, to avail herself of such disability as a defence she must plead it.</p> <p>Same.—In an action against a married woman and. another to recover for' the purchase-money of a tract of land sold to her codefendant, and, at his request, conveyed to her, an averment in the complaint that such conveyance “was made to said defendant,” naming her, “wife of,” etc., is not available to her on demurrer, as showing coverture.</p> <p>Same.—Parties.—In such action she is a proper party defendant, and to avail herself of her coverture to avoid a personal judgment on her implied contract to pay for such land, she must plead it.</p> <p>Supreme Court,—Bill of Exceptions.—Record.—Where time beyond the term is not given by the court to file a bill of exceptions, it forms no part of the record on appeal to the Supreme Court.</p>

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

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

<p>Eaxleoad.—Regulations of.—Passengers on Freight Trains.—Where due notiee thereof is given and the necessary means for complying therewith is provided, a railroad company has the right to adopt a regulation prohibiting the conductors of its freight trains from carrying passengers thereon, who shall not have previously procured a specified kind of ticket.</p> <p>Same.—Fjeeting Passengers.—Where a passenger having notice of and neglecting to comply with such regulation is ejected from such train by the conductor thereof, by the use of no more force than is necessary, he cannot maintain an action therefor.</p>

<p>Promissory Note.—Action, by Assignee Against Maher.—Defence.—Pleading. —Can not be Double.—To the complaint by the assignee, against the makers, of a promissory note not governed by the law merchant, the defendants, “ for answer, and by way of cross-bill,” admitted the execution of such note in the character of principal and surety, but alleged, that it was executed to the payee, for a balance due upon a former promissory note held by such payee against such defendant principal, only, and merely for convenience in making credits thereon, as no space for that purpose remained upon the former note; that such former note was cxe- . cuted for a balance supposed to be due to such payee upon the dissolution of a business partnership theretofore existing between such payee and principal, but, inasmuch as such supposed balance was shown by a statement of such business prepared by such payee, only, and without an opportunity by such principal to ascertain its correctness, he had executed it solely at the solicitation of the payee and upon his promise to make a full showing as to such statement and correct any mistakes, omissions or overcharges therein, by reducing the amount of said note; that such payee had failed and refused to make such showing; that he had made overcharges and omissions, as to certain matters, specified, in various sums, aggregating more than the amount of the note in suit, and for which the principal was entitled to relief; and such pleading prayed that such payee be made a party to the action and required to make such showing, and demanded judgment for the excess of such counter-claim over the note in suit.</p> <p>Held, on demurrer, that such pleading was intended as a counter-claim against such payee.</p> <p>Held, also, that it did not state facts sufficient to constitute either a counter-claim, as against such payee, or an answer, as against the plaintiff.</p> <p>Held, also, that such pleading, being intended as a counter-claim against such payee, could not at the same time be an answer against the plaintiff.</p>

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

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

<p>Paetthon.—Action.—A proceeding for the partition of lands is a “ civil action,” within the meaning of the term as used in section 34 of the practice act of this State (2 B. S. 1876, p. 46.)</p> <p>Summons.—Service.—By Whom to be Made.—Service of a summons in a civil action can he made only by the sheriff to whom it is directed, or by his deputy, or, in case of the absence, interest or incapacity of such sheriff, by the proper coroner.</p> <p>Same.—Statute Construed.—Section 292 of the practice act of this State (2 B. S. 1876, p. 154,) provides only as to the mode of making proof of the service of process, and not as to how or by whom such service shall be made.</p> <p>Same.—Section 37 of such practice act (2 B. S. 1876, p. 49) refers to the manner, only, of service of summons, and not to the person by whom it may have been made.</p> <p>Same.—Jurisdiction. —Where service of summons is made by an unauthorized person, no jurisdiction of the person so served is thereby acquired by the court.</p> <p>Same.—Appeal.—Judgment.—Supreme Court.—A defendant against whom a judgment has been rendered, by default, in the circuit court, without having first acquired jurisdiction of his person, may, in the first instance, appeal to the Supreme Court, without applying to such circuit court to set aside such judgment.</p> <p>Same.—Judgment.—Partition. — Practice.—A judgment partitioning lands can not be reversed in. part and affirmed in part, but the entire judgment must be set aside, if reversed, by the Supreme Court.</p>

<p>Intebeogatoeies to Juey.—Answers.— Uncertainty.—Where to a pertinent, direct interrogatory, put to the jury trying a cause, they return an uncertain or doubtful answer, the court trying such cause must, on motion therefor, made before the discharge of such jury, instruct them to return a direct and certain answer.</p> <p>Same.—Where the answer to an interrogatory is in other respects certain . and direct, the prefacing or adding thereto, by the jury, of the phrase “ in our judgment,” does not render it uncertain.</p> <p>Same.— Venire de Novo.—Where the answer of a jury to a pertinent, direct interrogatory is uncertain, a motion fof a venire de novo should be sustained.</p>

<p>Nunc Pro Tunc Entry.—Office of.—Record.—The office of a n-u/nc pro tunc entry is, to.cause to be entered of record, at a subsequent term, some action had in a cause, but omitted from the record, at a prior term; not to enter, now for then, something occurring only at the subsequent term.</p> <p>New Triad.—Cause For.— When Filed.-—Statutory Requirement.—Waiver of.—Practice.—If, at the term when a motion for a new trial is made, the court, without objection from the party opposing such motion, grant time until the first-day of the next term, to file written causes for such motion, such party will be deemed to have waived the statutory requirement that such causes must be filed at the time such motion is made, and to have acquiesced in such extension.</p> <p>Sajue.—Causes Filed too Late.—Where such extension has been so granted and acquiesced in, the filing of such causes at a day subsequent to the time fixed, to which the opposite party objects, is too late, unless such causes were discovered after the term at which such motion was made.</p> <p>Same.—Statute Construed.— Words and Phrases.—The word “decision,” as used in section 354, (2 R. S, 1876, p. 183) refers to the finding of facts in a cause tried by the court.</p>

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

<p>Will.—Law of Place.—Though the last will of a testator may have been executed and attested in another State, yet, if he die while domiciled in this State, the law of the latter must be applied by her courts in determining whether such will has been duly executed.</p> <p>Same.—Execution of.—Attesting.—Intention of Testator.—Parol Evidence of.— The execution of his last will, by the testator, having been attested by but one witness, such testator afterwards, at a different place, and in the absence of such witness, executed an endorsement upon the back of such will, reading, “The within is the basis on which I desire to have my affairs disposed of, should no other will be made by me,” which endorsement was attested by another witness, to whom its contents had been made known, and the signatures to such will exhibited, by such testator.</p> <p>Meld, in an action to contest the validity and resist the probate of such will, that it had not been executed according to law and is therefore invalid.</p> <p>Held, also, that it can not be established by parol evidence, that the signature of such witness, to such endorsement, was intended by the testator, and executed by such witness, as an attesting of such will.</p>

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

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

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

<p>Judgment.—Estoppel.—Married Woman.—Though the promissory note of a married woman, executed during her coverture, is void, yet if, in an action thereon, she make default and a judgment be rendered against her, she is forever estopped from denying or collaterally attacking it.</p> <p>Read Estate, Action to Recover.—Sheriff’s Sale.—Decree Against Married Woman.—If the real estate of a married woman be sold at sheriff’s sale, on a decree rendered against her in an action upon a promissory note, and a mortgage on such real estate, executed by her during her coverture, and, on her failure to redeem the same, it be conveyed by the proper sheriff, to the purchaser at such sale, the latter may maintain an action to recover the possession of such realty from her.</p> <p>Same.—Evidence.—On the trial of such suit, evidence by the defendant, to show that she was a married woman at the time of the execution of such promissory note, is inadmissible.</p> <p>Same.—Pleading.—If, in an ejectment suit, the real estate in controversy he described in an exhibit attached to the complaint as part thereof, that is sufficient, though it be not described in the complaint itself.</p> <p>Supreme Court.—Practice.— Waiver.—The failure of a party to an appeal to the Supreme Court, to refer in his brief to a question raised by his assignment of error, is deemed a waiver thereof.</p>

<p>Highway.—Supervisor.—Watercourse.—Remedy.—Where, in the exercise of an honest, though an erroneous, judgment that it is necessary for the repair of a highway in his road district, a supervisor so constructs a dam that the flow of an ancient watercourse is thereby diverted from its original channel, in such manner as to overflow and damage the land of a neighboring proprietor, the remedy of the latter is, by an application for an assessment of his damages, under section 16 of the act of March 5th, 1859, in relation to supervisors, (1 R. S. 1876, p. 855) and not by an action against such supervisor, personally.</p> <p>Same.—Where, in such case, the lands of an adjoining proprietor are so injured, not because of the negligence of a supervisor in constructing such dam, but because of the failure of his successor to repair it, the former is not liable.</p> <p>Same.— When Supervisor is Liable.—Burden of Proof.—If in making such repairs a supervisor acts in bad faith, negligently or corruptly, he is liable, personally, to any such owner sustaining damages thereby; but the burden of proof is upon the latter to show such bad faith, negligence, or corrupt motive.</p> <p>Same.—Assessment of Damages.—Tender.—Constitutional Law.—The entering upon or taking of the property of another by a supervisor, as contemplated by such section 16 of the act in relation to supervisors, is a taking by the State, within the meaning of section 21, article 1, of the Constitution of this State, for which damages need not be first assessed and tendered.</p> <p>New Tbiae—Causes.—Time Given to File.— Waiver.—Practice.—Where, at the term at which a finding or verdict is rendered, an oral motion for a new trial is made, but, at the request of the party making such motion and without objection by the opposite party, time is given by the court, until the next term, to file written reasons in support of such motion, it is too late for the opposite party, at such subsequent term, to then object to the filing of such reasons.</p>

<p>Supreme Court.—Practice.— Waiver.—The failure of 'a party, on appeal to the Supreme Court, to discuss in liis argument a question made in the record, is deemed to be a waiver thereof.</p> <p>Same.— Weight of Evidence.—The Supreme Court, on appeal, will not reverse a judgment on the mere weight of evidence.</p>

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

<p>Continuance.—Absence of Witness.—Absence of Attorney.—The absence of a witness in a cause, or of an attorney regularly employed to conduct such cause, without the fault of the applicant, is, upon filing a sufficient affidavit, a good cause for a continuance.</p> <p>Same.—Supreme Court.—The action of the circuit court, in refusing to grant a continuance of a cause, is subject to review by the Supreme Court on appeal, and, if erroneous, it is sufficient cause for the reversal of a judgment rendered in such cause, against the applicant for such continuance.</p> <p>Same.—Bill of Exceptions.—Extrinsic Facts.—If the action of a court, in refusing to grant a continuance of a cause, has been influenced by facts outside of those stated in the affidavit, therefor, they must, to be made available to sustain such decision on appeal to the Supreme Court, be set out in the bill of exceptions.</p>

<p> TuKNPrKE.—Gravel Road.—Repeal of Laws.—Assessment.—Lien.—Remedy. </p> <p>—By the enactment of the act of March 13th, 1875, (Acts 1875, Keg. Sess., p. 80) repealing the act of May 14th, 1869, (3 Ind. Stat., p. 538) authorizing the making and collection of assessments on lands, to aid in the construction of plank, macadamized and gravel roads, not only the remedy for enforcing the collection, but also the lien, of assessments made for such purposes under the latter act, is taken away.</p> <p>Same.—Assessors.—Authority.—Appointment.—The act of March 11th, 1867,</p> <p>(Acts 1867, Keg. Sess., p. 167) authorizing the assessment of lands to aid in the construction of gravel roads, was repealed by the act of May 14th,</p> <p>1869, (3 Ind. Stat., p. 538) in relation to the same subject, and, therefore, assessors appointed under the former act could not, after the enactment of the latter, without a reappointment, make either a valid assessment or a correction of a former but defective one made by them.</p> <p>Same.—Number of Assessors.—Neither the act of March 11th, 1867, nor ' that of May 14th, 1869, in relation to such assessments, authorized the making of any such assessment, in any one proceeding, by more than three assessors, and therefore any such assessment, made by more than' three assessors, was void.</p> <p>Same.—Amending Report of Assessment.—Ry Whom Rone.—Where, under such latter act, in making an assessment for the construction of a gravel road, a portion of the lands subject thereto were omitted, the original assessors only, and not partially or entirely different ones, could, under the order of the proper county board, complete such assessment.</p>

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

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

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

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

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

<p>Pleading.—Complaint.—Motion in Arrest.—Action by a Receiver.—In an action by an alleged receiver, the complaint averred an indebtedness by the defendant to the plaintiff, and that the plaintiff was the duly appointed receiver of a certain person, named, and authorized to sue for and collect the debts of the latter; but there was no averment as to when, or by what, if any, court such receivership had heen decreed.</p> <p>Held, on motion in arrest, no demurrer having been hied thereto, that the complaint is sufficient.</p> <p>Query.—Whether proof of indebtedness to plaintiff’s alleged insolvent could be admitted under such complaint.</p> <p>Bill ox Exceptions.—Hew Uriah—Supreme Court.—Practice.—Questions arising upon the motion for a new trial of a cause can not be presented to the supreme court, by a bill of exceptions hied, without leave of court, beyond the term at which such motion was' acted upon.</p>

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

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

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

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

<p>Pleading.—Railroad.—Mortgage Indemnity.—Trust and Trustee.—Purchaser of Property Encumbered.—Action to Enforce Encumbrance.—The property of a railroad company having been conveyed to a trustee, for the benefit of the holders of a bonded indebtedness of such road, by a trust-deed, or mortgage, providing that he should receive the earnings and pay the running expenses of such road, which road, with all its appurtenances, having been sold to such bond-holders, to satisfy such indebtedness, was reorganized and run under a new corporate name; whereupon the holder of a judgment which had been obtained .against such former company, during the management of such trustee, for killing stock, brought suit against such company to obtain the amount of such judgment, alleging that such trustee had failed to pay the same, but had paid all the earnings of such road, to such bond-holders.</p> <p>Held, on demurrer, the complaint not alleging what amount, if any, of the earnings of such road had ever been received by such trustee, that' it is insufficient.</p> <p>Pbactice.—Demurrer—Defeat of Parties.—A demurrer to a complaint, alleging as cause a defect of parties defendants, should point out whom the additional party defendant should be.</p>

<p>Supbeme Coubt.—Practice.—General Finding.—Special Finding. — Where, from the evidence given on the trial of a cause, wherein a general finding has been rendered, the Supreme Court would not disturb a special finding, supporting such general finding, had it heen made, upon a particular point urged against the latter, such point will not be considered.</p>

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

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

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

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

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

<p>City.—Constitutional Law.—Annexing Contiguous Lands.—The act of March 14th, 1867, providing “ for the incorporation of cities,” etc., in so far as it authorizes a board of commissioners, on the petition of the common council of a city, to annex to such city territory contiguous thereto, (1 B. S. 1876, p. 811, secs. 85, 86) is constitutional.</p> <p>Same.—Eminent Domain.—The authority conferred by such act, upon a county board, to so annex to a city territory contiguous thereto, is not founded upon the right of eminent domain.</p> <p>Same.—Common Law.—Statute.—The power of the proper authority to alter the boundaries of a civil corporation, or annex thereto contiguous territory, existed at common law, but in this State is statutory.</p> <p>Same.—Petition.—Common Council.—Signatures.—The petition to the county board, by the mayor and common council of a city, asking for the annexation to such city of contiguous territory, need not be signed unanimously by the members of such council; the signatures thereto of a number of such members exceeding two-thirds being sufficient.</p> <p>Same.—Description of Territory to be Annexed,.—Where the contiguous territory, which it is desired to annex to a city, is described in the petition by the divisions formed by the congressional surveys, and by subdivisions thereof, capable of being ascertained, such description is sufficient.</p> <p>Same.—Plat.— When Filed.—Amendment.—1The plat of the land proposed, in the petition therefor, to be annexed to a city, need not be filed at the time such petition is filed, but may be filed thereafter at any time before the county board has finally acted upon such petition, even over the objection of a remonstrant.</p> <p>Same.—Filing Petition.— When.—Notice of.—The statute authorizing such petition does not require that it shall be filed any specified period prior to the first day of the session of the county board at which it is intended to present it, but thirty days’ notice of such intention must be given.</p> <p>Same.—Survey—If such petition contain a specific description of the premises asked to be annexed, and the plat filed therewith contain a copy of an actual established survey thereof, though theretofore made for another purpose, a survey for the purposes of such petition is unnecessary.</p> <p>Same.—Power of the Oity to Tax Farm Land.—Injunction.—The power of a city to tax, for her municipal purposes, a tract of farm or garden land, contiguous to such city, can not be called in question in an action by the owner thereof, against such city and a county board, to enjoin them from executing an order of such board, annexing such land to such city.</p>

<p>Statute oe Limitations.—Contribution.—Fraudulent Conveyance.—Action to Set Aside.—Judgment against Sureties on Official Bond.—A joint judgment having been rendered against two sureties of an insolvent principal upon an official bond, and a purchaser from one of them, of realty subject to the lien of such judgment, having paid it off to discharge such lien, he brought an action against a purchaser of other realty, prior to the rendition of such judgment, from such other surety, to set aside such conveyance and subject such realty to contribution to such judgment, alleging such conveyance to have been made, and received, with intent to defraud such other surety’s creditors. The defendant having pleaded the statute of limitations of six years,—</p> <p>Held, on demurrer, that such answer is sufficient.</p> <p>Practice.—Amendment.—Discretion of Court.-—The court, in its discretion, may allow the filing of additional pleadings, if no objection be made, even after issues have been perfected at a prior term and the cause been continued to another, and even after heavy costs have accrued, which would not have accrued had such pleadings been filed at the prior term.</p> <p>Same.—-Payment of Costs.—Where such additional pleadings have been so filed, the court has no power to compel the party filing them to pay such costs, so accrued, before requiring issue to be joined on such pleadings.</p>

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

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

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

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

<p>Baiekoad.—Fence.—Cattle-Guard.—To keep its road “securely fenced,” according to the requirements of the statute, a railroad company must construct and keep in repair sufficient cattle-guards, on each side of highways crossing its track.</p> <p>Same.—If a cattle-guard be in such condition that stock can pass over it, from a highway, onto the track of the railroad upon which it is situated, such road is not “ securely fenced,” within the meaning of the statute.</p> <p>Same.-—Killing Stock.—Failure to Repair.—If, by reason of a railroad company’s neglect to repair a cattle-guard accidentally put out of repair, of which it has had reasonable notice, stock enter upon its track, over, such cattle-guard, from a highway, and are killed, such company is liable therefor.</p>

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

<p>City.—Annexation of Territory.—Comity Board.—Power of.—Can Not Annex Part only of Lands Described in Petition.—Statute Construed..—Where, under the provisions of sections 85 and 86 (1 R. S. 1876, p. 811) of the act of March 14th, 1867, providing “ for the incorporation of cities,” etc., the common council of a city has filed its petition with the proper county board, asking that certain described lands, not platted, lying contiguous to such city, be annexed thereto, to which it is averred that the owner will not consent, such board has no power to order the annexation of a part, only, of such lands, but must grant or refuse the prayer of such petition as a whole.</p> <p>Sane—Partial Annexation Void.—Appeal.—An order of such county board, annexing to such city part, only, of such lands, is inoperative and void, but is one from which no appeal is authorized by law.</p> <p>Same.—Tax.—Injunction.—Where a city has assessed a tax for municipal purposes upon lands so annexed, its collection may be enjoined and such assessment cancelled, in dn action therefor by the owner.</p>

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

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

<p>Highway.—Petition.—Names.—The petition for the location of a highway should not be dismissed because it sets out, generally, and in the alternative, “ the names of the owners, agents or occupants of the lands through which such proposed highway will pass,” without specifying in which of such relations, to any of the tracts of land therein described, any of such persons stand.</p>

<p>Criminal Law.—Larceny.—Indictment.—Description of Stolen, Property.—An indictment charging the defendant with having unlawfully and feloniously stolen, taken and carried away “ bank-bills ” of a certain denomination, “ a more particular description of which bank-bills can not now be given,” of 'a certain value specified, and the property of a person named, is sufficient on motion to quash.</p> <p>Same.—Dvidence.—On the trial of the defendant upon such indictment, a conviction upon evidence describing the property simply as “bills” is erroneous.</p> <p>Same.—Judicial Notice.—The courts of this State take judicial notice of the fact that there are classes of not^s and bills, other than bank-bills, in circulation as money.</p>