Volume 56 — Indiana Reports

<p>Conveyance.—Shelley’s Case.—Words of Limitation.—A deed which “conveys and warrants ” certain real estate to the grantee “ during her life, in remainder to the issue of her body, their heirs and assigns forever,” falls within the rule in Shelley’s case, and vests in such grantee the title to such real estate, in fee-simple; the words “issue of her body” being words, not of purchase, but, simply of limitation.</p> <p>Same.—Children.— Unborn Grantee.—A deed which conveys real estate therein described to the grantee “and her children, and their heirs and assigns forever,” vests the title to the same in her and her children then in being, though unborn, in common; but those begotten and born thereafter take nothing thereof.</p> <p>Same.—Conveyance Pending Litigation.—Construction of.—Where, during the pendency of litigation amongst devisees, concerning real estate devised to them, prior to final judgment and as part of the proceedings therein, a deed of conveyance of such realty is agreed to by such devisees, and authorized and approved by the court, such conveyance is to be construed according to its own terms, and not according to the decree of such court.</p> <p>Same.—Married Woman.—Estoppel.—Where a married woman joins with her husband in the conveyance of lands held in her own right, which purports to convey the entire estate therein, she is estopped from after-wards setting up any title to such lands, whether it existed at the time of making such conveyance, or was subsequently acquired by her.</p>

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

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

<p>Eraed.—Fraudulent Conveyance.—Action to Set Aside.—Pleading.—In an action by a judgment creditor, to set aside an alleged fraudulent conveyance by his debtor, of the latter’s real estate, so as to subject it to execution, the complaint must allege, that, at the time such conveyance was made, such debtor did not then have sufficient other property remaining to pay all his debts.</p> <p>Same.—It is not sufficient to charge in such complaint, that, at the time of the filing thereof, such creditor has not then sufficient other property remaining to satisfy all his debts.</p> <p>Same.—Phidence.—The facts that such conveyance was made voluntarily, without consideration, and during the pendency of the action resulting in the judgment sought to be collected, are proper matters of averment and evidence, as tending to establish the fraud alleged.</p>

<p>County Auditor.—Fees and Salaries.—County.—Assessment of Taxes.—Notice to Plat Lands.—Under section 6 of the act of March 8th, 1873, (Acts 1873, p. 119) “regulating the fees of officers,” etc., the county auditor was entitled to receive, not from the owners of such lands, but from the county in which they were situated, twenty-five cents for the service of each notice to owners of lands, to cause them to be platted as required by sections 272 and 273 of the act of December 21st, 1872, (1 R. S. 1876, p. 72) providing “ for a uniform assessment of property,” etc.</p> <p>Same,—Notice.—Under the provisions of sections 272 and 273 of the act of December 21st, 1872, (1 R. S. 1876, p. 72) providing “for a uniform assessment of property,” etc., the owner of real estate, which has been divided into parcels, which can not be described except by metes and bounds, is not bound to cause the same to be surveyed and platted into lots, until notified so to do by the proper county auditor; nor can such county auditor cause the same to be done, unless such owner, at the expiration of thirty days from the service of such notice, shall have failed bo to do.</p>

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

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

<p>New Trial.—Motion for.—When to be Made,—Practice.—A motion for a new trial must be made, and the written causes therefor filed, at the term at which the finding or verdict is rendered, except where it is sought for reasons subsequently discovered.</p> <p>Same.—Supreme Court.—The record of a cause, on appeal to the Supreme Court, showed, that at the term at which the verdict was rendered a motion had been made, and reasons filed, for a new trial, and the cause continued ; that at a subsequent term, over a motion by the successful party, for judgment on the verdict, a new trial was granted, upon a motion and reasons therefor then filed.</p> <p>Held, the reasons first filed not being in the record, and those last filed not being for cause discovered since'the trial, that the order granting such new trial was erroneous.</p>

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

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

<p>Supreme Court.—Assignment of Error.—Waiver.—Where an assignment of error is waived, on appeal to the Supreme Court, by the party assigning the same, it will not be considered.</p> <p>Same.— Weight of Evidence.—The Supreme Court on appeal will not disturb the finding or verdict rendered below, upon the mere weight of the evidence.</p>

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

<p>Criminal Law.—Trespass upon ■ Lands.—Indictment.—An indictment for trespass upon lands, charging the defendant with having removed a certain number of rails “from a fence standing upon the lands” of a person named, is not- equivalent to an indictment charging a removal of such rails from such lands, and is therefore had on motion to quash.</p>

<p>Baiuroad.—Statute Construed.—The act of June 18th, 1852, (1 E. S. 1876, p. 711,) supplemental to the act of May 11th, 1852, (1E. S. 1876, p. 696,) providing “for the incorporation of railroad companies,” in so far as it forbids railroad companies organized under the latter act from crossing or intersecting railroads terminating in cities of the class specified in its first section, at certain points, is special in its character and against public policy, and should be construed so as not to apply to a railroad of the latter class, which, under the provisions of the act of February 21st, 1863, (1 R. S. 1876, p. 723,) authorizing “railroads to make extensions,” etc., has since so extended its road as to carry its terminus beyond the corporate limits of the city within which it had theretofore been.</p> <p>Same.—Power of Company.—Aiding Another.—Where such railroad company has so extended its road, it may not only consent to, but aid in, the construction of a railroad by another company, crossing or intersecting the road of the former, at a point prohibited by such supplemental act</p> <p>SAME.—Organization.— Validity can not be Attacked Collaterally.—The validity of the organization of a railroad company, legal upon its face, can not be questioned collaterally.</p> <p>Same.—Injunction.—Illegal Intention.—The fact that a company, lawfully organized to construct a certain specified line of railroad, fraudulently intends to build but part of such line, is no ground for enjoining the construction of that part.</p> <p>Same.—Quo Warranto.—The pendency of a proceeding by a prosecuting attorney, in the nature of a quo warranto, against a railroad company, to procure the forfeiture of its franchises on the ground that it has been organized to do an illegal act, can not affect or delay the decision in a prior proceeding to enjoin such company from further prosecuting the purpose for which it has been organized.</p>

<p>Railroad.—Appropriation of Lands.—Injunction.—Tender.—Pleading.—To the petition of a railroad company to appropriate lands, the owner answered asking an injunction upon the alleged grounds that the plaintiff had no valid organization, did not intend to build the proposed road, and had organized simply in the interest of another company, which grounds were being tested in a quo warranto proceeding then pending against such company.</p> <p>Held, that the answer is insufficient.</p> <p>Held, also, that such lands can not be taken without first tendering to the owner all damages occasioned by such proposed taking.</p> <p>Sauce.—Temporary Injunction.—Dissolution of.—A temporary injunction should be dissolved upon the filing of a verified answer denying the matters alleged in the complaint upon which such injunction was granted.</p>

<p>Descents.— Widow.—Children.—Partition.—The owner in fee-simple ef certain lands in this State died, intestate, leaving surviving him, a widow, children by her, and children by a former marriage. Subsequently such widow died, intestate, leaving such children and children by a former marriage, without having disposed of her one-third interest in such lands.</p> <p>Held, in an action for partition, that, on her death, such one-third interest descended to all her children by both marriages, equally, and that such husband’s children by his former marriage took nothing thereof.</p> <p>Same.—Will.—Election by Widow.—Insanity.—Election by Guardian.—The right of a widow, under section 27 (1 B. S. 1876, p. 413) of the “ act regulating descents,” etc., to elect to take under the will of her deceased husband, is purely personal to her, does not descend to her heirs, and can not be exercised by her, or on her behalf, by her guardian, where she has been adjudged of unsound mind ; and real estate, having descended to her, from her husband, under such statute, on her.death during such insanity, descends to her children, notwithstanding an election by such guardian to take under such will.</p> <p>Practice.—Demurrer to General Denial.—Harmless Eiror.—Where a demurrer is sustained to a special paragraph of an answer embracing the general denial, the sustaining of a demurrer to the whole of an amended answer, embracing the general denial and special matter, is harmless.</p> <p>Becord.—Supreme Court.—Default.—A record of a cause, wherein part of the defendants made default and the others had answered, showing that “ this cause is submitted to the court, for trial, on the complaint, default and exhibits herein filed, and, after examining and deliberating, the court finds,” etc., sufficiently shows, on appeal to the Supreme Court, a submission of the cause for trial as to the defendants who had answered, on the default of those who had not.</p>

<p>Promissory Note.—Blanks.—Alteration.—Principal and Agent.—Where a promissory note, left blank as to a material stipulation, is entrusted by the maker to another to negotiate, the latter has authority to fill such blank, but not to alter a material stipulation not left blank.</p> <p>Same.—Material Alteration.—When, in such case, such instrument is negotiated to a person having notice that it has been so altered in a material part, he can not hold the maker liable, even though by such alteration the burden of the maker be lessened.</p> <p>Same.—A promissory note, left blank as to some material parts, but perfect as to the stipulation for the payment of interest from its date, was entrusted by one maker thereof to another, to negotiate for the benefit of the latter, who, having filled such blanks and altered such interest stipulation by adding thereto the words “ after maturity,” negotiated the same to a person having knowledge of such alteration.</p> <p>Held, in an action upon such note, by such holder, against such first mentioned maker, that, by such alteration, the latter is discharged from all liability thereon.</p> <p>Same.—Practice.—Evidence.—Under a verified denial of the execution of an instrument sued upon, the defendant may introduce evidence that such instrument had been altered in a material stipulation since its execution.</p>

<p>Criminal Law.—Forgery.—Alteration.—Indictment.—An indictment which charges the defendant with having uttered “as true a certain false, forged, altered and counterfeit” written instrument, “knowing the same to be false,” etc., “with intent to defraud,” etc., is one which charges the uttering of a once genuine, but altered, instrument.</p> <p>Same.—Where the offence is the uttering of an altered instrument, it maybe charged in the indictment as the uttering of either a “forged,” or an “ altered,” instrument.</p> <p>Same.—Material Alteration.—Where the offence charged is the uttering of an “altered” instrument, the indictment must clearly set out the alteration alleged, with the proper averments showing an alteration of a material part thereof.</p> <p>Same.—Immaterial Alteration.—An indictment can not be predicated upon the uttering of an instrument altered in an immaterial part.</p> <p>Same.— Verdict.—Practice.—Acquittal.—Where, upon the trial of a defendant on an indictment consisting of several counts, the verdict is silent as to any, it is equivalent to an express verdict of acquittal as to those counts not mentioned therein.</p> <p>Same.—Supreme Court.—Where the verdict, upon the trial of a defendant on an indictment consisting of several counts, is silent as to any of them, no question in relation to such counts is presented to the Supreme Court, on appeal, by a motion to quash, or in arrest of judgment.</p>

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

<p>Mistake.—Payment of Money.—Negligence.—Money paid under a mistake by the payor, as to a material fact, may be recovered by him, though at the time of making such payment he possessed, but neglected to use, the means of ascertaining the actual fact.</p> <p>PkACTICE.—Pleading.—Demurrer.—Bill of Particulars.—An objection to a bill of particulars attached to a pleading can not be presented by a demurrer thereto.</p> <p>Same.—Pleading Struck Out.—It is not error to strike out a paragraph of a pleading, if the matters therein alleged can be given in evidence under a remaining paragraph.</p> <p>Same.—Set-Off.—Counter-Claim.—Matter of set-off, counter-claim or reconpment can not he given in evidence under the general denial or a plea in bar ; and therefore, where the remaining paragraphs of a pleading consist of such pleas only, it is error to strike out paragraphs alleging matter of set-off, counter-claim or recoupment.</p>

<p>Liquor Law.—Evidence.—A conviction upon' an indictment charging the defendant with having unlawfully sold intoxicating liquor to a certain person, without evidence that the sale charged had been made, is erroneous.</p>

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

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

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

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

<p>Decedents’ Estates.—Administrator's Sale of Land.—Incumbrances.—A purchaser of land sold at an administrator’s sale takes the same subject to all liens thereon, except those for the payment of which it is sold.</p> <p>Same.—Action for Purchase-Money.—Set-Off.—Taxes.—In an action by an administrator, to recover the balance of purchase-money due upon land sold by him, belonging to his decedent’s estate, the purchaser can not set off taxes paid by him, accrued against such land, prior to such sale but subsequent to the death of such decedent.</p> <p>Same.—Taxes Accrued before Decedent’s Death.—Taxes accrued upon land during the lifetime of its owner should be paid by the administrator of his estate.</p>

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

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

<p>Liquok Law.—Indictment.—Description of Diquor.—An indictment for unlawfully selling “intoxicating liquor” need not aver nor describe the particular kind of liquor sold.</p> <p>Same.—Sale for Medicinal Purpose.—A sale of intoxicating liquor for medicinal purposes is not a violation of any of the provisions of the act of March 17th, 1875, (1 E. S. 1876, p. 8£>9,) relating to the sale of such liquors.</p>

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

<p>Decedents’ Estates.—Insolvent Estate.—Suit to Recover Money Collected by Attorney.—Set-Off.—In an action by the administrator of the estate of an insolvent decedent, against an attorney at law, to recover money collected by the latter for such decedent, the defendant can not set off the value of services rendered by him for such decedent; but he may set off the value of services rendered for such administrator, in the settlement of such estate.</p>

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

<p>Bastardy.—Prosecution for.—Whm may be Instituted.—A prosecution for bastardy may be instituted against the alleged father, either when the ' relatrix has become pregnant with, or after she has been delivered of, a bastard child.</p> <p>Same.—Still-Bom Child.—In a prosecution for bastardy, instituted after the birth of the child, an allegation in the complaint, that the relatrix had “been delivered of a bastard child,” is not sustained by a finding, that, at the end of the usual period of gestation, she had been delivered of a bastard child whose lungs had “never been inflated with air.”</p> <p>Same.—Judgment.—Maintenance.—Upon such finding, a judgment against the defendant, allowing any sum for the maintenance of such child before its birth, is erroneous.</p> <p>Same.—Allowance to Relatrix.—Upon such finding, an allowance can not be made to the relatrix for her suffering or support during her pregnancy and confinement.</p>

<p>Pleading.—Complaint.—Promissory Note.—A complaint in the ordinary form, upon a promissory note, setting out a copy of the same, is sufficient.</p> <p>Venue.—Change from County.—May be Refused till Isme Formed.—Practice.— Where a rule to answer is pending against a defendant, the court may refuse to pass upon his application for a change of venue from the county, until he has discharged such rule.</p> <p>Same.—Judgment for want of Answer.—Where in such case the defendant, insisting upon such change, refuses to discharge such rule, judgment against him may be rendered as upon a default.</p>

<p>Liquor Law.—Statute Construed.—Indictment.—The words “for any pur-pose of gain,” as used in the 1st section of the act of March 17th, 1875, (1 B. S. 1876, p. 869,) regulating the sale of intoxicating liquors, do not modify the words “sell” or “barter,” as used in other parts of said act, and need not be averred in an indictment for selling or bartering in violation of the same.</p> <p>Same.—The 12th section of such act defines two distinct offences, viz., selling intoxicating liquor without a license, in a less quantity than a quart at a time,, or in any quantity, to be drank or suffered to be drank upon the premises where sold.</p> <p>Same.—Sale of Whiskey.—Judicial Notice.—The courts of this State take judicial notice of the fact that whiskey is an intoxicating liquor, and therefore an indictment for the unlawful sale of “spiritous liquor, commonly called whiskey, ” is sufficient, without an averment that the whiskey sold was intoxicating liquor.</p> <p>Same.—Evidence.—Proof of an unlawful sale of whiskey, on the trial of a defendant indicted for unlawfully selling “intoxicating liquor,” is sufficient to support such averment of the indictment.</p> <p>Same.—Costs on Conviction.—On the conviction of a person charged with a crime, the fees of all witnesses obeying a subpmna to attend- the trial of such cause, issued on behalf of either the State or the defendant, must be taxed to the latter, whether such witnesses have been used or not.</p> <p>Same.—New Trial.—Evidence.—Practice.—Supreme Court.—Where the admission of illegal evidence is assigned as a cause for a new trial, such evidence must be clearly specified in the motion therefor; and, to be available as error on appeal to the Supreme Court, the record must show an objection and exception to the admission of the same.</p> <p>Same.—Instruction to Jury.—That “the court misdirected the jury in a material matter of law,” assigned as cause in a motion for a new trial, is too vague to present any question for decision.</p>

<p>Ckemutai Law.—Assault with Intent to Murder.—Evidence.—/Specific Acts.— Upon the trial of a defendant indicted for assault and battery with intent to murder another, evidence of specific acts of violence, committed by the latter upon persons toward whom he had had ill-will, is not admissible.</p> <p>Same.—New Trial.—Continuance of Motion for.—Ah application by a defendant for a continuance under advisement, of his motion for a new trial, until the next term of court, rests in the discretion of the court.</p> <p>Same.—Misconduct of Juror.-—-Separation of Jury.—The fact that, during a separation of a jury by leave of court, upon an adjournment of a cause which they are trying, a member thereof, on his own motion and at his own expense, by himself and without becoming intoxicated, partakes of intoxicating liquor, is not sufficient cause for a new trial.</p> <p>Same.—Instruction to Jury.—Credibility of Witness.—An instruction to the jury trying a cause, in relation to the evidence given therein, that “if the witness is interested in the result of the prosecution, this tends to discredit ” him, is erroneous.</p>

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

<p>fi-R.TMTMAT. Law.—Evidence Excluded.—Bill of Exceptions.—Supreme Court.— Unless evidence excluded on the trial of a cause is made a part of the record by a bill of exceptions, no question in relation thereto can be presented to the Supreme Court on appeal.</p>

<p>Liquor Law.—Indictment.—Malt Liquor.—Judicial Notice.—An indictment for unlawfully selling “malt liquor” is insufficient, as the courts of this State can not judicially say that all malt liquors are intoxicating.</p> <p>Same.—License.—Under the provisions of the act of March 17th, 1875, (1 B. S. 1876, p. 869,) regulating the sale of intoxicating liquors, a license may be granted to two or more persons jointly.</p> <p>Same.—License to one Partner.—Sale by Unlicensed Partner.—Sale by Firm.— A license granted to one member of a copartnership, consisting of two or more persons, does not authprize a sale of intoxicating liquors belonging to such firm by an unlicensed member thereof, nor by all jointly, for their joint benefit.</p> <p>Same.—Principal and Agent.—A sale in such case by an unlicensed member of- such firm does not come within the rule authorizing a sale by an agent.</p>

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

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

<p>Criminal I>aw.—Desecration of Sabbath:—Indictment.—Duplicity.—An indictment for desecration of the Sabbath, charging the defendant with having been found on that day “unlawfully at common labor and engaged in his usual avocation, to wit,” etc., is not bad for duplicity.</p> <p>Same.—The indictment in such case1 need not aver what the usual avocation of the defendant was.</p> <p>Same.—Instruction to Jury.—Province of Jury.—On the trial of a criminal cause, it is error in the court to refuse to instruct the jury that they “ are the exclusive judges of the law and the facts.”</p>

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

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

<p>Criminal Law.—Destruction of Unrecorded Indictment.—The defendant in a criminal prosecution can not be put upon trial on an indictment against him which has been destroyed, and of which there is no record.</p> <p>Same.—Trial upon Certified Copy.—Where a record has been made of an indictment which has been destroyed, the defendant may be put upon trial on a certified copy of the same.</p> <p>Same.—Case Modified.—Bailey v. The State, 39 Ind. 438, modified.</p>

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

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

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

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

<p>Ditching Company.—Repeal of Statute.—By the act of December 14th, 1872, (Acts 1872, p. 46,) repealing the act of May 22d, 1869, (3 Ind. Stat. 222,) authorizing “the construction of levees, dikes and drains,” etc., “by incorporated companies,” etc., all companies incorporated under the latter act, except those the main line of whose contemplated work did not exceed sixteen miles in length, were abolished.</p> <p>Same.—Action for Assessment.—Pleading.—Complaint.—In an action by a ditching company incorporated under the latter .act, commenced since its repeal, to collect an assessment, the complaint must aver, as matter of fact, that the main line of the plaintiff’s contemplated work does not exceed sixteen miles in length, or it will be insufficient.</p> <p>Same.—Averment as to Bond.—In an action by a ditching company, incorporated under any existing or prior statute of this State, to collect an assessment to aid in the construction of its contemplated work, the complaint must aver that the plaintiff’s board of directors have executed a bond, conditioned for the faithful application of assessments collected by them, as required by the 23d section of the act of March 10th, 1873, (1 B. S. 1876, p. 418,) “to authorize and encourage the construction of levees,” etc.</p> <p>Venue.—Change from County.—Clerk.—Upon the payment of the costs of a change of the venue of a cause, from one county to another, within the time prescribed in the order granting the change, it is the duty of the clerk of the former county to transmit to the clerk of the latter the proper papers and transcript of such cause.</p> <p>Same.—Failure to Perfect.—Negligence of Clerk.—If the costs of such change be promptly paid, the failure of the clerk of the former county to transmit such papers and transcript to the clerk of the latter, within the time prescribed by the order granting such change, does not authorize the court to which such change is taken to order the return of such cause to the court from which such change was taken.</p>

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

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

<p>Supreme Court.—Practice.— Weight of Evidence.—The Supreme Court will not disturb tbe finding or verdict in a cause upon tbe mere weight of the evidence, even though by the record the preponderance thereof seems to be against it.</p>

<p>Cities and Towns.—Town of Huntington.—Ordinances of.—Publication of.— Statute Construed.—The object of the ten days’ publication of ordinances of the town of Huntington, as required by the 5th section of “An act incorporating the town of Huntington,” (Local Laws of 1848, p. 487,) approved February 16th, 1848, was to give them the force and validity of ordinances.</p> <p>Same.—Street Improvement.—Notice to Non-Resident.—The object of the three weeks’ publication of a copy of an ordinance' for the improvement of a street of such town, as required by the 17th section of such act, as amended by “An act to amend the 5th, 14th and 17th sections,” etc., of such act, (Acts 1865, Spec. Sess., p. 97,) approved December 21st, 1865, was solely for the purpose of giving notice to non-resident owners of lots in such town, affected by the adoption of such ordinance, and was in addition, and subsequent to, the publication required by such section 5.</p> <p>Same.—“Publication for Three Consecutive Weeks” Defined.—The “publication for three consecutive weeks in some newspaper,” as required by such • section 17, is a publication for twenty-one days, and not simply three insertions in such newspaper.</p> <p>Same.—Notice of Letting Contract.—Upon the failure of such non-resident owner, for the full space of sixty days after the completion of the publications of sueh 'ordinance, as required by such sections 5 and 17, to make the improvement required by such ordinance, the common council of such town could require her marshal to give ten days’ additional notice that he would let the contract for making such improvement.</p> <p>Same.—A valid contract for the making of such improvement, binding either such non-resident or his lot, could not be let until the expiration of at least one hundred and one days from the passage of such ordinance, including the making of all such publications and the giving of such notices.</p>

<p>Pbactice.—Appeal.—Dismissal of—Where a party who has appealed to the circuit court from a judgment rendered by a justice of the peace makes default, such cause may he tried, or the appeal dismissed, at the option of the court.</p>

<p>Ceiminai. Law.—Open Fornication.—Indictment.—Defining Crimes.—An indictment for living in open and notorious fornication may be founded upon the 21st section of the act of June 14th, 1852, (2 K. S. 1876, p. 457,) “ defining misdemeanors,” etc., though such offence is not defined by such section.</p> <p>Same.—Fornication Defined.—Fornication is sexual intercourse between any man and an unmarried woman.</p> <p>Same.—Adultery Defined.—Adultery is sexual intercourse between a married woman and any man other than her husband.</p> <p>Same.—An indictment for living in open and notorious fornication is sustained by proof that the defendant, during the lifetime of his undivorced wife, had married, and openly lived and cohabited with, an unmarried woman.</p> <p>Same.—Evidence.—Divorce.—Jurisdiction.—On the trial of such cause, evidence that the defendant, prior to such second marriage, had obtained a decree of divorce from his first wife, rendered by a court having no jurisdiction of either of the parties to the action for such divorce, is inadmissible.</p> <p>Same.—Divorce of Non-Residents.—A decree of divorce granted by a court of another state, showing upon its face that neither of the parties to the action therefor were citizens or residents of that state, is invalid in this.</p> <p>Same.—Statute of Foreign State.—Such divorce of non-residents, so decreed, is not rendered valid by a statute of such state, authorizing a divorce to be decreed on behalf of a party desiring to become a resident thereof.</p> <p>Same.—Residence of Petitioner.—To give a court jurisdiction of an action for a divorce, the petitioner must be a resident of the state or territory within which such divorce is sought to be obtained.</p> <p>Same.—Statute of Utah.—The statute of Utah Territory, authorizing the courts of Utah to grant divorces to parties who are not, but merely desire to become, residents of such territory, is void.</p> <p>Same.—Constitution of United States.—Section 1, article 4, of the constitution of the United States, requiring that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” does not require credit to be given to a decree of divorce rendered by a court having no jurisdiction of the parties to such action.</p> <p>Same.—Intent.—A person is held to have intended to perform what he has performed, and to be chargeable with notice of its consequences.</p>

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

<p>Practice.— Verdict.—Special Verdict.— Venire de Novo.—If a verdict, either general or special, be imperfect or silent as to any material issue in the cause wherein it is returned, a venire de novo should be granted on motion.</p> <p>Same.—If such verdict be full and perfect as to one of several joint parties against whom it is found, he can not complain that it is imperfect as to the others.</p> <p>Partnership.—Dissolution.—A division of the goods belonging to a copartnership, by the members thereof, amongst themselves, each of whom invests his portion thereof in his individual business, conducted at a different place, is a dissolution of such copartnership, though one of such members continue in the old place of business, collecting the credits, and paying the debts, of the firm, in the copartnership name.</p> <p>Same.—Power of Partner to Sind CopaHners after Dissolution.—Endorsing Promissory Note.—Such partner so settling up such partnership business can not bind his copartners by his endorsement, in the copartnership name, of a promissory note payable to them.</p> <p>Same ■—Ratification.—If one of such other partners, with full knowledge of such endorsement, ratify the same and direct the endorsee to bring suit against the maker of such note, he thereby becomes liable on such endorsement.</p> <p>Same.—Special Verdict.—In an action against the members of such copartnership, upon such endorsement, a special verdict, finding that such endorsement had been ratified by such partner, is sufficient, without setting forth therein the facts constituting such ratification.</p> <p>Supreme Court.—Practice.—Harmless Error.-—A judgment will not be reversed by the Supreme Court on appeal, for intermediate errors, where the record of the whole case shows it to be right on its merits.</p>

<p>Liquor Law.—Act of 1873.—Section 12.—Action by Wife.—Measure of Dam-ayes.—Instruction to Jury.—In an action by a wife, under section 12 of the act of February 27th, 1873, (Acts 1873, p. 151,) regulating the sale of intoxicating liquors, to recover damages for injury suffered by her in her means of support, resulting from the intoxication of her husband, alleged to have been caused by the defendant, her anxiety of mind, mortification, sorrow and loss of her husband’s society can not enter into the measure of the damages she may recover, and the jury trying the cause should be so instructed.</p> <p>Same.—Exemplary Damages.—Constitutional Law.—Where, in such action, the intoxication of the husband was caused by a sale to him of intoxicating liquor, made by the defendant unden circumstances rendering it a penal offence, “exemplary damages,” as authorized by such section 12, can not be allowed; such provision being, in such ease, in conflict with the constitution of this State, and therefore inoperative.</p>

<p>County Treasurer.—County Order.—Refusal to Pay or Endorse.—Personal Liability.—Damages.—Where a county treasurer, having in his hands money applicable to the payment of a lawful county order, drawn upon him by the county auditor, in favor of the person entitled thereto, refuses to pay the same when duly presented to him for that purpose, or, not then having any such money, refuses to endorse thereon “not paid for want of funds,” he thereby becomes personally liable to such person for six per cent, interest on the amount of such order, from the date of such refusal, as damages therefor.</p> <p>Same.—Defence.—It is no defence to such action that such refusal by the defendant was upon the ground that he believed the issuing of such warrant to have been without authority of law, and that he has since, in obedience to the mandate of the proper court, paid over the principal, only, of such warrant.</p> <p>Same .—Payment.—Interest.—Where lawful interest has accrued upon a matured principal, the payment of the latter, only, is no bar to an action for the former.</p> <p>Practice.—Demurrer.—Harmless Error.—Where matter alleged in one paragraph of a pleading is admissible under another, error in sustaining a demurrer to the former, only, is harmless.</p> <p>Same.—New Trial.—Assignment of Error.—Excessive Damages.—Error in the assessment of damages on the trial of a cause is ground for a new trial, but is not a proper assignment of error, on appeal to the Supreme Court.</p> <p>Same.—Demurrer.—The action of the court upon a demurrer to a pleading in a cause is not ground for a new trial.</p>

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

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

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

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

<p>Canal.—Wot5as/¡, and Erie Canal.—Beal Estate, Appropriation of.—Easement. —Title Acquired by the State.—Where, under the provisions of section 9 of “An act supplemental to an act, providing means for the construction of the Wabash and Brie Canal,” approved January 9th, 1832, (Acts 1832, p. 1,) the board of commissioners of such canal, or their agents, prior to the 27th day of January, 1836, entered upon, took possession of, and appropriated real estate necessary for the construction of such canal, the State of Indiana thereby acquired, not merely an easement in such real estate, but a-title thereto in fee-simple.</p> <p>Saiíe.—Action, to Quiet Title.—Pleading.—Assessment of Damages.—Limitation. — Statutes Construed. — Waiver. — Presumption.—In an action by a grantee of the State of Indiana of such canal, to quiet his title to certain real estate, alleged to have been appropriated under the provisions of such act, the cpmplaint averred, “that, in the course of the construction of said canal, the State of Indiana, in the exercise of her power ’ of eminent domain, through the agency of her proper officers and in the manner directed by law, appropriated said land, * * to be used in the construction of said canal, and constructed said canal upon and across the same, ® ® prior to the 27th day of January, 1836; * * that no record was kept of such appropriation, or of the quantity or location of the land appropriated, or, if any was kept, it has been lost or destroyed, and can not now be found, or the contents of it ascertained.”</p> <p>Held, on demurrer, that the “ appropriation” of such real estate, authorized by such act, is sufficiently averred, and was completed by so entering upon and using it for the purposes of such canal.</p> <p>Held, also, that, under such act, the assessment of damages in favor of the owner, for taking his real estate, was to be made after such “appropria-</p> <p>Held, also, that, under section 4 of the “ act to provide for the further prosecution of” such canal, (Acts 1835, p. 25,) approved February 6th, 1835, the owner must have made his application for such assessment within two years after such “ appropriation,” or, if that time had expired before the approval of such act, then, within two years thereafter.</p> <p>Held, also, that, if he failed within such time to apply for such assessment, he waived his right thereto, and the title to such real estate vested in the State in fee-simple, as fully as if such assessment had been made and paid.</p> <p>Query.—Forty years having elapsed since such appropriation was made, may it not be presumed that such assessment had been made and paid ?</p> <p>Same.—Possession under Color of Title.—Conveyance.—Presumption.—Where, in such case, the complaint alleges such real estate to have been in the peaceable possession of the State and her grantees, under color of title, for forty years, it may be presumed that the sam,e had been duly conveyed to the State in fee-simple, by the owner.</p> <p>Same.—Statute Construed.—Carnal Basin.—Section 9 of such act of January 9th, 1832, authorized the appropriation of. real estate lying along such canal, necessary for a wharf or basin.</p> <p>Biddle, J., dissented.</p>

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

<p>Appeal.—Relocating County Seat.—County Commissioners.—No appeal lies to the circuit court from an order of the board of commissioners of a county, changing the location of the county seat.</p>

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

<p>Criminal Law.— Grand Jury.—Number of Jurors.—Prior to the regular session of the board of commissioners of a county of this State, at their March term, 1876, a legal grand jury of such county consisted of twelve men.</p> <p>Same.—Empanelling.—Discharging.—Power of Court.—Where, prior to such time, a grand'jury consisting of but six men had been empanelled, it was proper for the court to direct them to be discharged and a grand jury of twelve to be selected and empanelled by the sheriff, from bystanders.</p> <p>Same.—Selecting.—Irregularity.—Challenge to Array.—Irregularity in the selection of a grand jury, not amounting to corruption, is not sufficient ground to sustain a challenge to the array.</p> <p>Same.—Discretion of Circuit Court.—Supreme Court.—The action of the circuit court, in discharging or reconvening a grand jury, except for gross abuse of its discretion in such matter, will not be reviewed by the Supreme Court, on appeal.</p> <p>Same.—Plea in Abatement.-—-Challenge.—"Where, by a challenge to the array, a defendant has once questioned the legality of the organization of "a grand jury, he can not present the same question again by a plea in abatement of an indictment found against him by them.</p> <p>Same.—Murder.—Indictment.—An indictment for murder charged, that the defendant did “unlawfully,” etc., “kill and murder” A. B,, by “cutting, stabbing and mortally wounding said” A. B. “with a knife which he,” the defendant, “then and there had and held in his hands,” etc.</p> <p>Held, on motion to quash, that the indictment sufficiently charged the means by which the deceased came to his death.</p> <p>SAME.—Arrest of Judgment.—Irregularity in the selection of a grand jury is not ground for a motion in arrest of judgment.</p>

<p>Evidence.—Opinion of Witness.—Insanity.—Before a witness can be permitted to give his opinion as to the mental condition of a person alleged to be of unsound mind, he must testify to facts showing that he is qualified to give such opinion. ■</p> <p>Same.—New Trial.—Motion.—Evidente Excluded.—Practice.—A motion for a new trial, based upon the alleged erroneous exclusion of evidence of the opinion of a witness as to the mental condition of a person alleged to be of unsound mind, must allege that such witness had testified to facts showing him to be qualified to give such opinion.</p> <p>Same.—Bill of Exceptions.—A reference in such motion to such qualifying evidence, as inserted in a bill of exceptions not then signed and filed, is insufficient.</p> <p>Witness.—Husband, and Wife.—Where the rights of a party to an action, wherein, either with or against him, a husband and wife are also parties, may depend upon the testimony of either, such party may compel either of them to testify as a witness, even though such testimony .must necessarily affect the rights of the other.</p> <p>Same.—New Trial.—Motion.—Competency of Witness.—A motion for a new trial, based upon the absolute refusal of the court to permit a person called as a witness to testify, need not specify what fact was proposed to be proved by him.</p> <p>Same.—Where the lower court has erred in refusing to allow a competent witness to testify, the judgment in such cause will be reversed by the Supreme Court, on appeal, notwithstanding the fact that the evidence given on the trial of such cause is not in the record.</p> <p>Same.—Instmcticms to Jury.—Numbering them.—Unless requested so to do by a party to the action, the court need not reduce to writing and number its instructions to the jury trying such cause.</p> <p>Same.—Bill of Exceptions.—Supreme Court.—No question as to the action of the lower court, in giving or refusing an instruction to the jury, is presented to the Supreme Court, on appeal, unless such instruction, the action of such court thereon, and a proper exception thereto are made part of the record by a bill of exceptions.</p> <p>Same.—Instnietion Asked must be Signed.—No question in relation to the action of the lower court, in giving or refusing an instruction to the jury, asked by a party, is presented to the Supreme Court, on appeal, . unless the same was signed by such party or his attorney.</p> <p>Wills.—Probate.—Validity.—Pleading.—Jurisdiction.—To give jurisdiction to the court of the subject-matter of an action to set aside the probate, and contest the validity, of a will, the complaint must aver, either that the testator died in the county where such action is commenced, or that some part of his estate is therein.</p> <p>Same.— Verification of Complaint.—Supreme Court.— Waiver.—The fact that such complaint is not verified, as required by section 39 of the act in relation to wills, (2 R. S. 1876, p. 580,) does not oust such court of its jurisdiction, and is an objection which can not he urged to the complaint for the first time in the Supreme Court.</p>

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

<p>Mortgage.—Conveyance.—Description of Beal Estate.—As against the mortgagor, the description of real estate conveyed hy a mortgage may be sufficient to convey such realty, and yet, unaided by proper averments in the complaint thereon, be insufficient to authorize a decree for foreclosure.</p> <p>Same.-—Void Description.—Pleading.—Where such description is so indefinite as to render the mortgage void, no averments in such complaint can make valid a decree rendered thereon.</p> <p>Same.—Defective Description..—Averments Aiding.—Where such description is sufficient to convey such realty, though insufficient, unaided, to support a decree, the same may be cured by proper averments in the complaint.</p> <p>Same.—Foreclosure.—Judgment.—Where, in such case, proper evidence in support of such averments is introduced, the court, in its decree, may specify the true boundaries of such realty.</p> <p>Same.—Comity Commissioners.—Purchase of Mortgage.—Doan.—Where the board of commissioners of a county, in regular session, as a loan of money, lying idle, belonging to a fund of such county to be used for building purposes, purchase and take an assignment of a mortgage on real estate, such transaction is not rendered void, because no record thereof has been made.</p> <p>Same.—Building Fund.—Power of County Board.—Statute Construed.—The building fund of a county is “property of the county,” within the meaning of section 13 of the act of June 17th, 1852, (1 B. S. 1876, p. 348,) giving to a board of commissioners power at their meetings, to make orders respecting such property.</p> <p>Same.—Curative Statute.—Where an assignment of such mortgage has been so taken to their county hy a board of commissioners, such act is validated by the act of March 9th, 1875, (Acts 1875, Beg. Ses., p. 93,) entitled “An act to legalize the acts of county commissioners;” etc.</p> <p>Practice.—Supreme Court.—Striking out Part of Pleading.—The action of the circuit court in refusing to strike out part of a pleading is not available as error, on appeal to the Supreme Court.</p> <p>Same.—Ground of Objection.—The Supreme Court, on appeal, will not consider objections made to the proceedings of the circuit court, unless the grounds thereof are pointed out.</p> <p>Amen.—Conveyance.—Mortgage.—Where no inquest has been instituted, an alien may convey or mortgage land owned by him in this State.</p>

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

<p>Replevin.—Detinue.—Damages.—Personal property left by the grantor upon real estate conveyed to a married woman was replevied from her husband by, and delivered to, such grantor on the day following that on which demand therefor had been made.</p> <p>Held, that the plaintiff was entitled to nominal damages.</p> <p>Held, also, that, in the absence of evidence of damage, an assessment of damages equal to the value of the property replevied was excessive.</p>

<p>Guardian and Ward.—Foreign Guardian.—Domestic Guardian.—The act of May 3d, 1869, (2 R. S. 1876, p. 593,) in relation to foreign guardians, authorizes the foreign guardian of non-resident wards to petition the circuit court of this State, having jurisdiction of a domestic guardian of such wards, who has in his hands assets belonging to them, for an order to the latter to pay such assets over to the former.</p> <p>Same.—Power of Court over Assets.—Such circuit court has the power to make such order, when, in its judgment and in the exercise of a sound discretion, it deems such order to be for the best interests of the ward.</p> <p>Same.—Defence.—Pleading.—To such petition, an answer, averring the unfitness of the persons with whom such wards reside to have charge of them, that they had been removed from this State by their mother with- . out the consent of the domestic guardian, and that education and maintenance for them, free of charge, could be provided in this State, is insufficient.</p>

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

<p>Interrogatories to Party.—Practice.—New Trial.—Assignment of Error.— Supreme Court.—The action of the circuit court upon a motion to reject interrogatories to a party, filed with a pleading in a cause, is not ground for a new trial, and can only he presented to the Supreme Court, on appeal, by assigning such action as error.</p> <p>Same.—Failure to Answer.-—Judgment as upon Default.—Where, because of the failure of such party to answer such interrogatories, judgment as upon default is rendered against him, such action is not ground for a new trial.</p> <p>Same.—Where such judgment is rendered against a party appearing to the action, without an exception, no question in relation to the rendition of such judgment can be presented by him to the Supreme Court, on appeal, if he had made no motion, in the lower court, to set aside such default.</p> <p>Same.— When Default may be taken.—A default may be taken against the defendant in an action upon any day, subsequent to the first, of the term at which he was summoned to appear.</p>

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

<p>Partnership.—Power of Partner.—Contract.—Evidence.—Leading Question. —Action against the several members of a copartnership, engaged in buying and selling personal property on their own account, to recover for the value of property delivered by the plaintiff to, and sold by, one of the defendants, with the knowledge of the others, under a contract made by such defendant, on behalf of such copartnership, with the plaintiff, that such property should be delivered to the defendants to be sold on commission. Such other defendants, claiming that such contract and sale had been made solely on the individual account of such defendant, who had since absconded, placed one of the'ir number on the stand as a witness, on the trial of such cause, and asked him to “state what the fact is, about yourself at any time authorizing the plaintiff, either by word or act, to deliver” such property to such absconding partner, “for shipment, on commission or for pay, and to charge either” the copartnership, or the witness individually, therefor.</p> <p>Held, that such question is leading, as suggesting the answer desired, and that the evidence sought to be elicited thereby is incompetent.</p> <p>Same.—Contract outside Ordinary Business.—The fact that selling on commission was no part of such copartnership business does not relieve the defendants of liability on such contract with the plaintiff, if he had no knowledge of such fact.</p> <p>Same.—Liability of Partnen'ship for Acts of Partner.-—The evidence in such action showed that the plaintiff’s property had been mingled with like property of the copartnership, and sold by such absconding partner on account of the copartnership, and payment therefor made to him as a partner.</p> <p>Held, that the copartners are liable to the plaintiff.</p>

<p>Practice.—Pleading.—Demurrer.—A demurrer questioning the sufficiency of a pleading consisting, of both sufficient and insufficient paragraphs should be overruled.</p> <p>Pleading.—Partnership.—Dissolution.—Action for an Accounting.—A complaint by one member, against the others, of a copartnership, for an accounting, alleging the completion of the particular object for which it was formed, its terms as to the proportions of the investment, losses and gains to be shared by each, and that the defendants have failed to comply with such terms, sufficiently shows a dissolution of such copartnership and a right of action for such, or any other proper, relief</p> <p>Practice.—Special Finding.—Venire De Novo.—Where the special finding by the court of the facts in a cause definitely covers all the material issues raised by the pleadings therein, a venire de novo should not be granted.</p> <p>Same.—New Tidal.—Mistake.—A mistake in such finding is reached by a motion for a new trial, and not for a venire de novo.</p> <p>Same.—Surplusage.—The fact that such finding embraces more than was necessary to be found is not ground for granting a venire de novo.</p> <p>Same.—Conclusions of Law.—Éxception to,—Effect of.—By excepting to the conclusions of law of the court, drawn from its finding of the facts, the party excepting admits such facts to have been fully and correctly found.</p> <p>' Same.—Partnership.—Action for an Accounting.—Finding.—Judgment.—Costs. —On the trial of an action by A., one partner, against B. and C., the others, for an accounting, the court found specially the formation of such partnership for a particular object, its accomplishment, the proper expenditure of all its receipts, that a loss, to have been, by the terms of such partnership, shared equally, had accrued, of which A. and B. had borne an equal excess over that borne by C., and that, during the continuance of such partnership, B., without the assent of A., had contracted with C. to receive the profits of the latter in such partnership, in consideration of paying off a certain debt due from him to another.</p> <p>Held, on appeal to the Supreme Court, the evidence not being in the record, that the conclusions of law and judgment of the lower court, that the excess of such loss due to A. from C. should be assessed against the latter, in favor of the former, and the costs of the whole action against B., are presumed to have been right.</p>

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

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

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

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

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

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

<p>Sheriff’s Sale.—Warranty.—The purchaser of property sold at sheriff’s sale buys at his own risk, there being no warranty, express or implied, in any such sale.</p> <p>Same.—Mistake.—Mortgage.—Foreclosure.—Action to Recover Purchase-Money. —Where, by mistake, real estate belonging to one person is mortgaged by another as his property, and, under a decree of foreclosure, is sold at sheriff’s sale to a purchaser who has no notice of such mistake, he can not, in an action against such sheriff and the judgment plaintiff, have such sale set aside, and recover back the purchase-money for such realty, bid and paid by him at such sale.</p>

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

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

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

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

<p>Highway.—Damages and Costs.—Allowance by County.—County Commissioners.—Power of.—Appeal.—"Where damages have been assessed in favor of a person who objects to the location of a highway which has been petitioned for, the decision of the board of commissioners, as to whether such highway is one of sufficient importance to the public, that such damages, and the costs attendant, should be paid out of the county treasury, is final, and can not be reviewed by any court.</p> <p>Same.—Appeal.—Parties.—Case Overruled.—The board of commissioners is not a proper party to an appeal from an order of such board, establishing or refusing to establish a public highway, whether the question' of damages claimed by a remonstrant is or is not in issue. Wright v. Wells, 27 Ind. 65, overruled.</p> <p>Same.—Order of Circuit Court for Payment of Damages.—Where, on appeal of such proceedings to the circuit court, there is a finding that the proposed highway is of public utility, and damages are assessed in favor of a remonstrant, it is not error in the court to order, that, within a specified time, either the board of commissioners, or the petitioners, at their option, may pay such assessment.</p> <p>Same.—Two Appeals in one Cause.—Practice.—Where, in such proceeding, two appeals are taken by a remonstrant to the circuit court, one from an order of the board locating the highway, and the other from an order of such board approving the report of reviewers, that such remonstrant is entitled to no damages, they should be consolidated on motion, as constituting but one cause.</p> <p>Same.—Costs.—Assessment of.—Where, on the trial of such cause, there is a finding establishing such highway, but allowing damages therefor to such remonstrant, the costs accruing from the trial of. the former issue should be assessed against such remonstrant, and that accruing upon the latter,against the petitioners.</p> <p>Same.—Supreme Court.—Becord.—Where, on appeal to the Supreme Court,' the record does not show the proportion of the costs accruing from each of such issues, it will be presumed that the judgment of the circuit court, assessing such costs, is right.</p>

<p>Cities and. Towns.—Donation to Railroad.—Statute Construed.—The provisions of the act of May 4th, 1869, (1 R. S. 1876, p. 299,) “to enable cities to aid in the construction of railroads,” etc., authorize a city incorporated under the general law of this State to extend such aid, in the construction of a railroad, in either of two ways, viz.: first, by subscribing to the stock of such enterpriseor, second, by making a donation thereto.</p> <p>Same.—The term “donation,” as used in such act, means an absolute gift or grant of a thing, without any condition or consideration.</p> <p>Same.—Contract.—The provisions of such act do not authorize a city to make a contract to aid a railroad company to construct its road, by delivering to it a certain sum in money or bonds, in consideration of the agreement of such company to erect and maintain its machine shops in or near such city, or, on its failure so to do, to reimburse such city in such sum.</p> <p>Same.—Petition to Common Council.—Ordinance of.—Surplusage.—Pleading.— Bond.—Evidence.—Agreed Statement of Facts.—A majority of the resident freeholders of a city petitioned its common council to aid a railroad company in the construction of its line of road, by issuing and donating to it a certain sum in bonds of such city, in “ consideration that said ” company should “permanently locate and maintain” its machine shops in or adjacent to such city, “and, on failure so to do,” reimburse such city in such sum ; and thereupon such common council adopted an ordinance, providing for the issue and delivery of such bonds to such company, upon its first executing and delivering to such city a bond, in a certain amount, with surety subject to the approval of the common council, conditioned for the reimbursement of such sum, upon its failure to so erect and maintain such shops. The railroad company, having constructed its line of road, brought an action against such city to compel her officers to issue and deliver such bonds to the plaintiff.</p> <p>Held, that such petition, and the ordinance founded thereon, are unauthorized by law and void.</p> <p>Held, also, that the clause of such petition requiring the erection and maintenance of such shops can not be treated as surplusage, but renders the petition illegal as a whole.</p> <p>Held, also, that the complaint of the company is insufficient on demurrer.</p> <p>Held, also, that an answer averring the failure of the plaintiff to file its bond is a sufficient answer to such complaint.</p> <p>Held, also, that the fact that the word “condition,” instead of the word “consideration,” as used in such petition, was used in the agreed statement of facts upon which the cause was submitted for trial, does not cure the petition.</p> <p>Held, also, that such petition is not cured by the fact that its terms are more favorable than was authorized by the statute.</p> <p>Same.—A statute which grants to a city rights and powers unknown to the common law should he strictly construed.</p>

<p>Negligence.—Malpractice.—Physicians and surgeons are bound to possess and exercise at least the average degree of skill possessed and exercised by the members of their professions in such localities generally as those in which they practice; and, in an action against a physician or surgeon for unskilful practice, it is error to instruct the jury, that, if a physician or surgeon has exercised such a degree of skill as is ordinarily exercised in his profession in the particular locality in which he practises, it will be sufficient.</p> <p>Same.—In such an action, an allegation, that an injury complained of was occasioned by the want of professional skill and care of the defendant, is not sustained, if it be proved that the negligence of the plaintiff directly contributed to produce the injury; but proof of the commission by the defendant of an injury complained of is piima facie proof of negligence or unskilfulness, and the defendant must then show that the injury was the result of inevitable accident, or was occasioned by negligence of the plaintiff.</p> <p>Same.—Operation by Surgeon at Request of Plaintiff.—Instruction to Jury.— Where, in such an action, there was evidence tending to prove that the plaintiff, a man of mature age, whose arm had been broken and set, some weeks afterward repeatedly requested the defendant, a physician and surgeon, to re-break and reset it, and that the defendant advised against it, and that the arm was re-broken by the defendant at the sole instance of the plaintiff, and against the advice of the defendant, it was error to instruct the jury, without qualification, that the defendant ought not to have performed the operation, if it was unreasonable and would necessarily result in injury to the plaintiff.</p>

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

<p>Practice.—Motion to Strike Out.—The action of a court in overruling a motion to strike out a portion of a pleading, though such motion he in writing, can not be presented to the Supreme Court without a bill of exceptions.</p> <p>Same.—Surplusage.—The overruling of a motion to strike out surplusage in a pleading can not be a substantial error, that will reverse a judgment.</p> <p>Railroad.—Negligence.—Injury to Employee.— Youth of Employee.—In an action against a railway company for damages occasioned by an injury to an employee who was a minor, while in the performance of his duties as a servant of the defendant, such employee can be held to no higher degree of intelligence and capacity than his youth, inexperience and want of judgment, as knowm to his employer, would warrant.</p> <p>Same.—Must Use the Best Cars.—It is negligence for a railway company to use cars dangerous in their construction, when there are others to be procured which are not dangerous, and railroad companies are bound to procure the best, otherwise they will be held responsible.</p> <p>Same.—Employment of Inexperienced Person.—It is a fact tending to show gross negligence in a railway company for it to employ an inexperienced person in any hazardous and dangerous business, knowing such person to be ignorant of the business for which he is employed, unless said company make known and explain fully the hazard and danger'connected with such business, and instruct such person how to avoid the danger ; and youth is an evidence of inexperience, and greater strictness of the rule should be required in the employment of minors than of persons of mature, years, even when employed By and with the consent pf the parent or guardian.</p> <p>Same.— Use, without Ownership, of Defective Car.—The use and employment of unsafe and defective cars and machinery by a railway company, whether owned by such company or not, subjects such company to the same liability for injury resulting from their use, where injury is occasioned by such defects, as though such company were the absolute owner of such cars and machinery. It is the imperative duty of railway companies to adopt and use all improvements in cars and machinery calculated to insure safety to employees and passengers, and to discard all insecure and dangerous cars and machinery, or such parts thereof as may be dangerous to use.</p> <p>Same.—Defective Machinery.—If one employed by a railway company be injured in the performance of his employment, and the company might have known his exposure but for its own want of ordinary care in the use of defective machinery or rolling stock, if the injury resulted from the defective construction of such machinery or rolling stock, such company will be liable for the injury, unless it resulted from the negligence or want of care of the injured.person.</p>

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

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

<p>Statute op Fbauds.—Entirely of Contract.—Contract in Contemplation of Marriage.—Contract for Sale of Real Estate.—A man and woman, each owning real estate and personal property, intermarried, and before their marriage, and in contemplation thereof, it was mutually agreed between them by parol, that upon the death of either of them after marriage the survivor should not claim any of the real estate or persona] property which might be owned by the decedent at the time of death.</p> <p>Held, in an action brought by said woman, after the death of her said husband, against the administrator of his estate, to recover the five hundred dollars allowed to a widow by statute out of her deceased husband’s estate, that said contract was not within the provision of the statute of frauds prohibiting an action to charge any person upon any agreement or promise made in consideration of marriage, unless in writing; but that, so far as said agreement related to real estate, it was within the clause of the statute of frauds which prohibits an action upon a contract not in writing for the sale of real estate, etc.; and that said contract was not severable, and, therefore, it could not be enforced against said widow in said action.</p>

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

<p>Practice.—Appeal.—Demurrer.—Where, after the overruling of a demurrer to a complaint, an amended complaint is filed, upon which the cause is tried, the ruling on said demurrer can not he available as error on appeal.</p> <p>Same.—Motion to Dismiss.—There can be no available error in overruling a motion by the defendant to dismiss a complaint, where no cause of dismissal is specified in the motion.</p> <p>Administrator.—Purchase of Land by, at Sheriff’s Sale. —Suit against Tenant fo>' Use and Occupation.—Certain land was sold on execution, procured by an administrator upon the revivor of a judgment in favor of his decedent, in March. 1873, and the sheriff’s certificate of sale was then given to the purchaser, he being said administrator, who obtained the sheriff’s deed thereunder in November, 1874. Suit by said purchaser for rent of said land for the year 1874, against a tenant of the execution defendant, who, in September, 1873, had rented said land till March, 1875, to said tenant and taken his notes for the rent, which notes were not due at the timé of trial of said suit, said purchaser having on the 1st of March, 1874, notified said tenant, then in possession, of said purchase, and that he should pay rent to said purchaser, and not to said execution defendant;</p> <p>Held, that said purchase by said administrator was not void; the purchaser might be treated as a trustee, and the cestui que trust might avoid the sale, or let it stand and cause the purchaser to convey the title to the cestui que trust; but, in said suit for rent against said tenant, the defendant could not dispute the plaintiff’s title.</p>

<p>CiiiMjjsrAi Law.—Malicious Trespass.—Evidence.—Where, on the trial of an indictment against A. for malicious trespass in the shooting of B.’s dog, the evidence tended to show that the dog, at the time of the shooting, was chasing A.’s sheep; that A. did not know it was B.’s dog; that soon after learning that fact A. offered to pay B. for the injury a certain sum, which was declined as being too small; and that A. was a man of good character;</p> <p>Held, that there was no evidence of malice, and therefore there could be no conviction.</p> <p>Same.—In such cases, the distinction between trespass and malicious trespass must be carefully observed.</p>

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

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

<p>Front the Hamilton Circuit Court.'</p>

<p>Statute op Frauds.—Fraud.—The statute of frauds can not he used as a cover to protect the perpetration of a fraud.</p> <p>Same.—Parol Contract for Conveyance of Land.—Specific Performance.—Principal and Surety.—To secure his surety, a defaulting administrator and his wife conveyed to the former certain tracts of real estate, in consideration of the verbal promise of such surety to pay a certain amount of such defalcation, and to reconvey one of such tracts of land to such wife.</p> <p>Held, in an action by such wife and her husband, against such surety, to compel the latter to make such reconveyance, that such contract is not void by the statute of frauds, and that specific performance thereof can be enforced.</p> <p>Same.—Practice.—Pleading Struck Out.—Counter-Claim.—Pleading.—In such action, an answer by the defendant consisting of a general denial and special paragraphs was struck out by the court, on motion.</p> <p>Held, that such action was erroneous.</p> <p>Held, also, that a counter-claim is proper in such action, alleging that such land had been purchased by such surety at a certain price, and that he had been compelled to pay, of the debts and defalcation of his principal, an amount exceeding the value of such land.</p>

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

<p>Criminal Law.—Arrest of Judgment.—Grand Jury.—Alleged irregularity in the selection or empanelling of a grand jury is not ground for a motion in arrest of judgment upon an indictment found and returned by such grand jury.</p> <p>Same.—Indictment.—Murder in First Degree.—An indictment for murder in the first degree charged, that, on, etc., at, etc., the defendant “did then and there unlawfully, feloniously, purposely, and with premeditated malice, kill and murder” one A. B., “by then and there feloniously, purposely, and with premeditated malice, shooting and mortally wounding the body and person of said” A. B., “with a gun loaded with gun-powder and leaden balls, which he,” the defendant, “then and there in his hands had and held,” etc.</p> <p>Held, on motion in arrest, that the indictment is sufficient.</p> <p>Same.— Witness.—Credibility of.■—Instruction to Jwy.—Defendant's Testimony.—On the trial of a cause wherein the defendant testifies as a witness in his own behalf, it is error in the court to instruct the jury, in relation to the credibility of such witness, that “one interested will not usually be as honest and candid as one not so.”</p>

<p>Pbactice.—Motion to Strike Out.—Bill of Exceptions.—The action of a court in overruling a motion to strike out a portion of a pleading will not be considered by the Supreme Court, when neither the motion, the decision of the court thereon, nor an exception thereto is made part of the record by a proper bill of exceptions.</p> <p>Evidence.—Trespass.—Proof of Title.—Where, on the trial of an action for trespass on land, wherein the complaint alleges fee-simple title in the plaintiff to the locus in quo, without alleging his possession, the plaintiff, by deed, shows title in a third person, he can not prove fee-simple title in himself, without which proof he can not recover, except by the production in evidence of the proper title deeds.</p> <p>Same.—Constructive Possession.—Simple proof of the plaintiff’s title to the locus in quo draws after it a constructive possession, sufficient to enable him, in the absence of evidence of an adverse possession thereof, to recover for a trespass thereon.</p> <p>Same.—Instruction to Jury.—Assuming Fact.—On the trial of such action, in giving an instruction to the jury in relation to evidence introduced of the plaintiff’s title to the locus in quo, it is error in the court to assume therein that parol evidence of such fact had been given without objection thereto by the defendant, and to instruct them that such evidence, so given, is sufficient.</p> <p>Same. —Possession of Locus in Quo in Stranger.—Contract of Sole.—Where, in such case, there is evidence tending to show, that, prior to the commission of the trespass alleged, the plaintiff had delivered possession of the locus in quo to a third person, pursuant to a contract of sale of the same by the former to the latter, it is error in the court to refuse to instruct the jury, that, if such possession was delivered pursuant to a contract of sale, evidenced by a written memorandum thereof, and such sale had not been rescinded, the plaintiff could not recover.</p>

<p>Pleading.—Complaint on Promissory Note.—Sufficiency of.—Failure to File Copy.— Verdict.—Supreme Court.—In an action upon a promissory note, a failure to file a copy thereof with the complaint is ground for demurrer; but, if no demurrer therefor be filed, such defect will be healed by the verdict, and the sufficiency of the complaint can not, for that defect, be called in question, on appeal to the Supreme Court.</p>

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

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

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

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

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

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

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