Volume 57 — Indiana Reports

<p>Bastardy.—Compromise of Prosecution.—Entry of.—Attorney.—Authority of Pevohed by Client’s Death.—Where, pending a prosecution for bastardy, the defendant paid the prosecuting witness a certain sum of money in satisfaction of her claim on account of the support of the bastard child, and the prosecuting witness thereupon signed a written statement that provision to her satisfaction had been made for the support of said child, ' in said sum paid her by the defendant, and that she thereby released him from all claim, etc., which statement was placed in the hands of her attorney, with instruction to appear for her and file it in open court, admitting that she had received from the defendant full provision for the support of said child, to her satisfaction, and with the instruction, and upon the agreement of the parties, that said attorney should cause the prosecution to be dismissed; and said attorney afterward filed said statement in open court and moved that the cause be dismissed, but action by the court was postponed for the personal presence of the prosecuting witness, who died before further steps were taken, and after her death said child prosecuted the action by guardian ad litem, ;</p> <p>Held, that, no admission of the prosecuting witness, or finding of the court, that provision had been made for the support of the child, having been entered of record, and no motion for the entry of record of such admission having been made, in the lifetime of the prosecuting witness, the statute (2 E. S. 1876, p. 660, sec. 17) was not complied with, and that these facts could not constitute a sufficient answer to the action in favor of said child.</p> <p>Held, also, that, by the death of the relatrix, the authority of her attorney to act for her ceased.</p> <p>Evidence.—Cross-Examination.—Testimony, on Former Trial, of Witness since Deceased.—On the trial of an action which had been tried once before, a person, testifying for the defendant as to the testimony, on the former tria,!, of a witness since deceased, stated that said deceased witness had testified to certain facts, and had not been cross-examined. The plaintiff, in rebuttal, introduced a witness, who testified that he had heard the testimony, on the former trial, of said deceased witness, related some of his testimony, and stated that he testified to other matters and was cross-examined. On cross-examination by the defendant of this rebutting witness, he was asked to state all that said deceased witness had testified to on said former trial.</p> <p>Held, that it was error to sustain an objection to this question.</p> <p>Same.—It is error to'deny a party the right, in cross-examining his adversary’s witness, to propound a question within the limits of proper cross-examination, though the party asking the question does not state what he expects to prove by the answer.</p>

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

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

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

<p>Pleading.—Complaint.—Names of Parties.—Omission Cured by Answer.—Decedents’ Estates.—Justice of the Peace.—A complaint filed in the court of a justice of the peace, by the administrator of a decedent’s estate, set out the initials only of the plaintiif’s Christian name; but the defendant, in a written answer by him filed, set out the full names of all the parties.</p> <p>Held, that the complaint was defective, but that such defect was cured by the answer.</p> <p>Same.—Bill of Particulars.—Where, in such action, the complaint professes, but fails, to set out a bill of particulars of an account, on which the action is brought, it is insufficient.</p>

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

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

<p>.Cbeminai, Law.—New Trial.—Newly-Discovered Evidence.—Cumulative.—A new trial will not be granted on account of newly-discovered evidence which is merely cumulative.</p> <p>Same.-—-Prosecuting Attorney.— Witness'.—It is not the duty of a prosecuting attorney, engaged in the prosecution of a person charged with a crime, to produce at the trial all the witnesses present at the commission of the crime.</p> <p>'Same.—-Jury.—Special Jury.—Where, on the calling of a cause for trial, the regular jury of the term is out considering upon their verdict in another cause, which has been submitted to them, the court may, even over the objection of the defendant, empanel a special jury.</p>

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

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

<p>Decedents’ Estates.—Real Estate.—Executor and Administrador.—Descents. — Wills.—As a general rule, real estate, on the death of the owner, passes to the heir or devisee, and the administrator or executor has no power over it, except that given by the statute or the will.</p> <p>Same.—Conveyance by Executor.—Release.—Tort.—Railroad Company.—Action by Devisee against Executor.—An executor has no power, as such, to execute to a railroad ■ company a release to a right of way over lands .belonging to his testator’s estate, and can not be held liable, as such, for money received by him for such release, in an action against him by the devisee.</p> <p>Same.—Assets.—Money so received by an executor is no part of the assets of such estate.</p>

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

<p>Pbaoetce.—Evidence.—Order of Introducing.—Foreign Judgment.—Statute of Foreign State.—On the trial in the circuit court of an action upon an account, commenced before a justice of the peace, the defendant, on the close of the plaintiff’s evidence in chief, offered in evidence a transcript of garnishment proceedings before a justice of the peace of a foreign state, showing a judgment against the defendant at the suit of a creditor of the plaintiff, and that the amount thereof had been paid into court by the defendant, appropriated, etc., but, on objection, it was unconditionally excluded.</p> <p>jHeld, that such ruling was erroneous.</p> <p>Held, also, that the evidence should have been admitted, upon condition that proof would be introduced that the law of such state conferred upon the justice jurisdiction to render such judgment.</p>

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

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

<p>'Supreme Court.—Practice.—JMience.—Where, on appeal to the Supreme Court, a fact essential to the validity of the finding may be fairly inferred from the evidence, the finding will not be disturbed merely because such fact was not distinctly proved.</p>

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

<p>Contract.—Landlord and Tenant.—Occupancy by Trespasser.—Ejectment.— During the occupancy of certain real estate by a trespasser, he was notified by the owner, that the rent therefor was a certain sum per annum, which would be demanded as a condition for its further occupancy, but the former, refusing to agree to pay such rent, as being too much, but promising to “make it right,” continued his occupancy, though the owner, from month to month, made out and presented bills at a pro rata amount of the whole rent demanded, payment of which was refused.</p> <p>Held, in an action for rent, that no express contract for the payment of such-sum arose out of such notice, demand and occupancy.</p> <p>Held, also, that, during the whole of such occupancy, the defendant was a mere trespasser, liable to be ejected as such at any time.</p>

<p>Liquor Law.—Sale.—A person, having no license, who sells intoxicating liquor in quantities of a quart or more at a time, separating that sold from the bulk out of which it is drawn, is not liable to a prosecution therefor, though the same be not then paid for by the purchaser, but charged as a sale on account, and though the purchaser take away less than a quart, leaving the remainder, so separated, subject to his order.</p> <p>Same.—Motive.—Evasion of Law.—The vendor, in such case, is not punishable, whatever may have been his motive or purpose in making the sale.</p>

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

<p>Cities and Towns.—Ordinance.—Pedler.—Under the provisions of specification 23 of section 53 of the act of March 14th, 1867, (1 B. S. 1876, p. 267,) for the incorporation of cities, a city of this State, organized under such act, has the power to adopt an ordinance restraining any person from peddling within her limits without having a license so to do, and prescribing a punishment for its violation.</p> <p>Same.—Constitutional Law.—Such ordinance violates no provision of either the state or federal Constitution.</p> <p>Same.—Action for Violating.—Heading.—A complaint for a violation of a city ordinance need not set out a copy thereof, it being sufficient to refer therein to the number of the section of the ordinance alleged to have been violated.</p>

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

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

<p>Pleadmg.—Turnpike.—Action for Damages.—Notice.—Negligence.—Contributory Negligence.—In an action against a turnpike company, to recover damages for an injury received by tbe plaintiff while travelling on the road of the defendant, alleged to have been caused by a defect in such road, which, as alleged, the defendant had negligently suffered and permitted to become and remain out of repair, the facts alleged in the complaint showed, that, prior to travelling over such road and receiving such injury, the plaintiff had notice of such defect.</p> <p>Held, on demurrer, that the complaint is insufficient, the allegations thereof showing the plaintiff to have been guilty of contributory negligence.</p> <p>Same.—Evidence.—On the trial of such action, the evidence showed, that the plaintiff, with notice of such defect, and with an opportunity to liave avoided injury by travelling upon another and equally convenient road, had passed over the road of the defendant, merely because he preferred so to do, and had been injured in so doing, by reason of such defect.</p> <p>Held, that he was guilty of contributory negligence, and can not recover.</p> <p>Same.—Practice.—Pleading.—In such an action, facts tending to establish contributory negligence on the part of the defendant are admissible in evidence under the general denial, without being specially pleaded.</p>

<p>Instruction to Jury.—New Trial.—Practice—Assignment of Error.—Supreme Court.—Error in giving or refusing instructions to the jury is ground for a new trial, but can not be independently assigned, as such, on appeal to the Supreme Court.</p> <p>Contract.—Party- Wall.— Verdict.—Special Finding.—Interrogatory to Jury.— On the trial of an action by A., against B., owners of adjoining lands, to recover one-half of the value of a party-wall erected by the former, on an alleged promise by the latter to pay for the same as soon as his half should be used in erecting a building, the jury found, generally, for the plaintiff, and, specially, that the defendant had consented to allow the plaintiff to erect such wall, on condition that the half erected on the defendant’s premises should be paid for by the person who should thereafter use such wall, and that such use had been made by a person to whom such premises had been conveyed by the defendant.</p> <p>Held, that, on the special finding of the jury, the defendant is entitled to judgment notwithstanding the general verdict.</p>

<p>'Congressional School Lands.—Assessment of Taxes.—Refunding Taxes.— Repeal of Statute.— Vested Right.-—Gommon Law.—Glause Saving Pending Actions.—Payment.—Prior to the taking effect of the act of February 8th, 1877, (Acts 1877, Reg. Sess., p. 139,) “declaring school lands. taxable after they have been sold and before deed is made,” etc., an owner of ■certain of such lands filed his petition before the proper board of commissioners, asking the refunding of certain taxes paid thereon by him, .alleged to have been assessed while held by a certificate of purchase, ¡and before the same had been conveyed by deed. After such act had taken effect, on appeal to the circuit court, upon a special finding of the facts, in accord with the allegations of the petition, and as a conclusion of law thereon, judgment was rendered in favor of the petitioner.</p> <p>Held, that taxes voluntarily paid are not recoverable, except by statute.</p> <p>Held, also, that where a right of action, not existing at common law, is given by statute, a repeal of the same by another statute, containing no clause saving pending actions, takes away such right of action, in all such causes which have not proceeded to final judgment.</p> <p>Held, also, that, prior to the taking effect of such statute of February 8th, 1877, such action could have been maintained under the provisions of the act of March 2d, 1853, (1 6. & EL, p. 110,) “in relation to the refunding of taxes wrongfully assessed and collected.”</p> <p>Held, also, that the act of March 2d, 1853, so far as it authorized the refunding of illegal taxes on school lands, is repealed by the act of February 8 th, 1877.</p>

<p>Cbimmae Law.—Juror.—Competency.—Opinion.—Challenge.—In criminal causes in this State, it is the general rule, in relation to a challenge of a juror by the defendant for cause, that an opinion formed by the juror as to the guilt or innocence of the accused, based solely upon a newspaper account of the alleged crime, and which, in the belief of the juror, will not have any influence upon him in the trial of the cause, is not sufficient ground for challenge.</p> <p>¡Same.—Larceny.—Instruction to Jury.—On the trial of a defendant charged with larceny, the court instructed the jury, that, if the defendant snatched the property, alleged to have been stolen, from the hand of the owner, and retained it without the consent of the latter, this constituted larceny.</p> <p>Held, that the instruction is erroneous.</p> <p>Held, also, that, to constitute larceny,, the taking must be with a felonious intent, existing at the time.</p>

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

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

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

<p><3keminal Raw.—Fornication.—Indictment.—Statute of Limitations.—Concealment of Offence.—Statute Construed.—An indictment for open and notorious fornication alleged that the defendant, during a time specified, more than two years prior to the finding of the indictment, had openly lived and cohabited with a certain unmarried woman, and had “concealed the fact of said crime until,” etc., “by publicly acknowledging and claiming the said” woman “to be his wife.”</p> <p>Meld, that the indictment is insufficient, the alleged concealment not being of the fact of the crime charged.</p> <p>Meld, also, that the mere denial, by the defendant, of having committed a crime charged, is not such a “concealment” as is contemplated by section 13 (2 R. S. 1876, p. 374,) of the act in relation to criminal pleading .and .practice.</p>

<p>Evidence.— Weight of.— Witness.—Supreme Court.—Courts ought not, as a ¥ rule, to weigh the evidence produced by the respective parties to a cause on trial, merely by the number of witnesses who may testify for each, but must determine which are the more worthy of belief; and; where the evidence is conflicting, such decision will not be disturbed by the Supreme Court on appeal.</p> <p>Same.—Parol Evidence of Contents of Writing Destroyed.—Parol evidence may be given of the contents of an instrument which has been destroyed, . whether such destruction was done purposely, by accident, or by mistake.</p> <p>Same.—Fraud.—"Where such destruction was done purposely, and apparently with a fraudulent design, parol evidence of its contents will not be permitted, without first introducing evidence rebutting the presumption of fraud.</p>

<p>'Cbiminai, Law.—Fish Law.—Affidavit.—An affidavit filed before a justice of the peace charged, that, “on or about” a certain day in April, in a certain year, at a certain county in this State, the defendant “did then and there unlawfully take one fish, with a spear, in and from” a certain river.</p> <p>Held, that the affidavit is sufficient.</p> <p>¡Same.—Constitutional Law.—The act of February 22d, 1871, (2 R. S. 1876, p. 481,) “for the protection of fish,” etc., is constitutional.</p>

<p>Supbeme Coubt.—Assignment of Error.—New Trial.—Practice.—An assignment as error of a ruling which is merely cause for a new trial, presents no question to the Supreme Court, bn appeal.</p> <p>Same,—Every cause for a new trial, properly assigned in the motion therefor, is brought before the Supreme Court for review, by an assignment as error of the ruling of the lower court on such motion.</p> <p>New Tbial.—Motion.—Evidence.—Practice.—A motion for a new trial, based upon the alleged erroneous admission or exclusion of evidence,, must clearly specify the evidence in question.</p> <p>Same.—Instruction to Jury.—A motion for a new trial, based upon the alleged erroneous giving or refusal of an instruction to the jury, must clearly specify the instruction in question.</p> <p>Stjpbeme Court.—Verdict.— Weight of Evidence.—Practice.—A verdict will not be disturbed by the Supreme Court, on appeal, where there is evidence tending to support it.</p>

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

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

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

<p>County Glekk.—Partition.—Personal Liability for Money Received Without Official Authority.—Payment.—Where a commissioner appointed by a court makes sale of real estate involved in a partition suit, and pays the proceeds thereof over to the clerk of such court for distribution to the parties interested, any one of the latter may maintain an action against such clerk personally, as for money had and received, for the portion due him as specified in the decree of partition, and an over-payment, out of' such proceeds, to another of such parties, is no defence in such action.</p> <p>Sdpbeme Coubt.—New Trial.—Excessive Damages.—Practice.—Where excessive damages is not assigned as cause in a motion for a new trial, the Supreme Court, on appeal, will not disturb the judgment, though it appear from the evidence that the damages assessed were excessive.</p>

<p>CrminAx Law.—Forgery.—Indictment.-—Name.—Arrest of Judgment.—An indictment for forgery charged the defendant with having uttered and published “as true, to one” A. 33., “a certain false, forged and counterfeit promissory note for the payment of money,” setting out a copy of a promissory note, payable to the defendant and purporting to be executed by one “‘S. 33. Skiner,’ with intent to defraud one Solomon B. Skinner,” etc.</p> <p>Held, that it should have been alleged, and can not be inferred, that the person by whom such instrument purports to have been executed is the same person as the one whom it is alleged it was intended to defrau i, and that the indictment is therefore insufficient on motion in arrest.</p> <p>Same.—Intent.—Whether an indictment for forgery is for committing the original forgery, or for uttering the forged paper as true, the intent may he laid to be to defraud the person whose name has been forged.</p>

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

<p>Trincipad and Surety.—Delivery Bond.—Action.—Sale of Swrety’s Property. —Where the real estate of the surety has been levied upon and sold at sheriff’s sale, on an execution issued upon a judgment rendered against the principal and surety in a delivery bond, in an action thereon for a breach of its condition, the latter may, in an action against the former, recover as for money paid to his use.</p>

<p>City.—Donation to JRailroad.—Petition for.-—Pleading.—Mandamus.—Power of Common Council.-—Interest.—Statute Construed.—In an action by the State, on the relation of the president of a railroad company, against the mayor and common council of a city, for a mandate compelling the-issue and delivery to such company of a certain amount in bonds of such-city, the complaint alleged, that a petition was presented to the defendants by a majority of the resident freeholders of such city, representing-that such company had been organized for the purpose of constructing a railroad from a certain point to such city, and asking the common council “to make a donation to said company of” a sum specified, to aid “in-the construction of the said railroad, to be paid in the bonds of said city,, within such time, and at such rate of interest, as” the common council should “deem proper,” etc.; that, upon the report of a committee of the-common council, that a majority of such freeholders had signed the petition, but without adopting such report, a resolution was adopted by the common council, declaring that such donation should be made, and directing that an ordinance making the same should be prepared ; that such ordinance had been defeated; and that such railroad had been completed. A copy of the petition, and also of the proceedings of the council, were made exhibits.</p> <p>Held, on demurrer, that such copies constitute no part of the complaint, but, having been treated as part thereof by the court below, may be so treated by the Supreme Court, on appeal.</p> <p>Held, also, that the complaint is sufficient as presenting prima fade ground for issuing the writ of mandate demanded.</p> <p>Held, also, that, under section 60 of the act of March 14th, 1867, (1 B. S. 1876, p. 267,) authorizing the incorporation of cities,, etc.,, a writ of mandate is the only proper remedy in such case.</p> <p>Held, also, that the petition sufficiently describes the point to which the-road was to be completed.</p> <p>Held, also, no terms upon which such bonds should issue, and no rate of interest thereon, having been specified in the petition, it may be construed as asking the issue of a single bond for the whole amount, without interest, the council having no power to fix a rate of interest.</p> <p>Same.—Interest of Councilman in.Donation.—Defence.—The fact, that at the-time such petition was presented, and thence until the commencement of the action for a mandate, one of the members of the common council had been a stockholder, director and officer of such railroad company, did not disqualify him to act upon the petition, or the common, council to pass an ordinance making the donation, and constitutes no defence to the action.</p> <p>Same.—Estoppel.—Legality of Petition.—The action of the common council, in adopting a resolution declaring that the donation petitioned for should be made, does not estop the defendants, in such action, from denying that such petition had been signed by a majority of the resident freeholders.</p> <p>Same.—Pleading.—An answer in such action, alleging that such petition-had not been signed by a majority of the resident freeholders of the city, is sufficient on demurrer.</p> <p>Same.—Statute Construed.—City of Hokomo.— Curative Act.—The act of' March 8th, 1875, (Acts 1875, Keg. Sess., p. 92,) legalizing certain acts of the common council of the city of Kokomo, does not apply in this action.</p> <p>Same.—Consideration for Donation.—Where, in such action, the petition for the donation shows that the railroad is not yet-completed, and the donation is asked because the construction of such railroad will enhance the value of the property of the petitioners, an answer alleging a want of con- ■ sideration for such donation is insufficient.</p> <p>Same.—Fraud in Procuring Signatures.—Remonstrance.—'-Signing in Blank.— Principal and Agent.—The defendant in such action answered, that the signatures to such petition had been procured by fraud, in that the petition had been signed in blank as to the amount to be donated, upon the representation of the person circulating the petition for signatures, that the blank would be filled by inserting an amount much less than had been afterward actually inserted.</p> <p>Held, on demurrer, that the answer is insufficient. .</p> <p>Held, also, that such objection should have been presented to the common council by remonstrance.</p> <p>Held, also, there being no averment in the answer that such representation had been relied on, that petitioners, by so signing in blank, conferred upon the person to whom the petition was by them entrusted an implied authority to fill such blank.</p> <p>Held, also, that, under such petition the city would be entitled to receive no stock in such company, and thex-efore that false representations as to the amount of stock to be received by the city were immaterial.</p>

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

<p>Liquob Law.—Act of 1873.—Section 12.—Constitutional Law.—Section 12 of the act-of February 27th, 1873, (Acts 1873, p. 151,) regulating the sale of intoxicating liquors, etc., in so far as it gave a right of action to any one injured in person or property by an intoxicated person, against the person causing the intoxication, was constitutional.</p> <p>Same.—License.—A person licensed under the provisions of such act took his license subject to all the restrictions and burdens imposed by such section.</p> <p>Bill oe Exceptions.—Practice.—Supreme Court.—A bill of exceptions filed after the expiration of the time granted therefor forms no part of the record on appeal to the Supreme Court.</p>

<p>Pleading.—Practice,—Demurrer for Misjoinder of Causes of Action.—Supreme Com-t.—No judgment can be reversed for error committed in either sustaining or overruling a demurrer for misjoinder of causes of action.</p> <p>Same.—Action Against Several Parties.—Sufficient as to One.—Joint Demurrer by All.—If a complaint against two or more defendants state facts constituting a good cause of action against any one of them, a joint demurrer by all, for want of sufficient facts, should be overruled.</p> <p>•Same.—Erroneous Judgment.—How Objected to.—Where, by the complaint, the plaintiff is entitled to some kind of relief or judgment against a defendant, but the court renders a judgment different from, or beyond, that authorized by the complaint, the defendant may avail himself of the error, by objecting and excepting to the judgment as rendered.</p> <p>Mechanics’ Liens.—Repairs.—-New Building.—Action to Enforce.—Contract. — Mechanic Employed by Tenant.—Inability of Landlord.—Notice of Lien.— In an action by a mechanic, against the owner of certain separate tracts of real estate and his tenant, to recover for the vai ue of labor performed by the plaintiff, in repairing one, and in erecting another, building on such realty, and to enforce a mechanic’s lien, the complaint alleged that the defendants were “indebted to him” for the value of such labor ; that it had been performed at the request of the tenant; that the landlord “was aware of and consented to” the making of such improvements; that the same were made while the premises were occupied, “free of rent,” by the tenant, who was then and there engaged in his individual business ; that the tenant, “ with the knowledge, consent and assistance ■of” the landlord, was making improvements on such premises; that plaintiff’s labor had been performed as a necessary part thereof; and 'that the plaintiff had filed for record a notice of his intention to hold a lien on the whole of such realty, for the entire value of such labor.</p> <p>Held, on joint demurrer, that though the cause of action stated in the complaint is only sufficient to authorize a personal judgment against the tenant, the demurrer should be overruled.</p> <p>Held, also, on separate demurrer by the owner, that, on the facts stated in the complaint, he is not personally liable.</p> <p>Held, also, that, on the facts stated, a mechanic’s lien against such realty can not be enforced.</p> <p>Held., also, that the notice of such intended lien is insufficient.</p> <p>Held, also, that, by section 648, (2 E. S. 1876, p. 267,) concerning mechanics’ liens, a mechanic’s lien can not be acquired, as against the owner of real estate, for repairs made by the mechanic, on a contract with the tenant.</p> <p>Held, also, that a lien for the total value of such repairs and the labor on such new building can not be enforced against such buildings, either separately or jointly.</p> <p>Witness.—Impeachment of.—Statements out of Court.—Emdence.—On the trial of an action to recover for services alleged to have been performed by the plaintiff, for and at the request of the defendant, where the defence is, that such services had been performed for, and on the credit of, the defendant’s contractor, to which the latter has testified on behalf of the defendant, the plaintiff may then, after laying the proper ground, impeach such witness, by giving evidence of statements made by him, that the plaintiff had been hired by, and on the credit of, the defendant.</p>

<p>Pleading.—Practice.—A pleading, replied generally to the whole of an answer of several paragraphs, is not insufficient on demurrer merely be- ■ cause some of such paragraphs require, and admit of, no reply.</p> <p>•Promissory Note.—Alteration.—Estoppel.—Pleading.—In an action by an assignee, on a promissory note payable in a bank of this State, where the defences pleaded by the defendant maker were want of consideration, and that, after the execution of the note and before its assignment, the payee thereof, with the knowledge of the plaintiff, but without the knowledge or consent of the defendant, had procured the execution of such note by a third person, the plaintiff replied, that, before procuring such assignment to himself, he had taken such note to the defendant, who, in answer to his enquiries concerning it, informed him that he had no defence thereto, and would pay it, and that, relying upon such statements, the plaintiff had procured an assignment of the note for value.</p> <p>Held, on demurrer, that the reply is sufficient.</p> <p>Practice.—Demurrer.—Form of.—A demurrer to a reply consisting of several paragraphs, assigning that “neither of said paragraphs constitutes a . good reply to said answer,” is informal and defective, and should be overruled.</p> <p>Supreme Court.—Record.—Evidence.— Verdict.—Practice.—Where the evi- ■ dence is not in the record, on appeal to the Supreme Court, no question is presented for decision as to whether the verdict is contrary to law or to the evidence.</p> <p>New Triad.—Motion.—Cause.—Evidence.—Imtruetion to Jury.—Practice.— A motion for a new trial, based upon alleged error, in the exclusion of evidence, the giving of instructions to the jury, or of law occurring at the trial, must specify particularly the error complained of.</p> <p>Same.—Exception to Erroneous Instruction.—When Taken.—The giving of an erroneous instruction to the jury must be excepted to before the return of the verdict, to make such error available as cause for a new trial; and an omission to so except is not cured by an exception to the overruling of the motion for a new trial.</p>

<p>Redemption op Read Estate.—Sheriff’s Sale on Foreclomre of Mortgage.— Redemption by Judgment Creditor.—Real estate sold at sheriff’s sale by Tirtue of a decree of foreclosure of- a mortgage thereon, accompanied hy a personal judgment against the debtor, may be redeemed by the judgment creditor, from the purchaser, where the amount realized by such sale is insufficient to satisfy such judgment.</p>

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

<p>Mabkied Womast.—Promissory Note and Mortgage.—Equitable Assignment of.—A married -woman, with the consent of her husband, may make an •equitable assignment of a note and mortgage executed to her,by the sale and mere delivery of the same to another.</p> <p>Tbactice.—Pleading.—Defective Prayer for Relief.—How Objected to.—An objection to a defective prayer for relief must be presented, not by demurrer, but by a motion to make the pleading more specific.</p> <p>Mobtgage.—Foreclosure.—Seeord.—Supreme Court.—Where, in an action to foreclose a mortgage on real estate, judgment is rendered by default against a party made defendant to answer as to his interest in the mortgaged premises, he can not complain thereof, on appeal to the Supreme Court, if the record does not disclose that he had any interest therein.</p> <p>¿Same.—Mistake.—Action to Deform.—Presumption.—Where, in an action to ' reform and foreclose a mortgage on real estate, to which several suecessive holders, under the mortgagor, of the equity of redemption are made parties, the Supreme Court, on appeal, where the evidence is not in the record, and where, under the pleadings, all the equities between the parties might have been given in evidence, will presume in favor of the record.</p>

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

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

<p>Vendor and Purchaser.—Alienation of Real Estate.—Conveyance.—Quantity Conveyed, “More or Less.”—Representations.—Fraud.—Action for Purchase-Money.—Pleading.—In an action against the purchaser of a tract of real estate, conveyed to him hy warranty deed as containing a specified number of acres, “more or less,” to recover for purchase-money evidenced hy a promissory note, and to foreclose a mortgage given to secure its payment, it is no defence to answer, that, during the negotiations resulting in such conveyance, representations upon which the defendants relied,' and which subsequently proved to be untrue, were made by the vendor to the purchaser, that the tract so conveyed contained a certain number, of acres, unless it be also alleged that such representations were made fraudulently and with intent to deceive the purchaser.</p> <p>Same.—Assuming Encumbrance.—Payment of, by Grantor.—Action against Grantee.—Subrogation.—Foreclosure.—Judgment.— Valuation Laws.—Attor- ’ ney Fee.—Principal and, Surety-.—A tract of real estate, which was encumbered by a mortgage executed by the owner to another, to secure the payment of a promissory note for a certain sum, waiving valuation laws and stipulating for attorney fees, was conveyed by the owner to a third person by a deed, which, particularly describing such encumbrance, pro- • vided that the grantee, as part of the consideration for such conveyance, should assume and pay the same at maturity, “in accordance with the terms thereof.” Such grantee having made default in such payment; his grantor paid off the same and brought an action against the grantee to recover the same.</p> <p>Held, that the plaintiff, being himself hound for such debt to the mortgagee, by paying off the same, became subrogated to the, rights of the latter, and was entitled to a judgment for the amount of such note, waiving valuation laws and including attorney fees, and to have foreclosure of such mortgage.</p> <p>Held, also, that, as between the defendant and plaintiff, their relations became, by such contract of conveyance, that of principal and surety respectively on such debt.</p>

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

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

<p>Pbomksoby Note.—Chech—Protest.—No protest for non-payment of a check drawn upon a bank is necessary, to render the drawer liable to the payee.</p> <p>Same.—Pleading.—Copy of Protest.-—-The protest of a dishonored check is not a written instrument which can be made the basis of an action, and, in an action by the payee, against the drawer, of such check, a copy of.the protest forms no part of the complaint, and can not aid its averments.</p> <p>Same.—Action by Payee against Drawer.—Notice of Non-Payment.—If, in such action, the complaint fails to aver that the defendant has been notified of the non-payment of such instrument, or alleges no excuse for the failure to give such notice, it is insufficient on demurrer.</p> <p>Same.—Diligence.—Presentment for Payment.—The same rule applies to checks as does to bills of exchange and endorsed promissory notes, in regard to the diligence to be used in’ presenting them for payment.</p> <p>Same.—Failure to Present.—Excuse.— Verbal Agreement not to Present.—A verbal agreement between the payee and the drawer of a check, cotemporaneous with its execution and delivery, that'the former will not present it to the drawee for payment until a certain time, is a sufficient excuse for a delay until the time specified in presenting it for payment.</p> <p>Same.—Demand and Notice no part of Contract.—Remedy.—Demand for the payment of a cheek, and notice of non-payment of the same, are no part of the contract between the drawer and payee, but are steps in the legal remedy of the latter.</p>

<p>Trespass.—Trover.—Conversion of Joint Property.—One who unlawfully takes possession of personal property belonging to joint owners, and converts to his own use, and sells, the interest of either owner, without his consent, is guilty of a tort, and is liable to such owner for the value of such interest.</p>

<p>Turnpike.—Articles of Association.—Filing Copy of.—Action by Company.— P-actice.-—-Pleading.—Where the complaint in an action by a turnpike company alleges that a copy of its articles of association has been filed in the office of the recorder of the only county through which it is averred its road passes, an objection, that no such copy has been filed in the recorder’s office of another county through which, also, such road passes, must be presented, not by demurrer, but by answer.</p> <p>■Same.—Map of Route made part of Articles.—The line or route of the road of a turnpike company may be described in its articles of association by a map of such road, incorporated in such articles, showing the starting-point, line and terminus of the same.</p> <p>Same.—Action to Collect Subscription.-—Representations to Subscribers.—It is no defence to an action on a subscription of stock to a turnpike company, that the defendant was induced to make such subscription by false and fraudulent representations as to the payment of the same, made to the defendant by the person soliciting his subscription.</p> <p>Same.—Location of Turnpike on Highway.-—County Commissioners.—Pleading. —To an action to collect the last instalment of such subscription, the defendant answered, that the plaintiff had constructed its road on the line of a public highway, without having obtained the consent of the proper board of county commissioners.</p> <p>Held, on demurrer, that the answer is insufficient.</p> <p>PbACTice.—New Tried.—Objections to Evidence.—Supreme Court.—Objections to the admission of evidence given on the trial of a cause must be accompanied by a statement of the ground of objection, to render the admission of the same available as cause for a new trial, or on appeal to the Supreme Court.</p>

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

<p>Pleading.—Practice.—Motion in Arrest.—A motion in arrest of judgment for defects in a complaint reaches such only as are not cured by the finding or verdict, nor waived by failure to demur.</p> <p>Stoeeme Court.—Objections to Evidence.—New Trial.—Where the grounds of objection to the admission of alleged erroneous evidence do not appear by the record, on appeal to the Supreme Court, no question in relation thereto is presented for decision.</p> <p>Contract.—Joint and Several.—Sale of Chattels.—Interest.•—Partial Payments. —Pule.—Liquidated Damages.—A., B. and C. executed to D. a written contract for the sale and delivery to the latter, at a certain time and place, for an agreed price, of a specified quantity and quality of chattels, and containing the following conditions, viz.: “For all moneys advanced on said contract, I agree to pay ten per cent, interest. In case I fail to deliver said” chattels, “according to said contract, I bind myself and sureties to pay” to P. “five hundred dollars damages.” D. brought suit thereon against A., B. and C., alleging their failure to comply with the contract, to recover for advances made, interest thereon and damages.</p> <p>Held, that the terms of such contract are clear and definite, and that it is an obligation binding the defendants jointly and severally.</p> <p>Held, also, that, where a partial payment on an obligation is made, the interest then accrued on the principal must first he discharged, and the remainder only, if any, of such payment shall he credited on the principal ; but if such payment be less than the interest then accrued, the principal shall remain on interest until the aggregate payments made shall exceed the accrued interest.</p> <p>Held, also, that, upon failure of the defendants to deliver the chattels contracted for, the plaintiff was entitled to recover for advances made and interest thereon, and for the whole five hundred dollars as liquidated damages.</p>

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

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

<p>New Tbiai.—Cause.—Ruling on Demurrer.—Practice.—Error of tbe court in its ruling on a demurrer is not cause for a new trial.</p> <p>Same.—Record.—Supreme Court.—Evidence.—"Where the evidence is not in the record, on appeal to the Supreme Court, no question is presented as to whether the verdict is sustained by the evidence, or is contrary to law.</p>

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

<p>Judgment.—Set-off.—A judgment rendered against a defendant wiio has pleaded a set-off is one, in effect, for the amount of both judgment and set-off.</p> <p>.Supreme Court.—Jurisdiction.—Appeal.—Action Originating before Justice.— Prior to the taking effect of the act of March 14th, 1877, (Acts 1877, Spec. Sess., p. 59,) amending section 550 of the practice act, where set-off was pleaded in an action originating before a justice of the peace, the party against whom judgment was rendered might appeal to the Supreme Court, though such judgment was for less than ten dollars, if the amount of the judgment and his own claim exceeded that sum.</p> <p>Venue, Change op.—From Judge, after from County.—A party to an action is not precluded from taking a change of venue from the judge, hy the fact that he has theretofore taken a change from the county.</p>

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

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

<p>Fraudulent Conveyance.—Action to Set Aside.—Instruction to Jury.—Title-Bond.—A judgment debtor, who held a title-bond for the conveyance of certain real estate, being unable to pay the purchase-money, sold and assigned the same to another, who paid the purchase-money and received a conveyance of such realty. The judgment-creditor having instituted an action to subject such realty to the payment of his judgment, the court trying the cause instructed the jury, that, if the defendant had received such conveyance with knowledge of such judgment, thus placing property of the judgment-debtor beyond the reach of execution, that fact was a sufficient badge of fraud to infer that such sale had been fraudulent.</p> <p>Held, that the question of fraud was one for the jury alone, and that the instruction was erroneous.</p>

<p>Taxes.—Assessment of.—Action to Quiet Title.—Evidence.—Tax Deed.—Personaüyushould be first Sold.—Where a tax deed fails to show that the personal property of the delinquent had been exhausted before the sale of his real estate, or that he had no such property, such deed, unless accompanied by proper evidence of such fact, is inadmissible as evidence of title.</p> <p>Same.—Defect in Tax Deed.—Remedy of Solder.—Decree.—Where, in such action, through defects in his tax deed, the holder fails to establish his title to the real estate, he is entitled to have a decree against the realty for the amount found due him, under the provisions of section 257,1 B. S. 1876, p. 129.</p>

<p>Mortgage.—Recording Assignment.—Notice.—Prior to the taking effect of the act of March 6th, 1877, (Acts 1877, Eeg. Sess., p. 99,) which provides for recording assignments of mortgages, there was no statute requiring such record and making it notice, and therefore assignees were guilty of no laches in not recording such assignments.</p> <p>Same.—Foreclosure by Assignee.—Rights of Jmwr Mortgagee.—Pleading.— Former Adjudication.—In an action for foreclosure, prior to the taking effect of such act, hy an assignee who had not placed his assignment on record, against the mortgagee, mortgagor and a junior mortgagee, the latter answered, that theretofore, after the date of the assignment to the plaintiff, in an action hy a third person against the senior mortgagee and the mortgagor, such senior mortgage liad been adjudged satisfied, and that, relying upon such decree and without notice of the assignment to plaintiff, he had, in good faith, taken his mortgage.</p> <p>Held, on demurrer, that the answer is insufficient.</p>

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

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

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

<p>Erom the "Wells Circuit Court.</p>

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

<p>Decedents’ Estates.—Claim.—Pleading.—A plaimand succinct statement, duly verified, without the formality usual in a complaint, is all that is required in a claim filed on account against the estate of a decedent.</p> <p>Presumption.—Judgment.—Settlement.—Matters of account existing between parties prior to the rendition of a money judgment in favor of one, against the other, are presumed to have been settled before its rendition.</p> <p>Same.—Payment.—Lapse of Time.—The mere lapse of almost three years’ time from the rendition of a judgment is not ground for presuming that it has been paid.</p>

<p>Negligencee.—Parent, Wifeand Child.-—Joinder of Actions.—Pleading:-Where by means of the same negligent act of one person, bodily injuries are inflicted upon another, his wife and his minor child, resulting in the loss to him of his wife’s services, and the expenditure by him of means and labor in healing and caring for himself and his child, all constitute but a single cause of action, and may be united in a single paragraph of a complaint to recover damages, therefor.</p> <p>Same.—Action by Parent for Death of Child.—Misjoinder of Actions.—An action by the father, to recover damages for the death of his minor child, caused by the negligence of another, is statutory, and can not be joined with an action by him to recover for personal injuries received by himself, though caused by the same negligent act.</p> <p>Same.—Practice.—Motion to Separate into Paragraphs.—Where a complaint contains several causes of action, a proper motion to separate them will lie; but, if made too broad, it should be overruled.</p> <p>Same.—Sailroad.—Allegations of Negligence.—Pleading.—Demurrer.—Motion to make Specific.—In an action against a railroad company; to recover damages for injuries received by the plaintiff while travelling on the defendant’s road, alleged to have been caused by the negligence of the defendant, the complaint alleged, that, “without any fault, carelessness or negligence on his part,” etc., the car in which he was riding was, “by and through the fault, carelessness and negligence of the” defendant, her-agents and employees, thrown from the track, thereby causing the injuries complained of.</p> <p>Held, on demurrer, that the allegation of negligence is sufficient.</p> <p>Held, also, that a motion to make the complaint more specific in its allegation of negligence on the part of the defendant should have keen sustained.</p>

<p>Descents, Statute oe.—Section 7 Construed.—Widow.—Husband, cmd Wife.— Partition.—Under the provisions of section 7 (1 B. S. 1876, p. 409,) of the act of May 14th, 1852, “ regulating descents,” etc., the widow of a husband who dies intestate and without children or their descendants alive is entitled to one-third, and the donor to two-thirds, in fee, of any real estate of which the husband dies seized, and which came to him by gift or conveyance in consideration of love and affection.</p> <p>Same.—Proviso Construed.—Improvements made, and Money Expended, by Wife.—Lien for.—By the proviso of such section, it is intended that the widow of an intestate husband who has died seized of real estate so acquired shall hold a lien, not on a part, but on the whole, of such realty for the value of all improvements by her made, and for all money belonging to her separate estate by her expended in making improvements, thereon, prior to her husband’s death.</p>

<p>New TitrAX..—Is the Verdict Supported by the Evidence ?—Rule that should Govern the Circuit Court.—A motion for a new trial, upon the alleged ground that the evidence is insufficient to support the verdict, should be granted by the circuit court, unless it clearly appears that substantial justice has been done.</p> <p>Samh.—Rule Governing the Supreme Court.—Where the same question is presented to the Supreme Court, on appeal, that court should not grant a new trial, unless it clearly appears from the record that substantial justice has not been done.</p>

<p>Contract.—Lease of Minerals.—Construction of.—Pleading.—Argumentative Denial.—A. and B., partners owning a coal-mine which they had leased to C., reserving to themselves as rent a certain royalty for each bushel of coal mined by the latter, entered into an agreement, in writing, whereby A. “turned over” to B. “his one-half of coal mined” under said lease “for the consideration of” a certain sum per bushel, “bank measure,” as “royalty,” payable in instalments.</p> <p>Held, in an action by A. against B., to recover an amount alleged to be due as royalty, that the terms of such contract are clear and unamhiguous.</p> <p>Held, also, that an answer which merely alleges that a certain amount, less than that alleged in the complaint, was due to the plaintiff, and offering to allow judgment to be taken therefor, is insufficient on demurrer, and does not amount to an argumentative denial.</p> <p>Held, also, that, where the terms of a contract are plain and unambiguous, conduct of the parties in carrying out its provisions, apparently not conforming thereto, can not, in an action upon it, be so pleaded as to give to it a construction different from that warranted by its own terms.</p>

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

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

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

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

<p>Amendment.—Of Judgment.—Motion to Amend not Demurrable.—Assignment of Error.—A complaint to correct the amount of a judgment should be regarded as a, mere motion for that purpose, and is not subject to be tested by demurrer, nor, on appeal to the Supreme Court, by an assignment of error that it is insufficient.</p> <p>Same.—Jurisdiction.—Power of Court.—Where, in such case, a complaint in the ordinary form has been filed in the court in which the judgment was rendered, alleging the nature and amount of the mistake, such court has jurisdiction of the subject-matter, and power to make the proper correction.</p> <p>Same.—Seasonable Notice.—Default.—Where notice of such proceeding is given to the defendant, by service of summons in a county adjoining that wherein such action is pending, four days prior to the term at which it is to be heard, such notice is reasonable, and gives to the court jurisdiction of his person, and if he fail to appear he may be defaulted.</p>

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

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

<p>Judgment.—Can not he Attacked Collaterally.—Process.—Eoidence.—Though the record of a judgment offered as evidence in a cause fails to show that the judgment defendant had been served with summons, yet it can not be attacked collaterally.</p>

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

<p>Practice.—New Trial.—Assignment of Error.—Supreme Court.—Matter which is merely cause for a new trial is not assignable as error, on appeal to the Supreme Court.</p> <p>Arbitration.—Revocation.—After arbitrators have commenced their hearing of a cause submitted to them, under the statute of this State, (2 B. S. 1876, p. 317,) neither party can revoke his submission.</p> <p>Same.—Nature of Revocation.—Where the agreement of submission of a cause to arbitration is in writing, a revocation of such submission, to be valid, must also be in writing.</p> <p>Same.—Action upon Arbitration Bond.—Damages.—Measure.—The measure of damages recoverable in an action upon an arbitration bond is the amount of the judgment confirming the award, with interest and costs, not exceeding however the penalty of the bond.</p> <p>Same.-—Award.— Validity.—Can not be Attached.—The validity of such award can not be impeached or called in question, in such action.</p> <p>Same.—Objections to Award.—When made.—All valid objections to an award must be duly presented according to the provisions of such statute at the time when such award is presented for confirmation by the proper court.</p> <p>Same.—Action for Award.—When Maintained.—An action on an arbitration bond, to recover the amount of the award, can not be maintained, until such award has been duly confirmed by the proper court.</p> <p>Same.—Award.—Confirmation of.—A statutory award in this State against a party is not a valid claim against him, until it has been duly confirmed by the proper court.</p> <p>(Same.—Pleading.—Complaint.—The complaint in an action upon an arbitration bond, to recover an award, must aver that such award has been duly confirmed.</p>

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

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

<p>Bankruptcy.—Composition with Debtor.—Contract.—Pleading.—Pending a proceeding in bankruptcy, the creditors executed a composition agreement in -writing, that “We, the undersigned, creditors of” the defendant, “hereby agree to accept” a certain percentage “on the dollar for our respective claims against him, in full settlement,” to be paid in specified instalments, “to be secured by notes, with good approved security; this is to be consummated within thirty days,—otherwise void.”</p> <p>Held, on demurrer, in an action against the debtor by one of such creditors, to recover for his claim, wherein the former had answered such composition agreement and alleged that he had fulfilled the same by executing his notes to the plaintiff, as provided therein, that the answer is insufficient for want of an averment that such agreement had been duly executed as to all such creditors.</p> <p>Held, also, that such agreement was one between the creditors themselves, as well as between them and the debtor, and if not executed as to all within the time specified, it became null and void.</p> <p>Same.—Instruction to Jury Outside of the Issues.—-In such action, under the issues formed by such answer, it is error for the court to instruct the jury that the terms of such agreement might be waived by the plaintiff by a subsequent verbal agreement.</p>

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

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

<p>Liquor Law.—Indictment.—Retailing without License.— Who may grant Li~ cense.—An indictment for retailing intoxicating liquor without license charged, that the sale complained of had been made by the defendant, without having “procured a license therefor from the board of commissioners,” etc.</p> <p>Held, on motion to quash, that, on appeal from the decision of a board of commissioners on an application for such license, the circuit court may grant the same to the applicant, and that therefore the indictment is insufficient.</p>

<p>Jury.—Trial by.—Constitutional Law.—The provision of section 20, article I, of the constitution of this State, that the “right of trial by jury shall remain inviolate,” was adopted in reference to the common-law right of trial by jury.</p> <p>Same.—Partition.— Report of Commissioners.—Action to Review.—Neither party, in an action to review the report of commissioners partitioning real estate, can demand a trial by jury as of right.</p>

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

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

<p>Conveyance not Acknowledged.—Record not Evidence.—Real Estate, Action to Recover.—A conveyance of real estate, which has not been acknowledged by the grantor, is not entitled to be recorded, and, if recorded! without such acknowledgment, the record is not admissible as evidence of title, in an action to recover the lands so conveyed.</p> <p>Same.— Wabash and Erie Canal.—Trustees of.—Conveyance by.—Proof of Execution.—Deeds of conveyance of real estate, purporting to be executed by the trustees of the Wabash and Erie Canal, are not admissible as evidence of title in the grantee, in an action by him to recover the possession of such real estate, upon evidence of the execution thereof by one only of such trustees; evidence of such execution by at least two of such trustees being necessary.</p> <p>Same.—Pleading.—Amendment.—Amended Complaint.—Relief.—Judgment.— By the filing of an amended complaint, the original complaint is superseded and forms no part of the record of, or issues in, the cause, and relief demanded in the latter, but omitted from the former, can not be granted by the finding or judgment.</p>

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

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

<p>NewTeial.—Came.—Motion to Dismiss.—The ruling of the court on a motion to dismiss an action is not ground for a new trial.</p> <p>Peomissoky Note.—Action by Devisee.—Parties.—Decedents’ Estates.— Waiver. —In an action upon an unendorsed promissory note, by a plaintiff alleging himself to be the owner thereof by devise from the payee, the representative of the latter should be made a party defendant, or the complaint should allege that there is no such representative; hut a failure to object to such defect is a waiver thereof.</p> <p>Same.—Defect of Parties.—How Presented.—Such objection is not presented by a motion to dismiss the action on the ground of the insufficiency of the complaint.</p> <p>Same.—Capacity to Sue.—How Questioned.—An objection in such case that • the plaintiff has not legal capacity to sue, on the alleged ground that letters of administration of the deceased payee’s estate have not been granted to the plaintiff, is insufficient.</p>

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

<p>Supbeme Coubt.—Practice.—Failure to Object to Evidence.—Error in the admission of evidence which was neither objected to nor assigned as cause for a new trial is not available on appeal to the Supreme Court.</p> <p>Malicious Pbosecutk>ít.—Evidence.—Parol Evidence of Record.—On the trial of an action to recover damages for an alleged malicious prosecution of the plaintiff by the defendant, it was established by parol evidence, without objection by the defendant, that he had caused the plaintiff to be arrested for a crime, and that, owing to the failure of the defendant to appear as a witness against the plaintiff, the cause had been continued from time to time, till the plaintiff was finally allowed to go at liberty.</p> <p>Held, that the evidence sufficiently shows an end of such prosecution.</p>

<p>Ademption.—Descents.—Tbe doctrine of ademption is not applicable to property taken by descent.</p> <p>Same.—Advancements.—Partition.—Where a father, during his lifetime, gives to a son a sum of money, pursuant to a verbal agreement between them that it shall be in full of the interest of the latter in the estate of the former at his death, such sum, in an action by such son or his grantee to partition the real estate of which the father died seized, shall be treated simply as an advancement.</p> <p>Same.—Presumption.—-Where, in an action for partition of real estate among heirs, the contrary does not appear, it will be presumed that the ancestor died intestate.</p>

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

<p>Liquor Law.—Application for License.—Juror.—Competency of.—Challenge.— Where, on appeal to the circuit court of an application for license to sell intoxicating liquors, a juror, on being examined as to his competency to serve, answers, that he is “ opposed to granting license to any person, under any circumstances,” a challenge to him for cause should be sustained.</p> <p>Same.—Immorality or Unfitness of Applicant.— Unlawful Sale.—Instruction to Jury.—The fact as to whether or not an unlawful sale of intoxicating liquor, made by the applicant, is such an immorality or unfitness on his part as should defeat his application, is a question for the jury alone, the decision of which should not be influenced by an aflirmative instruction of the court.</p> <p>Same.—Sale Without License.—May he Lawful.—A sale of intoxicating liquor in a less quantity than a quart, without license, is not necessarily an unlawful act.</p>

<p>Mortgage.—Indemnity for Future Endorsements.—Subsequent Encumbrance.— Notice.—Where the owner of real estate, in consideration of the agreement of another to become an endorser, to a specified amount, of negotiable paper of the former, executes to the latter a mortgage on such real estate, to indemnify him against loss, not only from such future endorsements, but also from similar endorsements already made, such future endorsements, when made, relate back to the execution of such mortgage, and are valid liens against encumbrances placed upon the mortgaged property subsequent to the execution of such mortgage, by persons having either actual or constructive notice thereof, though such endorsements be made by the mortgagee subsequent to the placing of such encumbrances, and with notice thereof.</p> <p>Practice.—Motion to Strike Out.—A motion to strike out part of a pleading should specify some reason therefor.</p> <p>Same.—Supreme Court.—The overruling of a motion to strike out part of a pleading is not available as error on appeal to the Supreme Court</p>

<p>Practice.—Record.—Supreme Court.—Where the evidence is not in the record, on appeal to the Supreme Court, no question is presented as to whether or not the verdict is contrary to law or the evidence, or as to the amount of the damages assessed.</p> <p>Same.—New Trial.—Cause.—Causes assigned as grounds for a new trial, alleging the improper admission or exclusion of evidence, should designate the particular evidence intended.</p> <p>Marriage Contract.—Breach of—Action for.—Instruction to Jury.—In an action for a breach of a marriage contract, a finding by the jury, that “there was a marriage contract made between the plaintiff1 and defendant,” is a finding, in effect, that mutual promises of marriage were made by the parties, and therefore the defendant can not complain that the court, in its instructions to the jury, merely referred to such contract as a promise by the defendant to marry the plaintiff.</p> <p>Same.—Damages.—Measure of—The defendant in such action, where seduction under promise of marriage, and the birth of a bastard child, are alleged in aggravation of damages, can not complain of an instruction to the jury, that if the plaintiff had been seduced by the defendant under such promise, and had given birth to a bastard child belonging to him, they might, in assessing the plaintiff’s damages, take into consideration the plaintiff’s feelings, pain and humiliation in giving birth to such child, but not the care and cost of maintaining and educating it.</p> <p>New Trial.—Misconduct of Jury.—Taking Instructions to their Room.—The fact that, when retiring to consult as to their verdict, a jury, by mistake, took to their room the instructions of the court to the jury, but did not use the same, is not ground for a new trial.</p>

<p>■Tukhpike.—Directors.-—Irregularity in Election.—Action for Stock.—Quo Warranto.—Irregularity in the election of the directors of a turnpike company is no defence to an action by such company to collect stock subscribed by the defendant to its preliminary articles of association, though it might be ground for a quo warranto proceeding to oust such directors.</p> <p>Same.—Pleading.—Complaint.—Calls by Directors.-—Where, in such action, the complaint alleges the election of a board of directors, who then located the turnpike and made calls for the amounts of subscriptions, it is sufficiently shown that such election preceded the making of such calls.</p> <p>Same.—Articles of Association.-—-Location of Towns and Cities.—Judicial Notice.—The articles of association of such company, filed with the complaint in such action, are properly a part of the complaint, and where such articles state the termini of the road to be within a certain county, the courts of this State will take notice that a road running from one of such termini to the other is located wholly in such county.</p> <p>Same.—Residence of Subscriber.—The use of a double comma, following the name of a subscriber to such articles of association, under the name of a certain specified locality, sufficiently designates such subscriber’s residence.</p> <p>Same.—Failure to Designate Residence.—Where such articles fail to designate the residence of some of the subscribers, and improperly designate, that of others, but the amount subscribed by those whose residence is rightly designated is sufficient to make the amount required by law, such subscriptions are valid.</p> <p>Same.—Judgment.—Appraisement Laws.—Judgment may be rendered in such action collectible without appraisement.</p>

<p>~Wrtili.—Insanity of Testator.—A person who has become the victim of mental derangement, amounting to insanity in any form, is, under the statute of this State, incompetent to make a will.</p> <p>Same.—Instruction to Jury.—Partial Insanity.—On the trial of an action to revoke the probate of the will of a testator on the alleged ground of his insanity, an instruction to the jury, that, though the testator might have been, to some extent, insane, yet such insanity would not avoid the will, unless it could be shown to have entered into or affected the will itself, is erroneous.</p> <p>Same.—Witness.—Expert.—It is error in the court in such action, in instructing the jury as to. the opinions of witnesses regarding the sanity of the testator, and as to the opinions of experts upon hypothetical questions, to direct them as to the weight to he given to such evidence.</p> <p>Same.—An instruction to the jury in such case, that “ the testimony of experts is usually of very little value in determining the sanity or insanity of a party,” is erroneous.</p> <p>Same.—Credibility.—The credibility of experts testifying as witnesses is tested by the same rules as are applied to any other class of witnesses.</p>

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

<p>Interest.— When AUowed without Contract.—Interest may be allowed in an action for money due, where payment thereof has been unreasonably delayed, even where it has not been stipulated for.</p> <p>Mechanic’s Lien.—Action to Enforce.—Notice.—Burden of Proof.—A mechanic’s lien for labor or materials can not be enforced unless the notice of such lien has been filed for record within sixty days after the completion of the labor or the furnishing of the material; and that fact must be affirmatively shown by the person seeking the enforcement of such lien. •</p> <p>Interrogatories to Jury.— When Refused.—Practice.—The court may ' refuse to submit interrogatories to a jury, which they are asked to answer, not in the event that they return a general verdict, but absolutely.</p> <p>Same.—Interrogatories by Court.—Abuse of Discretion.—The court may, of its . own motion, put proper interrogatories to a jury; but an abuse of this power will be error.</p> <p>Contract.—-Pleading.—Misjoinder of Causes.—Evidence.—Harmless Error.— Practice.—A demand for recovery for extra services ought not to be joined in the same paragraph of a complaint for particular services rendered pursuant to a contract therefor; but, if so joined, error in the admission of evidence of the former is harmless, where the court or jury trying the cause specifically refuse any allowance therefor.</p> <p>Same.—Evidence Explaining Contract.—In an action to recover for materials furnished for a building pursuant to a contract prescribing that the amount of such materials so furnished should be ascertained by a certain rule of measurement used by builders, evidence as to the nature of that rule, as applied by the plaintiff in the measurement of buildings erected subsequent to the making of such contract, is inadmissible.</p> <p>¡Supreme Court.—Harmless Error.—Where no harm results from a ruling of the court to the party complaining thereof, it is not available as error.</p> <p>¡Practice.—Trial.—Recalling Witness.—The court, during the progress of a trial, may, in its discretion, permit a witness who has once testified to be recalled.</p> <p>Evidence.—Hearsay.—Hearsay evidence as to a material matter in controversy is inadmissible.</p> <p>Instruction to Jury.—Assumption of Fact.—An instruction to the jury, informing them as to what certain witnesses have testified, is erroneous.</p>

<p>EepIíEVUST.—Pleading.—Justice of the Peace.—Title to Lands.—Answers to Interrogatories.—Motion in Arrest.—Supreme Court.—In an action by the guardian of certain minors, to recover possession of certain property, commenced before a justice of the peace and thence appealed to the circuit court, the complaint alleged that the defendant had unlawfully entered upon certain real estate, belonging to such minors and another as tenants in common, and had cut down and converted into logs certain timber growing thereon, and had unlawfully carried the same away; that such logs were the property of such tenants in common; that the defendant unlawfully detains such logs from the plaintiff, “who is entitled to the possession thereofand that the same have not been taken by virtue of any execution, etc. Upon issue formed by an affidavit denying that the plaintiff was such guardian, there was a trial resulting in a general verdict for the plaintiff, and in special findings that no demand had been made before suit, that one of such wards was of age, and in possession of such real estate, at the commencement of the suit, and that such tenants in common were the owners of such real estate and logs.</p> <p>Held, on appeal to the Supreme Court, the evidence not being in the record, that it does not appear that the title to real estate was in issue.</p> <p>Held, also, that, under the allegations of the complaint, the plaintiff could, and the Supreme Court will presume he did, introduce evidence entitling him to the verdict.</p> <p>Held, also, that the answers to interrogatories are not inconsistent with the general verdict.</p> <p>Held, also, on motion in arrest, that the complaint is sufficient, the allegation as to the title of the land being immaterial, and the gist of the action being merely as to the right of possession of the logs.</p>

<p>Former Adjudication.—Judgment without Jurisdiction.—Pleading.—Promissory Note.—Summons.—Where, to the complaint in an action upon a promissory note, the defendant answers former adjudication, setting out a transcript thereof, which shows' a judgment by default upon insufficient notice, a reply that such judgment-defendant, had no notice of such suit, and that the court had no jurisdiction over him therein, is sufficient.</p> <p>,Same.— Verbal Agreement Contradicting Writing.—An answer in such action, alleging a contemporaneous verbal agreement varying the terms of the note, is insufficient.</p> <p>Practice.—Informal Demmrer to Insufficient Pleading.—The sustaining of an informal demurrer to an insufficient paragraph of answer is not ground for reversing a judgment rendered upon an issue formed by the general denial.</p>

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

<p>Djvobce.—Decree without Jurisdiction.—A decree of divorce rendered by a court having no jurisdiction of the subject-matter, or of the parties, may be annulled and set aside, in a proper proceeding therefor.</p> <p>Same.—Review of Judgment.—An action to annul and set aside a judgment is not a proceeding to review the same.</p> <p>Same.—Jurisdiction of Party.—Sow Acquired.—Jurisdiction of a party to a civil action can only be acquired, either by the due service upon him of a summons, or by his voluntary .appearance.</p> <p>Same.—Pleading.— Will.— Widow.—Decedents' Estates.—The defendant, in an action wherein a divorce was granted to the plaintiff, after the death of the latter, testate, filed a complaint against his heirs and devisees, alleging that she had had no notice of such action, that no summons had been issued for or served upon her, that she had not appeared to the action, and that the only service of summons upon or appearance by her, pretended by the plaintiff", was the filing by him, with his complaint, of a paper purporting to be signed by her, waiving the issue and service of summons; and she asked that such judgment be annulled and set aside, that she be permitted to contest the validity of the testator’s will, and that she be recognized as his widow.</p> <p>Seld, on demurrer, that, by the averments of the complaint, such court had no jurisdiction of the defendant in such action, that the proceedings subsequent to the filing of the complaint therein were void, and that the complaint in this action is sufficient.</p>

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

<p>Mortgage.—Release of Procured by Fraud,—Foreclosure against Subsequent Purchaser—Pleading.—Complaint.—In an action by the holder of a mortgage on real estate, to foreclose it against the mortgagor and the owner, by purchase from the mortgagor, of the equity of redemption, the complaint alleged, that, prior to the conveyance of such equity, the plaintiff had been induced to execute a release of his mortgage, by the false and fraudulent representations of the mortgagor, that he had negotiated with a third person for a loan on such land, with which to pay the plaintiff’s debt, but that, to secure such loan, plaintiff must release his mortgage, so that the mortgagor could execute a first mortgage to such third person for such loan, with which he promised at once to pay the plaintiff’s debt; that the mortgagor had never made any such negotiation; and that, on the release of such mortgage, he had conveyed such land to his codefendant, who yet owed the purchase-money therefor.</p> <p>Held, on demurrer, that fraud in the mortgagor is sufficiently charged, and that the complaint is sufficient as to both defendants.</p> <p>Same.—Answer.—Parties.—Pleading Struck Out.—Promissory Note.—"Whom, by a simple answer to the complaint in such action, the defendant owner of the equity of redemption admits the purchase of such land for a certain sum, and alleges that he had executed to the mortgagor his promissory note therefor, and that the same had been sold and assigned to a certain person, without notice of such mortgage, it was not error to strike out of such answer a prayer, that such assignee be made a party to the action to answer as to his interest.</p> <p>■Same.—Reply.—A reply to such answer, alleging the same facts as those set out in the complaint, and averring that such conveyance had been made by the mortgagor to his codefendant with the full knowledge by the latter of such fraud, is sufficient on demurrer.</p> <p>Same.—Consideration for Assignment.—A reply to such answer, alleging that such promissory note had been assigned to a person who received it without giving any new consideration therefor, but simply in discharge of an existing debt then due from the mortgagor to the assignee, is insufficient.</p> <p>Same.—Instruction to Jury.—Rights and Liabilities of Subsequent Purchases'.— Estoppel.—Notice.—Former Adjudication.—The court, in such cause, instructed the jury, that, if the mortgagor had not committed the fraud alleged, the owner of the equity of redemption was not liable to the plaintiff ; that if he had committed such fraud, but the owner of the equity, without knowledge thereof and before the assignment of such note, had induced the assignee to take such assignment by assuring him that he had no defence thereto and would pay him at maturity, then he was estopped from asserting any defence as against the assignee, and was not liable to the plaintiff; but that, if he had given the assignee no such assurances before such assignment, he was liable for the amount of such note to the plaintiff, notwithstanding the good faith of himself and the assignee, and notwithstanding any thing occurring after the assignment; and that such recovery by the plaintiff would be a good defence to an action against him on such note by the assignee.</p> <p>Held, that the instruction was right.</p> <p>Pbactice.—Harmless Error.—Pleading.—Sv/preme Court.—Where a demurrer is improperly overruled to an insufficient pleading, but all the evidence admitted thereunder on the trial was properly admissible under other pleadings, such error is not available on appeal to the Supreme Court.</p> <p>Same.—Instruction to Jury.—New Trial.—Assignment of Error.—Error in giving or refusing instructions to the jury is proper ground for a new trial, but can not be assigned as'error on appeal to the Supreme Court.</p>

<p>Parties.—Defect of.—Pleading.—Justice of the Peace.—An action commenced before a justice of the peace, on a judgment in favor of the plaintiff and another, against the defendant and another, without any allegation in the complaint as to why the other judgment creditor is not joined as a co-plaintiff, should be dismissed on motion for defect of parties plaintiffs, or a demurrer thereto assigning that reason should he sustained.</p> <p>Same.—Demurrer.—Plea in Abatement.—If, in such case, such omitted judgment defendant be living, but that fact does not appear by the complaint, nn objection that there is a defect of parties defendants must be pre■sented, not by demurrer, but by a plea in abatement alleging such fact.</p> <p>Supreme Court.— Unavailable Error.—Judgment.—Where the complaint in an action is insufficient, a judgment rendered therein for the defendant, on the trial of the cause, will not be reversed by the Supreme Court, on appeal, because of errors committed by the lower court against the plaintiff.</p>

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

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

<p>Partnership.—Beal Estate, Alienation of.—Conveyance by one Partner.—A conveyance of real estate, used by and belonging to a copartnership, by a member thereof, passes simply his own interest therein.</p> <p>Same.—Bedemption.—Execution.—Payment.—Where copartnership real estate, which has been sold on an execution issued on a judgment against the firm, is conveyed by a member of the firm to a grantee who redeems the same from such sale, such redemption is a voluntary payment in which the grantee will not be protected, and such real estate may then be sold on execution for any unsatisfied balance of such judgment.</p> <p>Same .—Estoppel.—Where, in such case, the purchaser at such sheriff’s sale accepts the redemption money from such grantee, his certificate of sale from the sheriff is annulled, and he is estopped from afterward denying such grantee’s right to redeem.</p>

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

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

<p>Injunction.—Enjoining Lawsuit.—Legal proceedings will not, as a gen-rule, be enjoined on grounds of which the defendant therein may avail himself in defence of such action.</p> <p>Same.—Threats.—Threats made by tbe plaintiff in an action, that he will bring other actions against the defendant, afford no ground to the latter to enjoin the further prosecution of such action.</p>

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

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

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

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

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

<p>Dxvokce.—Cruel Treatment.—Criminal Prosecution.—A groundless prosecution of the husband, hy the wife, for an alleged crime, resulting in his trial and acquittal, is not “cruel and inhuman treatment,” within the meaning of the statute, entitling him to a divorce.</p>

<p>Justice oe the Peace.—Relationship of to Parties.—Jurisdiction.—Marriage. —The fact, that a deceased former wife of a party to an action pending before a justice of the peace was the aunt of the wife of such justice, does not deprive the latter of jurisdiction of the cause, whether there be issue of such marriage alive or not.</p> <p>'Same.—Affinity.—Relationship by affinity ceases with the dissolution of the marriage creating it, except so far as the children of such marriage are concerned.</p>

<p>Railroad.—Killing Stock.—Liability of Lessee.—Statute Construed.—By the 1st section of the act of March 4th, 1863, (1 R. S. 1876, p. 751,) in relation to animals killed or injured on a railroad, it was intended, that, where a leased railroad is run or controlled by a lessee thereof, “in the corporate name of the owner,” and not otherwise, such lessee should be liable, jointly or severally with such owner, for stock killed or injured on such railroad, by the cars, etc., thereof, at a place where the same is not, but ought lawfully to be, securely fenced.</p> <p>Same.—A railroad run or operated by a lessee thereof in its “own name” is not liable, under such statute, for stock so killed or injured.</p> <p>Same.—Evidence.—Pleading.—Justice of the Peace.—In an action commenced before a justice of the peace, against a railroad company, to recover for live-stock alleged to have been so killed or injured by the defendant’s. cars, on the defendant’s road, where the same wa« not, but ought lawfully to have been, securely fenced, the defendant may prove, without plea, in bar of the action, that such road was, at the.time of such killing cr injury, owned by another railroad company, but was being run by the defendant, as lessee, in her own name.</p>

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

<p>Decedents’ Estates.—Assefs.—Payment of Debts.—Duty of Administrator.— Peal Estate.—Eights of Widow.—Mortgage.—An insolvent debtor, the owner of certain real estate encumbered by a mortgage for purchase-money in which his wife had not joined, died intestate, leaving her surviving him, and leaving personal property in excess of the amount allowed by law to his widow, and of the amount necessary to discharge the expenses of administration, his last sickness and his funeral. The administrator, having in his hands such excess, suffered such real estate to be sold on foreclosure of such mortgage, whereupon the widow brought suit against him to require him to pay to her the one-third value of such real estate.</p> <p>Meld, that she is entitled to á judgment for one-third of such excess, not exceeding however the one-third value of such real estate.</p> <p>Meld, also, that the fact that she did not join in such mortgage, and had not relinquished her interest in such realty, is no defence to such action.</p> <p>Meld, also, that the fact, that such mortgage was given for purchase-money, was no excuse for the failure of the administrator to protect her interest therein.</p>

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

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

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

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

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

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