Volume 58 — Indiana Reports

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

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

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

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

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

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

<p>Pleading.—Decedents' Estates.—Action by Administrator.—Promissory Note. —In an action by an administrator, on a promissory note payable to Ms decedent, it is sufficient to aver that such note is due and unpaid, without averring specially that it has not been paid to such decedent.</p> <p>Same.—Profert of Letters.—In a complaint by an administrator, it is unnecessary that he make profert of his letters of administration.</p>

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

<p>Negligence.—Master and Servant.—Principal and Agent.—As a general rule, the principal is not liable to his servant for injuries sustained by the latter through the negligence of another servant, when both are engaged in the same general business.</p> <p>Same.—Parent and Child.—Death of Minor Child.—Bailroad.—Pleading.—A complaint against a railroad company, by the parent of a minor, servant of the defendant, to recover for the death of such minor while in defendant’s service, alleged that such minor had been killed through the negligence of another servant of the defendant, and without any fault on the part of the decedent.</p> <p>Meld, on demurrer, that the complaint is insufficient.</p> <p>Meld,, also, that the complaint in such action should aver, that not only the decedent, but also the plaintiff, was without fault.</p>

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

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

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

<p>Fees and Salaries.—Act of 1875.—County Auditor.—Fees for Managing School Fund.—Under section 12 of the fee and salary act of March 12th, 1875,1 R. S. 1876, p. 467, a county auditor is entitled to one per centum per annum on the whole of the permanent school fund of his county. Same.—Statute Construed.—“The school fund of the county,” described in such section, does not include the school revenue for tuition.</p>

<p>Attorney at Law.—Employment of by Executor or Administrator'.—Personal Liability of Latter.—Contract.—Where an executor or administrator employs an attorney at law to transact business connected with the settlement of his decedent’s estate, he will, in the absence of any special agreement by such attorney to look to such estate alone for payment, be personally liable to the latter for the value of such services.</p> <p>Same.—Where one of several co-executors or co-administrators of an estate so employs an attorney with the knowledge and consent of the others, they all become personally liable for the value of such services.</p> <p>Same.— Waiver.-—An attorney at law, so employed, may waive his claim upon the executor or administrator personally, and hold the estate liable.</p>

<p>Liquob Law.—Indictment.— Unlawful Sale.—Quantity.—An indictment for an unlawful sale of intoxicating liquor, which contains no averment as to the quantity sold, is insufficient.</p>

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

<p>Vendor and Purchaser.—Purchase-Money.— Subsequent Pwchaser.—Pleadtng.—A complaint by A. against B., alleging the sale and conveyance by A. to C. of certain real estate, the execution by C. to A. of certain promissory notes for part of the purchase-money, the sale and conveyance by C. to B. of such real estate, the promise of the latter to pay such notes as part of the consideration of such latter conveyance, and that the same are due and unpaid, is sufficient on demurrer.</p> <p>Same.—Defence.—Parties.—Practice.—Striking Out Pleading.—An answer and cross-complaint in such action, asking that C. and D. be made parties defendants, and alleging that .such notes had been secured by a mortgage on such real estate, executed by C. to A., and that the defendant had conveyed such real estate to D., who had assumed the payment of such notes, is insufficient and may be struck out on motion.</p>

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

<p>From the Wa^ne Circuit’Court.</p>

<p>Will.—¡Reference to Deed to Determine Estate Devised.—A. and his wife signed a deed of conveyance of certain real estate, and acknowledged its execution before a proper officer, to his son W. S. and his children, to have and to hold said premises, with the appurtenances, to the said W. S. during his natural life, and at his death to his children in fee simple. On the same day, A. executed his will, in One clause of which he gave to W. S. and his children “the tract of land described in a deed to him made by me and my wife,” giving the date of said deed, being the same as the date of‘said will, “to be held as therein provided.” And by said will the testator gave to his two other sons each “a tract of land described in” deeds made to them in like manner; and he directed that after his death his executor should deliver said deeds “to my children to whom said land is conveyed, it being my intention to retain said deeds until my death.” And said deed to W. S. and his children was not delivered by the grantor, but was retained by him till his death, after which it' was delivered by the executor of A. to said W. S.</p> <p>Held, that, without regard to the question whether there was a sufficient • delivery of said deed, W. S. took, under said will, only a life-estate in , said land, and he left at his death no estate therein which could be subjected to the payment of his debts.</p>

<p>Ditches and Drains.—Acts of 1867 and 1875.—Repeal of Statute.—Statutes Construed.—The act of March 9th, 1875,1 B. S. 1876, p. 428, to enable the owners of wet lands to drain the same, etc., does not repeal, but, by its own terms, is in addition to, the act of March 11th, 1867,3 Ind. Stat., p. 228, on the same subject; but, wherever the provisions of such acts conflict with each other, those of the former must control.</p> <p>Same.—Petition.—The petition for the construction of a drain pursuant to either of such acts must allege, and the proof .thereunder show, that such drain will be conducive to the public health, convenience or welfare, or of public benefit or utility.</p> <p>Same.—Evidence.—Report of Appraisers.—The report of the appraisers of a proposed drain is, on appeal to the circuit court, one of the papers in the case, is not proper evidence to sustain itself, and raises no prima facie presumption of the correctness of the action of such appraisers.</p> <p>Same.—Practice.—Such proceeding, on appeal to the circuit court, stands for trial de novo.</p> <p>Supreme Court.—Bill of Exceptions.—A bill of exceptions, purporting to contain the evidence given on the trial of a cause appealed' to the Supreme Court, should affirmatively show that it contains all the evidence.</p>

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

<p>Pleading.—Complaint.—An averment in the complaint in an action on an account, that the defendant “ is indebted,” etc., in a certain sum, is equivalent to'an averment that such amount is due and unpaid.</p> <p>Venue, Change oe.—Justice of the Peace.—Where a change of venue is taken in a cause from one justice of the peace to another, of the same township, the latter may, in certain cases, on a change being taken from him, send the cause to a justice of the peace of another township.</p> <p>Same.—Appearance.—Jurisdiction.—Where a party to such action procures two or more changes of venue, he can not, after voluntarily appearing to such action, be heard to complain that one of such changes was improperly taken.</p> <p>Same.—Supreme Court.—Record.—Presumption.—Where, in such case, on appeal to the Supreme Court, the record does not disclose the ground upon which a change of venue was asked and granted, it will be presumed that the facts were such as to authorize such change.</p>

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

<p>Will.—Descents.—Election by Widow.—Legacy.—Statute Construed.—Partial Intestacy.—Sale of Land by Executor.—A testator, leaving no parent or child, died, bequeathing to his widow, absolutely, all of his personalty, and also certain real estate during her life. His will provided, that, after her death, his executor should sell such realty, and divide the proceeds thereof, in specified portions, among certain legatees named. The widow having elected to take under the law, instead of under the will, the executor, during her lifetime, petitioned the proper court for an order to sell such realty for the payment of such legacies, alleging the personalty to be insufficient to realize the required amount.</p> <p>3eld, on demurrer to the petition, that, at least as far as relates to the realty, the widow must be held to have rejected the will entirely.</p> <p>Held, also, that she takes one-third of the land in fee.</p> <p>Held, also, that, as to the title to the remaining two-thirds during her life, the testator died intestate, leaving it undisposed of, and that, under section 26 of the statute of descents, she is entitled to such two-thirds during her life.</p> <p>Held, also, that, during her lifetime, no part of such realty can be sold by the executor for the payment of such legacies.</p>

<p>Attachment.—Judgment.—Default.—Appeal.—Supreme Court.—The fact, that, in an attachment proceeding to which the defendant fails to appear, a creditor filing under the original attachment obtains a judgment for the amount of his claim without defaulting the defendant, is not ground for reversing such judgment, on appeal therefrom to the Supreme Court by the original attachment creditor.</p> <p>Same.—The judgment against the defendant in such proceeding should direct that the proceeds of such sale, less the costs of the action, be distributed pro rata among the attachment creditors whose claims ave been allowed.</p> <p>SUpbeme Cotjbt.—Evidence.—New Trial.—Assignment of Error.—Pi-actice.— The sufficiency of the evidence to support the finding or verdict can be questioned, on appeal to the Supreme Court, only by an assignment of error on the overruling of a motion for a new trial.</p>

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

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

<p>Redemption.—Constitutional Law.—Sheriff’s Sale.—Action for Bent.—That clause of section 2 of the redemption act of June 4th, 1861, 2 R. S. 1876, p. 220, note a, making a judgment debtor liable to a purchaser of his land at sheriff’s sale for the rent of the same if not redeemed, is not unconstitutional.</p> <p>Same.—Tiñe of Purchaser.—Conveyance.—The title of a purchaser of real estate sold at sheriff’s sale and not redeemed, when perfected, relates back to the date of such sale.</p> <p>Same.—Statute Construed.—Common Law.—Action.—Such purchaser, on the failure of the debtor to redeem, may, either at common law, or under section 14, 2 R. S. 1876, p. 842, maintain an action against the latter, for hig use and occupation of such premises during such year.</p> <p>Same.—Emdence,—Judgment.—Process.—Notice by Publication.—Jurisdiction. —On the trial of an action by the purchaser of real estate sold under a decree of foreclosure of a mortgage against the judgment debtor, to recover for the rent of such real estate for the year succeeding such sale, the record of such decree, reciting that notice of the suit for foreclosure had been duly given to the defendant by publication, is competent evidence on behalf of the plaintiff, even though he be the judgment plaintiff, and even though such notice might not have been sufficient if attacked directly on appeal from such decree.</p> <p>Same.—Exemplification of Becm’d.—Defective Certificate.—On the trial of such action, the plaintiff introduced a transcript of the complaint, decree, execution and sheriff’s return thereon, duly authenticated as such by the clerk of the proper court.</p> <p>Held, that the evidence was admissible, and the certificate sufficient, though it did not purport that the transcript contained a copy of all the pleadings and proceedings in such action.</p> <p>Sdpbeme Codbt.—Emdence.—Becord.—Bill of Exceptions.—Where, on appeal to the Supreme Court, the record does not affirmatively show that it contains all the evidence given on the trial, no question is presented as to the sufficiency of the evidence to sustain the verdict or finding.</p>

<p>Evidence.— Witness.—Expert.—A witness called to testify as an expert, concerning an occupation requiring a particular kind of skill and experience, must, to be competent, show himself to be possessed of such skill and experience.</p> <p>Same.—Master and Servant.—Negligence.—Action by a Servant against his Master and a Go-Servant.—In an action by an employee, against his employer and another employee, to recover damages for personal injuries received by the plaintiff while performing a particular service for the employer, alleged to have resulted from the negligence of the defendant employee in performing a different service for the employer, and in superintending the service being performed by the plaintiff, the defendant employee may give in evidence the terms of his contract with the employer for the performance of such service, to determine which, if either, of the defendants is liable to the plaintiff.</p> <p>Instruction to Jury.—Assumption of Court.—Admissions of Parties.— Supreme Court.—Presumption.—A statement of the court to the jury trying a cause, made in its instructions to them, that certain specified matters have been admitted by the parties to the action to be true, will, on appeal to the Supreme Court, be presumed to be true, in the absence of any thing in the record to the contrary.</p> <p>Same.—An instruction to the jury trying a cause, that, if a person once knows a particular thing, he will be presumed to retain it indefinitely thereafter, in his memory, is erroneous.</p> <p>Master and Servant.—Negligence.—Servant’s Liability to Co-Servant.—An employee is liable to a co-employee, engaged in the same general business for a common employer, for injuries resulting to the latter from the negligence of the former in the discharge of his duties.</p>

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

<p>Cthes and Towns.—Town.—Taxing Farm Land for Municipal Purposes.— By the act of June 18th, 1852,1 G. & H., p. 610, relative “to the taxation of lands in towns and cities,” a tract of land exceeding twenty acres, of which less than that area is used exclusively for farming purposes, lying within the limits of a town or city containing less than five thousand inhabitants, is subject to taxation for municipal purposes.</p>

<p>Former Adjudication.—Beal Estate, Action to Beeover.—Dismissal of Cause After it has Gone to Jury.—•Waiver.—In an action for the recovery of real estate, the defendant answered former adjudication, alleging, that, in a former action, between the same parties, for the recovery of the same real estate, wherein the defendant had obtained a verdict and judgment in his favor, the plaintiff, having obtained a new trial as a matter of right, during the second trial and after the jury trying the same had retired to deliberate on their verdict, had, by leave of court and without objection by the defendant, dismissed the cause without prejudice, and judgment was rendered accordingly, with costs, for the defendant.</p> <p>Held, on demurrer, that, such dismissal having been made without objection by the defendant, the answer is insufficient.</p>

<p>Supreme Court.—Instruction to Jury.—Evidence.—Presumption.—Practice.— On appeal to the Supreme Court, where the evidence is not in the record, instructions to the jury, which are not, in themselves, inconsistent with the pleadings in the cause or contrary to law, will be presumed to have been proper.</p> <p>Same.—Exclusion of Evidence.—Where, on such appeal, it does not appear from the pleadings, that evidence which was excluded should have been admitted, the exclusion will be presumed to have been right.</p>

<p>Township.—Civil and School,— Trustee.—Action.—Pleading.—The trustee of a civil township, as such, has no authority to employ a teacher of a common school of his township, and an action brought against such township, for services rendered under such employment, can not be .maintained.</p>

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

<p>Will.—Death of Devisee During Life of Testator.—Husband and Wife.—‘ Descendant.—Statute Construed.—Where a wife, to whom real estate has been devised, dies during the life of the testator, of whom she is a descendant, her widower takes no interest therein, he not being her descendant, within the meaning of section 13 of the statute of wills, 2 B. S. 1876, p. 570.</p>

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

<p>Judgment.—By Confession Without Creditor's Consent.—Ratification.—A judgment by confession, entered without the consent or knowledge of the creditor in whose favor it is rendered, is, unless ratified by him, wholly invalid.</p> <p>Same.—Evidence.—Where such a judgment has been so rendered, the mere silence of the creditor, or his failure to object, when informed of the same, is not a ratification of such judgment, though admissible as evidence tending to prove the same.</p> <p>Same — What a Ratification is.—A ratification is an agreement to adopt an act performed by another for the one who agrees to adopt it, or the con-_ firmation of a voidable act.</p> <p>Same.—Confession by Insolvent Joint Debtor.—Promissory Note.—The payee of a promissory note executed by several joint makers, one of whom he knew was insolvent, at the request of the latter, left the same with a justice of the peace for collection, with directions to issue process; but the justice, though having the means of acquiring jurisdiction of the persons of such insolvent and another of such makers, permitted such insolvent,without the issuing of process and without the knowledge of the payee, to confess judgmentin favor of the latter. And thepayee,upon being informed thereof, without either agreeing or objecting to such judgment, instituted suit upon such note against all of such makers, whereupon they pleaded and proved such former recovery.</p> <p>Held, that such recovery was had without the knowledge or consent of the payee, that he never ratified the same, and that it is no bar to the action.</p>

<p>Crishnai. Law.—Indictment.—Manslaughter, Voluntary, and Involuntary.— . An indictment for manslaughter charged, that the defendant, at, etc., on, etc., did “ unlawfully and feloniously kill ” the deceased, “ without malice, but voluntarily upon a sudden heat,” by “ striking and injuring” the deceased “on the head with a stake,” which the defendant then and there had and held in his hands, “ of which striking and injuring the ” ' deceased “ lingered, and lingering did die.”</p> <p>Held, that the indictment is sufficiently certain in its description of the injury resulting in death.</p> <p>Held, also, that the indictment charged the commission of voluntary manslaughter.</p> <p>Held, also, that, under such indictment, the defendant can not be convicted of involuntary manslaughter.</p> <p>Same.—The unlawful and felonious killing of a human being, “ without malice, but voluntarily upon a sudden heat,” is voluntary manslaughter.</p> <p>Same.—Where the killing is involuntary, but in the commission of an unlawful act, it is involuntary manslaughter.</p> <p>Same.—One guilty of involuntary manslaughter can not be convicted under an indictment charging him with voluntary manslaughter.</p> <p>Same.—Jury.—On the trial of a defendant for manslaughter, the question, as to whether the manslaughter committed was voluntary or involuntary, is one wholly for the jury.</p> <p>Same.— Unlawful Act.—One who voluntarily commits an unlawful act, which unintentionally but not necessarily results in the death of another, is guilty, not of voluntary, but of involuntary, manslaughter.</p>

<p>Becognizance.—Action for Forfeiture.—Threats Toward Principal.—Pleading. —In an action by the State, against the surety on a forfeited recognizance, executed to secure the appearance of the principal to answer to an alleged felony, the defendant answered, that, without the consent or connivance of the defendant, the principal had failed to appear to answer such charge, through fear that certain persons would carry out their threats of inflicting great bodily harm upon him, if he appeared.</p> <p>Held, on demurrer, that the answer is insuflicient.</p>

<p>Criminal Law.—Forgery.—Alteration.—Indictment.—An indictment for uttering and publishing as true a false and altered promissory note must, to be sufficient, allege in -what such alteration consists.</p>

<p>Decedents’ Estates.—Executor de son tort.—Action by Heir.—Pleading.—In an action against an executor de son tort of the estate of' an intestate, brought by an heir of the latter, either for his own personal benefit or for that of the estate, the complaint, to be sufficient, must allege that there are no debts outstanding against such estate.</p> <p>Same.—An heir at law, or next of kin, of a decedent, can not, simply as such, maintain an action against an executor de son tort of the estate of such decedent.</p> <p>Same.—'Action by Executor or Administrator.—An executor or administrator may maintain an action against an executor de son tort of his decedent’s estate.</p> <p>Same.—Action by Creditor.—Where s.uch action is instituted by a creditor of the decedent’s estate, it should be instituted, not for his sole benefit, but for the benefit of all the creditors.</p> <p>Same.—Source of Properly Converted.—Pleading.—In an action against an executor de son íor¿,’the complaint is not insufficient on demurrer, merely because, by its allegations, it appears that the property converted by the defendant was the proceeds of a void sale, by the decedent and a second husband, of real estate inherited by her from a deceased former husband.</p>

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

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

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

<p>Fobeign Cokpobation.—Patent.—Promissory Note —Pleading.—In an action by a foreign corporation, upon a certain promissory note, executed to the plaintiff by the defendant, it was alleged in the complaint, that the consideration of the note sued on was the transfer by the plaintiff to the defendant of a promissory note taken by the defendant, as the agent of the plaintiff, for a certain patented article manufactured by the plaintiff for sale, under letters-patent granted by the United States to the patentee, and duly assigned by him to the plaintiff; that the plaintiff had not "complied with the requirements of sections 1 and 2 of the act of June 17th, 1852,1 B. S. 1876, p. 373, “respecting foreign corporations and their agents in this State; ” and that defendant refused to pay the note in suit, because of the refusal of the maker, on account of the failure of the plaintiff to comply with the requirements of such act, to pay such note so transferred.</p> <p>Held, on demurrer, that the consideration of the note in suit is the note so transferred, and not the patented article so sold, and that, therefore, the plaintiff can not maintain her action until she has complied with the requirements of such act.</p>

<p>Judgment.—Complaint to Set Aside.-zJExcusable Neglect.—Pleading.—In an action by a judgment defendant, against his judgment plaintiff, to set aside the judgment, and allow him to defend, the complaint alleged, that, though such judgment had in fact been rendered against him by default, upon his failure to appear, yet the record thereof showed an appearance by him; that shortly prior to the commencement of the action, the authorized agent of plaintiff had informed him that the amount due was a sum much less than that for which judgment had been rendered, and when the summons was served upon him, he, being a German and not understanding English well, supposed the suit to be for such smaller sum, and informed the sheriff not to read the summons ; that through his own inadvertence, surprise and excusable neglect, he had suffered judgment to be rendered against him for such larger sum.</p> <p>Held, on demurrer, that the complaint is insufficient.</p>

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

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

<p>Parties.—Making New Party.—Constable’s Bond.—Action for Breach.—In an action by an execution creditor, as relator, against a constable and his sureties, on his bond, to recover for money alleged to have been collected by the constable on such execution, and converted by him to his own use, the defendants answered, admitting such collection, but averring that the same had been paid by the constable, by direction of the relator, to an attorney at law, who had control of an execution against the relator in such constable’s hands, to be placed thereon to the relator’s credit, and asking that such attorney be made a party defendant. Whereupon the latter, without any order of court making him a party defendant, appeared and answered the defendant’s said answer, denying the same, and, without any issue being joined between the plaintifi and such attorney, judgment was rendered, on trial, against the latter, in favor of the plaintiff.</p> <p>Held, on motion in arrest, that such attorney was not, and could not be made, a proper party defendant in such action, and that judgment should be arrested.</p>

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

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

<p>Bepievin.—Contract.—Fraud.—Mescmion—Tender.—Where a contract, under which chattels have been exchanged, proves to have been fraudulent, as against one of the parties thereto, he can not replevy the chattel parted with, either from the 'opposite party or a subsequent purchaser, without first rescinding the contract, by tendering hack to the other party whatever thing of value he received from him in such exchange.</p> <p>Same.—Where, in such case, the things received by the plaintiff'are a sum of money and a forged promissory, note, it is not necessary to tender back the latter.</p>

<p>Liquor Law.—Act of 1873.—Action on Bond.—Personal Action.—Sections 3 and 12.—Under the provisions of the act of February 27th, 1873, Acts 1873, p. 151, regulating the sale of intoxicating liquors, an action upon the bond of a person having a license under such act was authorized by section 3 thereof only, the action authorized by section 12 thereof being merely personal.</p> <p>Same.—Joint Action on Several Bonds.—Motion to Separate.—Practice.—Pleading.—A. joint action against several persons, having separate licenses under such act, and their several sureties, upon their several bonds, could not be maintained; and, where so joined in the same action, a motion to separate the complaint into as many separate actions as there are separate bonds, making the principal and sureties on each bond the only defendants in the action thereon, should be sustained.</p> <p>Same.—Demurrer by Sureties.—Where such motion to separate is overruled, the error is not cured by subsequently sustaining a demurrer by the sureties alone, thus leaving the principals only as defendants.</p>

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

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

<p>Promissory Note.—Action by Assignee Against Assignor.—Pleading.—Copy of Judgment.—In a suit by the assignee of a promissory note, against his assignor, alleging, that, in an action on such note, by the assignee, against the maker, the latter had recovered judgment, the complaint need not contain a copy of the pleadings, proceedings and judgment in such action.</p> <p>Same.— Usury.—Warranty.—Statute of Frauds.—The complaint in such suit alleged, that the defendant, who held such note as assignee, had transferred the same to the plaintiff by delivery merely, in exchange for 'a certain chattel, and that, as part-of such exchange, the defendant had verbally warranted such note to be valid, when in fact it was wholly usurious and void.</p> <p>Held, on demurrer, that such warranty is not within the statute of frauds.</p> <p>Same.—Defence.—Notice.—An answer to such complaint, alleging that the defendant, during such action against the maker, had received no notice of the defence of usury set up by the latter, until after the issues therein had been formed, is insufficient.</p> <p>Same.—Interest Laws.—Statutes Construed.—An answer in such suit, that, at the time of the commencement of such action against the maker, there was no law rendering contracts void for usury, is insufficient, as the whole principal of such note was- alleged to be usurious.</p> <p>Same.—Fraud.—Negligence.—Attacking Judgment Collaterally.—An answer in such suit, that the plaintiff had prosecuted his action against the maker in a careless and negligent manner, whereby the maker had fraudulently recovered, is insufficient.</p> <p>Same.—Failure to Make Parties.—An answer in such suit, that the plaintiff, in his action against the maker, had failed to make the defendant a party thereto, to answer as to his interest in such note, and had so prosecuted the same as to defraud the defendant, is insufficient.</p> <p>Same.—Evidence.—Transcript of Judgment.—On the trial of such suit, a transcript of such action against the maker, showing that the latter had recovered judgment on the ground that such note was usurious, is competent evidence for the plaintiff.</p> <p>Same.—Notice.—Sheriff’s Return.—A written notice, by the plaintiff to the defendant, of the pendency of such action against the maker, and the heriff’s return thereon of due service upon the defendant, is admissible - in evidence against the latter, on the trial of such suit.</p> <p>Same.—Instruction to Jury.—Estoppel.—An instruction to the jury trying such action, that such transcript and notice were in evidence, and that the defendant was estopped thereby from denying that such note was usurious, was proper.</p>

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

<p>Taxes.—Refunding Taxes on School Lands.—Repeal of Statute.—Judgment.— The act of February 8th, 1877, Acts 1877, Reg. Sess., p. 139, legalizing certain assessments, and prohibiting the refunding of taxes on school lands, paid prior to the conveyance of the same, takes away the right of the tax-payer to have the same refunded to him either by a county or the State, under the act of March 2d, 1853,1 Gr. & H., p. 110, in relation to the refunding of illegal taxes, unless, prior to the passage of such repealing act, he had reduced his claim to judgment.</p> <p>Same.—Mandate.—Auditoi- of Slate.—The Auditor of State can not, since the passage of such repealing act, be compelled, by mandate or otherwise, to issue a warrant upon the state treasury, for the repayment of such taxes.</p> <p>Same.—County Commissioners.— Vested Right.—Contempt.—Prior to the passage of such act, a circuitcourt granted amandate against a board of commissioners, ordering the allowance by them of just claims for the refunding of such taxes. After the passage of the act, the board having refused to allow such claims, an attachment was issued by the court to compel obedience to its mandate, whereupon the board allowed the claims.</p> <p>Held, that the action of the board was a nullity, and vested no rights in the claimants.</p>

<p>Non-Navigable Lakes.— Riparian Proprietor.—Bed of Lake Within Congressional Sumy.—Title to.—The owner of land bordering on a non-navigable lake lying within the congressional survey is the owner of the bed of such lake to the thread thereof.</p> <p>Same.—Adverse Possession.—Where one acquires title by adverse possession, under claim of title, for twenty-five years, to land bordering on a non-navigable lake lying within the congressional survey, he also acquires title to the bed of such lake to the thread thereof.</p> <p>Same.—Reentry by Owner.—Where the owner of a tract of land, which adjoins a tract bordering on a non-navigable lake lying within the congressional survey, under a claim of title, though without a conveyance, enters upon the latter tract, encloses the same within fences extending to the margin of the lake, and uses the same continuously for a period of twenty-five years, his title to such tract, and to the bed of such lake to its thread, becomes perfect, notwithstanding the fact that after such enclosure the waters of the lake receded, and notwithstanding the fact that the original owner, without the knowledge or consent of the claimant, and without asserting any claim of ownership, had, within twenty years after such enclosure, entered upon such bed, and removed' its natural products.</p>

<p>Arbitration.—Common Law.—Panties.—Bastardy.—Seduction.—Parent and Child.—The father of a minor daughter, who had been seduced under promise of marriage, and had given birth to a bastard child, entered into an article of agreement with the father of the seducer, who was also a minor and had absconded, submitting the matter to arbitration by three persons named, each parent professing to act on behalf of his child; and they also executed a penal bond, binding each to the other, to observe the conditions of the award of the arbitrators. Such arbirators having awarded that the father of the seducer should execute to said daughter his promissory notes for certain sums, payable at certain dates, and also pay her a certain sum annually for the support of the child, she, by her next friend, instituted an action against her seducer’s father, alleging the foregoing facts, non-compliance with the award, and setting out copies of the submission, bond and award.</p> <p>Held, on demurrer to the complaint, that there is no defect of parties.</p> <p>Held, also, on a demurrer alleging insufficiency of the complaint, that such submission and award were not intended to be, and were not, under the statute of this State in relation to arbitrations and umpirages, but that the same constituted a valid common-law arbitration.</p> <p>Parties.—Practice.—Demurrer.—A demurrer tó a. complaint for an alleged defect of parties should designate the person who should be joined as a party.</p>

<p>County.—Liability for Fuel for County Jail.—Sheriff.—County Commissioners. —A county is liable to its sheriff for the value of fuel furnished by him, 1 and necessary for the county Jail; and the county board is authorized to allow him therefor, under section 13, 1 B. S. 1876, p. 352, of the act providing for the organization of county boards.</p> <p>Same.—Fees and Salaries.—Boarding Prisoner.—Fuel so furnished is not part of the boarding of prisoners, and is not compensated by the allowance per diem for such boarding, nor by the sheriff’s fees prescribed by law.</p> <p>Same.—Statute Construed.—The county board is not prohibited by section 15 of the fee and salary act of March 12th, 1875, 1 B. S. 1876, p. 467, from making the sheriff an allowance for fuel so furnished.</p> <p>Same.—Allowance.—County Officers.—The word “allowance,” as used in such section, does not include a legal demand owing from a county to any of its officers, but only such an allowance as would otherwise rest in the discretion of the county board, not depending upon legal right.</p>

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

<p>City.—Penal Ordinance.—Injuring Property.—Action Against Owner of Animal.—A penal ordinance oí a city, providing a punishment for wantonly injuring, or causing to be injured, “ any private or public property, or shade or ornamental trees,” etc., does not authorize the city to maintain an action against the owner of a domestic animal which has voluntarily injured any such tree.</p> <p>Same.—Power of Gity.—Action.—An ordinance of a city, giving to herself an action for an injury to private property, is invalid.</p> <p>Same.—Practice.—Amendment.—Where, in an action by a city for a violation of an ordinance, neither the original nor the amended complaint contains a cause of action against the defendant, it is not error to refuse leave to file such amended complaint.</p> <p>Same.—Motion to Dismiss.—Demurrer.—On appeal to the circuit court, from the mayor of a city, in a prosecution by the latter for a violation of an ordinance, a motion by the defendant to dismiss the prosecution, for want of a sufficient cause of action, is proper, and is equivalent to a demurrer for insufficiency of facts.</p>

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

<p>Bond.—Injunction.—Deject.—A bond executed by the plaintiffs, in an action against several defendants, to obtain a temporary injunction, enures to the benefit of all the defendants, though, in its terms, it is executed to but one of them.</p> <p>Same.—Action On.—Suggesting Defect.—Pleading.—In an action upon such defective bond, by such'defend ants, the complaint need not suggest such defect, where the bond, upon its face, itself suggests the same.</p> <p>Same.—Condition.—A bond executed in a proceeding to obtain an injunction, providing “ for the payment of all damages and costs” sustained by the obligee by reason of such injunction, “ should the same be wrongful,” has but one condition, which is, that the injunction should be wrongful.</p> <p>Same.—Breach.—Practice.—Demurrer.—Motion to Strike Out.—In an action upon such bond, but one breach is assignable, which is, that the injunction was wrongful; but, if additional breaches be assigned, the remedy is, not by demurrer to such breaches, but by a motion to strike them out.</p> <p>Same.—Bmdenee.— Non Esi Factum.—Under the issue formed in such action by the general denial, the bond in suit may be given in evidence without proof of its execution.</p> <p>Same.—A finding for the plaintiff in such action can not be rendered, unless the bond is given in evidence.</p>

<p>Replevin.—Defence.—Administrator.—-Where, in an action to replevy personalproperty, brought against the defendant personally, he claims possession of the same as administrator of the estate of a decedent, it is neees-' sary, to establish such defence, that he show, not merely that he came into lawful possession of the property as such administrator, but also that it is the property of such estate.</p> <p>Same.—Tort.—Replevin is a mere possessory action, to recover the possession of property of which the plaintiff is deprived by a tort.</p> <p>Same.—Parties.—Any person having the unlawful possession of personal property belonging to’ another is the proper party from whom to replevy 4 the same, whether he claims it as owner, agent, administrator, trustee, custodian, or in any other capacity.</p> <p>Same.—Administrator can not Commit a Tort.—An administrator can not, as such, commit a tort; and any tort committed by him is committed, and renders him liable, individually.</p>

<p>Arbitration.—Practice.—Demurrer.—A motion to make an award by arbitrators a rule or order of the circuit court may be made either orally or in writing, and is not subject to demurrer.</p> <p>Same.—Rule to Show Cause.—Answer.—Where, on motion of one of the parties to an award by arbitrators, the submission and award are entered of record in the proper court, and a rule is granted against the opposite party, to show cause why judgment should not be rendered'on the award, the only adversary answer that the latter can make is to allege some of the grounds mentioned in section 16, 2 B. S. 1876, p. 322, of the act relative to arbitrations.</p>

<p>Ineakt.—Process.—Summons.—Service of summons on an infant defendant must be made in the same manner as upon an adult defendant.</p> <p>Same.—Appearance.—Attorney.—Guardian Ad Litem.—Practice.—An infant defendant can not appear and answer to an action by attorney, but such appearance and answer should be by guardian ad litem.</p> <p>Same.—Demurrer.— Waiver of.—Where a defendant files his answer to a complaint before a ruling is had on a demurrer thereto, filed by him, he thereby waives his demurrer.</p>

<p>Trespass.—Defence.—Parol License.—Pleading.—In an action for trespass, in entering upon the lands of the plaintiff and removing therefrom a building erected thereon, the defendant answered, that, under a parol license from the plaintiff so to do, he had, at his own expense, erected and removed such building, doing no unnecessary damage to the plaintiff’s land.</p> <p>Held, on demurrer, that the answer is sufficient.</p> <p>Bill op Exceptions.—Filing.—Time.—Sup-erne 'Court..—Where sixty days’ time from the 3d of December is allowed, within which to file a bill of exceptions, the 2d day of February following is too late for such filing.</p> <p>Same.—Evidence.—Instruction to Jury.—Where instructions to a jury are not abstractly wrong, as legal propositions, and the evidence is not in the record, the Supreme Court, on appeal, can not consider their applicability to the evidence.</p>

<p>Pleading.—Counter-Claim.—Trial of After Complaint Dismissed.—Practice.— Conveyance.—Peal Estate, Action to Recover.—Where, in an action to set aside certain conveyances of land, and to recover possession of the same, the defendant answers, alleging title in himself to the land, asking the same to be quieted as against the plaintiff, and demanding judgment for damages, such answer constitutes a counter-claim, and the defendant is entitled to have the same tried, even after a dismissal by the plaintiff of his action.</p>

<p>Criminal Law.—Indictment—Motion to Quash.—Practice.—A motion to quash an indictment consisting of several counts, addressed jointly to all, should be overruled, if any one of them is sufficient.</p> <p>Same.—Assault and Battery With Intent.— Words and Phrases.—An averment in an indictment for assault and battery with intent to murder, that the defendant wounded the injured party by “ shooting ” him with a pistol loaded with gunpowder and leaden balls, is equivalent to an averment that the injured party was hit by the substance with which the pistol was loaded.</p> <p>Same.—Manslaughter.—Under an indictment for an assault and battery with intent to murder, the defendant may be convicted of assault and battery with intent to commit manslaughter. ..</p> <p>Same.—Instruction to Jury.—Reasonable Doubt.—On the trial of the defendant in such case, the court instructed the jury, that “Evidence is sufficient to remove reasonable doubt, when it is sufficient to convince the judgment of ordinarily prudent men with such force that they would act upon that conviction, without hesitation, in their own most important affairs.”</p> <p>Held, that the instruction is correct.</p> <p>Same.—Harmless Error.—An instruction to the jury in such case, as to what it is necessary for the State to prove, to convict the defendant of assault and battery with intent to murder, or as to the “ sudden heat ” reducing the killing to manslaughter, though erroneous, is not available as ground for a new trial, where he is convicted of an assault and battery with intent to commit manslaughter only.</p> <p>Same.—Retreat of Injured Party.—Where, on the trial of such action, it appears that the injured party, being unarmed, had, after attacking the defendant, fled for safety from the defendant who was armed, and also aided by another, it is not available as cause for a new triql, that an instruction to the jury, in relation to the duty of the defendant when the injured party had retreated, did not refer to the fact as to whether such retreat was or was not made in “ good faith.”</p> <p>Same.—Separation of Jury.—Sealing up Verdict.—Where such cause has gone to the jury, they may, under the order of the court, if no objection be made by the defendant, seal up a verdict found by them during an adjournment for the day, separate, reassemble on the meeting of court, and then return their verdict.</p> <p>Same.—Trial by Affidavit.—Where, in such case, the question as to whether or not such order was made in the hearing of the defendant and his counsel is raised by the affidavit of the defendant only, counter affidavits are admissible on behalf of the State, showing such order to have been audibly made, in the presence of the defendant and his counsel.</p>

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

<p>Contested Election.—County Commissioners Governed by Law Governing Circuit Court.—On the trial, by the proper board of commissioners, of a proceeding to contest an election, such board is governed “by the rules of law obtaining in circuit courts.”</p> <p>Same.—Notice.—Service.—Motion to Set Aside.—Practice.—A motion in such proceeding, before the county board, on a special appearance for that purpose, to quash the notice of contest, or to set aside the process and the service thereof, on the ground that they are “ irregular, defective and insufficient,” is too vague, uncertain and indefinite, and points out no valid ground of objection.</p> <p>Same.—Appearance.—Where, before such board, after the making of such insufficient motion, the contestee enters a full appearance to the proceeding, he may, on appeal to the circuit court, on special appearance, renew the motion made by him before the county board, but can not make a new and different motion to quash the notice.</p> <p>Same.—Sufficiency of Notice.—Summons.—Process.—Statute Construed.—The notice of contest in such case should not be set aside, or adjudged insufficient, where it sufficiently informs the contestee that a contest has been instituted before the proper county board. Section 18 of the act of May 4th, 1852,1B. S. 1876, p. 448, in relation to contested elections, so far as it prescribes the time within, or the manner in which, the sheriff shall serve a notice of contest, is merely directory. The Stale, ex rel., etc., v. Hudson, 37 Ind. 198, overruled.</p> <p>Same.—Sheriff.—Power of.—A sheriff is authorized by law to serve upon the contestee a copy of the statement of the grounds of contest, delivered to the sheriff by the county auditor, and his return of such service, on the notice of contest, is sufficient.</p> <p>Same.—Mistake.—Ground of Contest.—Evidence.—Pleading.—A mistake in the count of' votes received by a candidate for an office, made by the board of canvassers, whether innocently or otherwise, is good ground for contesting an election, and evidence of the same is admissible, either under a special plea of such mistake or under an allegation that the contestor had received a higher number of votes than his opponent.</p>

<p>Notice by Publication.—Affidavit for.—Foreclosure of Mortgage.—In an action to foreclose a mortgage on real estate, against a non-resident holder of the equity of redemption, a notice of the pendency of such action, given to such holder by publication, must, to be valid, be based upon an affidavit, complying with the requirements of section 38 of the practice act. 2 B. S. 1876, p. 49.</p> <p>Same.—Jurisdiction.—Sheriff’s Sale.—Case Ooerruled.—Where such holder has no actual knowledge of such action, and the notice by publication is based on an affidavit, that the affiant “ is informed and' believes that the defendant,” such^holder, “ is not a resident of the State of Indiana,” such notice is void, the court has no jurisdiction to hear the cause, and a sale made on a decree' rendered therein is void. Trew v. Gaskill, 10 Ind. 265, overruled.</p>

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

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

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

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

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

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

<p>Cexminal Law.—Burglary.—Larceny.—Possession of Stolen Goods.—Presumption.—Instruction to Jury.—On the trial of a defendant indicted for burglary and larceny, where it appeared from the evidence, that the defendant was in possession of the stolen property shortly after the theft, the court instructed the jury trying the cause, th^t, if the defendant has “failed satisfactorily to account” for such possession, or has “ given a false account ” of the same, “ the law presumes that the defendant stole such property.”</p> <p>Held, that the instruction was erroneous, and had a material bearing on the cause, though the defendant was convicted of burglary only.</p> <p>Held, also, that the inference or presumption arising from the possession of stolen goods is one wholly of fact, and not of law.</p>

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

<p>Real Estate, Action to Redeem.—Parties.—Sheriff’s Sale on Foreclosure.— The grantor of the equity of redemption of real estate is not a proper coplaintiff with his 'grantee, in an action by the latter to redeem such real estate from a sheriff’s sale of the same on a decree of. foreclosure.</p> <p>Pleading.—Complaint by Joint Plaintiffs.—A complaint by several co-plaintiffs must, to be sufficient on demurrer, show a joint cause of action in favor of all the plaintiffs.</p> <p>Same.—Practice.—Statute Construed.—Failure of Evidence.—The recovery in favor of a part only of several coplaintiffs, in an action in relation to real estate, contemplated by section 600 of the practice act, 2 R. S. 1876, p. 252, can be had only where the allegations of the complaint show a good cause of action in favor of all the coplaintiffs, but the evidence on the trial establishes such alleged cause in favor of part only of the co-plaintiffs.</p>

<p>Contract.—Save.—Evidence.—Where personal property is sold and delivered at an agreed price, that price is all that can be recovered, though the purchaser refuse to execute his promissory note therefor, in accordance with the terms of the contract; and evidence of the value of such property is inadmissible.</p> <p>Same.—Payment.—Principal and Agent.—A payment to the authorized agent of a creditor, by the debtor, is equivalent to a payment to the creditor himself.</p>

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

<p>Pkomissory Note.—Payable in Bank.—Action by Endorsee Against Maker.— Measure of Damages.—In an action on a promissory note payable in a bank of this State, against the maker, by an innocent endorsee thereof for value and before maturity, the measure of the damages recoverable thereon is, not the amount paid therefor by the plaintiff, but the amount due on the note.</p> <p>Same.—Partial Defence.—Consideration Paid by Endorsee.—Fraud.—Pleading. —In an action by the payee, against the maker, on a promissory note, the defendant answered, admitting the execution of the note, but averring that it was executed for the same amount as, and in lieu of, another promissory note, payable in a bank of this State, executed without any consideration therefor to a third person, who, before maturity, endorsed the same to the plaintiff for an amount much less than its face, and that the latter had falsely and fraudulently represented to the defendant that he had paid the full face thereof, thereby inducing the execution of the note in suit. Prayer for a reduction of the recovery to the amount actually paid by the plaintiff, with interest.</p> <p>Held, on demurrer, that the answer is insufficient.</p>

<p>From the La Porte Circuit Court.</p>

<p>Telegraph Company.—Failure to Transmit Message.—An electric telegraph company, having a line of wires wholly or partly in this State, and engaged in telegraphing for the public, is liable in damages for a failure of their agent to transmit a proper message, which is placed in his hands during usual office hours for transmission, accompanied by payment or tender of the usual charges.</p> <p>Supreme Court.— Weight of Evidence.—The Supreme Court, on appeal, will not disturb the verdict of a jury on the mere weight of evidence.</p> <p>New Trial.—Misconduct of Judge.—Where no objection thereto is made, the fact that the regular presiding judge of a court in which a cause is being tried, during such trial, temporarily absents himself, and calls a practising attorney to preside in his place, is not ground for a new trial.</p>

<p>Decedents’ Estates.—Allowance to Administrator or Executor.—How Made.— The allowance to an executor or administrator, for his services in the settlement of his decedent’s estate, can not be fixed by him, but can be made by the proper court only on his filing the statement, and in the manner, required by section 148 of the act of June 17th, 1852, “ providing for the settlement of decedents’ estates,” etc. 2 R. S. 1876, p. 545.</p> <p>Same.—Resisting Allowance.—Such an allowance, made by the court by its approval of a partial settlement report of 'an executor or administrator, wherein he merely credits himself with a certain sum for his services, without notice to the heirs or legatees, is not conclusive on them, and may be objected and excepted to, and disproved, by them, on the filing of his final settlement report.</p> <p>Same.—Evidence.—Where objection and exception are so made, it is the duty of the court to heai; evidence on behalf of the heirs or legatees, disproving or reducing such allowance.</p> <p>Same.—Attowamee by Former Judge.—The fact that such allowance had been so made by a former judge of the court, by a mere approval of a partial report wherein an allowance for services had been so claimed as a credit; is no reason why a subsequent judge of such court should refuse to hear evidence in regard to the same.</p>

<p>Supreme Court.—Brief.—Dismissal.—Criminal Law.—On appeal to the Supreme Court, the appellant must file a brief conforming to the rules and usages of that court, or his appeal will be dismissed.</p>

<p>Liquor Law.—Sale without License.—Contract.—Partnership.—Principal and Agent.—On the trial o£ a defendant charged with selling intoxicating liquor, without license, in a less quantity than a quart at a time, the evidence established that the defendant, who was the owner of the premises where the sale was made, had made such sale pursuant to, and in compliance with, the terms of a written contract, entered into by the defendant, who had no license, and another who had a license, whereby the defendant leased such premises to the licensee' for a saloon, upon con- . dition that the licensee should furnish the stock necessary to carry on the business, that the defendant, in the name of the licensee, should make all purchases and sales of such stock, should pay all debts,and expenses incurred in carrying od the business out of the proceeds thereof, and that, for his services and the rent of his building, he should receive all the profits of the business, except a certain sum per diem, which was to be paid to the licensee.</p> <p>Held, that, by the terms of such agreement, the licensee and defendant became, as between themselves, not partners, but principal and agent, and that such sale was protected by such license.</p>

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

<p>Mechanic’s Lien.—Action by Laborer against Owner.—Pleading.—In an action by a mechanic, employed by a contractor, against the owner of real estate, to enforce a lien for labor expended by the plaintiff in the erection, by the contractor, for the owner, of a building thereon, an averment in the complaint, referring to a bill of particulars attached thereto, which shows the amount due from the contractor to the plaintiff, is sufficient.</p> <p>Same.—Evidence—Record of Notice.—The record of the notice of intention to hold a lien, filed by a mechanic against the owner of property, for the debt of the contractor to the mechanic, is competent evidence in an action by the mechanic against such owner, to enforce a mechanic’s lien.</p> <p>Same.— Value of Plaintiff’s Services.—The defendant owner in such action may give evidence that the value of the services rendered by the plaintiff for the contractor are not worth the amount charged in his notice of lien and bill of particulars.</p> <p>Same.—Defence.—Payment to Contractor.—It is no sufficient answer in such action, that the defendant, before he had notice of the mechanic’s lien, had paid the contractor in full.</p> <p>Same.—Fraud.—It is no sufficient answer in such action, that the defendant had paid the contractor in full, and that the plaintiff had thereafter permitted the contractor to leave the State, taking with him property sufficient to pay the plaintiff’s claim, without attempting to collect the same, with intent to defraud the defendant.</p>

<p>Bahjroad.—Killing Stock.—Railroad Located on Highway.—Duty to Fence.— Where, with the permission of the proper board, of county commissioners, a railroad is located upon part of a public highway, the remainder of which is still used by the public as a highway, the company is not bound to fence its right of way, and is not liable under the statute for stock killed thereon.</p>

<p>Conveyance.— Warranty.—Breach.—Measure of Damages.—It is the rule in this State, ordinarily, that the measure of damages for a breach of the covenants of warranty in a conveyance of real estate is the amount of the purchase-money, with interest thereon.</p> <p>Same.—Indemnity Mortgage.—Contract.—Eviction.—Conveyance Pending Litigation.—During the pendency of litigation involving the title to real estate, A., one of the claimants, conveyed the premises in controversy to C., a third person, by a warranty deed, put him in possession, and executed to him a mortgage on other real estatef‘ to indemnify ” him “ against all loss and expense which” might arise from such litigation. C.,having been evicted, as a result of such litigation, and A. having paid a much larger sum for a conveyance from B. the successful litigant, to C., than that paid by the latter to 'A., with interest, though less than the purchase-money for such latter conveyance, A. commenced an action against B. for satisfaction of the mortgage, and the defendant, B., by counter-claim, asked a foreclosure thereof for the additional amount paid by him to B. for such latter conveyance.</p> <p>Held, that such first conveyance and mortgage should be construed together as one contract.</p> <p>Held,-also, that the damages recoverable by C., against A., on both warranty and mortgage, are only the amount of purchase-money paid by the former to the latter, with interest thereon, and any costs necessarily resulting from his eviction.</p> <p>Same.— Witness.—Husband and Wife.—Where such action for satisfaction is brought by a husband and wife, to satisfy a mortgage executed by them on her separate real estate, to indemnify the grantee of real estate by them conveyed by warranty deed, the husband only being liable on the warranty is a competent witness for the plaintiffs, though his testimony incidentally affect his wife’s rights in the action.</p>

<p>Criminad Law.—Repeal of Statute.—Grand Larceny.—By the act of March 3d, 1877, Acts Beg. Sess. 1877, p. 63, amending section 19 of the act of June 10th, 1852, 2 B. S. 1876, p. 432, “ defining felonies,” etc., the .penalty fixed by such section 19, for grand larceny, was not altered, hut only the amount necessary to constitute such felony.</p> <p>Same.—Indictment.—An indictment for grand .larceny, charging the stealing of property of the value of fifteen dollars or.upwards, found prior to the taking effect of such act, was not rendered had hy such amendment.</p>

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

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

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

<p>BaiXiROAD.—Killing Stock—Pleading.—Arrest ‘of Judgment.—A complaint l against a railroad company for killing stock, which neither avers such killing to have been the result of negligence, nor that the defendant had failed to securely fence its track, is bad on motion in arrest.</p>

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

<p>Criminal Law.—Obstructing Highway.—Indictment.—An indictment for obstructing a public highway, to be sufficient, must, by its allegations, show some actual and substantial interference with the rights of the travelling public.</p>

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

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

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

<p>Supreme Court.—Weight of Evidence.—The Supreme Court, on appeal, will not disturb a finding on the mere weight of evidence, if there be evidence tending to support it.</p>

<p>Trespass.—Judicial Sale.—Execution.—Judgment.—Appraisement.—Pleading. —In an action by an execution debtor, against his execution creditor and a constable, to recover damages for the trespass of the latter in selling the goods of the debtor, without appraisement, on an execution in favor of the creditor, on a judgment against the debtor not waiving appraisement, it is not sufficient to answer that such judgment had been rendered for a tort committed by the defendant.</p>

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

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

<p>Mistake.—Money so paid Recoverable.— Negligence.—Promissory Note.—Administrator.—Attorney.—Pleading.—In an action by A., against B. and C. personally, to recover money paid by mistake, the complaint alleged, that B., as administrator of a certain decedent’s estate, had represented to A, that he held a promissory note against A. as surety, and another as principal, and that he had placed the same in the hands of C., his attorney, for collection; that A., under the impression that B.’s statement was correct, had paid to C. the amount of the note and lifted it, whereupon he discovered that he had never executed the note; that thereupon, while the money was yet in C.’s hands, he informed the defendants of the mistake, tendered, and now tenders, back the note, and demanded of them repayment, which was refused.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Insteuctiok to Juby.—New Trial.—Where the substance of an instruction asked and refused to be given to a jury is covered by one given, such refusal is not ground for a new trial.</p> <p>Same.—Supreme Court.—Where, on appeal to the Supreme Court, the evidence is not in the record, the applicability to the evidence of the instructions to the jury can not be considered.</p>

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

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

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

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

<p>Supreme Court.—Practice.—Assignment of Error.—Bill of Exceptivas.— Change of Venue.—To be available as error, on appeal to the Supreme Court, the granting of a change of venue, or the remanding of a cause to the court from which a change of venue has been taken, must be assigned as error, and the motion upon which such action is taken must be made part of the record by a bill of exceptions.</p> <p>Practice.—New Trial.—When Motiva for Made.—A motion for a new trial can not be made at a term subsequent to that at which the cause was tried.</p> <p>Samei — Bill of Exceptions.—Evidence.—A bill of exceptions, purporting to contain the evidence given on the trial of a cause, must affirmatively show that it contains all the evidence.</p> <p>Same.-—Where a motion for a new trial is made too late, an assignment as error in the Supreme Court, that the court below erred in overruling such motion, presents no question for decision.</p> <p>Same.—Record.—Demurrer.—An assignment as error, in the Supreme Court, that the court below erred in overruling a demurrer which is not in the record, presents no question for decision. .</p> <p>Same.—Disclaimer.—Where one of several defendants, in an action relating to real estate, files a disclaimer of all interest therein, and, by the judgment, recovers nothing against the plaintiff, the latter can not complain, in the Supreme Court, of a ruling upon a demurrer filed to the complaint by such defendant.</p> <p>Same.—Demurrer.—A demurrer to a pleading must clearly designate the pleading to which it is addressed.</p>

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

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

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

<p>Sheexff’s Sale.—Notice by Publication.—Newspaper.—Distance from Seal Estate.—Where the several newspapers published in a county are all printed in the same town or city, notice of a sheriff’s sale of real estate, by publication in a newspaper, may be given by him in any one of such newspapers, regardless of the fact that the building in which it is printed is situated at a greater distance from such real estate than the building - in which another is printed.</p>

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

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

<p>Fom the Montgomery Circuit Court.-</p>

<p>City.—Annexation of Territoi'y.—IIoxv Made.—Enjoining Municipal Taxation. —Appeal.—Evidence.—County Commissioners.—Pleading.—In an action against a city, by the owner of real estate, which had been annexed thereto, to enjoin the collection of municipal taxes assessed thereon by the city, the complaint alleged, that the proceeding annexing such real estate was void, for the reasons that such real estate was used exclusively for farming purposes, and was not contiguous to the city, and had not been laid off in lots; that no petition for such annexation had been presented to the board of commissioners by the- city; that the city had assigned no reasons for such annexation, in a petition therefor; that no accurate description of the real estate by metes and bounds, and no plat thereof, had been presented to the board by the city; that no sufficient notice of such petition by publication had been given; that no application for such annexation had been made to or acted upon by such board at any regular or lawful session; and that plaintiff had never had any notice of such proceeding.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that such proceeding, to be valid, must be in strict conformity with the statute authorizing it.</p> <p>Held, also, that the decision of the board in such proceeding is one from which no appeal lies.</p> <p>Held, also, that only when the proceedings in such case have strictly complied with the statute is the entry of such annexation, or an attested copy thereof, conclusive evidence of annexation.</p>

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

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

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

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

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

<p>Criminal Law.—Acquittal of Defendant.—Appeal by State.—Supreme Court-Statute Construed.—Where, in a criminal prosecution, whether upon evidence regularly given or an agreed statement of facts, the defendant is acquitted, the State can not, under section 119, 2 R. S. 1876, p. 405, appeal to the Supreme Court upon the mere question, as to whether the finding or verdict is sustained by the evidence.</p>

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

<p>Criminal Law.—Assault and Battery.—Cmreclion of Pauper by Superintendent.—Where, without anger or rudeness, and solely for the purpose of preserving discipline, the superintendent of a county asylum for paupers administers moderate physical chastisement to an unruly pauper in his charge, he does not thereby commit an assault and battery.</p>

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

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

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

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

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

<p>Will.—Mental Capacity of Testator.—Evidence.—Former Will.—Practice.— Supreme Court.—In an action to set aside a will, the contents of a former will, made and destroyed by the testator, may or may not have a tendency to show that he was of unsound mind; but, when evidence, offered to prove the contents of such former will, is excluded, the Supreme Court can not say it was error, in the absence of a statement of what was expected to be shown as the contents of the former will.</p> <p>Same.—Instruction to Jury.—The court instructed the jury, in such case, as follows: “ In legal contemplation, one who has sufficient mind to know and understand the business in which he is engaged, who has sufficient mental capacity to enable him to know and understand the extent of his estate, the persons who would naturally be supposed to he the objects of his bounty, and who could keep these in his mind long enough to, and could, form a rational judgment in relation to them, is a person of sound mind.”</p> <p>Held, that the instruction is correct.</p> <p>Same.—It is not error, in such case, for the court to instruct the jury as to different theories of mental soundness, that, as tó such “ distinctions and classifications of theories,” they have nothing to do, except so far as they may actually assist them in coming to a conclusion.</p> <p>Same.—It is not error to instruct the jury, that the mind may be sound, while the memory is impaired.</p> <p>Same.—Particularizing Errors.—The Supreme Court will not search through voluminous instructions for errors, where counsel have failed to particularize or suggest them.</p>

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

<p>Railkoad.—Tax in Aid of.—Indemnity Bond.—Action on by Tax-Payer.— Pleading.—A bond was executed by tbe officers of a railroad company, as obligors, to certain tax-payers, as obligees, reciting, that the board of commissioners of the county wherein such tax-payers resided had ordered a special tax to be levied on the property of the obligees, and immediately collected, to aid in the construction of such company’s railroad, and that one of said tax-payers, for himself and the others, had appealed from such order, which would occasion delay and injury to the interests of the obligors, and stipulating, that, if such taxpayer would “dismiss his.said appeal, and thereby permit” the collection of such tax, and if such obligees, naming them, would “pay the special tax so ordered to be collected by said board, for the purpose aforesaid,” the obligors would refund to such tax-payers, on or before a day named, “severally, the taxes they may severally pay for said purpose into the county treasury,” if such railroad was not completed to a certain point in such county, by said day. The complaint, in an action on such bond by one of such‘tax-payers, failed to allege, that the entire special tax had been paid by the obligees.</p> <p>Held, that the complaint was defective for this reason, as the bond contemplated the payment of the whole of such tax.</p>

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

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

<p>Trespass.—Former Adjudication.—Pleading.—In an action for damages, for the unlawful taking and conversion of different items of personal property, it is a good defence, pro tanto, to answer a former adjudication as to any of such items. /</p> <p>•Assignment for Benefit of Creditors.—Beal Estate in Different Counties. —Recording Deed.—Where a debtor, owning different tracts of real estate, situated in different counties, makes an assignment of the same, by a deed of conveyance to a trustee, for the benefit of his creditors, such deed ' should be duly recorded in each of said counties.</p> <p>Same.—Lease by Insolvent of Real Estate Assigned.—Innocent Purchaser.—Sale of Ch'owing Crop.—Trespass.—An owner of real estate situated in different counties made an assignment of the same, by a deed of conveyance to a trustee, for the benefit of his creditors, of which due notice was given by 'publication, and such deed was duly recorded in the recorder’s office, and a copy thereof filed in the clerk’s office, in one of such counties only; such bankrupt having thereafter leased a tract of such land, sit- . uated in another county, to a certain lessee, in writing, reserving part of . the crops to be raised as rent therefor, and being indebted to a citizen of such county, the latter, without notice of any conveyance of such land, accepted, in payment of such debt, a written order from the bankrupt, to the lessee, to deliver his part of the growing crop to the creditor; and such trustee, as such, having afterward conveyed such land'to a third person by deed, and such creditor having thereafter, with notice of such conveyance, taken possession of, and converted, such growing crop, the grantee brought suit against the creditor for conversion.</p> <p>Held, that such notice and record of such assignment were not binding on the defendant.</p> <p>Held, also, that the delivery to the defendant, by the bankrupt, of such order on the lessee, vested in the defendant the title to such crop.</p>

<p>Supreme Court.—New Trial.—Assignment of Error.—Practice.—Error in the admission of evidence is ground for a new trial, but is not a proper assignment of error, on appeal to the Supreme Court.</p> <p>Same.— Waiver.—Where an assignment of error, on appeal to the Supreme Court, is not argued in the brief of the party making the assignment, it is thereby deemed to be waived.</p>

<p>Criminal Law.—Indictment Must Name Defendant.—An indictment, which neither names nor refers to the defendant, is insufficient.</p> <p>Same.—Judgment.—Verdict—Where a defendant is found guilty generally, on an indictment containing both sufficient and insufficient paragraphs, a judgment of conviction may be rendered; but where he is found guilty on several paragraphs specifically, of which any one is insufficient, a judgment of conviction is erroneous.</p> <p>Same.—Keeping or Renting House for Gaming.—An indictment charging the defendant with keeping, or with renting to a person named, his house, “ to be used for gaming,” and for allowing a person named, “ and divers others to the grand jury unknown, to play at a certain game of cards called faro, for money,” etc., is sufficient.</p>

<p>Evidence.—Must be Relevant.—Practice.—Where, on the trial of a cause, a written instrument is offered in evidence, which, of itself, shows nothing making it relevant or material, and is accompanied by no offer to show that fact by other evidence, there is no error in excluding it.</p> <p>Same.—Bill of Exceptions.—Motion for New Trial.—Supreme Court.—Where, on appeal to the Supreme Court, the exclusion of evidence offered is complained of, such evidence must be made part of the record by a bill of exceptions, it not being sufficient to set the same out in, and as part of, a motion for a new trial.</p> <p>Same.—Set-Off.—Where, in an action on contract for a money demand, the defendant answers, by way of set-off, an indebtedness for services performed by him for 'the plaintiff, the fact that such services were to have been, by a certain written contract, rendered without pay, is no reason • for excluding evidence that the defendant is entitled to receive pay therefor, where it is alleged in the answer, that a subsequent contract for payment for such services had been made.</p>

<p>Eailboad.—Negligence.—Injuring Stock.—Evidence.—To sustain a common-law action against a railroad company, by the owner of an animal, for injury negligently inflicted on the animal by the defendant’s train of cars, there must be evidence that such injury resulted from the negligence of the defendant’s employees, operating such train.</p>

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

<p>Pleading.—Prayer of Complaint.—An averment in a complaint for damages resulting from a tort committed by the defendant, that such tort is “to the damage of the plaintiff” in a specified sum, is a sufficient prayer for relief.</p> <p>Negligence.—Pleading.—In an action to recover for damages caused by the negligence of the defendant, it is sufficient, as to that point, to aver in the complaint, without alleging facts showing, that such injury resulted without any negligence on the part of the plaintiff.</p> <p>Bailkoad.—Killing Stoclc.—Failure to Fence.—Evidence.—In an action under the statute, against a railroad company, for killing or injuring stock, the plaintiff must prove that his stock was struck by a train of the defendant.</p>

<p>Supreme Court.—Assignment of Error.—New Trial.—Practice.—Matter, which is only cause for a new trial, can not be independently assigned as error, on appeal to the Supreme Court.</p> <p>Same.—Change of Venue.—Error in reinstating a cause in which a change of venue has been granted, or in refusing sufficient time to perfect it is only cause for a new trial.'</p>

<p>Trusts.—Conveyance.—Mistake.—Judgment Lien.—Injunction.—A judgment debtor purchased real estate, agreeing with his wife that it should be conveyed to her, executed his promissory notes for' the whole sum of the purchase-money, and secured the payment of the same by a mortgage on such real estate, in which his wife joined; but, by mistake, the conveyance was made to him. His wife having subsequently furnished him money to pay, and with which he paid, one of such notes, and the judgment creditor having issued and levied execution on such real estate, she brought suit to enjoin such creditor, and compel a conveyance to her.</p> <p>Held., that no trust, in her favor, arose from such payment, that the land was subject to such levy, and that her rights are subject to those of the creditor.</p>

<p>Payment.—Mistake.—Payment of Taxes, by the Grantor, on his Grantee’s Land.—The grantee of a tract of real estate haying failed to have the same transferred and assessed to himself, and to have "his deed re- ' corded, taxes thereon were thereafter assessed' to the grantor, who, by mistake, in paying taxes on his own property, paid the taxes so assessed on such tract.</p> <p>Held, that such payment was voluntary, and can not be recovered.</p>

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

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

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

<p>Pleading.—Recognizance.—Action for Forfeiture.—Prosecuting Attorney.— Practice.—In an action by the State on a forfeited recognizance, the complaint is not insufficient on demurrer, merely because such action is brought on the relation of the prosecuting attorney, as his name may be struck out on motion.</p> <p>Same.—Defective Recognizance.—A defective recognizance is cured by section 790, 2 R. S. 1876, p. 311.</p> <p>Same.—Supreme Court.—Confession of Error.—A judgment rendered on a defective recognizance, in favor of the State, will be reversed on appeal to the Supreme Court, on a joinder in error “ by the appellee,” in part denying, and in part confessing, the errors alleged.</p>

<p>Continuance.—Affidavit.—Practice.—An objection to going into trial, by the counsel of a party-to a cause called for trial, on account of the sickness and absence of his client, is not sufficient, when not accompanied by a proper affidavit and motion for a continuance.</p> <p>New Tkiax,.—Affidavit for.—Practice.—A motion for a new trial, based upon an affidavit of the party asking it, stating his absence from the trial on account of sickness, must show that he had a good defence to the action, clearly identifying it. •</p>

<p>Supbeme Court.—Practice.—Appeal.—Time.—Statute Construed.—Under section 561, 2 R. S. 1876, p. 243, of the practice act, prior to the amendment of March 14th, 1877, Acts 1877, Spec. Sess., p. 59, an appeal to the Supreme Court had to be taken within three years from the time judgment was “ rendered,” i. e., declared, by the court below.</p> <p>Same.—Judgment.—Failure of Clerk to Enter.—The fact that a judgment, by mistake of the clerk, is not entered until after the date of its rendition, does not extend the time within which an appeal may be taken.</p> <p>Same.—Nunc Pro Turn Entry.—Where, by such mistake, the entry of a judgment is not made until after its rendition, and is then entered, by order of the court and the agreement of the parties, as of the day on which it was rendered, the time within which an appeal is taken to the Supreme Court begins to run from the date of the rendition, and not from the entry, of the judgment.</p>

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

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

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

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

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

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

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

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