Volume 59 — Indiana Reports

<p>Wetness. — Physician and Surgeon. — Professional Opinion. — Compensation.— Contempt. — While a physician or surgeon may be required to attend as a witness, and to testify to facts as other witnesses, and without other compensation than that provided by law for other witnesses, yet he can not be required to testify as to his professional opinion, over his objec- ' tion to doing so without the compensation of a professional fee; and his refusal to so testify unless so compensated is not a contempt. (Biddle, C. J., and Neblack, J., dissented.)</p>

<p>Witness. — Physician and Surgeon as Expert. — Compensation.—Contempt.—A. physician and surgeon can not be required to testify as an expert, by-giving his professional opinion, over his objection to doing so, unless compensated therefor by a professional fee, before so testifying; and his refusal to so testify unless so compensated is not a contempt. (Biddle, C.. J., and Niblack, J., dissented ; opinion by the former.)</p>

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

<p>Accokd and Satisfaction. — Composition with Creditors. — Subsequent Suit by Creditor Against Assignor. — Where the assignee of a promissory note joins with the other creditors of the maker, in a composition agreement ber tween such maker and his creditors, by which the former agrees to surrender his property to his creditors, and they, in consideration thereof, agree to accept such surrender in full satisfaction of their claims, and the agreement is performed on the part of such debtor, such assignee can not afterward recover on such note from his assignor.</p>

<p>Beview of Judgment. — Pleading.—Diligence.—A complaint for review of a judgment for material new matter, which does not show that the alleged new matter could not have been discovered before judgment by reasonable diligence, and that the complaint is filed without delay after the discovery, is bad on demurrer.</p> <p>Same.— Waiver. — Judgment by Agreement. — Form of Judgment. — Costs.—• Where a judgment is entered by agreement of the parties, errors in the prior proceedings and defects in the pleadings are waived. Errors in a judgment, as to its form and as to the payment of costs, are waived by failure to except thereto. A judgment will not be reviewed for errors of law which have been waived.</p> <p>Appearance. — Administrator.—Attorney.—An appearance by an administrator in person, in an action on a claim against his decedent’s estate, wherein judgment is rendered by agreement against the estate, is not necessary; an appearance by his attorney is sufficient.</p>

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

<p>Partition. — Statute of Limitations. — Tenants in Common. — Adverse Possession. — Where A. became a tenant in fee simple of an undivided portion of certain land in 1848, B. and C., who at the same time became tenants in fee simple of the remaining undivided portion, being already in possession of the whole as tenants thereof in common for life, and after conveyance to D., by B. and C., of their interests in said land, B. died in 1855, and, in 1873, C. still living, A. commenced suit for partition against E., in possession and claiming under said conveyance to D.,</p> <p>Held, that A.’s cause of action for partition did not accrue till the death of B.</p> <p>Held, also, that, the tenancy in common of the parties, which was alleged in the complaint, not being denied, the statute of limitations could not affect the right of A. to have partition.</p> <p>Held, also, that the possession of said life tenants, B. and C., and their grantee, under the instrument creating the life tenancy, could not be adverse to the remainder-man or reversioner, before the expiration of the life or lives for which the estate was held.</p> <p>Conveyance. — Contract to Convey.— Words of Inheritance. — In 1847, and until May 6th, 1853, the common-law doctrine prevailed in this State, that, in any deed or contract for the conveyance of real estate, words of inheritance were necessary to show that an estate of inheritance was intended to be created.</p> <p>Partition. — -Advancements.—Where A. conveyed certain land to his sons B. and C. by a deed which, by its terms, created a life estate therein in B. and C.</p> <p>Held, in an action for partition, brought after the deaths of A. and B., by A.’s heirs other than B. and C., against the grantee of B. and C., that, if A., in his lifetime, advanced to all his heirs except B. and C., in personal and real estate, the full share and interest that would have been due to each of them at A.’s death, as his heirs, and if said advancements were accepted by them in full of all their interest in A.’s estate, this would constitute a good defence to said action for partition.</p> <p>Pleading. — Reformation of Deed. — Mutual Mistake. — -A complaint to reform a deed of conveyance of land, on the .ground of a mistake, in the omission therefrom of certain words of inheritance, whereby an estate for life was created, when it was the intention of the parties to create an estate in fee simple, is bad on demurrer, if it contains no averment to the effect, that, at the time of the execution of the deed, the grantor and grantee were both ignorant of its precise contents, or of the omission therefrom of the alleged words of inheritance.</p>

<p>Highway. — Petition for location. — A. petition to locate a highway should describe the highway with sufficient certainty to enable a practical surveyor to run it.</p> <p>Same. — Arrest of Judgment. — Petition to locate ;a highway in a township .named, commencing at a po.int in a certain highway .described, “ south of, and adjacent to, the right of way” of a railroad .named, running .thence, etc., to intersect and connect with another highway described, “to be so widened or turned southerly, at or near its terminus, as to make a gafe and convenient passage from one highway to the other,” said highway to run through apd affect lands .owned by, etc.;</p> <p>field, on motip.n in arrest of judgment, on appeal to the circuit court, that the petition did not describe the starting point or the terminus with sufficient certainty.</p>

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

<p>Injunction. — Tax.—Amount Dm Must be Paid or Tendered. — An injunction ■will not lie to prevent the collection of a tax for a mere irregularity in the method of assessment, when any portion of the amount of the tax is legally due. The amount due must be paid or tendered before suit for an injunction.</p> <p>Same. — Pleading.—A complaint to enjoin the collection of taxes is insuffi- ■ cient without an allegation, that the tax duplicate is in the hands of the treasurer, without which the act of the treasurer in making a levy would ‘ be a trespass, for which there would be a remedy at law.</p>

<p>Pasties. — School Township. — School Tom. — Demurrer.—A civil township and the school township of the same territory are distinct corporations, and each must sue and be sued in its own proper corporate name, and neither can sue in the name of the other, or in that of the township trustee. So, also, a civil town and the school town are distinct corporations, which must sue and be sued each in its own corporate name. Therefore, a complaint in an action by a township trustee, against a civil town, showing only a controversy in regard to the ownership of certain taxes assessed and collected for school purposes (in which neither party could have any interest), was bad on demurrer.</p>

<p>CriminaIi Law. — Forgery.—Fmdenee.—The uttering of a -written paper, purporting on its face to be an order, signed “ elirere lowtrheiser,” as a general order of Ezra Loutzenheiser, could not be forgery. Such a paper could not be construed to bind Ezra Loutzenheiser on its face, and parol evidence would be inadmissible to show that said words, purporting to be a signature, were intended for the name of Ezra Loutzenheiser.</p> <p>Same. — Indictment.—Obtaining Goods by False Pretence. — An indictment charging the defendant with obtaining goods from another by false pretence, upon sucha writing, falsely represented by the defendant to be art order of Ezra Loutzenheiser, must state that the goods were obtained by the defendant from the person alleged designedly, by means of the writing and the representation of the defendant, that it was the true and genuine order of Ezra Loutzenheiser.</p>

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

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

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

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

<p>Agency. — Execution of Mortgage by Agent in Name of Principal. — Ratification. — A., having in his possession a certain sum of money belonging to B., by direction of the latter purchased certain land from C. for B., to whom G. conveyed it, and A. paid therefor said sum, and gave his own note for a balance of the purchase-money, and, to secure said note, executed a mortgage on said land to C., in the name of B., who knew of the purchase and authorized A. to sign all necessary papers, and, after said purchase, took possession of the land, claiming title thereto, with knowledge of said mortgage.</p> <p>Held, in a suit to foreclose said mortgage, that B. could not repudiate the execution by A. of said mortgage, in the name of B., though the latter never expressly authorized the former to sign said mortgage.</p>

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

<p>Railroad. — Appropriation of Land. — Appeal from Assessment. — Amendment.— On an appeal to the circuit court from an assessment of damages in a proceeding under sec. 15, p. 704,1 R. S. 1876, to appropriate certain land for railroad purposes, at any time pending a motion to strike out exceptions to the assessment, the exceptions may be amended by the filing of an additional exception, presenting a question proper to be tried on such appeal, as the question of the inadequacy of the damages assessed.</p> <p>Same. — Evidence.—Value of Land. — Gross-Examination.—Where, on the trial of such an appeal, a witness for the land-owner has been examined in-chief, generally, as to the land sought to be appropriated, the material it contains, value, etc., it is error to sustain an objection to a question, on cross-examination of such witness, requiring him to state the value of the land, including all the materials in it, as it lies, how much it is worth per acre in the market, though said witness may have answered such question on his examination in chief.</p> <p>Same. — Instruction to Jury. — Inspection of Premises by Jury. — Where, on such-trial, the jury, under charge of an officer, examined the premises, it was error to instruct the jury, that the sworn testimony given upon the stand, bearing upon the subject in controversy, and such reasonable deductions as were legitimately to be drawn from it, in connection with such facts as presented themselves in viewing the premises, constituted the only proper basis on which to rest their verdict, and afforded the only test and criterion by which they were to fashion and fix it.</p> <p>Same.— Value of Land. — On such trial, an instruction to the jury, from ■which they might understand, that, in ascertaining the amount of the damages, they were to consider the value of the land as such, and also the value of the gravel existing on the premises, was erroneous.</p>

<p>Criminar Law. — Indictment.—Murder.—In this State, an indictment for murder in the first degree must aver, that the killing was purposely done.</p> <p>Same. — Motion to Require Prosecutor to Elect Between Counts. — Judicial Disereiion. — It is within the discretion of the court to refuse to compel the prosecuting attorney to elect on which of two counts in an indictment for murder in the first degree he will put the defendant on trial.</p> <p>Same. — Evidence.—Admissions.—Statement of Defendant Before Coroner’s Inquest. — On the trial of an indictment for murder, a writing or statement signed by the defendant as his statement, or evidence given by him as a witness before the coroner’s inquest, held over the body of the deceased, is admissible in evidence, on behalf of the State, over the defendant’s objection, unless it be shown to have been made by the defendant under the Influence of fear produced by threats. And whether the coroner’s jury was legally organized or not, would not affect the question of the admissibility of such a statement freely made by the defendant.</p> <p>Same. — Instruction to Jury. — On the trial of an indictment, the refusal of the court to instruct the jury, that, if there was a reasonable doubt in their minds as to the establishment by the evidence of any material fact necessary to convict the defendant, they should acquit him, was not cured by a general instruction given, that the defendant was by law presumed innocent until proved guilty beyond a reasonable doubt.</p> <p>Same. — Statement to Jury of Material Facts to be Proved. — Where, on the trial of an indictment, the" court in charging the jury proposed to call their attention to the material facts in the indictment which must be proved, and did not mention all such material facts, the instruction was erroneous.</p> <p>Same. — Instruction Assuming Faei. — Where, on the trial of an indictment for murder by poisoning, the court, in its charge to the jury, directed attention to the question, whether the defendant gave ” the deceased poison “ with a criminal intent</p> <p>Held, that this was error, because the jury might understand the instruction to assume that the defendant gave the deceased poison, and left to the jury the question of intent alone.</p> <p>Same. — Reasonable Doubt. — An instruction to the jury, on the trial of a criminal action, which is calculated by its terms to leave the impression upon the minds of the jury, that the State has made out her case, and that, unless the evidence of the defendant raises in their minds a reasonable doubt, they should convict, is erroneous.</p>

<p>Criminal Law. — Instruction to Jury. — Assault and Battery with Intent to Commit Manslaughter. — On the trial of an indictment for assault and battery with intent to kill and murder A., the court instructed the jury, that, if they found beyond a reasonable doubt, that the defendant, without malice, either expressed or implied, but voluntarily and upon a sudden heat of blood and passion, unlawfully assaulted and beat the said A., m the manner and form charged in the indictment, this would be an assault and battery with intent to commit manslaughter ;</p> <p>Held, that the instruction was erroneous.</p> <p>Same. — Self-Defence.—To authorize a person to exercise the right of self-defence against an assailant, it is not necessary that the latter should,, in fact, contemplate injury either to the person of the former or any member of his family.</p>

<p>Parties. — Relator.—Suit on Bond of Assignee in Trust for Creditors. — An action upon the bond of an assignee, executed under the 8d section of the act of March 5th, 1859, 1 R. S. 1876, p. 142, providing for voluntary-assignments in trust for the benefit of creditors, can only be maintained' in the .name of the State of Indiana, upon the relation of the party interested ; and, if it be brought in the name of any individual, the complaint will be bad on demurrer.</p> <p>Practice. — Defective Special Verdict. — Where a special verdict does not contain a finding by the jury either for or against all the material facts in issue, a judgment rendered thereon over objection and exception will be reversed.</p>

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

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

<p>.Assault and Battery.— Unintentional Injury from Intentional Act. — Where a person, unprovoked, threw a piece of mortar at another, and a part of it struck a third person, and injured his eye, without his contributory fault, though there was no intention to inflict the injury, and the act was done in sport, yet, it having been done intentionally, the perpetrator was liable for the injury inflicted, in an action against him by the person injured, for damages occasioned by the assault and battery.</p> <p>■Same. — Infancy.—Damages.-—Infancy is no defence to a suit for damages occasioned by an assault and battery.</p>

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

<p>Slander. — Pleading.—In an action for slander, where the complaint alleges,, that the defendant had reported that the plaintiff had been guilty of the larceny of certain goods, it is not necessary to aver, that a larceny had been committed; it is immaterial ¡whether the alleged larceny had or had not been committed.</p> <p>Same. — Instructions as to Substance of Words Spoken. — -An instruction to the jury, in such case, that proof that the party spoke the words, in substance, as alleged in the complaint, would be sufficient, is correct. Such an instruction does not mean either other words with the same meaning, or equivalent words, but the substance of the same words alleged in the complaint.</p> <p>Same. — Sufficiency of Evidence to Sustain Verdict. — While the evidence to-sustain a verdict may not be of the most satisfactory or convincing character, yet, if the evidence tends to establish the material averments of the complaint, the Supreme Court will not disturb the verdict.</p>

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

<p>City Election. — Board of Canvassers. — Action Against. — Pleading.—The acts of a board of canvassers are ministerial; and if they unlawfully fail to perform their.duty, or perform it in an unlawful manner, whereby a person is injured, they are liable, and the complaint therefor need not allege, that they acted .maliciously, purposely or by mistake.</p> <p>Pbactice. — Sustaining Demurrer to Argumentative Denial. — Harmless Ei~ror.— lío harm is done by sustaining a demurrer to a paragraph of answer, which amounts to an argumentative denial of the complaint, where there is a general denial also filed.</p> <p>Same. — Pleading.—Lis Pendens. — An answer, setting up that the plaintiff had commenced an action against the defendants for the same cause, in the same court, to be good, must allege that the first cause is still pending.</p> <p>Board of Canvassers. — Powers of. — Statute Construed. — Election.—The pow- ■ ers of a board of canvassers of a city election are only ministerial, . under section 12,1 E. S. 1876, p. 271; and it is improper for the board to hear evidence as to irregularities at an election.</p> <p>Same. — Belarus of Election.— Uncertainty in. — Where the returns of an ' election fail to state for what office parties named are voted for, they are void for uncertainty, and the canvassers of the election should reject them.</p>

<p>Promissory Note. — Principal and Surety, — Notice.—A verbal notice by a surety on a promissory note, to the holder thereof, to proceed at once to collect the note of the principal, and a verbal- agreement by said holder so to do, do not waive the notice in writing required by the statute; and a failure to proceed according to the verbal agreement will not operate to release the surety.</p> <p>Same. — Extension.—Consideration.—An extension of the time of payment of a promissory note, upon the consideration that the principal will annually pay interest on the note at the rate stipulated therein, will not release the surety.</p> <p>Same. — Date of Notice in Writing. — Sunday.—Judicial Notice. — The Supreme Court will take judicial notice, that the date of a notice in writing, claimed to have been given by a surety to the holder of a promissory note, to proceed to collect the same of the principal, is on Sunday, and that ' said notice, if given at all, may have been given on that day, and, if so given, was void.</p>

<p>Public Highway. — Appeal from Decision of Board of Commissioners Locating Highway. — Service of Summons. — Practice.—At the first term of the circuit court after ah appeal was taken from the decision of a board of commissioners locating a highway, the appellees, on special appearance for that purpose, moved the court to dismiss the appeal, for the reason that the appeal was taken in vacation from the board, and that no summons had been issued or served upon the appellees, which motion was overruled.</p> <p>Held, that it is true, that a summons ought to have been issued out of the court, returnable on the first day of the next term, but a failure so to do would not authorize a dismissal of the appeal.</p> <p>Same. — The record in such a case, on appeal to the Supreme Court, should show affirmatively, that the summons was not sued out, if such error is assigned; and the ground of the motion to dismiss the appeal should be shown to be true by proper affidavit.</p> <p>Same. — Petition.—Description of Course. — The petition to locate a highway should set forth the beginning, course and termination of the highway proposed; and a description of the course as follows: “ Thence bearing southerly, to avoid Flat Creek, and keeping on the most favorable ground, running easterly and northerly, in and through the land of” A., “one hundred yards, back to” a given section line, is too indefinite. New words are more vague than “ southerly,” “ easterly ” and “ northerly.”</p> <p>Same. — Report of Majority of Viewers. — Where three persons are appointed as viewers of a proposed highway, a report by two will be valid.</p> <p>Same. — Appeal to Circuit Court. — Trial de novo.— Verdict of Jury. — In highway cases, on appeal to the circuit court, there must be a trial de novo of the whole case; and the verdict of the jury or decision of the court should be a finding of all the facts which the board of commissioners would have been required to find, to entitle the petitioners to the highway.</p>

<p>‘Contract. — Condition■ Precedent. — Performance.—Pleading.—In an action by the obligee, a railroad company, against the obligor, on a contract which stipulated that the obligor would pay a certain sum to the railroad company, on condition that the company would build, equip, and run a train of cars over, a railroad between given points, by a certain time, running on the east line of the obligor’s land, the complaint alleged the building of the road between the points within the time-named, and the running of the train, and that the track was constructed “ upon, or as near as practicable upon, the east line of the lands owned by said defendant, and at all points within fifty feet of said east line,”’ alleging no reason for not building the track on the east line, and no-waiver of that condition.</p> <p>Held, that the complaint was bad in not showing performance of the condition precedent.</p> <p>Same. — Part Payment.— Waiver. — The fact that the complaint alleges, that two dollars and a half were paid on the contract, without disclosing the-circumstances under which the payment was made, is not of much force as-tending to show an admission of performance, or a waiver thereof.</p>

<p>Decedents’ Estates. — ALsseis.—Lien for Work Lone, and Money Advanced.— Where a party agrees to pack hogs with a pork packer, who is to charge him the regular rates for packing, and agrees to pay ten per cent, interest on all moneys “ advanced on the hogs packed,” and controls the sale of the same after being packed, and such party dies before disposal of the same, the hogs so packed constitute assets of his estate; and the packer may have a lien on the pork so packed for his charges in slaughtering and packing the pork and manufacturing the lard,,but no lien for money-advanced on the hogs packed.</p> <p>Same.— Waiver. — Negotiable Promissory Note. — Payment of Charges. — Pleading. — Where a party has a right to a lien on property for work done upon the same, and takes a note payable in bank in settlement of his charges, he thereby waives his lien; but, in pleading such waiver, it must be alleged that the note was so taken in payment.</p> <p>■Same. — Settlement of Leeedeni’s Estate. — Allowance of Claim in Full. — Mutual Mistake as to Solvency of Estate. — Belief.—Where a settlement is had with a creditor of an estate, and his claim is allowed in full upon a mutual mistake that the estate is solvent, and the claim of the creditor is not a preferred claim, this constitutes a mistake which will be relieved against.</p>

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

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

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

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

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

<p>Sheriff’s Sare. — Sale in Parcels. — Statute Construed. — Under section 446, 2 B. S. 1876, p. 217, where a sheriff has offered for sale separately each of several tracts, lots or parcels of land levied upon, and has received no hid therefor, he may offer and sell some or all of the tracts, lots or parcels together. It would have been judicious in such case, after offering each parcel separately, to have offered an additional parcel to the previous offer, and so on, until it had been ascertained, that nothing less than the whole would be sufficient, before offering the whole.</p> <p>Same. — Voidable Sale.— Who may Take Advantage of Irregularity. — In such caBe, if more land is sold by the sheriff than is necessary to pay the ■debt, it constitutes an irregularity which renders the sale voidable, but not void. If the plaintiff be the purchaser, he can not.he heard to complain, that he got all the property, when a part might have been sold for a sufficient sum to pay his debt. The defendant in the execution, or perhaps those interested through him, can complain of such irregularity.</p> <p>Same. — Purchase of all the Parcels of Land in Solido for Amount of Judgment.— Want of Title in Defendant to Part of Lands. — Setting Aside Sale.— Apportionment of Credit. — Where an execution plaintiff, at a sheriff’s sale, -under the execution, of several distinct parcels of land, to some-of which the execution defendant has no title, and the others are encumbered by mortgage for their value, bids in all the parcels as a whole, for the amount of his judgment, the sale and satisfaction of the judgment can not be set aside, there being no fraud practised. There is not a total failure of title in such case; and there can not be an apportionment of nredit upon the judgment.</p> <p>Same. — Judicial Sales.— Warranty. — The general rule is, that there is no warranty in judicial sales.</p>

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

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

<p>Constitutional Law. — Statute Construed. — City.—Taxation.—Under section 58, as amended, 1 R. S. 187(j, p. 297, the power of a city to tax all property within its limits, subject to state and county taxation, is made absolute. There are no constitutional provisions restraining the power of the Legislature to confer upon cities the unlimited authority to tax all property within their limits given .by said act.</p> <p>Same.- — Power of Cities. — Cities may exercise all powers constitutionally conferred upon them by the Legislature of the State.</p> <p>Same.— Unjust Laws. — A statute can not he declared unconstitutional simply because it is wrong, or unjust, or violates the spirit of our institutions.</p> <p>Same. — Taking Private-Property for Public Purposes. — The constitutional provision, which prohibits the taking of property for public purposes without compensation, has reference only to the taking of specific pieces of the property of an individual.</p> <p>Same. — Motives of City in Annexing Territory. — Practice.—Injunction.-—The motives which may have induced a city to take within its corporate limits certain lands can not be inquired into, in an action to restrain the collection of taxes levied on the same by the city.</p>

<p>Embezzlement. — Ch'and Larceny. — Indictment.—Under the act of December 21st, 1865, defining embezzlement, etc., 2 B. S. 1876, p. 449, if a master entrusts his money or other property of value to his servant, and such servant fraudulently appropriates such money or property to his own use, he will be guilty of the crime of embezzlement only; and the facts will not sustain an indictment for grand larceny.</p> <p>Samp. — Criminal Law of this State. — In this State,'crimes and misdemeanors are defined and punished by the statutes of this State, and not otherwise.</p>

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

<p>Summons. — Betum.—Parol Testimony. — The return of a sheriff to a summons is conclusive between the parties, and can not be contradicted by parol testimony.</p> <p>Same. — Christian Name. — Statute Construed. — A woman, formerly the wife of G. W., brought an action to recover possession of real estate, which the defendant acquired under a foreclosure proceeding; in her complaint she described herself as Louisa, with A. as an initial letter of her middle name. In the complaint and summons in the foreclosure proceeding, she was described as Ann, the wife of G. W.; and the sheriff’s return showed service on Ann W. The evidence shows, that, at the time of the foreclosure, the plaintiff in the present action was the wife of G. W.</p> <p>Meld, that the sheriff’s return shows service of the summons on the plaintiff, as a defendant in the foreclosure suit; and, under section 37, 2 B. S. 1876, p. 49, if served upon her, it was immaterial whether she was called in the summons Ann or Louisa A. W.</p>

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

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

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

<p>Judgment. — Pleading.—Complaint to Review Judgment. — Demurrer.—Where a party defendant to a foreclosure suit is duly served with process, and a co-defendant files a counter-claim against him for an adjustment of equities arising out of claims upon the mortgaged property, and a judgment by default is taken upon such counter-claim, a complaint, under section 99 of the code of civil procedure, to set aside such judgment, which alleges, that the plaintiff, after the commencement of the foreclosure suit, called upon plaintiff’s attorney in that proceeding, and was by him informed, that it would be useless to employ counsel to look after his interest, as plaintiff asked no personal judgment against him, and that he paid no further attention to the case, etc., and alleging a defence, is not good on demurrer. Such complaint does not show mistake, inadvertence, surprise or excusable neglect, as contemplated by section 99 of the code.</p>

<p>He Exeat.— Undertaking by Plaintiff. — Amendment.—The undertaking which the statute, 2 B. S. 1876, p. 275, section 665, requires to be filed in a proceeding for a writ of ne exeat, may be subsequently amended by filing a new undertaking.</p> <p>Same. — Sufficiency of Undertaking. — Where such undertaking is not made payable to the defendant, but is taken by an oflicer in the discharge of the duties of his office, under section 790, 2 B. S. 1876, p. 311, the undertaking will be sufficient.</p> <p>Same. — Pleading.—Sufficiency of Complaint. — Demurrer.—A complaint, accompanied by a proper affidavit, which alleges, that defendant is indebted to the plaintiff on a promissory note as maker, with another as surety, and that defendant is about to leave the State, without paying or making provision for the payment of the same, taking with him property, etc., subject to execution, with intent to defraud plaintiff and his surety, is sufficient on demurrer.</p> <p>Same. — Complaint.—Parties.—Under section 668,2 B. S. 1876, p. 275, a complaint for a writ of ne exeat may be had against one party to a promissory note, without joining as plaintiff or defendant another, who is jointly liable with such party.</p> <p>•Same. — Evidence.—Proof of Fraud. — In such a proceeding, evidence which shows that the defendant was about to leave the State, without performing or making provision for the performance of his contract, and was taking with him property subject to execution, is sufficient proof of fraud to maintain the case; nor is it any answer to such evidence, that a surety on the note was solvent, and able to pay the same at maturity.</p>

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

<p>Ckiminai, Law. — Affidavit.—Malicious Trespass. — Removal of Property without License. — Statute Construed. — An affidavit which charges, that a party, on, etc., and at, etc., “did then and there, unlawfully, maliciously and mischievously injure and cause to be injured a certain fence, situate in said county, the property of” one A., “by then and there unlawfully, maliciously and mischievously tearing down, breaking down, and knocking down and removing a large portion of said fence, to wit, one-half,” etc., charges a malicious trespass, as defined by section 13, 2 K. S. 1876, p. 462, and does not charge a trespass in the removal of valuable articles from the land of another, as defined by section 14 of said act. Section 14 requires, that such removal be made “ without a license so to do from competent authority.”</p>

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

<p>Pleading. — Counter-Claim.—Answer.—A counter-claim filed to a complaint can not perform the double office of answer and counter-claim.</p> <p>Same. — Practice.—Open and Close. — Where simply a counter-claim is filed to a complaint, and the plaintiff files only a denial thereto, the defendant has the right to open and close the case.</p> <p>Same. — Demurrer.—Motion to Make Certain. — An objection, that a pleading is uncertain, can not be presented by demurrer, but only by a motion to make the pleading more certain.</p> <p>Beal Estate. — Tenants in Common. — Conveyance by One. — Where one of several tenants in common of real estate conveys an interest in the same,the grantee takes only the interest of his grantor.</p> <p>Same. — Lease by one Tenant for Benefit of All. — Infant.—Partition.—Guardian and Ward. — Action to Quiet Title. — Decedents’ Estates. — Certain real etate having been devised equally, in fee simple, to C., a married woman, and her minor children, and it being subject to sale for the payment of the testator’s debts, she and her husband leased a portion of it to A., for a certain term, for a sum sufficient to pay such debts; and such debts having been paid therewith, and such minors having brought suit by their guardian, against her, for partition of such real estate, it was decreed by the court, by consent of the parties, that she should take a life-estate in the whole of such lands, and that the remainder in fee should revert to such minors. And she having conveyed her life-estate, and such guardian, by order of court, having conveyed such remainder, to B., the latter brought suit against A., to quiet title.</p> <p>Held, that such decree of partition was valid; and,</p> <p>Held, also, that B. took the land subject to A.’s lease during C.'s life, not exceeding, however, the period of the lease.</p> <p>Contract. — Duress.—Subsequent Ratification. — A contract made under duress is not, strictly speaking, void, but only voidable; it may be ratified by the party upon whom the duress was practised; and such ratification may be inferred from subsequent conduct.</p> <p>Same. — By whom, Duress may be Pleaded. —The right to avoid a contract for duress is, as a general rule, personal, and none can take advantage of it but the party himself. Where a grantee purchases land, upon a part of which there is a lease for a term of years, made by his grantor, such grantee can not avoid the lease, on the ground that it was executed under duress.</p>

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

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

<p>Pleading. — Fraud.—Contract.—Rescission.—In an action to rescind a contract for fraud, an allegation, that a false statement as to a material matter was made by one of the parties, and in good faith relied on by the other, sufficiently shows fraud.</p> <p>Pkactice. — Instruction to Jury. — Supreme Court. — To make instructions given to a jury by the court a part of the record on appeal to the Supreme Court, they must be signed by the judge and filed as a part of the record.</p> <p>Same.— Verdict. — New Trial.— Venire de novo. — Uncertainty in a verdict is not reached by a motion for a new trial, but by a motion for a venire de novo.</p> <p>Same. — Amendment.—The court may properly, after the conclusion of the evidence in a ease, refuse leave to withdraw an answer to allow the filing of a demurrer to the complaint.</p>

<p>Supreme Court. — Bill of Exceptions. — Practice.—Where time beyond the term is not given in which to file a bill of exceptions, if so filed, it forms no part of the record on appeal to the Supreme Court.</p>

<p>Supreme Court. — Assignment of Eror. — New Trial. — Exclusion of Evidence.. —Error in the exclusion of evidence offered is cause for a new trial, but can not be assigned independently as error, on appeal to the Supreme Court.</p> <p>Descent. — Bastard. —Marrying Pregnant Woman. — If a man marry a woman whom he then knows to he pregnant with a bastard child, charged to be his, and thereafter live and cohabit with her, he thereby, under section 9 of the act of May 14th, 1852, regulating descents, 1 R. S. 1876, p. 410,'conclusively acknowledges such bastard to be his, and on his death, leaving such child surviving him, it is a legitimate heir.</p>

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

<p>Criminal Law. — Asswvli.—Evidence.—In a prosecution for an assault, the evidence must show some movement on the part of the defendant towards physical violence, some attempt in that direction; threatening language, of a conditional and rather defensive than aggressive character) unaccompanied by any obvious effort to inflict an injury, is not sufficient.</p>

<p>Pleading. — Complaint for New Trial. — Statute Construed. — An application for a new trial under section 356 of the practice act, 2 B. S. 1876, p. 183, is a proceeding independent of the original action, and the complaint should show that it is made within one year after the judgment in the •original cause, and after the term at which such judgment was rendered, and should set out the issues and evidence in the original cause together with the newly-discovered matter relied upon for a new trial, with an allegation that the latter was discovered after the term at which .such judgment was rendered.</p>

<p>Evidence. — Principal and Agent. — Batification.■—Promissory Note. — Payment. —One, professing to act as agent for another, sold and delivered personal property belonging to his principal to a third person, who, for the purchase price, executed to the principal, and delivered to the agent; a promissory note, with an endorsement thereon of a payment then made to the agent, and containing the clause, “ No credits allowed on this note unless endorsed on the note at the time the payment is made.” Suit having been instituted on the note by the principal against the maker, the latter offered in evidence a receipt, signed by the agent as such, acknowledging full payment of the note by the maker to the agent, before its maturity and without notice to the maker that the agent had been discharged by the principal.</p> <p>Held, that the evidence offered is proper.</p>

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

<p>Continuance. — Absent Witness. — An affidavit for a continuance.on account of the absence of a witness must show by the facts stated, that there is a reasonable probability that the evidence of such witness can be procured by the time to which the continuance is asked.</p> <p>Instruction to Jury. — Where the substance of an instruction to a jury, asked and refused, is embraced in an instruction given, such refusal is harmless.</p> <p>Same. — Negligence.—Action for Damages. — Measure of. — In an action to recover damages for physical injuries suffered by the plaintiff through the negligence of the defendant, an instruction asked by the latter to be given to the jury, that compensatory damages in favor of the plaintiff include only “ the fair and reasonable expenses of his cure, and the value of his time lost,” is erroneous, and should be refused.</p> <p>Same. — Compensatory Damages.■ — Compensatory damages, in such case, should include reasonable compensation for the bodily pain and suffering necessarily attending the injury complained of.</p> <p>Bailroad. — Carrying Passenger on Freight Train. — When a railroad company receives, and undertakes to carry, a passenger upon a freight train, it is bound by all the obligations of a common carrier of passengers upon regular passenger trains; but the passenger accepting such passage assumes the increased risk of travel necessarily incident thereto.</p> <p>Practice. — Interrogatory to Jury. — An objection to the form or substance of an interrogatory put to a jury must be made at the time it is put; and any ruling complained of, upon an interrogatory, must, to be available as error, be excepted to.</p> <p>Damages. — Measure of. — Negligence.—The fact, that the salary of one sustaining physical injury through the negligence of another is continued by his employer during the time he is disabled by such injury, can not mitigate the damages that the injured party may recover in an action therefor.</p>

<p>Pbactice. — Surplusage.— Uncertainty. — Pleading.—Demurrer.—Uncertainty or surplusage in a pleading can not be reached by demurrer, but only by motion.</p> <p>Same.- — ■Motion to Strike Out. — A paragraph of answer amounting only to the general denial, which is also pleaded, may be properly struck out on motion.</p> <p>City. — Liability for Publication of Delinquent List. — Pleading.—A city is liable, on a common count for work and labor, to one who, on request of her authorized agents, publishes her delinquent list of tax-payers in a newspaper.</p> <p>Same. — Payment.—An answer in such action, that such publication had been made by another, who had been paid therefor, is insufficient.</p>

<p>Pleading. — Complaint to Set Aside Judgment. — Excusable Neglect. — A complaint to set aside a judgment rendered by default, alleging circumstances preventing the applicant from making his defence, must show that such circumstances existed, not only at, but prior to, the term at which, the judgment complained of was rendered.</p> <p>Same. — Principal and Agent. — Where such complaint alleges also, that, because of such circumstances, the applicant had entrusted the presentatiou of such defence to one who had failed to present it, there should also be an allegation, that such person had agreed and undertaken to present such defence.</p> <p>Same. — Married Woman Holding Real Estate by Virtue of Previous Mairiage.— Descents. — Injunction.—Execution.—Sheriff’s Sale. — The complaint in such case also alleged, that the applicant was a married woman, holding real estate descended to her by virtue of her marriage with a deceased former husband, that the judgment complained of had been rendered on a promissory note executed by her, and that such real estate had been levied on and offered for sale by virtue of an execution issued on such judgment ; wherefore she demanded that such levy and sale be enjoined.</p> <p>Held, on demurrer, that, under section 18, 1 R. S. 1876, p. 411, of the law of descents, such real estate can not be sold on execution, and that the complaint is sufficient.</p>

<p>Bohd. — Defect.—Mistake.—A bond taken by an officer in his discharge of an official duty, in an action pending in a certain court, is not rendered void because it mistakenly recites such action as pending in a different court.</p> <p>Same. — Pleading.—Such mistake should, in an action on such bond, be suggested in the complaint.</p> <p>Same. — Practice.—Where matter pleaded specially is admissible in evidence under the general denial, which is also pleaded, the sustaining of a demurrer to such special plea is harmless.</p> <p>Same. — Action on Replevin Bond. — Defence.—It is no defence to an action on a replevin bond, against the surety, to answer, that he executed the same relying on the statement of the principal that the property replevied was his; that default was taken against the principal without the knowledge of the surety; and that he had afterward attempted, but failed, to have the default set aside, to allow him to prosecute the action in the name of the principal.</p>

<p>Pbactice. — Pleading.—Negligence.—Demurrer.—Motion to Make Specific.— Where, in an action for damages resulting from the alleged negligence of the defendant, the complaint contains a general averment of such negligence, objection that such averment is uncertain can not be made by demurrer, but only by a motion to make more specific.</p> <p>Same. — Motion for New Trial.— When Made. — Unless for matter discovered afterward, a motion for a new trial can not be made at a term subsequent to the one at which the verdict or decision is rendered, without the consent or waiver of the opposite party. •</p>

<p>Judgment for Costs. — A judgment for costs in favor of a party to an action is absolutely his, whether he has or has not advanced such costs.</p> <p>Same. — Payment to Olerh. — Evidence.—Prior to the act of March 9th, 1875, 2 E. S. 1876, p. 17, authorizing clerks to receive money in payment of judgments of record, a payment, to a clerk, of any portion of any judgment of record, whether rendered for costs or otherwise, was no payment to the judgment plaintiff. And, where payment of a judgment for costs, pleaded as a set-off, was alleged, a receipt of the clerk, acknowledging the receipt of payment of such judgment, prior to the taking effect of such act, unaccompanied by proof that the same had been received by the judgment plaintiff, was not proper evidence to establish payment.</p> <p>Set-Off. — Judgment cm Whieh Stay has not Expired. — The fact that the time of stay of execution, allowed by law on a judgment upon which replevin bail has been entered, has not expired, does not prevent the owner of the judgment from setting it off in an action against him by the judgment debtor. ,</p>

<p>Mechanic’s Lien. — Material.—Labor.—Pleading.—A complaint to enforce a mechanic’s lien on real estate, for the value of labor and materials furnished by the plaintiff, for the defendant, in the erection of a building thereon, which avers that the same were furnished specially for the building against which the lien is sought to be enforced, is sufficient.</p>

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

<p>Evidence on Titde. — Parol Evidence.— Unlawful Detention. — Justice of the Peace. — Title to real estate may, where no objection thereto is made, be proved by parol evidence, in an action for unlawful detention of the same commenced before a justice of the peace.</p> <p>Same. — Landlord and Tenant. — The grantee oí the heirs of an intestate lessor of real estate may maintain an action for possession of the same, against a lessee or sub-lessee, who unlawfully holds over after the expiration of the lease.</p>

<p>'Supreme Court. — Appeal.—Judgment.—Partition.—An appeal will not lie to the Supreme Court from an interlocutory decree of partition.</p> <p>■ Same. — Pleading.—Misjoinder of Actions. — Practice.—Lien.—A married woman having died seized of certain real estate, her widower brought an action to partition a portion thereof, and to enforce a lien against the residue, for improvements made thereon by him during the lifetime of ■the decedent and the existence of the marriage relation, pursuant to an alleged contract between them, that he should have a lien for the value thereof.</p> <p>.Held, the complaint being sufficient for partition, on a demurrer thereto for a misjoinder of actions, that, though the part in relation to the alleged lien might have been struck out on motion, yet the Supreme Court will not reverse a judgment for such misjoinder.</p> <p>¡Held, also, that an appeal lies to the Supreme Court from a judgment decreeing such lien.</p> <p>Same. — Statute of limitations. — -Set-Off.—A reply of the statute of limitations to an answer of set-off, in such action, pleaded to that portion of the complaint asking a lien, is not sufficient.</p> <p>Same. — C'overture —A reply, in such action, of the coverture of the intestate during more than six years immediately preceding her death, pleaded to an answer that the plaintiff’s claim had accrued more than six years prior to such decease, is insufficient.</p> <p>Same. — Demurrer, Joint or Several. — Case Ovetruled. — A single demurrer toa pleading containing several paragraphs, “ and to each of said paragraphs,” because they “ do not, and neither of them states facts,” etc., is a several demurrer, separately addressed to each paragraph. . Barner v. Morehead, 22 Ind. 354, overruled.</p> <p>•Same. — Presumption.—Where, on appeal to the Supreme Court, the evidence is not in the record, it will he presumed, that the overruling of a demurrer to an insufficient pleading injured the party complaining thereof.</p> <p>'Same. — Special Finding. — A special finding in such case by the court, not made at the request of a party, amounts only to a general finding, and can not supply the absence of the evidence from the record.</p>

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

<p>City. — Street Commissioner. — The common council of a city organized under the general law of this State can not, while her street commissioner remains in office, direct that his duties be performed by any other officer.</p> <p>Same. — Ordinance.—An ordinance of a city, which conflicts with the law under which she is incorporated, is void.</p> <p>Same. — Supervisors.—Injunction.—An ordinance of a city so incorporated, directing that the duties of the street commissioner in relation to the construction, repair and cleaning of streets, alleys, etc., shall be performed, independently of him, by a supervisor, who is to be elected under such ordinance by the common council, is in conflict with section 28 of the act authorizing the incorporation of cities, 1 R. S. 1876, p. 279, and is void, and the expenditure of the money of the city for such services, so performed by the order of such supervisor, may be enjoined.</p> <p>Same.' — The supervisors of streets authorized by section 48 of such act, 1 R. S. 1876, p. 286, can act only under the direction of the street commissioner.</p>

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

<p>Pleading. — Promissory Note. — In an action on a promissory note, an aver- ' ment in the complaint, that “ the defendant is indebted to the plaintiff by his promissory note,” etc., is equivalent to an averment that such noté is due and unpaid.</p> <p>Same. — Fraudulent Conveyance of Land. — A complaint by a creditor, to set aside an alleged fraudulent conveyance by the debtor of his real estate, and to subject the same to execution, must allege, that, at the date of such conveyance, the debtor had not sufficient other property left to satisfy his debts.</p>

<p>Promissory Note. — Escrow.—A promissory note can not be delivered to the payee, or his agent, simply as an escrow.</p> <p>Practice. — Harmless Error —Where the facts alleged in a pleading are admitted in evidence under other pleadings, on the trial of the cause, error in sustaining a demurrer to such pleading is harmless.</p> <p>Promissory Note. — Consideration.—-In an action on a promissory note, by the payee against the maker, where want of consideration, in part, was pleaded, the court found specially, that the consideration, in part, was the compromise of a lawsuit pending between the plaintiff and another,’ and the defendant; that the residue was the execution and delivery to the defendant, by such third person, of a promissory note; and that, in violation of the agreement of such third person with the defendant not to deliver the note in suit to the plaintiff until the payment of the other •note, such third person delivered the same to the'plaintiff, for value.</p> <p>Held, as a conclusion of law, that the plaintiff is entitled to recover.</p>

<p>Fraud. — Pleading.—In pleading fraud, it is not sufficient to allege the same in general terms, but the facts constituting it should be alleged; and such facts may be charged without using the words “ fraud ” or “ false and fraudulent representations.”</p> <p>Same. — Contract.—Tori.—Counter-Claim.—A counter-claim predicated on a contract can not be pleaded to a complaint sounding in tortl</p> <p>Same. — Fraudulent Representations. — Instruction.—In an action to recover money alleged to have been paid upon fraudulent representations, the complaint alleged, that the defendant and an agent for the sale of a certain patent-right represented that such patent-right was of a certain value, and that, if the plaintiff would join with the defendant in purchasing the same, each paying half, an assignment and sale of the same would he made to them; that plaintiff, being informed that the defendant had paid his half, paid his proportion, and an assignment of such patent-right was duly made to them; that such patent-right was of no value; that defendant had not paid, and had never intended to pay, his half, but had combined with such agent to induce, and had induced, the plaintiff to invest his money in a worthless article, and had received a portion of such money for so deceiving the plaintiff.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that an instruction to the jury, that, upon proof of the allegations of the complaint, the plaintiff was entitled to recover, is correct.</p> <p>Same. — Contract.—Recovery of Money Paid. — 'Tender.—In an ac tio n f o u nd ed upon alleged fraud in making a sale of a patent-right, alleged to have no value, it is not necessary to make a tender of the patent-right hack to defendant before suit, and error in an instruction relating to such tender is harmless.</p> <p>Same. — Misrepresentation.—Evidence.—Means of Knowledge. — Where a party to a contract relies upon his own judgment, with means of knowing the facts equal to those of the other party, and he does not make use of them, he can not complain.</p>

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

<p>Prom the Grant Circuit Court,</p>

<p>Tetjst. — Action by Heirs to Enforce. — Title-Bond.—Sheriff’s Sale. — Pleading. —Redemption.—The owner of certain real estate executed a title-bond for the conveyance of the same to A. on his payment of the purchase-money. A. executed to B. an instrument acknowledging the receipt of a certain sum of money from the latter, to be applied on such purchase-money, and promising either to convey an undivided half of such land to B., or to refund him his money, on sale of the land, increased or diminished by the increase or diminution of the selling price, as compared with the purchase-price. A. having failed to complete the payment of the purchase-money, the owner foreclosed his title-bond, caused the land to be sold at sheriff's sale, and, on sale of the same to a third person, obtained a reconveyance to himself, and then conveyed the same to C., at the re- ' quest of A. Complaint by B., against the heirs of C., to enforce a trust . against them for the value of siich land, and alleging that the conveyance by the owner to C. was made at the request of A. and C., on their representation that the same was simply a redemption from such sale, for the amount of the judgment, interest and costs of such foreclosure.</p> <p>Held, on demurrer, that the complaint is insufficient.</p>

<p>City. — Act of 1852. — Extension of Gity Limits. — Power of Common Council.— Taxes. — The common council of a city incorporated under the act of June 18th, 1852, “ for the incorporation of cities,” 1 R. S. 1852, p. 203, had the power, by resolution, under section 81 of such act, while it continued in force, to so extend its boundaries as to include adjoining land which had been* laid off and platted in lots or blocks, and a plat thereof duly recorded. And the territory so included thereby became, and is, liable to taxation for city purposes.</p>

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

<p>Landlord and Tenant. — Repairs by Tenant. — Contract.—Lien.—Trespass.— Where the landlord of a tenant from year to year requests his tenant to make certain repairs, and agrees that the latter may pay himself therefor out of the former’s share of a certain kind of crop yet to be raised by the tenant, which the landlord had a right to gather and remove, the latter can not hold a lien therefor on the former’s share of a crop raised in a succeeding year; and a purchaser of the landlord’s share of such crop is guilty of no trespass in removing the same.</p>

<p>Easement. — One who owns the fee of lands, in which another owns an easement, is the owner of the servient estate, and the latter the owner of the dominant estate.</p> <p>Same. — Descents.—Action to Quiet Title. — An easement in the lands of another, held by the owner in fee of adjoining lands, is appurtenant to,, and runs and descends with, the latter estate; and the rights of one asserting such easement may be determined in an action by him, against the owner of the servient estate, to quiet his title to such easement.</p> <p>Same. — Prescription.— User. — Adverse Possession. — Instruction to Jury. — Supreme Court. — In an action to quiet the plaintiff’s alleged title to a right of way across the lands of an adjoining proprietor in fee, claimed to-have been acquired by twenty years’ adverse use, the court instructed the jury, that “ twenty years’ uninterrupted, adverse use ” of such right of way would raise a presumption of a grant of such easement.</p> <p>Held, the evidence not being in the record, that the Supreme Court can not. say that the instruction was erroneous.</p> <p>Held, also, that the word “ uninterrupted ” in such instruction is equivalent to the word “ continuous,” and is sufficient without the addition of the word “ exclusive.”</p> <p>Same. — Disability.— Burden of Proof. — Where one claims an easement in the land of another, acquired by prescription, the burden of proof is-upon the defendant to establish, as a defence to such claim, that during-such user he was under disability.</p> <p>Same. — Practice.—Where the substance of instructions asked and refused is embraced in others given, such refusal is harmless.</p>

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

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

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

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

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

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

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

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

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

<p>Railroad. — Action for Stock Subscribed. — Pleading.—Tender.—Contract.—In an action to recover the amount of a subscription to the capital stock of a railroad company, an answer alleging a failure to tender a certificate of -such stock is insufficient.</p> <p>Same. — Harmless Error. — Where such subscription is conditional, and the complaint avers performance of the conditions, all evidence admissible under answers of failure and want of consideration, and non-performance of such conditions, is admissible under the general denial; and, where the latter is pleaded, error in sustaining demurrers to the former is harmless.</p> <p>Same. — Principal and Agent. — Subscription by Agent. — At the solicitation, in writing, of A., B. wrote A., that, upon the location and erection of certain railroad improvements at a certain place, A. should subscribe for a certain amount of the capital stock of such railroad for B.; whereupon A. subscribed the name of B. to such subscription, payable on the location of such improvements.</p> <p>Held, that the agent exceeded the authority given him by the principal, and that the latter is not bound by such subscription.</p>

<p>Taxes. — Legal Tender Notes. — Not Taxable. — Statute Construed. — United States treasury notes, commonly called greenbacks, are not subject to taxation ; and so much of section 49, 1 E. S. 1876, p. 81, of the act of December 21st,.1872, providing for “the assessment of property,” as requires the listing commanded by the 8th item thereof, is inoperative and void.</p> <p>Same. — Conversion to Avoid Taxation. — Injunction.—Equity.—Where such personal property is converted into United States securities for the express purpose of avoiding taxation, a court of equity will not interfere to enjoin the collection of a tax assessed on such securities.</p>

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

<p>Taxes — Promissory Notes and Bonds of Resident of Another State. — Promissory notes and other choses in action, placed in the hands of an attorney in this State for collection simply, and municipal bonds, placed temporarily' on deposit in a bank in this State, merely for safe-keeping, and belonging to a bona fide resident of another State, are not liable to taxation.</p> <p>■Same. — Traveller or Visitor. — Such property, belonging to, and in the possession of, a resident of another State, yvho is travelling through, or temporarily sojourning in, this State, are not liable to taxation.</p>

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

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

<p>Evidence.— Opinion of Witness. — Assessment of Damages. — Railroad.—It is not competent for a witness, in his testimony, to give his opinion as to the amount of damages that should be assessed in favor of a land-owner, against a railroad company, for its appropriation of his land in the construction of its railroad.</p>

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

<p>Usury. — Interest.—Pleading.—Recoupment.—Interest in excess of six, but not exceeding ten, per cent, per annum, voluntarily paid for the use of money, can not be recouped, though no agreement in writing was made for its payment.</p> <p>Same. — Answer.—An answer which is pleaded to the whole, but only goes to a part, of a complaint, is insufficient on demurrer.</p>

<p>Decedents’ Estates. — Contract.—Services Performed After Decedent’s Death. —The estate of a decedent is liable for services performed for his family .after his death, under a contract therefor, made with him in his lifetime.</p>

<p>Decedents’ Estates. — Conversion by Administrator. — Action Against Surety.— Demand. — In fin action against an executor or administrator, or his surety, to recover for assets alleged to have been converted by the principal, it is not necessary to allege that a demand for the same has been made.</p> <p>Same. — Action by Devisee. — Parties.—A devisee of a testator, or the former’s administrator, may maintain an action against the executor of the testator or his surety, for conversion of the devise.</p>

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

<p>Express Company. — Filing and Publishing Statement. — Statute Construed.— Under the act of March 5th, 1855, 1 K. S. 1876, p. 466, “ declaring express companies to be common carriers,” etc., it is the duty of the county recorder to procure the publication of the statement required of any such company by the 2d section of such act; and the company is liable to the person' making such publication, for the value thereof, where not made on contract.</p> <p>Same. — Pñneipal and Agent. — The filing of such statement, by any such company, in the recorder’s office, gives the recorder authority to have the same published at its expense.</p>

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

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

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

<p>jRracttce. — Filing Substituted Complaint, on Appeal from Justice’s Court.— Amendment. — -On appeal to the circuit court, in an action commenced in a justice’s court, the plaintiff, during the pendency of a motion to dismiss the action for want of a sufficient complaint, and without objection • by the defendant, filed a substituted, sufficient complaint.</p> <p>.Meld, that the motion to dismiss was properly overruled.</p>

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

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

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

<p>'Win. — Estate for Life. — Estate Tail. — Contingent Remainder. — Shelley’s Case. —A will was executed November 21st, 1828, by a testator who died June 22d, 1829, devising to his wife his real estate “ during her life, remainder to the issue of her body by me begotten, provided, also, that such issue live to lawful age, and, on failure thereof, the remainder to my own relatives by consanguinity at the time of her decease, who may lawfully inherit the same by the rules of the common law.” His issue by her having died during minority, and she also being dead, an action was brought by his “ relatives by consanguinity,” etc., for possession of such real estate, against defendants claiming under her.</p> <p>Held, that the will did not create an estate tail, but vested an estate for life in the wife, with a contingent remainder to the plaintiffs in the event of the death of such issue during minority.</p> <p>Held, also, that the will did not fall within the rule in Shelley’s case, nor within section 5, Acts 1826, p. 50.</p>

<p>Contract. — Decedents’ Estates. — Services Perftrrmed After Decedent’s Death.— The estate of a decedent is liable for services rendered for his family after his death, under a contract therefor made with him in his lifetime.</p>

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

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

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

<p>Promissory Note. — Payable in Bank. — Suit Against Maher and Endorser.— Pleading. — Error Cured by Judgment. — In an action by an assignee, against the maker and endorser, on a promissory note payable in bank, one paragraph of the complaint described the defendants, and demanded judgment against them, as joint makers, while the remaining paragraphs thereof, and a copy of the note and endorsement attached to each paragraph, clearly showed the true relation of each defendant to the action.</p> <p>'Held, on demurrer, that the first paragraph of the complaint was not rendered insufficient by such misdescription.</p> <p>Held, also, judgment having been rendered againt such endorser as a mere surety, that ihe insufficiency of such paragraph, on such ground, was harmless.</p> <p>Same. — Protest.— Waiver of. — Where such, note waives notice of non-payment, protest, etc., the complaint thereon need not aver such notice to an endorser.</p> <p>Same. — Abbreviation.—A note payable at a certain hank of a certain place . in “ Ind.” is payable at a bank of this State.</p>

<p>Promissory Note. — Payable in Bank. — Location of Bank. — Presumption.— Where a promissory note is made in this State, payable in a bank named but not located, it will be presumed, unless the contrary appear, that the bank is located in this State.</p> <p>Same. — Assignment.—An endorsement on a .promissory note, “ assigned to ” A., made in the name of the payee, is one upon which the latter is liable, prima facie, as endorser.</p> <p>Same. — Protest and Presentment.— Waiver of. — Where a promissory note provides that the endorsers “ waive presentment for payment, protest, and notice of protest and non-payment,” the complaint in an action thereon need not allege “ presentment ” or “ notice.”</p>

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

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

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

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

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

<p>Liquor Law. — Act of 1875. — Section 11. — Intoxication.—Constitutional Law.— The title and subject-matter of the act of March 17th, 1875,1 B. S. 1876, p. 869, regulating the sale of intoxicating liquors, etc., properly embrace the provisions of section 11 of such act, making intoxication in a public place a misdemeanor.</p> <p>Same. — Section 11, above mentioned, sufficiently defines the offence of intoxication.</p>

<p>Supreme Court. — Practice.—Motion to Strike out. — Record.—Where a motion to strike out part of a pleading is in part sustained and in part overruled, to which the parties except respectively, but their exceptions are not preserved in the record, no question is presented to the Supreme Court on appeal.</p> <p>Same. — Seduction.—Complaint.—Motion to make Specific. — In an action by an infant female for seduction by means of alleged artifice and persuasion, the complaint is not bad merely because it does not state the facts constituting the artifice and persuasion, though it might be required to be made more specific, on motion.</p> <p>Same. — Instruction to Jury. — Refusal.—Harmless Error. — Where the substance of instructions asked, but refused, is embraced in others given, the refusal is harmless.</p>

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

<p>Criminal Law. — Irregularity Before-Justice. — Practice.—An irregularity in the trial of a criminal prosecution, before a justice of the peace, is not ground for its dismissal on appeal to the circuit court.</p> <p>Same. — Insufficient Certificate. — An irregularity in the certificate of the justice to the transcript on appeal is reached by motion to dismiss the appeal and not the cause.</p> <p>Same. — Affidavit.—Name.—The fact that, in an affidavit against several persons, in a criminal prosecution, the Christian name of one defendant is omitted, is ground for dismissal as to that defendant, but not as to the others.</p> <p>Same. — Biot.—In an affidavit for a riot, the fact that such riot is alleged to have been committed in “ a riotous and tumultuous,” instead of in a “ violent,” etc., manner, does not render it insufficient.</p>

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

<p>Evidence. — Opinion of Witness. — Assessment of Damages. — Railroad.—It is not competent for. a witness to give his opinion as to the amount of damages that should be assessed in favor of the land-owner, against the railroad company, for its appropriation of his land in the construction of its railroad.</p>

<p>Malicious Peosecution. — Complaint.—In an action to recover damages for an alleged malicious prosecution, the complaint must show, by properaverments, that the alleged prosecution was malicious and without probable cause, and had terminated favorably to the plaintiff.</p> <p>•Same. — Defence.—Harmless Error. — Evidence.—Where matter pleaded in a special paragraph of answer to such complaint is admissible, and on the trial was admitted, under the general denial, also pleaded, error in sustaining a demurrer to such special plea is harmless.</p> <p>¡Same. — Affidavit.—On the trial of such action, an affidavit by the defendant, on which he had procured the arrest of the plaintiff for a crime, is admissible in evidence on behalf of the latter, though it be informal and insufficient in charging the crime intended to be charged therein.</p> <p>.'Same. — Advice of One Hot an Attorney. — The fact that sueh prosecution was instituted by the defendant, on the advice of one not an attorney, is not competent evidence to establish want of malice.</p> <p>Same. — The fact that the defendant had a good cause of action against the plaintiff to recover the possession of personal property, unlawfully detained by the latter, is no justification for a criminal.prosecution.</p>

<p>Jurisdiction. — Amount in Controversy. — Justice of the Peace. — Consent of Parties. — Arrest of Judgment. — The consent of the parties to an action before a justice of the peace can not give to him, nor to the circuit court on appeal, jurisdiction of an amount in controversy exceeding two hundred dollars; and a complaint for such amount, filed with such consent before: the justice, is bad on motion in arrest.</p>

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

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

<p>Practice.— Withdrawal of Appearance Withdraws Pleadings. — Where a defendant who has appeared and pleaded to an action voluntarily withdraws his appearance, he thereby withdraws his pleadings.</p> <p>Same. — Judgment Without Defaulting Defendamt. — New Trial. — Supreme Cowt. —Assignment of Error. — The fact that judgment is rendered against a defendant who has not appeared, without defaulting him, is an irregularity constituting a cause for a new trial, but can not be assigned independently as error, for the first time, in the Supreme Court, on appeal.</p>

<p>Will. — Devise of Use of Deal Estate. — A testator devised the control, benefit and proceeds of his real estate to his widow, “ to help her raise and school all ” his children; and also directed, that, when they had been ■ “ raised,” the widow and children should continue to receive the benefits of such real estate during her life.</p> <p>Held, that, after all the children had attained the age of twenty-one years, they had been “ raised,” and were entitled, with the widow, to such benefits, during her life, and could maintain an action against her for an • accounting.</p>