Volume 60 — Indiana Reports

<p>City. — Violation of Ordinance. — Action Before Mayor. — Pleading.—Practice.— Evidence. — In an action "before the mayor, by a city incorporated under the general law of this State, to recover a penalty for the violation of a penal ordinance, all defences, except the statute of limitations, set-off and matter in abatement, may be given in evidence without plea.</p> <p>Same. — Harmless Error. — Where, in such action, matter pleaded specially may be given in evidence without plea, error in sustaining a demurrer to such plea is harmless.</p> <p>Same. — Construction of Ordinance. — Pule.—The same rules apply in the construction of an ordinance of a city as in the construction of a statute.</p> <p>Same. — An ordinance should be so construed as to give effect, if possible, to every part thereof.</p> <p>Same. — Associating with Prostitute. — A city adopted an ordinance, providing a penalty for associating with a prostitute “ in any public place, street, alley, common, or within said city,” etc.</p> <p>Held, that it should he construed to read, “ in any public place, street, alley or common within said city,” etc.</p> <p>Same. — Under such ordinance, a prosecution can not be maintained for associating with a prostitute in a private place in such city.</p>

<p>Beview of Judgment. — New Matter. — Curative Statute. — The “ new matter ” contemplated by sections 587 and 588 of the code, for which a review of a judgment may be had, does not include new matter of law enacted subsequent to the rendition of judgment, such as a curative statute.</p> <p>Same. — Complojint for 1ieview. — The complaint, in an action for review of a judgment, should set out a complete record of the cause in which such judgment was rendered.</p>

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

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

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

<p>Partition. — Exception to Report of Commissioners.— Weight of Evidence.— Supreme Court. — Where, on the trial of an exception to the report of commissioners appointed to partition real estate, affidavits supporting and attacking such report are introduced, the Supreme Court will not disturb the finding of the court below merely because it is contrary to the weight of evidence afforded by such affidavits.</p> <p>Same. — Majority of Commissioners may Act. — A majority of commissioners to partition real estate may make and report such partition, either over the objection or in the absence of the other commissioner.</p>

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

<p>Townshjp Trustee. — Action on Bond. — Parties.—Relator.—An action on the bond of a defaulting, former township trustee, to recover moneys belonging to the civil and school funds of the township, may be brought on the relation of his successor, in his capacity of township and school trustee, jointly.</p> <p>Same. — Conversion of one Fund, to Use of Another. — A township trustee, who applies money belonging to any one of the separate funds under his control to the payment of a claim against another of such funds, is guilty of a conversion and of a breach of his bond.</p> <p>Same. — Answer.—Set-Off.—Money Paid to Use of Township. — To a complaint on the bond of a township trustee, alleging specific conversions-of the several funds in his hands, the defendant answered, alleging generally an indebtedness of his township to him for money had and received for his use, and for money paid out by him for the use and benefit of his township; but the answer contained no bill of particulars or averment showing the particular application of such money.</p> <p>-Held, on demurrer, that the answer is too general to constitute a set-off, and is insufficient.</p> <p>Same. — Answer by Surety.— Comity Commissioner. — Erasure.—Evidence.—A surety on the bond, in such action, answered, that, having executed such bond while a member of the board of commissioners having cognizance of such trustee’s bond and reports, he, as a measure of public policy and with the consent of the county auditor, such trustee and the board of commissioners, erased his name from such bond, and procured an additional surety thereon.</p> <p>Held, on demurrer, that the answer is insufficient.</p> <p>Held, also, that, on the trial of the action, the plaintiff could introduce such bond in evidence, accompanied by other evidence explaining the erasure.</p> <p>Same. — On the trial of such cause, the "defendant offered in evidence the report of a committee, appointed by the board of commissioners to investigate the financial condition of such township, showing a balance due from the township to the trustee.</p> <p>Held, that, in the absence of evidence that either the trustee or the township was a party to such investigation, it was properly excluded.</p> <p>Same. — Where, in such case, the complaint alleged no amount due on account of the road fund, evidence of a payment on account of that fund was properly excluded.</p>

<p>Pbactice. — Motion to Dismiss Appeal. — Highway.—A motion to dismiss an appeal to the circuit court from an order of a board of commissioners vacating a highway need not be made in writing.</p> <p>Same — The fact that such motion, and causes therefor, are in writing, does • not preclude the party making it from assigning additional reasons orally. Same —Record.—Such motion can be made part of the record only by a bill of exceptions, or, possibly, by order of the circuit court.</p> <p>Same. — Bill of Exceptions. — Supreme Court. — The action of the court on such motion, and an exception thereto, can be presented to the Supreme Court on appeal, only by a bill of exceptions.</p>

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

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

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

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

<p>Decedents’ Estates. — Claim Against Deceased Principal and Surviving Swret/y. —Parties.—The holder o£ a joint claim against a principal and surety may, on the death of the principal, proceed separately against the principal’s estate, or jointly against such estate and surety.</p> <p>Same. — Action on Lost Instniment. — •Witness.—Testimony by Plaintiff. — Common Law. — In an action against the estate of a deceased debtor, on a lost promissory note, after evidence by others had been given of the existence of such note and the plaintiff’s possession thereof, the court, over the objection of the defendant, permitted the plaintiff to testify that she had lost such instrument out of her own possession.</p> <p>Held, that the action of the court was right; and that the statute of this-State did not narrow the common-law rule.</p>

<p>Statute op Frauds. — Parol Contract Concerning Land. — Performance.—Implied Contract. — A landholder and another entered into a contract whereby the former granted to the latter the right to set out certain lands in fruit trees, at his own expense, and retain the same during the lifetime of such trees, and receive two-thirds of their product each year as his compensation. Complaint by the latter, alleging performance of his part of the contract, but that, while such trees were in vigorous growth, but before they had yielded any thing, the landholder had, without his consent, conveyed such lands to another, and since such conveyance the trees had borne fruit of a certain value.</p> <p>Held, on demurrer, that such contract, having been performed in part,'was not void by the statute of frauds, and that the defendant is liable, as on an implied promise to pay.</p>

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

<p>Appeal to Supreme Court. — Amount in Controversy. — Justice of the Peace.— No appeal lies to the Supreme Court in a cause originating before a justice of the peace, where the amount in controversy, exclusive of interest and costs, is less than ten dollars.</p>

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

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

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

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

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

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

<p>Railroad. — Killing Stoclc. — Death or Injury from Fright. — A railroad company is not liable, under tbe statute, 1 R. S. 1876, p. 751, for tbe injury or death of animals, resulting from fright at tbe locomotives, cars or carriages of tbe company.</p>

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

<p>Raeekoad. — Stoeh Killed. — Statutory Action. — A railroad company is not liable under the statute for injuring or killing stock which enters upon its track at a point where it is not required by such statute to fence.</p> <p>Same. — Contributory Negligence. — Pleading.—Demurrer to Evidence. — In an action against a railroad company, to recover damages for the alleged negligent killing or injury of live-stock, the plaintiff must allege in his complaint, and prove on the trial, that he was guilty of no contributory negligence ; and, in the absence of such evidence, a demurrer to his evidence should be sustained.</p>

<p>Landlord and Tenant. — Conveyance by Landlord, with Agreement to Repurchase. — Action by Grantee Against Tenant for Rent. — Parties.—The owner of certain real estate occupied by several tenants conveyed the same to a third person by a deed absolute on its face; but, at the same time, the grantor and grantee executed a written agreement that the grantor might repurchase the same at any time within three years, on paying to the grantee the purchase-money, with interest, and further agreeing that the grantor should retain possession of the premises during said time, “ to ■use in a good and husband-like manner,” which he did, collecting rents from all of such tenants but one, without objection by the grantee.</p> <p>¡Held, in an action by the grantee, against such tenant, for rent accrued during such period, that the grantor only, and not the grantee, can maintain such action.</p>

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

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

<p>Promissory Note. — Payable in Banh of Another State. — Presumption.—Lem Merchant. — Common Law. — Law of Foreign State. — Fkidence.—Diligence.— In an action by an endorsee, against his endorser, on a promissory note which, on its face, was executed and payable at a bank in another State, the maker of which was alleged to be a non-resident of this State, all the evidence introduced was the note, the endorsement thereof and a protest.</p> <p>Held, on motion for a new trial, that the evidence is insufficient to sustain a verdict for the plaintiff.</p> <p>Held, also, that the endorsement, in the absence of evidence to the contrary, is presumed to have been made at the time and place of the execution of the note; and that the note and endorsement are governed by the law pf that place.</p> <p>Held, also, it being presumed that the common law prevails in that place, and promissory notes not being governed, at common law, by the law merchant, that the note in suit is not so governed.</p> <p>Held, also, that the statute of such State should be pleaded and proved, as courts of this State do not judicially know the law there in force.</p> <p>.Held, also, that the evidence shows no diligence, and no excuse for a failure to use due diligence, in proceeding against the maker, necessary to bind the endorser of a note not payable in bank.</p>

<p>Sheriff’s Sale. — Real Estate Susceptible of Division. — Irregularity.—Notice.— A sheriff’s sale, in solido, to the execution plaintiff, of a tract of land already subdivided, or susceptible of division, into separate lots or tracts, each of which is sufficient to satisfy the execution, without first offering them separately, is one which can not be upheld; and the execution plaintiff is chargeable with notice of such irregularity.</p>

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

<p>Criminal Law. — Carrying Concealed Weapon. — Indictment.—An indictment for wearing or carrying a deadly weapon concealed need not allege that it was worn or carried “ with the intent or avowed purpose of injuring ” any person.</p> <p>Same. — Surplusage.—Practice.—An indictment charged the defendant with carrying a certain deadly weapon concealed “ in his pocket.”</p> <p>Held, that the phrase “ in his pocket ” is surplusage merely, and might have been struck out on motion.</p> <p>Same. — Bill of Exceptions. — Supreme Court. — A. bill of exceptions is not necessary, to present to the Supreme Court an exception to the ruling on a motion to quash an indictment.</p>

<p>Criminal Law. — Indictment.—Motions to Quash and in Arrest. — An indictment which is sufficient in its averments, on motion to quash, is sufficient bn motion in arrest.</p> <p>Same. — Murder.—Harmless Defect or Informality. — An indictment for murder, which is otherwise sufficient, is not rendered insufficient by a mere defect or informality which does not tend to prejudice the rights of the defendant.</p> <p>Same. — Juror.—Conscientious Scruples as to Death Penalty. — Challenge.—Constitutional Law. — On the empanelling of a jury to try a defendant indicted for murder in the first degree, any person called to sit on such jury, who entertains conscientious opinions which would preclude him from returning a verdict inflicting the penalty of death, may be challenged for cause. And section 85, 2 E. S. 1876, p. 394, of the act in relation to criminal pleading and practice, declaring that such persons shall not sit as jurors, is constitutional.</p> <p>Same. — Cross-Examination of Defendant. — Insanity.—On the trial of an indictment for murder, where the defendant had testified, in his own behalf, that the deceased was a married woman, with whom he ‘had been having illicit intercourse, and that the killing was committed by him in a passion of love and jealousy, amounting to insanity, on her refusal to longer associate with him, and that he had met her husband during his intimacy with the wife, it was proper for the State to cross-examine him as to whether, at such meeting, the husband had forbidden him to further associate with her.</p> <p>Same. — Ex Parte Affidavit. — Evidence.—Admissions.—An affidavit by the defendant for a continuance of such cause, admitting, though excusing, the killing charged, is competent evidence against him.</p> <p>Same.— Instruction to Jury. — Presumption.—An instruction to the jury in a criminal cause, that “ The jury are to presume the defendant innocent, until his guilt is established by the evidence beyond a reasonable doubt,” is not inconsistent with another instruction, also given, that “ Every man is presumed to be sane, and to intend the natural and ordinary consequences of his acts.”</p> <p>Same. — Where no instruction is asked or given as to the relative strength of such presumptions, no question in relation thereto is presented.</p> <p>Same. — Harmless Refusal of Instruction. — Where the substance of an instruction asked and refused is embraced in one given, the refusal is harmless.</p> <p>Same. — Death Penalty. — Jury.— Verdict. — The jury may determine in their verdict that a defendant whom they have found guilty of murder in the ■first degree shall be punished by death, but the statute alone prescribes the mode in which the penalty shall be inflicted.</p>

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

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

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

<p>Set-Off. — Tort.—Practice.—Motion to Strike Out. — In an action for damages for the alleged wrongful seizure and conversion of personal property, an answer of set-off is not allowable, and, where it is so pleaded, it should be struck out on motion.</p> <p>Same. — Pill of Exceptions. — Supreme Court. — Mistake.—Such motion, and the ruling of the court thereon, should be made part of the record, on appeal, by a bill of exceptions, or by order of court; but where such motion is ; overruled, and judgment is rendered for the defendant on his set-off, such judgment will be reversed by the Supreme Court, even though by mistake such motion and ruling are not so made part of the record.</p> <p>Same. — A set-off is not, strictly speaking, a mere defence to the action to which it is pleaded, but is a cross-action against the plaintiff.</p> <p>Same. — Set-Off Improperly Pleaded. — Demurrer.— Waiver. — Where a set-off, stating a cause of action, is improperly pleaded to an action for tort, an objection that it can not be pleaded in such action can not be presented, under section 64 of the practice act, by any of the statutory causes of demurrer, and therefore a failure to demur is not a waiver of such objection.</p> <p>Same. — Evidence.—Motim to Strike Out. — Where a set-off is pleaded to a complaint for a tort, an objection to the admission of evidence in support of the set-off, and a motion to strike the same out, on the ground that it is incompetent, irrelevant, immaterial and supports no proper issue in ■the cause, should be sustained.</p>

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

<p>¡Fraudulent Representations. — Demurrer to Evidence. — Effect of Joinder in Demurrer. — In an action to recover damages for false and fraudulent representations, alleged to have been made by the defendant to the plaintiff, concerning the value of lands belonging to the former exchanged by him for lands belonging to the latter, the plaintiff, on the trial of the cause, offered no evidence of the value of the lands parted with by the defendant.</p> <p>Held, on demurrer by the defendant to the evidence of the plaintiff, in which the latter joined, that, by his joinder, the plaintiff admitted that no evidence of such value had been given, and that without it the demurrer should be sustained.</p>

<p>PiiosnssOKY Note. — Payable in Bank. — Defences.—A promissory note payable in bank, endorsed for value, before maturity, in the usual course of business, to a bma fide holder, is not subject, in his hands, to the same defences as a promissory note not payable in bank.</p>

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

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

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

<p>Judgment. — Omission of Amount. — Amendment.—Mistake.—Correction.—Nunc pro tune Entry.— Practice. — Where, in entering up a judgment rendered by a court of record, the amount thereof is omitted by the officer whose duty it is to make the entry, the omission may be supplied on motion, if the record of the cause furnish the means for making the proper correction.</p> <p>Same. — Statute of 8 Henry VI., c. 12. — The powers of the courts of this State, to make such corrections, are derived chiefly from the statute of 8: Henry VI., c. 12.</p>

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

<p>Practice. — Pleading.—Motion to set off Judgments. — Supreme Court. — Though, on a motion to set off one judgment against another, an answer and a reply are unnecessary, yet, when filed in the circuit court without objection, none can be made in the Supreme Court, on appeal.</p> <p>Same. — Demurrer.—A demurrer to such answer, for insufficiency, simply calls in question the sufficiency of the facts stated therein to constitute a valid legal reason why the plaintiff’s motion should be denied,.and pot the necessity of special pleading in such a case.</p> <p>Same. — Satisfaction.—Pleading.—An answer, in such action, alleging satisfaction of the judgment asked to be setoff, prior to the filing of the motion, is sufficient.</p> <p>Same. — New Trial. — Motion for. — A motion by the plaintiff for a new trial of such cause, upon the ground that the ruling of the court on his motion for‘such set-off was contrary to law or unsustained by the evidence, is unnecessary; but, when made without objection below, its necessity can not be questioned in the Supreme Court, on appeal.</p> <p>Same. — Assignment of Mr or. — Error in refusing a motion for a new trial based on such grounds is presented to the Supreme Court on appeal by assigning such refusal as error.</p> <p>Same. — Exclusion of Evidence. — Error in the admission of evidence on the trial of such cause is ground for a motion for a new trial, but can not be assigned as an independent error, in-the Supreme Court.</p>

<p>Promissory Note. — Assignment by Co-Surety for Benefit of Creditors. — Assent of Payee. — Effect of, on Remaining Co-Surety. — Decedents’. Estates. — In an action by the payee, against the estate of a deceased co-surety, on a promissory note, the administrator set up, as a defence, that his decedent’s co-surety, within the time necessary for service'of process; after the maturity of such note, had executed an assignment for the benefit of his creditors, providing therein that the assignee should complete his trust within three years, to which assignment the plaintiff had assented.</p> <p>Held, that such assent and assignment would have been no bar to an action on such note, against such insolvent surety, within three years. Held, also, that such assent was not necessary to the validity of such assignment.</p> <p>Held, also, that such assent, not having injured the decedent, did not release his estate.</p>

<p>Judgment. — Enjoining void Judgment. — The collection of a void judgment may he enjoined, but where it is merely irregular or erroneous, and is one from which an appeal lies, it can not be enjoined.</p> <p>Same. — Judgment Against Garnishee, Without Attachment. — Pleading.—Juatice of the Peace. — In an action before a justice of the peace, against a defendant duly served with process, for the collection of a debt within the jurisdiction of the justice, a third person was served with process to answer in such action- as a garnishee, though no attachment proceedings were had against the debtor. Judgment having been rendered against the debtor for the amount of the debt, and also against, the garnishee a»-, such, and the judgment creditor having caused execution to issue against the garnishee, from the circuit court, on a transcript of such judgment there filed, the garnishee brought an action against such creditor and the sheriff, to set aside such judgment and enjoin its execution, alleging the foregoing facts in his complaint.</p> <p>Held, on demurrer, that the complaint is insufficient, and that such judgment can not be attacked collaterally.</p>

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

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

<p>'Criminal Law. — Blackmail.—Indictment.—Seduction of Wife. — An indictment for attempting to levy blackmail by accusing the prosecuting witness of the seduction of the defendant’s wife is not insufficient merely because inartistically drawn.</p> <p>Same. — Evidence.— Wife’s Chastity.— On the trial of such indictment, it is. not competent for the State to introduce evidence in relation to the chastity of the wife at the time of such trial.</p> <p>SAME. — Compromise of Action by Husband for Críra. Con. — Where a husband, who, in good faith, has employed attorneys to commence an action for damages for the alleged seduction of his wife by another, demands and receives from such person money or other valuable article in satisfaction and settlement of such threatened action, he is not thereby guilty of blackmail.</p>

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

<p>Jurisdiction. — Formation of New County. — Action in Court of Old Covmty Concerning Land in New — Statute Construed. — Presumption.—Subsequent to the establishment of the boundaries, the location of the county-seat, and the qualification of the officers of a new county, formed from another county, under the provisions of the supplemental act of March 5th, 1859,1G. & H., p. 193, but prior to .the fixing of the time for holding the first term of the circuit court in the new county, as provided in section 10 of such act, an action was commenced in the circuit court of the old county, concerning the title to certain real estate lying within the new county; and, subsequent to the holding of such first term, judgment was rendered therein, decreeing such title to be in a certain party to such action.</p> <p>Held, on a special finding of the foregoing facts, made in a subsequent action concerning the same real estate, between persons claiming under the parties in the original action, that the circuit court of the old county had jurisdiction over such real estate, enabling it to render a valid decree.</p> <p>Held, also, that such statute should be so construed as to enable a suitor, at all times, to bring an action to enforce a right or redress a wrong.</p> <p>Held, also, that, where a doubt exists as to jurisdiction, the presumption should favor the record.</p> <p>Held, also, that, on the establishment of the boundaries of the new county, it became, under the last clause of section 1 of such act, simply a political organization entitled to rights pertaining to similar organizations.</p>

<p>Pleading. — Action by Landlord for Bent. — Defence.—Assignment of Cause of Action for Benefit of Creditors. — Pleading.—Copy of Assignment. — Parties.— In an action to recover for the use and occupation of real estate, the defendant answered, alleging that the plaintiff had assigned the cause of action to another, by deed, for the benefit of his creditors, and that such assignee still held the same, at the commencement of the action.</p> <p>Held, on demurrer, that, for want óf such deed of assignment or a copy thereof, or an allegation excusing the omission, the answer is insufficient.</p> <p>Same. — Beply of Beassignment. — A reply to such answer, alleging that, prior to the commencement of the action, the assignee had reassigned the cause of action to the plaintiff, should set out such reassignment or a copy thereof, or allege an excuse for the omission, but is a sufficient reply to such answer.</p> <p>Same. — Biidence.—On the trial of such cause, under the issue formed by such answer and reply, the plaintiff admitted the assignment alleged in the answer, but it was not put in evidence, and the plaintiff, without objection by the defendant, gave verbal evidence of the reassignment alleged in the reply.</p> <p>Held, that such evidence, in the absence of any objection by the defendant that the assignee had not been made a party, shows the plaintiff to have been the real party in interest.</p> <p>Same. — Set-Off.—Promisswy Note. — Where a promissory note pleaded as a set-off shows on its face, that it was given for a consideration different from the plaintiff’s claim, it carries with it no presumption of a settlement of such claim.</p> <p>Same. — Judicial Notice of Seasons of the Year and of Husbandry. — The court» of this State take judicial notice of the course of the Seasons and of husbandry, and that the use and occupation of a farm in this State during six months, including the whole of the cropping season of the year, is worth more than such use and occupation during the remainder of such year.</p>

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

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

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

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

<p>‘■Special Finding. — A special finding by the court,, not made at the request of a party, amounts only to a general finding.</p> <p>Principad and Agent. — Money Received by Sub-Agent for use of Principal.— Action for. — Ratification.—Demand.—Evidence.—The owner, by delivery, of an unendorsed promissory note payable to another, delivered the same for collection to an agent, who, without the knowledge or consent of the owner, delivered the same for collection to a third person,-who received and collected the same as the property of the payee, without knowledge ■of the rights of such owner. On the trial of an action by such owner, against such third person, to recover the money so collected by the defendant, wherein the complaint alleged a demand and refusal, the evidence established that the plaintiff, being the owner, by delivery, of an unendorsed promissory note payable to another, delivered the same to an agent for collection; that such agent, without the plaintiff’s knowledge or consent, delivered the same, for collection, to the defendant, without informing him as to the plaintiff’s ownership thereof; that the defendant received and collected the same, and used the proceeds, believing it to be the property of the payee; and that another agent of the plaintiff, without informing the defendant of his agency or of the plaintiff’s rights, demanded of the defendant a settlement.</p> <p>Held, that the plaintiff, by suing the defendant, ratified the act of her agent in placing such note in the defendant’s hands.</p> <p>Held, also, that a demand was necessary; and that a finding, that none waaproperly made, will not be disturbed, where the evidence in relation, thereto is conflicting.</p> <p>Held, also, that, under the averment of the complaint, that demand had been made and refused, evidence of a conversion by the defendant could not be given as an excuse for making no demand.</p> <p>Pkactice. — Supreme Court. — New Trial. — No question can be made in the Supreme Court, on appeal, on matter which is only cause for a new trial, but which has not been set out in a motion therefor.</p>

<p>Bjeuef. — Supreme Court. — Side 19. — Where an appeal is taken to tlio Supreme Court, the appellant’s brief must comply substantially with the requirements of Bule 19 of that court.</p>

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

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

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

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

<p>Husband and "Wims.-r-Abandonment of Wife. — Statute Providing Belief far Wife. — The term “abandonment,” as used in the act of March 7th, 1857, 1 R. S. 1876, p. 553, providing for the relief of married women who have been deserted by their husbands, means the act of a husband in wilfully leaving his wife, with the intention of causing a palpable separation between them, and it implies an actual desertion of her by him.</p> <p>Same. — The relief contemplated by such statute can not be had by a wife' who leaves her husband, though she have good cause for so doing.</p> <p>Same. — Judgment.—Alimony.—In a proceeding under such statute, by a wife who has been abandoned by her husband, she is entitled to judgment, not personally against the husband for sums of money as alimony, but that specified property of the husband be rented or sold, for her benefit.</p>

<p>_ _ _ _ BilIi of Exceptions. — Transfer of Common Pleas Jurisdiction to Circuit.— Signing Bill of Exceptions. — Where, prior to the expiration of the time given by a common pleas court for the filing of a bill of exceptions, and before it had been signed, that court was abolished, and the jurisdiction thereof conferred on the circuit court, the judge of the latter court alone could sign such bill.</p> <p>Same. — Appeal by me Co-Party. — Notice.—Supreme Court. — Where, from a judgment against several parties, an appeal is taken to the Supreme Court by one only of such parties, notice must be served upon his co-parties. i</p> <p>Same. — Brief.—Marginal Notes on Record. — Rule 19. — On appeal to the Supreme Court, a brief, besides one for a supersedeas merely, should be filed, and marginal notes on the transcript, as required by Hule 19, should be made.</p>

<p>Deposition. — Narralne Form of. — Questions.—Practice.—Where, in taking a deposition, the opposite party fails to appear, or, appearing, fails to require that each question be written down before it is answered, he can not afterward object that the deposition was taken in a “narrative form.”</p> <p>Same. — Imlemney.—Objection for, When Taken. — An objection to a deposition, on the ground that it is irrelevant, should be made at the time it is offered in evidence, and not by a motion to suppress on that ground, made before the trial.</p> <p>Same. — Expert.—-Where a deponent, in giving evidence as to the quality of goods, which is in issue, testifies that he is a judge of such quality, and is uncontradicted, a motion to suppress, on the ground that he is not “ shown to bo competent,” should be overruled.</p> <p>Same. — New Trial. — Assignment of Error. — Supreme Court. — Matter which is simply cause for a new trial should be assigned as such in a motion therefor, and not independently as error, on appeal to the Supreme Court.</p> <p>Same. — Instructions to Jury. — Record on Appeal. — In the absence from the record of the instructions given to the jury by the court, the Supreme Court can not say that error was committed by the refusal of instructions asked, even though the latter be abstractly right in themselves.</p> <p>Same. — Presumption.—Unless the record on appeal exclude every reasonable presumption of the correctness of the decisions of the lower court, they will be presumed by the Supreme Court to be right.</p>

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

<p>age. — Judgment.— Venire de JSovo. — Un the trial of a defendant indicted for murder, the jury returned a verdict finding “the defendant guilty of manslaughter, as charged in the indictment, and that he be fined in the sum of one dollar, and be imprisoned in the State’s prison for a period of fifteen years.”</p> <p>Meld, on motion for a venire de novo, that the jury is not authorized to assess a fine in such case, but that the same should be regarded as mere surplus-age, not vitiating the residue of the verdict, arid that judgment should be rendered against the defendant, imprisoning him as directed by the verdict.</p> <p>Same. — Erroneous Instruction Cured by Judgment.- — -An erroneous instruction to the jury in such case, informing them, that, in addition to imprisonment, they might assess a fine against the defendant, if found guilty, was cured by the court by disregarding the fine imposed by the verdict and rendering judgment of imprisonment.</p> <p>Same. — Former Acquittal. — Effect of Obtaining New Trial.— Waiver of Constitutional Right. — Where a defendant, who has been convicted of manslaughter on an indictment for murder, obtains a new trial, he may, on such new trial, be convicted of murder, as he, by obtaining the new trial, consented to be put on trial a second time for the same offence, thereby waiving his constitutional right to stand upon his implied acquittal of murder on the first trial.</p>

<p>Liqtjob Law. — Indictment.—Retailing Without License. — An indictment for retailing intoxicating liquor without license, alleging such sale to have been made by the defendant without “being licensed by the board of commissioners,” etc., is insufficient.</p> <p>Same. — Supreme Court. — Assignment of Error. — Plea of Quilty to Bad Indictment.— Waiver. — The sufficiency of an indictment may be questioned for the first time in the Supreme Court, on appeal, by an assignment of error, even where the defendant, without having made a motion to quash or in arrest, or haying reserved any exception, is convicted on a plea of guilty.</p>

<p>CbiminaXi Law . — Malicious Trespass. — Indictment.—In an indictment under section 13, 2 B. S. 1876, p. 462, for malicious trespass, it is immaterial whether the sum laid as damages resulting from the trespass be alleged to be to the damage of the property injured or of the owner thereof.</p>

<p>‘Criminal Law. — Betting on Election. — Indictment.—An indictment for betting on the result of an election, alleging the winning or losing, by the defendant, at a specified time, of a certain sum of money, on the result of an election which is alleged in the indictment to have been held at a subsequent time, is bad.</p>

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

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

<p>•Criminal Law. — Indictment.—Supreme Court. — The truth of an objection alleged against an indictment, on appeal to the Supreme Court, must appear by the record.</p>

<p>Liquor Law. — Retailing Without Liceme. — Indictment.—An indictment alleging that the defendant, “on,” etc., “at,” etc., “ did then and there sell to” a person named “ one gill of an intoxicating liquor, at and for the price of ten cents,” the defendant “not then and there being licensed, according to law, to vend intoxicating liquors in a less quantity than a quart at a time, contrary,” etc., is sufficient.</p>

<p>Criminal Law. — Larceny.—Common Purpose. — Evidence.—Where, on the trial' of several defendants on an indictment for larceny, the evidence establishes, beyond a reasonable doubt, that the larceny charged was committed by some one of the defendants, in pursuance of a common purpose by all, the jury is warranted in finding each of them guilty, though the evidence leaves in doubt the identity of the particular defendant who took the property.</p> <p>Same. — Testimony of Accomplice. — A jury may find a defendant guilty solely on the evidence of a confessed accomplice.</p> <p>Same. — Conspiracy.—Admissions.—Where a conspiracy or common purpose, by several defendants, to commit a crime, is established, the admissions of each are admissible in evidence against all.</p>

<p>Fraudulent Conveyance. — Pleading.— Complaint. — In an action by a creditor, against his debtor and another, to set aside an alleged fraudulent con- ' veyance of real estate to the latter by the debtor, the complaint must, to ■ be sufficient as against such grantee, allege, that the debtor, at the time of such conveyance, had no other property out of which the plaintiff’s claim . could bo made.</p> <p>Same. — Joint Demurrer — A joint demurrer to a complaint against several defendants, for insufficiency, should be overruled, if the complaint is suf— " fieient as to any-one of them, though insufficient as to the others. ■</p> <p>Infant. — Necessaries.—The necessaries for which an infant is liable are such things as are necessary to his support, use and comfort, comporting with his condition and circumstances in life; and he is liable for necessaries furnished his wife.</p> <p>Same. — Promissory Note. — Contract.—An infant is not liable at law, on his promissory note, or other contract, for money by him thereby obtained, to be used in improving, repairing or working his farm; nor is he liable thereon though the money obtained be expended for necessaries.</p> <p>Same. — The indebtedness for necessaries for which an infant is liable must .be created directly for the necessaries.</p> <p>Same.— When Liable in Equity. — Where the creditor shows that money furnished by him was expended by his infant debtor for necessaries, or in paying a debt incurred for necessaries, the latter is liable in equity to the former, who stands in the place of the person furnishing the necessaries.</p> <p>Pleading. — Partial Answer. — Practice.—An answer sufficient as to part only, but pleaded to the whole, of a complaint, is bad on demurrer.</p>

<p>■Will. — Construction of. — Action by Modal Legatee, on Exeeutor’s Bond. — Breach. —Belator.—Measure of Damages. — Decedents’ Estates. — A testator made a will, containing the following devises, viz.: that his widow should receive, during her life, the rents of his real estate, to support herself and his minor children; that, during her widowhood, she should have all' his personal property, except certain chattels, and certain choses in action, one of which was against C., who was one of his executors, the proceeds of which chattels and choses in action were to he applied, first, to the payment of his debts, and the residue to be loaned out by his executors, and the interest thereof applied to the education of his minor sons, A. and B.; that, on the death of his widow and the attainment of their majority by all his children, his daughters, E., F. and G. should each receive a certain sum of money; that his executors should invest a certain.sum for the benefit of his daughter IT., which should, at her death, go to her heirs; that all such sums should be paid to them on the settlement of his estate, except the share of H., who was “ to have the interest on hers ” from the date of the testator’s death; and that the residue of his estate should be equally divided between his sons. A., B., C. and D., the latter two being appointed executors.</p> <p>An action was brought, on the relation of A., against such executors, on their bond, alleging that the defendants had received the proceeds of such chattels, and collected all.of such choses m action, except the one against C., who was solvent; that the total amount of such chattels and choses in action, after the payment of the testator’s debts, was a specified sum, on which a certain amount of interest might have been realized for the education of A. and B.; that such money could have been loaned, but was not; that B. had completed his education at a certain date; that thereafter the relator, A., commenced and completed his education at his own expense, the defendants having failed to defray any of the expense thereof; and that he had arrived at his majority, and demanded repayment, which was refused. Demand for reimbursement.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that such action was properly brought on the relation of A. alone.</p> <p>Held, also, that the breach assigned falls within the tenth specification of section 162 of the decedents’estates act, 2 B. S. 1876, p. 549.</p> <p>Held, also, that the legacy for the education of A. and B. was a modal legacy.</p> <p>Held, also, that the relator could maintain his action without first either obtaining an order of court for the application of such legacy or a judgment therefor against the estate, or causing the removal of the executors.</p> <p>Held, also, that it was not necessary to allege that the whole of such interest had not been anticipated and expended solely in the education of B.</p> <p>Held, also, that the relator is entitled to recover the reasonable expenses of his education, less any amount expended therefor by the defendants; not exceeding, however, the reasonable interest on the fund to be loaned.</p> <p>Same. — JDemurra'.—Harmless Error. — Error in sustaining a demurrer to a paragraph of a pleading is harmless, when the facts therein alleged are admissible in evidence under a remaining paragraph.</p> <p>Same. — An answer in such action, that, by his will, the testator intended that the interest to be advanced to A. for his education should be charged to him on final settlement, sets up an erroneous construction of such will; but, even if the construction alleged were the proper one, the answer is insufficient.</p> <p>Same. — An answer in such action, that, by the terms of the will, the defendants were only to pay for the education received by the relator prior to his attaining his majority, which they had done, is insufficient.</p> <p>Same. — Interest cm Legacy. — Under such will, the testator’s daughter H. was entitled to receive interest on her legacy from the date of his death, but payment thereof was not to be made until settlement of the estate.</p>

<p>Liqtjok Law. — Constitutional Law. — Toim.—Acl of March 2d, 1855. — The act of March 2d, 1855, Acts 1855, p. 128, amending the 22d section of the act of June 11th, 1852,1 E. S. 1852, p. 482, providing “ for the incorporation of towns,” etc., only set out such section as originally enacted and the amendment intended, and not the full section as amended, and is therefore, under section 21, article 4, of the constitution of this State, unconstitutional and void.</p> <p>■Same. — Act of March Isi, 1877. — Amendment.—Such act of March 2d, 1855, supra, being unconstitutional, could not be amended, and therefore the act of March 1st, 1877, Acts 1877, Reg. Sess., p. 144, amendatory thereof is void; and boards of trustees of towns incorporated under the general law of this State have no power to require a retailer of intoxicating liquors to procure a license.</p> <p>Same. — Act of March VHh, 1875. — The act of March 17th, 1875,1 R. S. 1876, p. 869, regulating the sale of intoxicating liquors, confers no authority upon incorporated towns to require a retailer of intoxicating liquors to procure a license.</p> <p>Appeal. — Supreme Court. — Amount in Controversy. — Under section 550 of the practice act, as amended by the act of March 14th, 1877, Acts 1877, Spec. Sess., p. 59, an appeal does not lie to the Supreme Court, from a judgment rendered in an action where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars.</p>

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

<p>Slander. — Practice.—Prrror on Motion to Strike out Cured by Instructions to Jury. — Error in refusing to strike out of a complaint for slander words which, are not actionable is cured by an instruction to the jury, that such words are not actionable.</p> <p>Same. — AclionableWords.—Words charging the plaintiff with being a thief, and words charging him and his family or associates with being a K gang of thieves,” are actionable.</p> <p>Same.— Words not Actionable. — Words charging, that the plaintiff had “ always kept a set of thieves and liars about him to steal and swear for him,” are actionable as regards the charge of keeping thieves to steal for him, but not as regards his keeping them to swear for him.</p> <p>Same. — Words spoken by the defendant, of the plaintiff and his family or associates, alleging that the defendant had kept the plaintiff in “ meat for twenty years,” and that “ they will swear a man to hell,” are not actionable.</p> <p>Same. — Irregularity.—New Trial. — Reading Law Reports to Jury. — On the trial of an action for slander, the counsel for the plaintiff, during his argument of the cause to the jury, over the objection and exception of the defendant, read to the court, in the hearing of the jury, from a digest of the reports of the decisions of the Supreme Court of this State, certain statements, that, in certain actions for slander, damages in certain amounts had been assessed by the juries trying such cases, and that the Supreme Court had refused to set aside the verdicts as assessing excessive damages.</p> <p>JBeld, that counsel had no right to so read, either irom such digest or from the reports themselves.</p> <p>13eld, also, that the same was an irregularity entitling the defendant to a new trial.</p> <p>• Bul of Exceptions. — Supreme Court.-— Waiver. — Petition for Meheariny.— Where a hill of exceptions, duly signed, is copied into the record on appeal, hy the clerk, and duly certified by him, and the cause is submitted to, and decided hy, the Supreme Court, without any objection that the record does not show it to have been filed in time, such objection is thereby waived, and is unavailable on petition'for a rehearing.</p>

<p>Guaranty. — Promissory Note. — Joint Action Against Maker and Guarantor.— Misjoinder of Actions. — Assignment.—Parties.—Pleading.—Practice.—Jur diction. — Plea in Abatement. — Notice.—Delay.—An action was commenced against A., B. and C., jointly, in the county where B. and 0., but not A., resided, by the assignee, a banking company, on a promissory note payable in bank, executed by A. to a sewing machine company; on the back of the note was a stipulation, executed byB. and C., reading: “We jointly or severally, for value received, hereby guarantee the prompt pay-’ ment of the within note,” and also an endorsement, below such stipulation, reading: “ Pay to the order of ” the plaintiff, executed in the name of the payee, by D. E., ‘‘ Treasurer.”</p> <p>Held, that such stipulation was a contract of guaranty, separate and distinct. from the note, that B. and C. were guarantors only, and that they could not properly be sued thereon jointly with A., in an action on the note.</p> <p>Held, also, that there was a misjoinder of actions, but that such objection could only be presented by a demurrer for that cause, and not by a demurrer for insufficiency.</p> <p>Held, also, that the complaint in such action, alleging non-payment of the note by the maker and due notice thereof to the guarantors, contains a good cause of action against the latter.</p> <p>Held, also, that an answer by the maker, that he resided in another county than that in which the action was brought, is sufficient as a plea to the jurisdiction of the court over him.</p> <p>Held, also, that the endorsement passed the title to the note and guaranty, prima facie, to the plaintiff.</p> <p>Held, also, that, under the statute of this State, a contract of guaranty is assignable.</p> <p>Held, also, that the payee was not a necessary party defendant.</p> <p>Held, also, that the name of the plaintiff is, p-ima facie, that of a corporation. Held, also, that delay in giving notice to the guarantors, of the non-payment of the note, would not release them.</p>

<p>Ceiminal Law. — Obstructing Highway. — City.—Alley.—Dedication, of Ground to Public Use. — Acceptance of. — Intention.—On the trial of an indictment for •obstructing a highway, the evidence disclosed the following facts, viz.: That in 1853 the owner of a certain block in a city conveyed to the defendant a certain portion thereof, described by metes and bounds, together with an “ alley easement ” and right of way, of a certain width, on one side of the tract conveyed; that in 1856 the defendant erected a fence along such alloy, throwing out a portion of his lot in common with the alley; that the opposite portion of such block, across the alley, remained unimproved until 1864, when a purchaser thereof enclosed the same, leaving an alley which had a width, between his fence and that •of the defendant, of more than ten feet, in which situation the last mentioned portion of such block was purchased by the prosecuting witness; that in 1874 the defendant had his line established by the city civil engineer, who located the corners on the alley outside of the defendant’s fence; that the defendant thereupon erected his fence on the line established by the surveyor, being the true line, and thus reduced the alley below the width of ten feet; that the defendant had, ever since his purchase, paid taxes on that portion of the alley thus enclosed, and also for street improvements bordering thereon, made by direction of the city; that the alley had been used, until the removal of the fence into the alley, by the ■owner of the opposite portion of the block, for his own convenience, and by others in hauling hay, wood, grain and milk, but had never been . worked or platted by the city as a public alley or highway; and that the true ten feet for an alley had been reserved by the original owner and grantor of such block.</p> <p>Held, that the defendant is not guilty.</p> <p>Held, also, that there was no dedication of his ground for an alley, by the defendant.</p> <p>Held, also, that, to constitute a dedication, there must be a clear intention to devote the ground, claimed to have been dedicated, to the public use, and also an acceptance of the same by or on behalf of the public.</p>

<p>Obstructing Highway. — Abatement of Nuisance. — City.—Alley.—Mistake.— Dedication. — Intent.—Acceptance.—Estoppel in pais. — Contributory Negligence. —In an action by one adjoining proprietor, against another, to abate a nuisance, the evidence established the following facts, viz.: That prior to 1857 the owner o£ a certain block in a city had conveyed to the defendant the south part thereof by metes and bounds, together with an easement in an alley ten feet wide on the north side of the same; that in 1857, the north portion of the block being unenclosed and unimproved, and there being no marks to indicate the true line, the defendant, intending to erect his fence on his north line, had, by mistake, erected the same south thereof, throwing out a portion of his ground with the alley; that in 1865 the owner of the north portion of the block, without having his line surveyed, enclosed his property, erecting a fence on its south side, leaving such alley more than ten feet wide, and thereafter conveyed his ground to the plaintiff; that thereafter, in 1874, the defendant had his north line, being the south line of the alley, established by the city civil engineer, who located the same five feet north of the defendant’s fence; and that the latter thereupon removed his fence and built the same on the line so established, and thereby reduced the width of the alley to less than ten feet.</p> <p>Held, that the defendant is entitled to recover.</p> <p>Held, also, that the defendant had not dedicated said five feet to the public, the mistake in enclosing tending to repel the idea of dedication.</p> <p>Held, also, that the presumption of dedication arising merely from circumstances may be rebutted.</p> <p>Held, also, that, to constitute a dedication to the use of the public, there must be an intention to do so on the part of the donor, and also an acceptance of the same by or on behalf of the public.</p> <p>Held, also, that the defendant in this case is not estopped to deny a dedication of such ground.</p> <p>Held, also, that the doctrine of estoppel in pais involves that of contributory negligence.</p>

<p>’Replevin. — Gaming Instruments Seized by Officer of Gity. — Statute Construed. —Ordinance Necessary. — Clause 9 of section 53, 1 R. S. 1876, p. 289, authorizing the common council of a city “to enforce ordinances: * * * To suppress gaming and gaming houses, * * to prohibit and destroy instruments and devices of gaming,” etc., does not, by its terms, 'provide for the prohibition and destruction of such instruments, and is not self-executing, but requires an ordinance therefor to make it effective.</p> <p>Same. — Evidence.—An ordinance, authorizing the arrest and punishment of any person keeping or visiting an establishment for the purpose of gaming, does not authorize the seizure, detention or destruction of instruments used for gaming.</p> <p>Same. — Presumption.—Supreme Court. — Where the owner of such instruments brings an action to replevy the same from an officer of a city, who has seized and detained the same, and the defendant, on the trial, introduces in evidence no ordinance of the city, authorizing such seizure and detention, it is presumed by tbe Supreme Court, on appeal, that no such ordinance was, at tbe time of the seizure, in existence ; and, unless there is evidence of such ordinance the plaintiff is entitled to recover.</p> <p>Same. — Statutes Construed. — Neither section 38, 2 R. S. 1876, p. 442, of the act defining felonies, nor section 29, 2 R. S. 1876, p. 469, nor section 74, 2 R. S. 1876, p. 480, of the act defining misdemeanors, authorizes the seizure, detention or. destruction of gaming instruments.</p>

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

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

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

<p>From the J ad ge of the Marion Circuit Court.</p>

<p>Statute chf Frauds. — Contract by Subsequent Mortgagee to Pay Unsecured Indebtedness held by Prior Mortgagee. — Pleading.—Practice.—Motion to Make Certain. — Demurrer.—Doidence.—The complaint in an action alleged, that the plaintiff held a mortgage on the interest oí the mortgagor in a coal lease, to secure an indebtedness owing from the latter to the former ; that the defendant, being also a creditor oí the mortgagor, induced the plaintiff to consent to the execution of a mortgage on the same property, to' the defendant, to secure the latter indebtedness, by including therein, and promising the mortgagor to pay, the amount of an unsecured debt due from the mortgagor to the plaintiff; that thereupon the plaintiff released the mortgagor, and the defendant entered into possession of the mortgaged property and appi-opriated a large portion thereof to his own use; and that the mortgagor had become insolvent.</p> <p>Held, that the defendant’s promise was upon a sufficient consideration, and was not void by the statute of frauds, and that the complaint is sufficient.</p> <p>Held, also, that an objection, that the complaint was indefinite, was not presented by the demurrer, but should have been presented by a motion to make more definite..</p> <p>Held, also, that, under the issue made by the general denial, evidence was admissible to determine whether the defendant’s mortgage became a prior lien over that of the plaintiff, and also as to the extent of the plaintiff’s loss of security.</p>

<p>Promissory- Note. — Action by Administrator of Payee. — Party Claiming Title to Note Made Plaintiff. — Pleading.—Parlies.—Fraud.—Husband and Wife.— Open and Close. — Peeedents’ Estates. — In an action on a promissory note, against the maker, by the administrator of the deceased payee, the widow of the latter, claiming title to the note, was, on her application and affidavit, by order of court, made plaintiff in the action, and filed her complaint, alleging that the note in suit was her property; that the sole consideration therefor, received by the maker, was a promissory note, executed to her by the maker in consideration of a loan to him, by her, out of -her separate estate, and that the husband had fraudulently procured such note and delivered it to the maker, in consideration of the execution of the note in suit to the husband; and she demanded judgment on the note, against the maker, and, against the administrator, that the note was her property. To this the administrator answered, admitting that the consideration of the note in suit was once part of her separate estate, placed by her in her husband’s hands for investment, in her name, in real estate, but alleging, that, at an unnamed date, the husband had . caused certain real estate to be conveyed to her by another, at her request, in full satisfaction of her said separate property.</p> <p>Held, on demurrer to the answer, that the pleading to which it was filed was not.a “cross-complaint,” but a complaint, and that the answer is insufficient.</p> <p>Held, also, that, on the issues formed by a general denial of her complaint by the administrator and maker, and by her general denial of such answer, she was entitled to the open and close.</p> <p>Held, also, the maker having filed an interpleader, asking judgment as to who was the real owner of the note, that she was no party to the complaint filed by the administrator, and that she was the sole plaintiff, and the other parties the defendants, in the action.</p> <p>Same. — Witness.—Who may he. — The maker of the note in suit, in such action, was, under the issues formed, a competent witness on behalf of the widow,</p> <p>.Same. — Administrator’s Wife not a Competent Witness. — The wife of the decedent’s administrator, in such action, was not a competent witness on his behalf.</p> <p>Practice. — New Trial. — Assignment of Error. — Matter which is only cause ' for a new trial can not be assigned independently as error, on appeal to -the Supreme Court.</p>

<p>Conveyance by Marbied Woman. — Mistake.—When Cometed. — Where a married woman, owning real estate, has sold, and received the purchase-money for, the same, and has, with her husband, executed a conveyance thereof in pursuance of the statute of this State, a mistake in the description of the lands intended to be conveyed will be corrected either against her, or, on her decease, against her heirs.</p> <p>Same. — Statutory Defect. — Such a conveyance will not be corrected, where the defect is a want of compliance with a statutory requirement.</p>

<p>Bajxroad. — Killing Stock. — Complaint.—In an action under the statute, against a railroad company, for killing slock, the complaint must, to be sufficient, clearly allege, that the killing complained of was done by the defendant’s locomotive or cars. '</p> <p>Same. — Ltaiiroad run by Lessee in its own Karne. — Valiere a- railroad is run and operated by a lessee, not in the name of the company, but in its own name, it is not liable, under the statute, for stock killed by it.</p>

<p>Tendee. — Demand of Payment by, and Tender of to, one Unauthorized. — Equity-. —The payee of an ordinary promissory note, which was not payable in, bank, placed the same in a sealed envelope, with other papers, and deposited the same in a bank as a “ special deposit.” By inadvertence the officers of the bank took the note out of the package, and notified the maker of the time of its maturity, not, however, claiming ownership; whereupon the maker, at its maturity, tendered to'the cashier the amount due, w'hich he declined to receive, stating that he was instructed not to receive it, whereupon the maker afterward paid the same to the holder, declining to pay the interest accrued after maturity.</p> <p>Held, in an action on the note, for such interest, that such tender was invalid, and that the maker was liable for the interest.</p> <p>Held, also, that a court of equity can not supply a defect in a tender, and that it is the duty of the debtor to seek the creditor, and pay the debt, at its maturity.</p>

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

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

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

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

<p>Pleading. — Sheriff’s Sale. — Sale of Land, on School Fund Mortgage. — Action, to Set Aside for Irregularity. — Fraudulent Representations — Payment to Treasurer.- — In an action by a purchaser at sheriff’s sale of land subsequently sold to satisfy a prior mortgage thereon to the school fund, against the county auditor and the purchaser, to set aside such sale for alleged irregularity, the complaint alleged, that the plaintiff, intending to bid a certain sum, the amount due on such mortgage, for such land, at such sale, was prevented therefrom by the false and fraudulent statements of the mortgagor, made with the assent of the purchaser, andprior to the sale, that he intended to pay off the amount due on such mortgage, and thus prevent the sale of the land, and also that he had arranged t'o pay the same off and stop the sale; and that, though the purchaser had bid a certain sum for the land, exceeding that intended to be bid by the plaintiff, he had wholly failed and refused to pay the same to the auditor.</p> <p>Held, on demurrer, that the complaint is insufficient.</p> <p>Held, also, that the sum bid at such a sale should be paid to the county treasurer, and not to the auditor.</p>

<p>Negligence. — Pleading.—Properly Destroyed by Fire. — A complaint alleging that the defendant, without license from the plaintiff, had unlawfully-burned up personal property belonging to the plaintiff, is sufficient.</p> <p>Same, — Fire Started on Premises by Owner, and Escaping to Adjoining Premises. — A person may set a fire on his own premises, for any lawful purpose, and is not liable for damages resulting therefrom to the property of a contiguous proprietor, unless he is guilty of negligently permitting the fire to escape.</p> <p>.Same. — Averment Concerning Negligence, — In an action for damages resulting from fire set by the defendant on his own premises, the plaintiff must allege negligence on the part of the defendant, not merely in starting the fire, but in permitting it to communicate to the property of the plaintiff^</p>

<p>School Township. — Conveyance to, of Beal Estate Subsequently Annexed to Oily.- — Real estate conveyed to, and paid for by, a school township remains the property of the township, notwithstanding the fact that the real estate conveyed is included in territory subsequently annexed to a city adjoining, where such annexation includes part only of the territory of such township.</p>

<p>Pleading.— Use of Pronoun. — Where a personal pronoun, designating a party to an action, immediately follows the names of both parties, in a pleading, its antecedent is determined by the meaning intended.</p> <p>Same. — Action to Recover Real Estate. — Defences.—Evidence.—All matters of defence are admissible in evidence under the general denial, in actions to recover real estate.</p> <p>Same. — Conveyance of Land held Adversely to Gh'antor. — A conveyance of land to another, while it is in the adverse possession of a third person, under claim of ownership, though made by the rightful owner, is absolutely void, as against such adverse holder or his privies.</p> <p>Same. — Real Parly in Interest. — In such case, as against the adverse holder, the grantor is the real party in interest, and, by such conveyance, authorizes the grantee to sue in the name of the grantor, for the recovery of the real estate so conveyed, for the benefit of the grantee. But the grantee can not maintain such action in his own name.</p> <p>Same. — Answer.—Reply.—Where, in an action to recover real estate, the defendant answers, alleging, that, prior to the commencement of the action, the plaintiff had conveyed the land in controversy to another, it is a sufficient reply to allege, that, at the time of such conveyance, the defendant was in adverse possession of the land, under claim of ownership.</p> <p>Same. — Dismissal of Action by Grantor. — Power of Attorney. — Where, in such an action, tried on issues so made, there is evidence tending to establish the execution of such alleged conveyance, the grantor can not authorize the defendant, even by a power of attorney, to dismiss the action.</p> <p>Same. — Evidence.—Patent for United States Lands. — Proof of Execution. — By section 450, Rev. Stat. U. S., the secretary of the President is authorized to sign the name of the latter to patents for United States lands; and a patent purporting to have been so signed in 1857 is admissible in evidence without proof of its execution.</p> <p>Same. — Acknowledgment of Deed before Foreign Justice of the Peace. — By the legalizing act of March 4th, 1875, Acts 1875, Reg. Sess., p. 61, a deed theretofore acknowledged before a justice of the peace of a Territory or State within the United States, whose official character has not been properly certified to, is admissible in evidence without proof of its execution.</p> <p>Same. — Indian Treaties. — Title of Lands Ceded. — The Indians to whom lands were ceded by the United States by the treaty of August 29th, 1821, 7 U. S. Stat. at Large, page 218, took title by virtue of the terms of the treaty, though such lands were therein described as unlocated sections.</p> <p>SAME; — Conveyance by Indians. — Ratification by President, after Death of Grantee. —A conveyance, by a beneficiary of such treaty, of a specified tract of ■ land afterward conveyed to him by the United States by patent, pursuant to such treaty, vested the title in the grantee, though the latter died prior to the issuing of such patent, and prior to the approval of such conveyance, by the President; such approval relating back to the execution of the conveyance.</p> <p>Same. — Rule of Property. — The doctrine of the case of Ashley v. Eberts, 22 Ind. 55, has become a rule of property in this State.</p> <p>Same. — Location of Lands Ceded. — Presumption.—A recital in such conveyance, that the lands ceded by such treaty had been located under the direction of the President, raises the presumption that such location had been made prior to the execution of such conveyance.</p> <p>Same. — Delivery of Conveyance. — The production of a conveyance so approved, by the heirs of the grantee, is presumptive evidence that it had been properly delivered to the grantee, and no new delivery was necessary.</p> <p>Same. — Possession by Plaintiff’s Grantor. — Where, in such case, the plaintiff traces his title, through his grantors, to the United States, it is not necessary to establish possession of the land in his grantors.</p> <p>Same. — Fraud.—Where, in an action to recover real estate from one holding adversely, under claim of ownership, the defendant does not claim title through any of the grantors under whom the plaintiff claims, he can not attack any conveyance forming a link in the plaintiff’s chain of title, aB fraudulently procured.</p> <p>Same. — Harmless Evidence. — Map.—An engineer’s map of the township’ in which the land in controversy is situated, made by him from the original field notes, is harmless evidence against the defendant in such action.</p> <p>Same. — Tax Title. — Right of Recovery in Third .Person. — If, in such action, a tax deed, introduced in evidence by the defendant, shows on its face, without other evidence, an outstanding title in a third person, the plaintiff can not recover, though the defendant himself have no title thereunder.</p> <p>Same.- — Statute Construed. — Act of 1852. — Section 166 of the act of June 21st, 1852, in relation to the assessment of taxes, 1 G. & H.f p. 68, providing that a tax deed should “ vest in the grantee an absolute estate in fee-simple,” had reference merely to the-quantity of estate to he conveyed, and did not mean that such estate should vest in the grantee notwithstanding the fact that the law had not been complied with in making the sale.</p> <p>Same.— Validity of Tax Sale. — A tax deed, based upon a sale made while such law was in force, without evidence that steps, of which such deed makes no mention, necessary to constitute a valid sale had been taken, is incompetent evidence of title.</p> <p>Same. — Adverse Possession. — Instruction.—Where, in an action to recover real estate, the defendant introduces no evidence of title, except his adverse possession, and a tax deed to a third person, unaccompanied by evidence that the steps unrecited in the deed, necessary to constitute a valid sale, had been taken, it is not error to instruct the jury that he claims by virtue of no paper title, but merely by adverse possession.</p> <p>Same. — Continuity of Adverse Possession. — Interruption.—Statute of Limitations.— To constitute a valid title by reason of twenty years’ adverse possession, such possession must have been continuous. And where adverse possession has been interrupted at any time, and then resumed, the possession is deemed to have been constructively in the rightful owner during such interruption, and the adverse holder’s claim commences to run from the time he thus resumed.</p> <p>Same. — Declarations of One in Possession. — The declarations of a party in possession of land, showing the character of his possession and the title by which he held, are competent evidence against a party claiming under him.</p> <p>Same. — Recovery by Part Only of Plaintiffs. — Supreme Court. — Where, in an action by several plaintiffs, to recover real estate, the evidence and findings are, that the title and right to recover are in part only of the plaintiffs, judgment should be rendered accordingly; but, if judgment be then rendered for ail, the Supreme Court, on appeal by the defendant, will reverse the judgment only as to those not entitled to recover, and affirm it as to those who are.</p> <p>Same. — Application for New Trial as of Bight. — Notice.—The successful party-in an action for the recovery of real estate is not entitled to notice of an application by the losing party for a new trial of the cause, as of right, under section 601 of the code.</p> <p>Same. — Order Granting New Trial Vacates Judgment. — An order in such case, for a new trial, operates as a vacation of the judgment previously rendered, without a formal order setting it aside.</p> <p>Same. — Harmless Nunc Pro Tunc Entry. — A nunc pro tune entry, vacating the judgment, entered.at a term subsequent to the one at which a new trial is granted, is ineffectual and harmless.</p> <p>Same. — Instruction.—Harmless Refusal. — Where the substance of an instruction refused is covered by one given, such refusal is harmless.</p>

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

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

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

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

<p>Bailroad. — Action for Damages. — Pleading.—Bankruptcy.—An answer in an action against a railroad company for damages, alleging, that, subsequent to the commencement of the action, the plaintiff had been adjudged a bankrupt, and an assignee of his estate appointed, is insufficient on demurrer.</p> <p>Same. — Statement by Ticket Agent. — The ticket agent of a railroad company can not hind the company by his statement to a person purchasing a ticket for a certain train to a certain station, that such train will stop at such station, where the same is not a regular stopping place for such train.</p> <p>Practice. — Objection to Duidenee. — New Trial. — The grounds of objection to the admission of evidence should be stated to the court, at the time of making the objection.</p>

<p>Habeas Corpus. — Larceny by Bailee.— Venue of Orime. — Officer.—Where one obtains in another State the possession of money as a bailee, with the consent of the owner, with the felonious intent, then and there formed, of taking and converting the same to his own use in this State, proof of such fact and of a taking pursuant to such intention is sufficient evidence of larceny to warrant a justice of the peace in committing him to await the action of the grand jury against him for larceny, and to resist an application for a writ of habeas corpus, against an officer having him in charge under such commitment.</p>

<p>Husband and Wife.- — Mortgage Securing Promissory Note for Wife’s Debt.— A married woman is liable on her mortgage on her separate real estate, in which her husband joins, though given to secure a promissory note executed for a debt contracted by her during coverture, where, either by such note or a clause in the mortgage, he joins with her in promising to pay such debt.</p>

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

<p>Guardian and Ward. — Husband and Wife. — Contract with. Wife. — Abimdmmerit of Wife by Husband. — In an action against the guardian of a minor, to • recover for the value of the services of the plaintiff in supporting the ward, under an alleged contract therefor with the ward’s former guardian, the court found, that the guardian had means belonging to the ward sufficient to pay the plaintiff’s claim; that such contract was made by the plaintiff with a former guardian, then the plaintiff’s husband; that the husband had absconded, and the proper court, in the proper proceeding, had authorized her to sue for and collect all claims due her husband ; and that certain services, of a certain value, had been rendered as alleged by the plaintiff under such contract.</p> <p>Held, as a conclusion of law, that the plaintiff is entitled to recover.</p>

<p>Bond. — Defect.—A bond taken by any officer in discharge of an official duty is cured of any mere informality by section 790 of the code.</p> <p>Süpbeme Cooet.— Waiver. — Brief.—Where assignments of error are not discussed in the brief of the party making the assignment, the Supreme Court will deem them waived.</p>

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

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

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

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

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

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

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