Volume 61 — Indiana Reports

<p>City. — Donation of Bonds to Railroad Co. — Under the act of May 4th, 1869, “ to enable cities to aid in the construction of railroads,” etc., 1 R. S. 1876, p. 299, a city incorporated under the general law of this State may, upon the petition of a majority of her resident freeholders, make a donation of bonds of the city to a railroad company, to aid the latter in constructing its railroad through or into the corporate limits of such city.</p> <p>Same. — -“Donation” Defined. — The term “donation,” as used in such act, means an absolute gift or grant, made without condition or consideration.</p> <p>Same. — Enjoining Tax to Pay Bonds. — Pleading.—Where such a donation of bonds has been made pursuant to such a petition, and a tax has been levied to pay the interest on such bonds, and also to create a sinking-fund to pay the principal, the collection of such tax can he enjoined by a tax-payer in a suit against such city and her treasurer, not on grounds sufficient merely to enjoin the making of such donation, but only on grounds constituting a valid legal defence to the payment of the bonds in the hands of the present holders.</p> <p>Same. — Exhibits.—Exhibits attached to the complaint in such action, consisting of copies of writings which are not the foundation of the action, form no part of the complaint, and can not be looked to by the court in determining its sufficiency.</p>

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

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

<p>Town. — Liqiuor Law. — Town can not Require License. — Neither the general law of this State for the incorporation of towns, approved June 11th, 1852, 1 R. S. 1876, p. 874, nor the act of March 17th, 1875, regulating the sale of intoxicating liquors, 1 R. S. 1876, p. 869, authorizes a town incorporated under the former act to require a license to sell intoxicating liquors.</p> <p>Same. Act of 1875. — Section 6 of the latter act does not authorize a town to require such a license, but simply limits the amount that may he charged by the town for such a license.</p> <p>Same. — There is no valid law in this State authorizing such a town to require such license.</p>

<p>Injunction. — Taxes.—Illegal Assessment. — Pleading.—A complaint to enjoin the collection of taxes must, to lie sufficient, show, not mere irregularities in making the assessment, but that it is illegal and void.</p> <p>Same. — City.—Irregularity.—City Clerk. — County Auditor. — In an action to enjoin the collection of taxes assessed by a city, on the ground that the assessment was not made as a basis of taxation under the act of December 21st, 1858, 1 G. & H., p. 85, an averment that the assessment made was irregular .because the city clerk had not procured from the county-auditor the copy required by section 26, 1 R. S. 1876, p. 278, is insufficient, as it is the duty of the auditor to furnish the same to the clerk.</p> <p>Same.— City Assessor. — Where the appraisement made under said section 26 was adopted, it was not necessary to appoint a city assessor to make another assessment</p> <p>Same. — A general averment that the common council of the city had fraudulently and corruptly placed all the real estate in the city on the tax duplicate, without stating the particulars constituting the alleged fraud, is insufficient.</p> <p>Same. — An averment that certain lots alleged to have been illegally assessed were not taxable, not showing that they do not lie within the city territory, is insufficient.</p> <p>Same. — The laying out in lots and platting of land lying within a city does not take the same out of the city, nor exempt it from taxation for city purposes.</p> <p>Same. — Remedy.—Injunction is the proper remedy in this State to restrain the collection of an illegal tax.</p>

<p>Railroad. — Killing Stock. — Liability of Lessee. — Prior to the amendment of March 14th, 1877, Acts 1877, Spec. Sess., p. 61, the owner of stock killed by a railroad run and operated by a lessee in its own name had no remedy under the statute.</p>

<p>Lottery. — Contract in aid of Void. — Gaming.—Every scheme for the division or disposition of money or other property by chance, or any game of hazard, is prohibited in this State by law, and every contract in aid thereof is against public policy and therefore void.</p> <p>Same. — Contract Relating to Prize Made After the Drawing. — A contract by the holder of a ticket in such a scheme, with one having no connection with the original purchase of such ticket, made after the rights of such holder have been determined, whereby, for a valuable consideration, he disposes of any specified part of the money or property which he may have gained by means of such scheme, is valid.</p> <p>Same. — Open and Close — Pleading.—Where the answer to a complaint neither expressly denies, nor confesses and avoids, the allegations of the complaint, and amounts only to an argumentative denial thereof, the plaintiff is entitled to the open and close.</p> <p>Evidence. — Statutes of Foreign State. — A volume purporting on its title page to be the statutes of another State “ Published by Authority,” is admissible in evidence in this State without further proof of its authenticity.</p> <p>Same.— Harmless Error. — The admission of immaterial evidence which works no harm to either party is harmless error.</p>

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

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

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

<p>Criminal Law. — Indictment.—Grand Larceny. — Petit Larceny. — Former Conviction. — A former conviction of petit larceny should not be alleged against the defendant in an indictment for grand larceny.</p> <p>Same.- — Motion to Quash. — Practice.—Where, in such case, the allegation charging grand larceny is sufficient, a motion to quash the whole indictment should be overruled, but a motion to quash the allegation of a former conviction of petit larceny should be sustained.</p> <p>Same. — Evidence.—Statement of Third Persons. — Statements made by third persons in the absence of the defendant are not admissible in evidence against him.</p>

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

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

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

<p>Practice. — Pleading.— Waiver.— Trial Without Issue. — Where, without objection, the parties to an action go to trial without an issue having been formed on a pleading alleging affirmative matter, the same will be afterward regarded us having been controverted as fully as if a denial thereto had been filed.</p> <p>Principal and Agent. — Demand.—Where a debtor places in the hands of his creditor a chose in action in favor of the debtor against a third person, which the creditor agrees to collect, and out of the proceeds thereof pay himself and account to the debtor for the residue, the creditor is the agent of the debtor and is not liable to an action for such residue until demand therefor has been made.</p> <p>Same. — Statute of Limitations. — The statute of limitations does not begin to run in such case until such demand has been made.</p> <p>New Trial. — Newly-Discovered Evidence. — Cumulative Evidence. — A new trial of a cause will not be granted on the ground of alleged newly-discovered evidence, which is merely cumulative.</p>

<p>Continuance. — Absent Witness. — "Where an application for a continuance is-based upon the alleged absence of a material witness, an admission by the opposite party that such witness, if present, would testify to the facts-alleged in the affidavit, as true, obviates any necessity for a continuance on that ground.</p> <p>Same. — Absence of Attorney. — Where, from the facts alleged in an application for a continuance on account of the absence of the applicant’s attorney, and from the record it does not appear that the applicant was prejudiced thereby, the Supreme Court, on appeal, can not say that the action of the lower court in refusing the continuance asked was erroneous.</p>

<p>Clarke’s Grant. — Town of Clarksville. — Slate of Virginia. — Judicial Notice.— Supreme Court. — The Supreme Court takes judicial notice, as a part of the history of this State, that the grant of land by the State of Virginia, commonly called Clarke’s Grant, 2 R. S. 1876, p. 711, was surveyed and located adjacent to the Falls of the Ohio river, in the counties of Clarke, Floyd and Scott, in this State; and also that the town of Clarksville was located and laid out abutting on the Ohio river, within such grant, in said counties of Clarke and Floyd.</p> <p>Same. — Act Amending Charter of Clarksville. — The act of June 17th, 1852, Special Acts of 1852, p. 96, “ amendatory of the charter of the town of Clarksville,” etc., has never been amended or repealed, and is still in full force, and governs that part of Clarke’s Grant laid off and platted as the town of Clarksville.</p> <p>Same. — Incorporation of Part of Town. — Town of Ohio Falls. — Case Overruled.— Under such amendatory statute it was incompetent for any portion of the town of Clarksville to organize itself into an independent town; and therefore the organization of part of such town under the corporate name of the town of Ohio Falls was void. St. Clair v. Kelly, 50 Ind. 535, overruled.</p> <p>Same. — Action to Recover Proceeds of Sales of Lots. — Parties.—Remand.—An action against the successors of the trustees nominated in the act of the State of Virginia, 2 R. S. 1876, p. 711, to compel them to surrender up the books and papers connected with, and the proceeds of, the sales of the lots laid out and platted as the town of Clarksville under such grant, can . be maintained only by the board of trustees of such town, elected by virtue of the provisions of the act amending the charter of the town of Clarksville, supra, after demand made by such board on such successors, and refusal by the latter.</p> <p>Same. — Mandate.—Pleading.—A mere citizen of such town can not compel such surrender, by mandate or otherwise, even though he allege himself to be suing for the benefit of all the citizens thereof.</p>

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

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

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

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

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

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

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

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

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

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

<p>Pleading. — Defect of Parties. — Exhibit.—Partnership.—A complaint against a member of a co-partnership alleged, that, at the request of the defendant, the plaintiff had rendered services of a certain value in the settlement of the partnership business; that such co-partnership had been dissolved, and the final settlement of the partnership business placed in the hands of the defendant, pursuant to a written agreement of dissolution, made part of the complaint by copy, whereby the defendant had agreed to pay off the partnership debts upon realizing sufficient means out of the partnership assets ; and that sufficient means had been realized by the defendant, out of such assets, to pay all of the partnership debts.</p> <p>Held, on demurrer for a defect of parties defendants, that such exhibit forms no part of the complaint, and can not be looked to in determining the demurrer, that the complaint discloses a good cause of action against the defendant alone, and that the other member of the co-partnership is not a necessary party defendant.</p> <p>Pbactice. — Trial by Referees. — Special Finding. — Where a party to an action which has been referred to referees desires that the facts shall be found, and the conclusions of law stated, separately, the better practice is to have the order of reference require the referees to make such finding; but he may make his request for such finding to the referees themselves, and it is their duty to comply therewith.</p> <p>Same. — Record.—Error of Referees. — Bill of Exceptions. — Where such request is made to the referees and refused, he must, to make the refusal available as error and part of the record, except thereto at the time, and file his bill of exceptions, duly signed and sealed by the referees.</p> <p><Same. — Report of Referees. — Time of Filing. — Discretion of Court. — The court ordering such reference may, in its discretion, especially where no objection is made, allow the referees to file their report at a day subsequent to that on which, by the order of reference, it should have beSti filed.</p>

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

<p>Railroad. — Stock Killed. — Erroneous Evidence. — In an action against a railroad company, to recover, under the statute, for the value of stock alleged to have been killed by the defendant’s cars on its railroad, where the same was not, but ought to have been, securely fenced, it is error to admit evidence that such killing had been done by the defendant’s cars on the railroad of another company.</p> <p>Same. — Improper Amendment of Complaint — It is also error to permit the plaintiff, over the objection of the defendant, to so amend his complaint as to conform to such erroneous evidence, where such action is commenced in the circuit court.</p> <p>Same. — Railroad Run in Lessee’s Name. — A railroad company, running the railroad of another company in the name of the former, is not liable, under the statute, for stock killed on such railroad.</p>

<p>Town. — Common Schools. — Power of School Trustees to Contract. — An incorporated town is a distinct municipal corporation for school purposes, and is bound, as such, for the contract price of materials furnished and labor performed by another, in the erection of a school building for such town, under a parol contract therefor, made with him by the school trustees of such town.</p> <p>Same. — Pleading.—Demand.—It is not necessary, in a complaint for an amount alleged to be due on contract, to aver a demand for payment.</p> <p>Same. — Mechanics Lien. — -Action Against Owner. — Notice.—Limitation.—A sub-contractor furnishing materials or performing labor in the erection of a building may, under section 649 of the practice act, give to the owner the notice required by such section, of his contractor’s indebtedness, at any time while the owner is indebted to such contractor; and an action to enforce his remedy under such section is not affected by the limitation of one year, prescribed in section 651 of such act.</p> <p>Same. — Pleading.—Exhibit.—Such notice is not the foundation of such action, and is not a necessary part of the complaint.</p> <p>Same. — Demand.—Demand for payment in such case, previous to commencing such action against the owner, need not he averred in the complaint.</p> <p>Same. — Action Against School Town. — Pleading.—In an action against an incorporated school town, to recover for materials furnished and labor performed by the plaintiff, in the course of the construction of a schoolhouse for such town, the complaint alleged, that, at the request of the school trustees and the contractor for such building, such material had been furnished and such labor performed, on the parol promise of such trustees to pay a certain price therefor, out of a certain amount due from them to such contractor.</p> <p>Held, on demurrer, that the complaint is sufficient, and that it need not aver that such building had been accepted by the trustees, or that any thing was due from them to the contractor.</p> <p>Same. — Mechanic’s Dim. — Estoppel.—Agent.—Attorney.—Pleading.—In an action by a sub-contractor, against an owner, under section 649 of the practice act, an answer by way of estoppel, that, after the service of the necessary notice, the plaintiff’s agent and attorney had notified the defendant, that the plaintiff had abandoned his rights thereunder, is insufficient on demurrer, where there is .no averment that such agent had authority to give such notice of abandonment, or that the defendant was injured thereby.</p> <p>Practice. — Pleading Struck Out. — Bill of Exceptions. — Supreme Court. — A. motion to strike out a paragraph of a pleading, and the action of the court thereon, must, to constitute part of the record on appeal to the Supreme Court, be embodied in a bill of exceptions.</p> <p>Same. — Record.—Evidence.—New Trial. — Where, on appeal to the Supreme Court, the evidence is not in the record, no question in relation thereto is presented, in considering the overruling of a motion for a new trial.</p>

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

<p>Infancy. — Action by Next Friend. — Amendment.—Practice.—"Where the defendant in an action pleads, that the plaintiff though an infant, had not commenced his action by next friend, the court may allow a responsible person to appear as next friend, and file the proper undertaking, even over the objection of the defendant.</p> <p>Champertous Contract. — The fact that a contract is champertous may be brought to the attention of the court where it is the foundation of an action, or a defence, between the parties thereto.</p> <p>Same. — How Available to Third Person. — Where, in the course of the trial of an action not founded on a champertous contract, it incidentally appears that the action is being prosecuted by the plaintiff’s attorney, under a champertous contract, the court may at once dismiss the action.</p> <p>Same. — Supreme Court. — Practice.—To present to the Supreme Court, on appeal, a question as to the action of the court below, where such champertous contract incidentally appears, there should be a motion to dismiss for that cause, and exception taken at the time to the action of the court thereon.</p>

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

<p>Township, Civil and School. — Trustee^—Bond.—A township embraces* two distinct corporations, to wit, the civil township and the school township, existing within the same territory and having the same trustee, who* is bound by a single official bond.</p> <p>Same. — Action on Bond. — Relator.—Joint Recovery for Different Funds. — Breach^ — Judicial Notice. — Demurrer.— Uncertainty. — Bill of Particulars. — In an action on the relation of one described as “ the trustee of ” a certain township, on the official bond of his predecessor, the complaint alleged, that such predecessor had defaulted, at the expiration of his term, in paying; over to the relator moneys in his hands belonging to the township, road,, school and school-house funds, amounting to a certain sum, but failed to specify the amount due to each fund separately.</p> <p>Held, on demurrer, that the breach alleged is sufficient, that the courts of' this State take judicial notice that the trustee of the civil is also trustee of' the school township,and that the designation of the relator’s official character issufficient to enable a recovery to be had on account of all of such funds..</p> <p>Held, also, that uncertainty in failing to designate separately the amount due to each fund can not be reached by demurrer, but only by a motion* to make certain or for a bill of particulars.</p> <p>Same. — Bailee.—Liability for Loss of Funds. — School Superintendent. — County Commissioners. — A township trustee is not a mere bailee of the funds of his township, but is absolutely liable for a loss thereof, under any circumstances ; and, in an action on his bond for such funds, it is no defence that he had deposited tlicsamein a solvent bank of deposit which had afterward,, during such deposit, become insolvent, though such deposit was made pursuant to the advice of the State and County Superintendent of common, schools, or of the .board of county commissioners.</p> <p>Same. — Action Instituted Without Request of County Commissioners. — An action,, on the relation of a township trustee, on the bond of a defaulting predecessor, may be instituted without the request or direction of the board of county commissioners.</p> <p>Pbactice. — Trial Without Issue.— Waiver. — Where a party alleging affirmative matter goes into trial without requiring an issue to be formed thereon,, he thereby waives the want of an issue.</p>

<p>Liquor Law. — Act of 1875. — Immorality or Unfitness of Applicant for License.— The fact that an applicant for a license, under the act of March 17th, 1875, 1 R. S. 1876, p. 869, regulating the sale of intoxicating liquors, occasionally indulges in a drink of intoxicating liquor, does not, per se, constitute that immorality or unfitness which, by such statute, precludes him from receiving a license.</p> <p>Same. — Intoxication.—Evidence of intoxication of the applicant in the remote past is not of itself sufficient to establish an allegation, that he is-. “ in the habit of becoming intoxicated-.</p>

<p>Witness. — Decedents’ Estates.— Widow. — Husband and Wife. — Evidence.—In an action to enforce the collection of a claim alleged to be due from the estate of a decedent, the widow is a competent witness as to any material fact in relation to such claim, of which she has personal knowledge, not communicated to her by the decedent during the marriage relation, and also as to any competent and relevant conversation in relation to such claim, had in her presence and hearing between the decedent and a third person.</p> <p>Same. — Sincerity of Offer to Prove. — Practice.—The sincerity of a party to an action in offering to prove certain material facts relating to the matter in issue can be tested only in the court where such offer is made, and not in the Supreme Court on appeal.</p> <p>Same. — Partnership.—Dissolution of. — Promissory Note. — In an action to enforce the collection, against the estateof adecedent, of a promissory note purporting and alleged to have been executed by the decedent and another as partners, in the partnership name, it is competent for the defendant to prove that such note had been executed by such other person, in the name of a partnership formerly existing between them, that sucli partnership had been dissolved and settled prior to the execution of such note, and that the proceeds of the same had resulted solely to the benefit of such person.</p> <p>Same.— Costs. — Taxation of on Claim Against Estate.- — Before a court is authorized, under section 62, 2 R. S. 1876, p. 512, of the act in relation to the settlement of decedents’ estates, to tax against the claimant the costs accrued in enforcing the collection of a claim against a decedent’s estate, it must appear that such claim was filed more than one year subsequent, not merely to the issuing of letters of administration, but also to the giving of due notice thereof.</p> <p>Same. — Where a claim filed more than one year subsequent to the issuing of such letters and the giving of such notice is allowed, the claimant is liable only for the costs made by himself, and not for those made by the defendant.</p>

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

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

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

<p>Bill of Exceptions.— Practice. — Statement of Fads by Judge. — Affidavit.— It is the duty of the judge who has presided at the -trial of a cause, in signing a bill of exceptions, to see that the same embodies a full and fair statement of all the circumstances connected with any action taken by him on the trial, which is complained of as error,' and his own actions,' being peculiarly within his own knowledge, need not be presented or made known to him by affidavit.</p> <p>Same. — Motion for New Trial. — A motion for a new trial, for - any of the causes set out in the first specification of section 352 of the practice act, need not be supported by affidavit.</p> <p>Same. — Disagreement of Jury. — The provisions of section 331 of the practice act, in relation to the duty of the court where a jury disagrees, are mandatory, and not merely directory.</p> <p>Same. — Further Instructions to Disagreeing Jury. — A court has no right, during the absence and without the knowledge of the parties or their attorneys, to enter the jury room and instruct the jury as to any matter of law or fact upon which they disagree.</p> <p>Same. — Receiving Verdict, or Instructing Jury, on Sunday.- — A verdict may be received, and a court may instruct a jury which has disagreed, on Sunday.</p>

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

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

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

<p>Promissoby Note.— Parol Agreement Contradicting. — A contemporaneous parol agreement, that a promissory note stipulating for the payment of a certain sum, to a certain person, at a specified time, should never be paid, but should be applied on a debt due from a third person to the maker, is no defence to an action on such note.</p> <p>Bill oe Exceptions. — Evidence.—Testimony.—A statement in a bill of exceptions purporting to contain the evidence given on a trial, that the same contains all the “ testimony” given, is not equivalent to a statement that it contains all the evidence.</p>

<p>Railroad. — Killing Stock — Inability of Lessee. — A railroad company is not liable, under the statute, for stock, killed by it on a railroad belonging to-another company, run by the defendant in its own name.</p>

<p>Promissory Note. — Payable in Bank.— Waiver by Endorser of Notice of Non-Payment. — The right of an endorser of a promissory note payable in bank, to notice of its non-payment, may be waived by a stipulation contained in such note.</p>

<p>Railroad. — Killing Stock. — Action against Owner and Lessee. — Pleading:—In a joint action under the statute against one railroad company as the owner, and another as the lessee, of a certain railroad, to recover for ¡stock alleged to have been killed by the cars of the latter whilst running such railroad, the complaint must, tó be sufficient as to the lessee, allege that the lessee was running such railroad in the name of the owner.</p> <p>'.Same. — Damages.— When Company Liable. — In an action under the statute, against a railroad company, for killing stock, the evidence showed that the cars of the defendant struck one only of two animals, which were tied together, and dragged them both along the track so as to kill both. Held, that the plaintiff was not entitled to recover for the animal which had not been struck by the cars of the defendant.</p>

<p>Action. — Tart.—Contract.—Misjoinder of Actions. — The distinction between actions sounding in tort and actions sounding in contract was not abolished by the code; nor can causes of action of the two classes be joined.</p> <p>Same. — Pleading.—Railroad.—Contract to Fence. — Trespass.—In an action . against a railroad company for damages, the complaint alleged, that, in • consideration of the promise of the defendant to keep stock out of the crops of the plaintiff, the latter had granted the former leave to enter upon his farm and construct its line of road across such farm, but that the defendant had permitted stock to enter upon and destroy such crops. Held, that the action is one upon contract, and not for a tort.</p> <p>Same. — Conveyance.—The conveyance in such case gave to the defendant the “right to construct and maintain a railroad,” etc., “across” the plaintiff’s land, in consideration that the defendant would fence its “ road in six months’ time,” etc.</p> <p>Held, that an entrance by the defendant under such conveyance was not a trespass.</p> <p>Held, also, that the company was not bound to maintain, but might remove, the plaintiff’s fences, and was not obliged to fence its road until six months after the completion thereof.</p>

<p>Practice. — Demurrer.—Justice of ike Peace. — Supreme Court. — Where a demurrer presented before a justice of the peace is not renewed in the Circuit Court on appeal, no question in relation thereto can be made in the Supreme Court on appeal.</p> <p>Raileoad.— Killing Stock.— Venue.— Pleading. — In an action under the statute, against a railroad company, for killing stock, the venue is sufficiently laid, where the complaint shows the killing to have occurred in the county where the action is brought.</p> <p>Same. — Negligence.—Transitory Action. — An action against a railroad company for negligently killing or injuring stock is not local, but transitory.</p> <p>Same. — Contributory Negligence. — The fact that the owner of an animal “ knowingly permitted” it to run at large is not such contributory negligence on his part as will defeat an action by him against a railroad company for the "‘wilful” killing of such animal.</p> <p>Practice.— Verdict. — Special Finding. — Judgment non Obstante. — To authorize judgment upon the special findings of a jury, notwithstanding their general verdict, there must be a clear inconsistency between them.</p>

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

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

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

<p>Railroad. — Killing Stock.— Complaint.— Verne.— In an action, under the statute, against a railroad company, for killing stock, the complaint alleged, that the killing charged had occurred in the county where the action. was brought, and that, at the point where the stock entered upon the defendant’s railroad and was killed, such road “ was not securely fenced.”</p> <p>Held, on demurrer, that the complaint sufficiently lays the venue and shows that such road was not “ securely fenced in.”</p>

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

<p>Town. — Improving Street.— Complaint. — In an action against a property holder of a town, to recover for the value of services rendered by the plaintiff in improving a street bordering on the defendant’s property, under a contract between such town and the plaintiff, the complaint must, to be sufficient, allege facts showing that the town had power to bind the defendant, and had legally exercised it.</p>

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

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

<p>Supreme Court. — Appeal to. — Notice of. — Default.—Practice.—Where a part only of several co-parties appeal to the Supreme Court, those not joining therein are entitled to notice thereof, notwithstanding they may have made default in the court below, and are made nominal co-appellees in the Supreme Court.</p>

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

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

<p>Amendment. — Justice of the Peace. — Attorney’s Fees. — Promissory Note. — On appeal from a justice of the peace to the circuit court, in an action on a promissory note stipulating for attorney’s fees, it is not error to permit an amendment to the complaint, averring the amount of attorney’s fees claimed.</p> <p>Same. — Evidence Admissible Without Plea. — An answer in such action, which does not set up the statute of limitations, a set-off, or matter in abatement, is unnecessary, as all other defences are admissible in evidence without plea.</p> <p>Same. — Principal and Surety. — Endorser.—One who places his name on the back of a promissory note, at the time of its execution, designating himself as surety, is liable, originally and jointly with the maker, as a surety, and not as an endorser.</p> <p>Same. — Joint Judgment by Justice. — Execution.—The fact that a justice of the peace renders a joint judgment against the defendants, in an action on a promissory note which itself designates them as principal and surety, is not error; as the justice in such case must designate such suretyship on any execution issued upon such judgment.</p> <p>Pbactice. — Objection to Evidence. — The grounds of an objection to the admission of evidence must he stated at the time the objection is made.</p>

<p>Promissory Note. — Payable in Bank. — Complaint.— Averment Contradicting-Copy. — Motion to Strike Out. — Demurrer.— Variance. — In an action by an assignee, against the maker, on a promissory note payable at a place designated therein as “ Citizen’s State, of,” etc., as appeared by a copy thereof attached to the complaint, it was alleged in the complaint, that the note was payable at the “ Citizen’s State Bank, of,” etc.</p> <p>Held, on demurrer, that the allegation that the note was payable in such bank is controlled by the copy of the note, and might have been struck out on motion, but can not be reached by demurrer; and that the complaint is sufficient.</p> <p>Same.— Alteration.— Additional Surety without Knowledge of Original.— The-fact that the payee of a promissory note procures the execution of the same by an additional surety, without the knowledge or consent of the-original surety, is not such an alteration as will discharge the former, though he executed the same solely because of the apparent liability of the latter, who was availing himself of such alteration as a defence.</p> <p>Bill of Exceptions. — Deception.— When Taken. — A statement in a bill of exceptions, that the several exceptions mentioned therein had been reserved “ at the proper time,” is equivalent to a statement that such exceptions had been taken “ at the time” the decisions excepted to were made.</p> <p>Burden of Proof.— Weight of Evidence. — Supreme Court. — The burden of proof as to merely affirmative matter of defence is on the defendant, and the Supreme Court, on appeal, will not reverse a finding against the defendant, in such case, on the mere weight of conflicting evidence.</p> <p>^Promissory Note. — Surety. — Fraud. — Indemnity. — Evidence. —Where a surety on a promissory note alleges, that his signature was procured by means of fraudulent representations made to him by the payee, it is competent for the plaintiff to show that he had received a mortgage from the principal indemnifying him against loss as surety. And it is a harmless error as to him, in such case, that the plaintiff also shows that there is a prior mortgage on the same premises to another, so as to show the sufficiency of such indemnity.</p> <p>.Instruction to Jury. — Harmless Refusal. — Where the substance of an instruction asked and refused is embraced in one given, such refusal is harmless.</p>

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

<p>Conveyance. — Descent.—Deal Estate Held by Wife in Virtue of Previous Marriage. — A conveyance by a married woman and her husband, of real estate descended to her from a deceased former husband, is inoperative.</p> <p>Same. — Covenant.—Breach.—Liability of Husband and Wife. — If such a conveyance be made by a deed containing general covenants of warranty, in which both the wife and her husband join, he alone is liable for a breach of such covenants.</p> <p>Sams. — Pleading.—Rescission.—Surplusage.—In an action by the grantee of real estate so held, against the husband and wife, for a breach of the covenants of warranty contained in the deed, an allegation in the complaint that the plaintiff had reconveyed and delivered possession of the land to her is unnecessary, and should be regarded as mere surplusage.</p>

<p>Pleading. — Evidence.—Mitigation of Damages. — Action by Attorney for Value of Professional Services. — In an action to recover for the value of services alleged to have been rendered by the plaintiff, as an attorney, for the defendant, as his client, the latter offered to prove, under the general denial, that such services had been rendered under a special agreement between the parties, fixing the compensation therefor at a sum less than that testified to and claimed on behalf of the plaintiff.</p> <p>Held, that such contract could not be specially pleaded, but was admissible in evidence under the general denial, in mitigation of damages.</p> <p>Same. — Instruction to Jury. — Measure of Damages. — Expert.-—In such action the court instructed the jury trying the cause, that the value of “services rendered by an attorney,” as such, “ can best be shown by the evidence of * * persons engaged in the same profession,” and that, when so shown by intelligent and credible witnesses, whose evidence “ is not outweighed by other evidence in the case, the value * fixed by them should be the basis” of the verdict.</p> <p>Held, that the instruction is erroneous.</p>

<p>Mortgage. — Foreclosure.—Complaint.— Description of Mortgaged Premises. — The fact that, in an action to foreclose a mortgage covering several different tracts of real estate, some of such tracts are insufficiently described in the complaint, does not render the complaint insufficient, if the descriptions of the remaining tracts be sufficient.</p> <p>Same. — Admissions.— Waiver of Evidence. — Where, on the trial of an action to foreclose a mortgage executed by one who had subsequently married his co-defendant, it is admitted by the defendants, that they had intermarried after the execution of the mortgage, and that it had been duly recorded, it is unnecessary to introduce the mortgage itself in evidence.</p>

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

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

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

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

<p>Promissory Note. — Principal and Surely. — Cross-Complaint by Surely. — Pleadsing. — In an action on a promissory note, against several alleged makers, a so-called “ answer” by one of the defendants, alleging that he was merely surety for his co-defendants, and asking relief accordingly, amounts only to a cross-complaint against his co-defendants.</p> <p>Same. — Appearance.—Allegations of Complaint Deemed True. — Where, without filing any additional pleading, such defendant submits the cause for trial, every material allegation of the complaint must be taken as true.</p> <p>Same. — Parol Evidence Establishing Character of Liability. — Maker.— Guarantor. — Where a person, other than the payee, endorses a promissory note in blank, at the time of its execution, he thereby, prima facie, assumes the liability of an endorser only, but it may be shown by parol evidence, that his liability is that of a joint maker, or of a guarantor.</p> <p>Same. — Law of Place. — The maker of a promissory note payable in another State is liable according to the laws of that State.</p> <p>Same. — Pate of Interest. — Law of Foreign State. — Excessive Damages. — Modifying Judgment.- — -Remittitur.—Practice in Superior Court. — In an action, in the Superior Court, on a promissory note payable in another State, and bearing interest, but stipulating no rate, interest was calculated on the note, and provided for in the judgment, at the rate of seven per cent., though there was no allegation in the complaint, nor evidence on the trial, as to the rate of interest allowable in such case by the law of such State.</p> <p>Held, that it was within the sound discretion of the Superior Court, on appeal to general term, to remand the cause to special term, with directions to allow the plaintiff to remit the interest allowed in the judgment exceeding six per cent., and to direct that the judgment be so modified as to bear interest at that rate.</p>

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

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

<p>Town. — Ordinance Requiring License to Retail.— Voluntary Payment. — Complaint. — Duress.—In an action against an incorporated town, to recover back money paid to the defendant, by the plaintiff, for a license to retail intoxicating liquors, as required by an ordinance of such town, the plaintiff alleged in his complaint, that, “ by reason of threats and menaces”, made by the “ defendant’s officers, to prosecute him under said ordinance, and in fear of arrest, fine and imprisonment,” etc., he had involuntarily paid the same.</p> <p>Held, on demurrer, that such payment was voluntaiy, and that therefore the complaint is insufficient on demurrer.</p>

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

<p>Agreed Statement. — Evidence.— Guardian and Ward.- — In an action against a guardian, for the value of services voluntarily rendered by the plaintiff in maintaining, educating and caring for the ward, over and above the value of the latter’s services, the cause was submitted to the court for decision, on an agreed statement of facts as to the extent and character, hut not as to the value, of any of such services.</p> <p>Held, the defendant denying the plaintiff’s right to recover, and there being no evidence introduced as to such value, that the finding should be in. favor of the defendant.</p>

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

<p>Bankruptcy. — Involuntary Bankrupts Discharge Attacked Collaterally. — Pleading, — Fraud.—Notice.—Jurisdiction.—In an action by an assignee, against the maker, on a promissory note, wherein the defendant pleaded his discharge in involuntary bankruptcy subsequent to the execution of the note in suit, the plaintiff replied, alleging that such discharge had been fraudulently obtained by the bankrupt by omitting from the schedule of his property certain personal property owned by him, and by omitting therefrom such note and the names of both the assignee and payee thereof; and also alleging that neither such assignee nor payee had received any notice of such proceeding, “ according to the law of Congress.”</p> <p>Meld, on demurrer, that the reply is insufficient.</p> <p>Held, also, that the averment as to notice is a mere averment of a conclusion of law, as notice by publication to all whom it may concern gives jurisdiction over the persons of all creditors, whether they are or are not named in the schedule.</p> <p>Held, also, that such discharge can not be. attacked collaterally for fraud or irregularity practised in the proceedings in which it is obtained.</p> <p>Held, also, that the remedy in such case can be granted only by the court granting the discharge, on application made within two years thereafter.</p>

<p>Railroad. — Killing Stock. — Complaint.—Fence.—Motion in Airest.— In an action under the statute, commenced in the circuit court, against a railroad company, for killing stock, the complaint alleged, that, “ at a place on the track of said railroad, where the same was not securely fenced”, the defendant, “ by its servants, locomotives and oars, ran upon, against and over” the stock and killed it.</p> <p>Held, on motion in arrest, that as the defect in the allegation as to fencing could be and was supplied by the evidence and cured by the verdict, the complaint is sufficient.</p> <p>Same. — Evidence as to Fence. — Where the evidence given on the trial of such an action shows that the stock killed had entered upon the track, over a line of fence that was generally insecure, it is not necessary that it also show that the particular part thereof over which the stock passed was insecure.</p> <p>Same. — Expert.—It is proper for the plaintiff in such case to enquire of competent witnesses whether such fence was such as good husbandmen usually kept.</p>

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

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

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

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

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

<p>Real Estate. — Action to Quiet Title.— Complaint. — In an action to quiet the-title to real estate, a complaint which shows, prima facie, that the plaintiff" is entitled to immediate possession of real estate of which the defendant is unlawfully in possession, is sufficient on demurrer.</p> <p>Same. — Statement of Title. — It is proper to allege in the complaint the real' title of the parties, so far as the same is known to the plaintiff.</p>

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

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

<p>Promissory Note. — Payable in Bank — Denial of Execution. — A denial, under oath, of the execution of a promissory note payable in bank is a sufficient answer to a complaint thereon.</p> <p>Same. — Defence.—Fraud.— Want of Consideration. — Sham, Assignment. — Fraud practised by the payee on the maker in procuring the execution of such note, a want of consideration, or that the assignment thereof was a sham, is no defence to an action thereon by an assignee thereof for value, before its maturity, and without notice of any defence, where such assignee is not alleged to have had notice thereof.</p>

<p>Attorney. — Lien on Judgment for Fees.— When- Taken. — Collection by Clerk —Costs.—Principal and Agent.— Ratification. — Agreed Statement. — Judgment for a certain sum having heen rendered for the plaintiff in an action, and against him for costs of the action for a larger amount, the judgment defendant paid to the clerk of the court the amount of the plaintiff’s judgment, before it had been entered up on the order book, which was the next day. The day succeeding such entry the plaintiff’s attorney in such action took a lien on the said judgment for his reasonable fees, which just equalled the amount of the judgment, and demanded . the same of the clerk, which the latter refused, claiming the right to apply the same on such judgment for costs. Such facts, and also the insolvency of said judgment plaintiff, appearing from an agreed statement submitted by the parties in an action by such attorney against the clerk, for the money so collected,</p> <p>Held, such payment having been made to the clerk prior to the passage of the act authorizing clerks to receive money on judgments of record, that the clerk thereby became merely the agent of the plaintiff in receiving the money on the ratification of his act by the latter, that such lien was taken in time, and that the plaintiff is entitled to recover.</p> <p>Supreme Court.— Reinstating Appeal.— Notice.— Res Adjudieaia.— Petition for Rehearing. — When it is made to appear to the Supreme Court that notice was given to the opposite party of a motion to reinstate an appeal which had been dismissed, an order reinstating such cause is res adjudicada, and no question as to the giving of such notice can be presented on petition for a rehearing.</p>

<p>Practice. — Superior Court. — Supreme Court. — Assignment of Error. — On appeal from the Marion Superior Court to the Supreme Court, the only proper assignment of error is, that the Superior Court, in general term, erred in its judgment.</p> <p>Same. — An alleged error of the Superior Court, in special term, which is not assigned on appeal to the general term, can not be assigned in the Supreme Court on appeal.</p> <p>Constable. — Action on Bond for Failure to Make Levy. — Supreme Court. — In an action against a constable and his sureties, upon his official bond, on the relation of a judgment creditor, it was alleged in the complaint, and evidence was given on the trial tending to show, than an execution had been issued on a judgment of a justice of the peace, in favor of the relator, against another; that it was placed in the hands of the defendant for collection; that, though such execution defendant had property within the defendant’s bailiwick, subject to execution, and sufficient to satisfy the relator’s claim, the defendant had failed and refused to levy on the same, though requested so to do and the property pointed out by the relator, and had returned the execution unsatisfied.</p> <p>Held, that a finding against the defendant will not be disturbed by the Supreme Court on appeal.</p> <p>Same. — Judgment for Costs. — Damages.-—In such action it is proper that the judgment include the costs recovered by the plaintiff against such judgment defendant, whether they have ever been paid by the relator or not. Same. — Evidence.—Docket of Justice of Peace. — The docket of such justice containing such judgment, when properly identified, is competent evidence to establish the rendition of such judgment.</p>

<p>Mortgage. — Promissory Note.— Church. — A valid mortgage on real estate may be executed in the name of a church society, by the president, secretary and other members of its board of trustees, to secure an indebtedness due from such church, evidenced by a promissory note, executed in like manner.</p> <p>Same. — Name.—Presumption.—In an action to foreclose such a mortgage, brought against the board of trustees of such church, it is presumed that the corporate name of such church is the one in which the mortgage was executed.</p> <p>Same. — Defence.—Foreclosure.—Want of Title in Church Trustees. — It is no defence in such action to allege that the board of trustees who executed the mortgage had no title to the premises mortgaged.</p> <p>Same. — Partial Answer. — Including Personal Deht of Trustee. — An answer in such action, pleaded to the whole complaint, alleging that the note in suit included a personal debt due from a trustee to a third person, of which the plaintiff had notice, is insufficient on demurrer.</p>

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

<p>Promissory Note. — Fake Representations. — Fraud. Warranty. — Pleading.— Practice. — In a suit upon a promissory note, by the payee thereof, against the maker, the latter answered, alleging that such note was obtained by false representations, made by the agent of the payee to such maker, concerning the qualities of a sewing machine, for which such note was executed ; and also that such agent warranted “ that it was a good machine and would work all right,” alleging a breach of the warranty.</p> <p>Held, that, as an answer of fraud, such pleading is insufficient in not alleging that the representations were fraudulently made, and that the agent of such payee knew, at the time he made them, that they were false.</p> <p>Held, also, that, admitting that the warranty is well pleaded, the defendant was not injured by the ruling of the court sustaining a demurrer to such answer, it appearing that a warranty of the machine was set up in another paragraph of answer, upon which issue of fact was taken and trial had.</p> <p>Patent. — Act Respecting Foreign Corporations and their Agents.— The provisions of the act “ respecting foreign corporations and their agents in this State,” 1 R. S. 1876, p. 373, do not apply to a foreign corporation which is the owner, either as patentee or assignee, of letters-patent issued by the United States, or to its agents in this State, connected with the manufact<ure, use or sale of the invention described in such letters-patent.</p>

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

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

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

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

<p>Mandate. — Parties.—Relator.—Sale of Land on Execution. — Action, to Compel Sheriff to Convey — An action against a sheriff, to compel him to execute to the purchaser a deed for real estate sold by such sheriff on execution, should be brought in the name of the State of Indiana, on the relation of such purchaser, and, upon filing his complaint, the relator should move for an alternative writ of mandate requiring the defendant to execute and deliver such deed, or show cause why he should not.</p> <p>Same.— Waiver. — Where, without objection by the defendant in the Circuit Court or in the Supreme Court on appeal, the defendant appears and answers a complaint filed by the purchaser in his own name as plaintiff, objection to the form of the action is thereby waived.</p> <p>Same. — Certificate of Purchase. — It is the duty of the sheriff, on making a sale of real estate on execution or decree, and on receipt of the purchase-money therefor, to execute to the purchaser a certificate as required by section 2 of the act of June 4th, 1861, 2 R. S. 1876, p. 220, note a.</p> <p>Same. — Sheriff’s Deed. — It is the duty of the sheriff, at the expiration of one year from the date of the sale of real estate, to execute and deliver to the purchaser a deed for the same, if it shall not previously have been redeemed.</p> <p>Same. — Purchaser after Sheriff’s Sale. — Right to Redeem. — One who receives a deed of conveyance of land decreed to be sold, executed by the holder of the legal title subsequently to a sale thereof by the sheriff on such decree, is entitled to redeem the same prior to the expiration of a year from such sale.</p> <p>Same.— When Year of Redemption Expires. — The year for such redemption does not expire until midnight of the last day thereof.</p> <p>Same. — Payment to Clerk by Chech. — Pleading.—The fact that the clerk of the Court receives and collects a check on a bank for the amount necessary to redeem, from one having the right to redeem, and places the same to his own credit in a bank as such clerk, does not necessarily render such redemption invalid. And where such facts appear from the complaint in an action to compel the sheriff to execute a deed to the purchaser, the complaint is insufficient on demurrer.</p>

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

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