Volume 62 — Indiana Reports

<p>Criminal, Law. — Suffering Minor to play Billiards. — Indictment.—Gaming. —Under the act of March 8th, 1873,2 E. S. 1876, p. 484, “ making it unlawful for owners,” etc., “ of billiard tables to suffer or permit minors to play at or upon the same,” etc., it is not necessary, in an indictment under section 1 of such act, to allege that any thing had been lost or won upon the game which the minor was suffered to play.</p>

<p>Injunction. — Action on Injunction Bond. — Defence.—Res Adjudicata. — Matter which goes only to the merits of an action to procure an injunction can not be considered in an action on the bond given in such injunction proceeding.</p> <p>Same. — Power of County Commissioners. — Improvement of Streets of Town.— Judicial Notice. — In an action on an injunction bond, to recover damages resulting from the delay occasioned by the injunction, the complaint alleged that the defendant had enjoined the plaintiff from proceeding with the completion of a contract between the plaintiff and the board of commissioners ■ of a certain county, for the improvement of the streets surrounding the public square of the county-seat, which action had been defeated.</p> <p>Held, on demurrer, that the power of such county commissioners to make such contract entered into the merits of that action, and can not be considered in this.</p> <p>Held, also, it not being averred that such county seat was an incorporated town, that the court can not judicially know that it had been incorporated, and therefore no question arises as to the power of town trustees to make such improvements.</p> <p>Same. — Defence.—An answer in such action setting up matter which would have been merely a defence to the action for an injunction is insufficient.</p> <p>Same. — Pleading.— Title to Real Estate. — Jurisdiction of Common Pleas Court. — An answer in such action, alleging that the defendant had applied for such injunction in the court of common pleas on the ground that the improvements being made by the plaintiff would work irreparable damage to adjoining real estate alleged to belong to the defendant, is insufficient, as the title to such real estate was not so involved as to oust such court of jurisdiction.</p> <p>Same. — Jurisdiction to grant an injunction was expressly conferred on courts of common pleas by section 21,2 G-. & H., p. 2{5.</p>

<p>Chattel Mortgage. — Personal. Property of Deceased, Husbands Estate.— Rights of Widow. — Replevin.—Personal property belonging to the estate 0f a deceased husband, encumbered by a chattel mortgage executed by the decedent to secure the payment of a debt, may, on default of payment thereof, be replevied by the mortgagee from the widow, though, because it constituted all of the decedent’s estate and was of the. value of less than five’ hundred dollars, it had been duly appraised and set off to her by the order of the proper court.</p> <p>Same. — Redemption.—The widow might, in such case, redeem the property by paying the debt, or, probably, obtain an order for the sale of the property and the payment to her of the proceeds of such' sale in excess of such debt.</p>

<p>¿Criminal Law. — Conspiracy.—Burglary.—Larceny.— Indictment. — An indictment, charging the defendant with having unlawfully conspired with others to burglariously enter the storehouse of another, with the intension of committing a larceny of the goods of the latter, charged that it was “ with the intent, the moneys,” etc., “ of,” etc., “ then and there being, to steal, talce and carry away.”</p> <p>Held, that, for want of the word “feloniously,” as a qualification of the term “steal,” etc., the indictment is insufficient.</p>

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

<p>Xiqtjoh Law. — Authority of Town to Regulate Sale of Intoxicants. — Towns incorporated under the general law of this State have no authority to regulate, by ordinance, the sale of intoxicating liquors.</p>

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

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

<p>Criminal Law. — Burglary with Intent to Commit Larceny. — Indictment.— An indictment for burglary charged that the defendant, on, etc., at, etc.. “ did then and there, unlawfully and feloniously, in the night-time, burglariously break and enter into the storehouse ofA. B., “ there situate, with intent then and there” certain personal property of a certain value belonging to said A. B., “ then and there being, then and there feloniously and burglariously to steal," etc.</p> <p>Held, that the indictment is sufficient.</p>

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

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

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

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

<p>Contested Election. — Appeal Bond. — The fact that, on appeal to the circuit court, in a proceeding to contest an election, the appeal bond is made payable to the State, instead of to the opposite party, is not ground for dismissing the appeal.</p> <p>Same. — Jury Trial. — The refusal of the court to grant a jury trial in such case is not error.</p>

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

<p>Mechanic’s Lien. — Material Man’s Lien.— Water- Works Companies. — Manufacturing Companies. — A water-works company, incorporated under the act of March 6th, 1865, 1 R. S. 1876, p. 329, in relation thereto, is not a manufacturing company under the act of May 20th, 1852, 1 E. S. 1876, p. 619, authorizing the incorporation of such companies, and its buildings, etc., are not subject to the enforcement of a mechanic’s lien for materials furnished in constructing its pipes, mains, etc.</p>

<p>Contract. — Agreement for Support of Bastard. — Action by Mother. — Performance.— Measure of Damages. — Pleading.—The mother of a bastard child brought an action against the putative father, alleging in her complaint that the defendant, in order to avoid the shame of an exposui e, had agreed with her, that, if she would remove from this to another state, he would pay her a certain sum of money on the date of her departure, and a certain other sum as she might need it for the support of her family, during her residence in the latter state ; that she thereupon prepared to so remove, but the defendant, failing to pay to her such first mentioned sum, promised to remit the same to her within a specified time thereafter, whereupon she removed as agreed upon ; and that the defendant had wholly failed to pay her any part of such sums, and, her own means being exhausted, she had returned to this state.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that, if in such case the plaintiff had agreed, as her part of said contract, to remain in such state, the rule for the measure of her damages is compensation at the contract price for the part performed by her, and indemnity for her loss in respect to the part unexecuted.</p> <p>Same. — Agreement to Convey Land. — Presumption.—Notice of Performance.— One paragraph of the complaint in such action, alleged, that the defendant, in order to provide support for such child, had agreed with the plaintiff, that, if she would convey to the child a certain tract of land belonging to her, he would pay to her a certain sum of money, discharge a certain lien on such land, and pay a certain debt owing from her to another; and that she had made such conveyance, as agreed upon, but that the defendant had failed to pay such sums of money.</p> <p>Held, on demurrer, that the paragraph is sufficient, that the contract and its performance are presumed to have been one continuous transaction, and that the defendant is presumed to have had knowledge thereof, and was therefore not entitled to notice of performance.</p>

<p>Supreme Court. — Assignment of Error. — Record.—An assignment of error, questioning the correctness of an alleged ruling, which in fact does not appear by the record to have ever been made, presents no question for decision.</p> <p>Same. — Bill of Exceptions. — The signature of the proper judge is necessary to the validity of a bill of exceptions.</p>

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

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

<p>Supreme Court. — Instruction.—New Trial. — Assignment of Error. — Error in giving or refusing to give an instruction to a jury is ground for a new trial, but can not be assigned independently as error, on appeal to the Supreme Court.</p> <p>Same.— Weight of Evidence. — Where there is evidence tending to support the verdict of a jury, the Supreme Court will not disturb it on the mere weight of evidence.</p> <p>Same. — Trial.— Verdict after Expiration of Term,. — Where a trial is commenced during a term of court, it may he continued beyond the term until it is completed.</p>

<p>Action to Declare Judgment Void. — Married Woman. — An action can not be maintained by a married woman to have a personal judgment rendered against her upon a simple contract declared void, though her coverture and the nature of the indebtedness appear upon the face of the complaint in such case.</p> <p>Same. — Review of Judgment.- — Justice of the Peace. — -The proper remedy in such caséis by an action to review such judgment.</p> <p>.Query: Can a review be had of a judgment rendered by a justice of the peace ?</p>

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

<p>Mortgage. —Husband and Wife. — Encumbering Wife’s Inchoate Interest in hands. — Sheriffs Sale. — Descents.— Foreclosure. — Conveyance. — Where a judgment debtor and his wife, by a duly recorded mortgage, executed in either the ordinary form or as a deed absolute on its face, convey to a creditor, to secure the payment of a debt, lands of the debtor which are subject to the lien of a personal judgment against him, she thereby encumbers her inchoate interest in such lands ; and, though such lands be subsequently conveyed by the sheriff to the assignee of the certificate of a sheriff’s sale of the same on an execution issued on such judgment,, and also by a conveyance by such debtor and his wife, one-third of such lands are, on the death of the debtor, subject to foreclosure under such mortgage.</p>

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

<p>Mortgage. — Description of Premises by Reference to Another Instrument. — Record.—Notice to Junior Incumbrancer. — Sheriffs Sale. — A certain mortgage on real estate described the same as “ the one-half interest ” in a certain specified tract, excepting “ about ” a specified number of acres embraced in such tract, as described in a deed for the portion excepted, theretofore executed to the mortgagor on a certain date by a third person named.</p> <p>Held, in an action by such mortgagee against a junior mortgagee, for fore•elosure, both mortgages haying been duly recorded, that such description is sufficient.</p> <p>Held, also, that a sheriffs sale of the whole tract, under such prior mortgage, could not affect the title to the part so excepted.</p> <p>Held, also, that the record of such prior mortgage was notice to the defendant of the boundaries of such tract.</p> <p>Same. — Foreclosure.—Evidence.—Contract—A contract between the mortgagor and a third person, pursuant to which the equity of redemption was conveyed to the latter, who assumed the payment of such prior mortgage, is not competent evidence against the plaintiff in such action.</p> <p>Same. — Attorney Acting for Opposite Parties. — Cross Complaint.— Setting Aside Default. — Notice.—In an action to foreclose a mortgage on real estate, by the mortgagee, against a junior encumbrancer and a purchaser of’ the equity of redemption, wherein the latter had made default and a cross complaint against him had been filed by such incumbrancer, such default was set aside, on motion, without exception, in the presence in court of such incumbrancer, and an answer to the cross complaint filed by the plaintiffs attorneys, and as the attorneys of such purchaser, whereupon such cross complaint and answer were docketed as a separate action.</p> <p>Held, on motion by such encumbrancer to reject the answer of such purchaser and to have such default reinstated, that the appearance of such attorneys on behalf of both the plaintiff and such purchaser was neither improper nor inconsistent.</p> <p>Held, also, that, such encumbrancer being in court, notice to him of the motion to set aside such default was unnecessary.</p> <p>Practice. — Refusal to Hear Argument. — Where all the points involved in a case have been argued before the close of the evidence, the court may refuse to hear further argument.</p>

<p>Mechanic’s Lien. — Material Man. — Action Against Subsequent Purchaser.— Pleading. — In an action hy a material man, against A. and his wife and B. and her husband, to enforce a lien, the complaint alleged, that, at a date specified, the plaintiff had furnished to A. certain material to he, and which was, used in the erection of a building on a certain lot belonging to A.; that, within sixty days thereafter, the plaintiff had caused a proper notice of his intention to hold a lien on said premises for the value of said materials to he duly recorded; and that A. and his wife had thereafter conveyed said premises to B.</p> <p>Meld, on demurrer, that the complaint is sufficient.</p> <p>Same. — Answer by Purchaser, that the Builder was an Infant. — Disaffirmance. — B. answered in such action, alleging, that, without notice of the plaintiff’s claim, she had purchased, and received a conveyance for, said premises, from A., and had caused such conveyance to be duly recorded; and that A., at the date such materials had been furnished, was an infant, and had since, in the action at bar, disaffirmed the contract of purchase of such material, by pleading his infancy.</p> <p>Held, on demurrer, that B. had the right to avail herself of the infancy of A. as a defence, and that the answer is sufficient.</p> <p>Same. — Infant Holding Himself Oat as of Age. — Necessaries. —Conveyance.— The plaintiff in such action replied to such answer, alleging, that, at the time said materials were furnished, A. had held himself out as of full age; that the plaintiff had no information to the contrary; that the conveyance by A. to B. was made without consideration; and that the materials furnished were necessaries.</p> <p>Held, on demurrer, that such materials were not necessaries, that the fact that A. had held himself out as being of full age was immaterial, and that the reply is insufficient.</p> <p>Same. — Evidence.—Declarations and Admissions of Infant as to his Age.— Title to Real Estate. — The admissions or declarations of A., that he was of full age, though made while the title to such land was in him, are not admissions affecting such title, and are incompetent evidence against B., in. such action.</p>

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

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

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

<p>Practice.— Waiver. — Pleading.—Abatement of Action.— Supreme Court.— "Where, without requiring a rule to reply, or otherwise calling the attention of the court, to a plea in abatement of an action, issues are made up on the merits of the action and tried and adjudicated upon by the court, action upon such plea is thereby waived, and no question upon it can be made for the first time in the Supreme Court.</p>

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

<p>Criminal Law. — Indictment.—Name.—Surplusage.—An inconsistent or repugnant clause or averment, concluding an indictment, such as a misnomer of the defendant, should he treated as mere surplusage, when the other averments of the indictment clearly and sufficiently charge the defendant with the commission of a crime.</p> <p>Same. — Murder.— Verdict Fixing Illegal Punishment.— Supreme Court.— Judgment. — Where, on the trial of a defendant indicted for murder, the jury return a verdict of guilty as charged in the indictment, fixing the punishment at imprisonment in the state-pfison, and assessing a fine, the latter should he disregarded by the court in rendering judgment. And if, in such case, judgment be rendered in accordance with the verdict, the Supreme Court may affirm the judgment of imprisonment and reverse the same as to the fine, by directing the court below to strike the same out.</p>

<p>Supreme Court.— Weight of Evidence. — The Supreme Court, on appeal, will not set aside the verdict of a jury on the mere weight of evidence, where there is evidence tending to sustain it.</p> <p>'Contract.- — Sale of Personal Property. — Delivery.—Acceptance.—Preach of Contract. — Where any thing remains undone, necessary to transfer the title to personal property which is sought to be delivered to the vendee by the vendor under a contract for the sale and. delivery of the same, an action on the contract for the value of the same can not be maintained by the vendor. But, where such thing remains undone through the fault of the vendee, he may be liable for a breach of such contract.</p>

<p>Action to Quiet Title. — Partition.—Deed Intended as Mortgage.— Frazcdulent Conveyance.— Pleading.- — Parties.—In an action hy the widow and heirs of an intestate, against A., B. and others, to quiet the title to, and partition, a certain tract of real estate, the complaint alleged that, in his lifetime, such intestate and his wife had conveyed said tract to A., by a deed absolute on its face, intended as a mortgage, to secure the payment of a certain indebtedness ; that, on payment of such debt by C., A. had, at the request of the intestate, conveyed a portion of such tract to C., who was to hold the same simply as security for repayment; and that, upon the death of the intestate, A., to defraud the plaintiffs, had conveyed the residue of such tract for a merely nominal consideration to B., who had knowledge of the foregoing facts.</p> <p>Meld, that the complaint was sufficient.</p> <p>Held, also, that it was not necessary that the complaint should aver that A. claimed title to or an interest in the land, and that it is immaterial whether he was in possession thereof or not.</p> <p>Held, also, A. having died, that his heirs were proper, though not necessary, parties defendants.</p> <p>Same. — Statute of Limitations. — The statute of limitations of six years is no defence in such action, as it belongs to that class of actions fajling within the statute of limitations of fifteen years.</p> <p>Same . — Married Woman. — Infancy.—An answer of the statute of limitations in such case, pleaded against a married woman and minor heirs, is insufficient.</p> <p>Same.— Widow.— Witness. — Evidence.—The widow in such case is a competent witness in her own behalf as to matters occurring pi'ior to the death of her husband.</p> <p>Same. — Evidence Explaining Deed. — Parol evidence is admissible to show that a deed absolute on its face was intended simply as a mortgage.</p> <p>Supreme Court. — Pleading.—Assignment of Error. — Where any one of several paragraphs of a complaint is sufficient, an assignment of error, on appeal to the Supreme Court, questioning the sufficiency of the complaint, is not available, though the remaining paragraphs be insufficient.</p> <p>Special Finding —Practice—Judgment.—A special finding by the court, not made at the request of either of the parties, nor signed by the judge, amounts only to a general finding; and judgment should follow the finding.</p> <p>Same. — Supreme Court. — Practice.—The sufficiency or correctness of a finding can not be questioned by an alleged error in rendering judgment.</p> <p>Same.— Demurrer. — New Trial. — Error in a ruling upon a demurrer to a pleading is not cause for a new trial.</p>

<p>Statute oe Frauds. — Contract to Pay Debt of Another. — Parties.—A., being employed by a merchant to sell merchandise for cash only, with a verbal agreement that he should be personally responsible to his employer for all uncollectible accounts of sales made by him on credit, sold a bill ea account to one. on a written order addressed to him hy B., charging the same against the latter in the account hook of his employer, and then, without having paid or assumed the same, brought an action therefor, in his own name, against B.</p> <p>Held, that such verbal agreement between A. and his employer was within the statute of frauds, and therefore void, and that such action could he maintained only by the employer.</p>

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

<p>¡Fraudulent Conveyance. — Action to Set Aside. — Pleading.—Evidence.— In an action by a judgment creditor, against his judgment debtor and another, to set aside an alleged fraudulent conveyance of real estate by the debtor to his codefendant, it must be charged in the complaint, and proved on the trial, that, at the time the conveyance complained of was made, the debtor did not have left enough of other property, subject to execution, to pay his debts.</p>

<p>Sheriff’s Sale.— Venditioni Exponas.— When Issued. — Sheriff s Return.— Tinder the statute, 2 R. S. 1876, p. 212, sec. 453, a venditioni exponas can only issue where property levied upon remains unsold ; and a return of an execution which recites, that “ The real estate levied upon, sold to ” A. “April 6th, 1857,” for a certain sum. — .“purchase-money not paid,” shows, that the land levied upon remained unsold when such return was made. The language used is substantially equivalent to saying that the land was- “ bid off by” A. “April 6th, 1857,” for a certain sum •— “purchase-money not paid,” and the plain inference is, that the title to the land had not passed from the owner, and a venditioni exponas could be properly issued.</p> <p>Same. — Setting Aside Sheriff’s Sale. — Inadequacy of Price. — Innocent Purchaser. — Notice.—The inadequacy of the price for which a sheriff sells real estate will not, of itself, authorize a court to set aside such sale, after the property has come into the hands of an innocent purchaser, without notice of any other irregularities, especially after the lapse of many years from the date of such sale, and after descent of the land has been cast upon the heirs of such purchaser.</p>

<p>Turnpike. — Complaint Against Corporation. — Bill of Particulars. — In an. action against a gravel road company, upon an account stated, for work and labor done for the defendant, it is not necessary to file a bill of particulars with the complaint, nor is it necessary to aver therein that the de fendant is a legally organized corporation.</p> <p>Evidence. — Declarations.—Hearsay.—The declarations of a deceased third person, not made by him as a witness on a former trial, are not competent evidence on the trial of an action on an account stated.</p>

<p>Statute of Frauds. — Contract to Pay Debt of Another. — Parties.—In an action on account for goods sold’ and delivered, the evidence developed the facts, that the plaintiff had sold such goods merely as the agent of the owner, that such goods had been charged against the defendant in favor of the owner, that there was a verbal agreement between the plaintiff and his employer that the former should be responsible for all uncollectible accounts, and that such account had not been paid by the plaintiff.</p> <p>Held, that the plaintiff is not, hut that his pr-incipal is, the real party in interest, and that such agreement is void by the statute of frauds.</p>

<p>Superior Court. — Supreme Court. — Assignment of Error. — Practice.—Where no error is assigned in the superior court, m general term, on appeal thereto from special term, no question is presented to the Supreme Court, on appeal from the judgment of the general term affirming that of the special term.</p>

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

<p>Pleading. — Supreme Court. — Complaint Cured by Verdict. — Practice.— A complaint insufficient on demurrer may, where no exception to the overruling of a demurrer thereto is taken, be cured by the verdict.</p> <p>Official Bond. — Relator.—County Treasurer. — County Auditor. — In a suit upon the bond of a county treasurer for money not accounted for. the auditor of such county is the proper relator.</p> <p>Same. — Settlement Sheets may be Explained by Parol Evidence. — In such suit it is proper to allow parol evidence as to the manner, and under what circumstances, settlement sheets between a former treasurer and the defaulting treasurer and between such defaulting treasurer and the auditor were made, where such settlement sheets are in evidence.</p> <p>Same. — Evidence.—Settlement Between Auditor and Treasurer. — In such suit a settlement sheet between such treasurer and auditor, certified by them as “a true and correct statement of delinquent taxes collected by the treasurer ” for a certain length of time, “ as reported by the treasurer to the auditor of said county, and the amount payable into the state treasury,’ jointly signed by both parties, is relevant.</p> <p>Same. — School Revenue. — Excessive Damages. — Practice.—New Trial. — If, in such suit, there be no right to recover for school revenue, that fact may be shown in the Supreme Court under the ground assigned for a new trial, that the damages were excessive.</p>

<p>Sheriff’s Sale. — Selling hand in Parcels. — Action to Recover Real Estate.Waiver. — Estoppel.—The law requiring sheriffs to sell in parcels land lev- ] ied upon was intended for the benefit of the execution defendant. But such right may be waived by the defendant; and, having waived it by a request that the land be sold as an entirety, he can not, in an action to recover the land, by one holding the sheriffs deed, be heard to complain that it was thus sold.</p> <p>Same. — Presumption that Levy and Sale are Regular. — Where the purchaser of land at a sheriff’s sale is not the plaintiff in the execution on which it is sold, he has the right to presume that the levy and sale were regular, and that the sheriff had taken all the steps, such as the demand of personal property, etc., necessary to justify the levy upon the land.</p> <p>Same. — Effect of Want of Title to Land Sold on Action to Recover. — An execution defendant can not set up his own want of title to land sold on execution against him, to defeat an action by the purchaser to recover possession.</p>

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

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

<p>Ditches and Drains. — Action to Collect Assessment. — Complaint.—An. assessment for ditching purposes is the basis of an action to enforce its collection, and, unless it be made part of the complaint in such an action, the complaint will be insufficient on demurrer.</p>

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

<p>Costs. — Remittitur Before Justice, After Rendition of Judgment. — Appeal to-Circuit Court — In an action before a justice of the peace, wherein the-judgment plaintiff, after the rendition of judgment, had entered a remittitur of a sum exceeding five dollars, the judgment defendant subsequently appealed the action to the circuit court, wherein judgment was; rendered against him for the amount of the judgment before the justice,, less the exact amount remitted.</p> <p>Held, that the judgment plaintiff is entitled to recover the costs made in the circuit court, as well as those made before the justice.</p>

<p>Vendor’s Lien.— Complaint. — Evidence.—Promissory Note. — Judgment.—In an action on a promissory note, and to enforce a vendor’s lien on real estate for the amount thereof, brought by the vendor against the vendee, the complaint, to be sufficient, must allego, and the evidence on the trial must establish, that the vendee has no other property subject to execution, to. authorize the relief prayed for in the first instance.</p> <p>Same. — Sale of both Real and Personal Property. — Application of Part Payment. — Where, in the same transaction, sale is made of both real and personal property, for a sum in gross, and part of the purchase-money is paid,, and a promissory note executed for the balance, without any direction by the grantee as to the application of such payment and without any application thereof by the grantor, the court may, in an action to enforce a vendor's lien for the amount of such promissory note, apply such payment to the discharge of the price of the personalty, and decree a vendor’s lien against the real estate for the amount of the unpaid purtihasemoney due therefor.</p>

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

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

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

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

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

<p>From the “Wayne Circuit Court.</p>

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

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

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

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

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

<p>Supreme Court.— Ruling on Demurrer. — Failure to Except. — Practice.— Where no exception is taken to the ruling on a demurrer, no question as to such ruling can be presented to the Supreme Court on appeal.</p> <p>Same. — Sufficiency of Complaint. — The sufficiency of a complaint may be questioned in the first instance in the Supreme Court, on appeal.</p> <p>Slander. — Perjury Committed in Testifying m an Inquest of Lunacy.— A proceeding to test the sanity of a person alleged to be insane is a judicial proceeding ; and perjury imputed to a witness, as to testimony given therein by him, is slanderous.</p> <p>Same. — Notice.—Producing Party in Court. — Notice of such proceeding to the person alleged to be insane is not required by the statute authorizing such inquest, and the court trying the same may, on being satisfied that such person can not be produced in court without injury to his health, dispense with his personal appearance.</p> <p>Same. — Actionable Words. — It is competent for the court to inform itself as to the health of such person by the testimony of a witness, and perjury imputed to a witness in testifying as to such matter is actionable.</p> <p>Same. — Hearsay.—Statements made by the person alleged to be • insane, concerning her health, are not competent evidence for the defendant in such action.</p> <p>Same. — Evidence.—The fact that such witness bore ill-will to the person alleged to be insane, at the time when he instituted thejeroceeding to test the sanity of such person, is not competent evidence on behalf of the defendant, in an action by the witness for slander in charging him with committing perjury while so testifying.</p> <p>Same. — Justification.— Instruction. — -Where, in such case, the defendant pleads in justification, it is not error in the court to instruct the jury, that if, from all the evidence, they have a reasonable doubt as to whether the plaintiff had committed the perjury alleged, the defendant has not sus- • tained such plea.</p> <p>Same. — Impeaching Reputation. — Cross-Examination.—Where a witness has testified as to the reputation of another for truth and veracity, it is competent, on cross-examination, to ask him as to what constitutes reputation.</p>

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

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

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

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

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

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

<p>Principal and Agent. — Beal Estate Broker. — Sale by Broker for a Sum Concealed from Principal. — Fraud.—Demand.—A real estate broker, who, for a specified compensation, agrees with the owner of a tract of land to negotiate a sale of the same for a particular price, is liable to his principal, without demand, for any excess received by him in making sale of such tract and concealed by him from his principal.</p>

<p>Township. — Contract Concerning School Property. — A civil township can: enter into no valid contract concerning the property of the school township.</p> <p>Same. — Construing Contract. — Parties.—Such a contract might, in an action thereon by the school township, be construed as having been made by the plaintiff; but an action thereon by the civil township can not be maintained.</p>

<p>•Jurisdiction. — Appeal.—Death of Party. — Executor.—Practice.—Supreme Court. — Superior Court. — The defendants in an action in the Marion Superior Court appealed to general term, from the judgment rendered against them at special term. After the submission of the appeal, one of the defendants died. Subsequently, the judgment at special term was affirmed, whereupon the defendants excepted, and appealed to the Supreme Court.</p> <p>.Held, that the superior court at general term, having obtained jurisdiction over the person of the deceased defendant, in his lifetime, had jurisdiction of the case, and had the power to decide it after his death.</p> <p>Held, also, that the appeal to the Supreme Court, having been taken after the death of the deceased defendant, as to him, is a nullity.</p> <p>Held, also, that the executor of the deceased defendant can come into the Supreme Court, after the appeal has been perfected as to the other defend, ants, and be admitted as a party to the appeal.</p> <p>Contract. — Acceptance of Work.- — Quantum Meruit.- — -Implied Promise to Pay. — Where one has entered into a special contract to perform work for another, and has done work but not in the time or manner stipulated in the agreement, which is accepted or used by the other party, the latter is Answerable to the amount whereby he is benefited, upon an implied promise to pay for the value he has received, subject to all fair deductions..</p> <p>Same. — Non-Performance.—Pleading.—Counter-Claim.—In an action upon a written contract, a counter-claim, averring that the plaintiff had wrongfully failed to comply with such contract, whereby the latter was unable to comply with his contract with another party, but not alleging the facts wherein the plaintiff had so failed to comply with his said contract, and not setting out the written contract or making it an exhibit, is-bad. To plead the non-performance of a contract, the facts which constitute the breach must be averred.</p> <p>Same. — Demurrer.—A counter-claim is in the nature of a complaint by the defendant against the plaintiff, and must allege facts sufficient to entitle-the defendant to recover against the plaintiff, or it will be bad on demurrer.</p>

<p>Constitutional Law.— Building and Loan Association.— Act oj 1867.— Statute Construed. — The act entitled “An act for the incorporation and continuance of building, loan fund and savings associations,” approved March 5th, 1857, 1 G. & H., p. 273, was consistent with the constitution, and the Legislature had the power to enact it.</p> <p>Same. — Act of 1875. — Saving Clause. — Remedy.-—By section 12 of the act approved March 11th, 1875, 1 B. S. 1876, p. 243, repealing the acts of March 5th, 1857, and March 7th, 1873, building, loan fund and savings associations, which had commenced proceedings under the acts thereby repealed, might thereafter proceed according to the provisions of the later act.</p> <p>Same.— Usury. — Premiums.—Section 8 of said act of 1875, providing “That no premiums, fines, or interest on such premiums that may accrue to” building associations, “ shall he deemed usurious,” is not inconsistent with the constitution of this State, and it was competent for the Legislature to enact said section, and to make its provisions applicable to associations continued in existence by said act.</p> <p>Same. — Preference.—Interest on Money. — Where a member of a building association incorporated under said act of 1857 bid a certain bonus, premium or percentage for a loan offered by such association, which was included in a note executed by him to such association, such bonus, etc., was not, strictly speaking, “interest on money,” within the meaning of those words as used in section 22 of article 4 of the constitution of this Slate, which prohibits, among other things, the enactment of local or special laws on such subject. This bonus, percentage or premium was merely the contract price, agreed upon between the parties, for the “ preference ” which such association was expressly authorized to sell and such • member authorized to huy. and was not interest on money.</p> <p>Same.— Estoppel. —Contract.— By contracting with such association, as a ■corporation, for a loan of money, a member thereof is estopped to deny the existence of the corporation by and in its corporate name.</p>

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

<p>Xost Bank-Bill.— Rights of Finder.— Master and Servant. — Bank-Bill Found by Servant Among Master’s Property. — An employee in a paper manufactory, while engaged in assorting a bale of old papers purchased by the proprietor for manufacture, found certain lost genuine bank-bills enclosed in a clean, unmarked and undirected envelope, which had formed part of such hale, and, to ascertain whether they were genuine, delivered "them to the proprietor, upon his promise to return them, whereupon he retained the same, notwithstanding the demand of the finder, who instituted an action for their value.</p> <p>Held, that the plaintiff was entitled to recover the value of the hank-hills, as against the defendant.</p>

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

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

<p>Evidence.— Cross-Examination. — Statements to Witness by One Party, in Absence of the Other. — In an action to recover for goods alleged to have been, furnished, at the request of the defendant and on his promise to pay therefor, to a third .person,-wherein the. latter testified that he had purchased the goods on his own personal credit, it is not error either to cross-examine-him, or to introduce original evidence, as to whether or not, prior to receiving the goods, the plaintiff had informed him, in the absence of the defendant, that he could not, but that the defendant could, have the goods on credit.</p> <p>Supreme Court.— Weight of Evidence. — Where there is evidence tending to support a verdict, the Supreme Court, on appeal, will not disturb it on , the mere weight of evidence.</p>

<p>.Negligence. — Railroad.—Action for Damages. — Pleading.—Evidence.—In am action by-the administrator of a decedent, against a railroad company, to recover for the alleged negligent killing of said decedent, by the. servants of the defendant, while running a locomotive and train of cars-across a public street in a populous part of the city, the complaint alleged,, that, when the decedent was run over and killed, the defendant was running such locomotive and train “ at a recklessly and grossly negligent and dangerous rate of speed, to wit, at the rate of forty miles per hour,” in violation of an ordinance of such city, limiting the rate of speed to six miles per hour.</p> <p>Held, it being admitted that the decedent was guilty of contributory negligence in stepping upon the track in front of the engine, that evidence-that the defendant had wilfully committed the injury is not admissible-under the complaint.</p> <p>Same. — •Wilful Injury. — Where an intent, either actual or constructive, to-commit an injury, exists at the time of its commission, such injury ceases to be a merely negligent act and becomes one of violence or aggression.</p> <p>Same —Contributory Negligence. — Contributory negligence is a complete defence to an action for damages for a merely negligent injury.</p> <p>Same.— IVhen Contributory Negligence Ceases to be a Defence. — It is only when the injury sued for is alleged, .in terms or substance, to have been wilfully committed, that contributory negligence ceases to be a defence.</p>

<p>From the Shelby Common Pleas.</p>

<p>Ditches and Drains.— Enforcing Lien of Assessment. — Complaint.—Copy. —In an action to enforce the lien of an assessment made against a tract of land for ditching purposes, the complaint must, to be sufficient, set out the original assessment, or a copy thereof.</p>

<p>Fiee Insubance.— Overvaluation. — Fraud. — Mistake. — A mistaken, but honest, overvaluation of property insured against loss by fire, made by the owner in his application for insurance, is not a fraudulent overvaluation which will defeat a recovery by him.</p> <p>Same. — Verdict.—Where the defence of a fraudulent overvaluation is tendered by the defendant, a verdict by the jury, for the plaintiff, for less than the face of the policy, is, in effect, a finding that there was a mistaken, but honest, overvaluation.</p> <p>Bill oe Exceptions. — Instructions.—A bill of exceptions, in setting out instructions given to the jury, recited that the court gave a certain instruction, “ in which the court read to the jury an extract from the opinion of” a certain court in a certain case, from a certain law- periodical, “ in the words and figures following,” setting out such extract in writing.</p> <p>Held, that the Supreme Court must presume that such extract had been transcribed before it was read.</p> <p>Evidence. — Impeaching Witness. — A witness who has been contradicted by the deposition of another witness, in relation to material testimony given by him, may, where the proper ground has been laid, be used to impeach, the deponent on some other point.</p>

<p>Ditches and Drains. — Act of March 11th, 1867. — Action for Obstructing Ditch. — Measure of Damages. — Any person obstructing a ditch constructed under the provisions of the drainage act of March 11th, 1867, Acts 1867, p. 186, was liable to any person injured by such obstruction, not merely in compensatory damages, but for damages in the sum of one dollar for each day such obstruction remained.</p> <p>Same. — Instruction.—Proper Use of Adjacent Lands. — Where such ditch ran through pasture fields belonging to the defendant, it was proper to instruct the jury that the defendant was not liable for damages resulting from an obstruction caused by the natural washing in of the banks of the ditch, to which the plaintiff contributed only by using and pasturing the adjacent land in a proper manner.</p> <p>Query. — Can such action be maintained since the enactment of the drainage act of March 9th, 1875, 1 E. S. 1876, p. 428 ?</p>

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

<p>Will, — Contesting Will after Probate. — Bond for Costs. — Jurisdiction.—Tho proper filing of the bond for costs, etc., required by section 48, 2 E. S. 1876, p. 583, of the act in relation to wills, is not a prerequisite to the jurisdiction of the court over an action to contest the validity of a will which has been probated.</p> <p>Same. — Motion to Dismiss Action. — Practice.—Where no such bond has been filed, the court, on motion, may either dismiss the action or stay proceedings therein until the proper bond is filed.</p> <p>Same. — Approval of Bond. — Affidavit.—It is not error to overrule a motion to dismiss such action for want of a proper bond, made on the ground that the amount of the bond has been approved by the court instead of hy the clerk, unless the truth of the ground alleged be shown by affidavit.</p> <p>Same. — Bill of Exceptions. — Supreme Court. — Record.—Where a motion for dismissal of the action, for want of a proper bond, is not in writing, and neither it, nor the ruling thereon, is made part of the record on appeal by a bill of exceptions, and no exception to the ruling is taken, no question is presented in relation thereto.</p> <p>Same. — Evidence.—Exception.—Where, from the bill of exceptions, it appears that certain incompetent testimony was given by a witness, “at the instance” of the party examining the witness, but it does not appear that it was in response to questions asked and excepted to, the error is not available.</p> <p>Will.— Contesting Validity of. — Insanity.—Evidence on Cross-Examination.— Where, in an action to contest the validity of a will, on the ground of the alleged unsoundness of the mind of the testator, and the exercise of undue means to procure its execution, the scrivener has testified as to the manner in which the will was procured to he drawn and executed,, and that, though the testator had left it in his possession, he had voluntarily returned it to the testator, it was not error, on cross-examination, to elicit from the witness his reasons therefor, and what he had said to her as to making the will.</p> <p>Same. — Opinion of Witness. — Where, in such action, a witness had stated his acquaintance with the testator, and his knowledge of his condition, it was not error for him to state, that, “like all old people,” the testator “ appeared childish.”</p> <p>Same. — Impeaching Witness. — Statements out of Court. — Where a witness has testified in such action concerning the sanity of the testator, or the manner in which the execution of the will was procured, it is proper to ask him on cross-examination, to lay the ground to impeach him, whether he has not previously made statements at variance with his testimony.</p> <p>Will. — Supreme Court. — Assignment of Error on Matter of Fact. — Repeal of Staüite. — So far as section 45 of the act relating to wills, 2 R. S. 1876, p. 570, authorizes an assignment of error in the Supreme Oourt as to matters of fact, it is repealed by section 568 of the practice act, 2 R. S. 1876, p. 244.</p> <p>Instruction to Jury. — Repetition.—The fact that the court, in its instructions to the jury, frequently repeats a correct rule of law, is not error.</p>

<p>Evidence. — Admissions by the Pleadings. — Judgment.—Tender.— Verdict.— Evidence. — Where, in an action to recover a money judgment, the answer of the defendant admits the right of the plaintiff to judgment for any sum, the defendant can not give evidence contradicting the admission of his answer, nor can the plaintiff introduce the answer in evidence ; and it is the duty of the court, regardless of an adverse verdict, to render judgment for the plaintiff for that sum, without evidence.</p> <p>Supreme Court.— Weight of Evidence. — Where there is evidence tending to support the verdict of a jury, the Supreme Court, on appeal, will not set aside the verdict on the mere weight of evidence.</p>

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

<p>Judgment. — Action to Set Aside. — Default.—Inadvertence.—Complaint.—In an action by a judgment defendant, to set aside a judgment rendered against him hy default, through his inadvertence, the complaint must show that the defendant has a meritorious defence to the action, and must allege the facts constituting the alleged inadvertence.</p> <p>Same.— Counter Affidavits.— Evidence. — Practice.— Such application can. not he contradicted as to the defence alleged, hy counter affidavits o other evidence.</p> <p>Same. — Promissory Note. — Partnership.—The fact that the applicant had never been a member of a firm against whom judgment had been rendered on a promissory note executed by the firm, is a good defence as to him. Same. — Sickness of Counsel. — Where such defendant has, with due diligence, employed counsel to conduct his defence, the failure of the counsel, by reason of sickness, to attend to his client’s cause, may constitute inadvertence for which such judgment should be set aside.</p> <p>Same. — Process.—Service.—Jurisdiction.—"Where, on appeal from a judgment rendered against a defendant by default, the record fails to show any service of process upon, him, the judgment should be set aside.</p>

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

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

<p>Instbuctiox to Juky. — Personal Opinion of Judge. — Law of the Case. — It is error in a court, while properly announcing a principle of law laid down by the Supreme Court as the law of the case at bar, t.o supplement it by a statement that, in the opinion of the court giving the instruction, the; principle so announced is erroneous.</p>

<p>Contract. — Church Subscription, made on Sunday. —Ratification.—Evidence. —A subscription to a church, made on Sunday, is void ; and a mere subsequent acknowledgment of the making of such subscription, accom-, panied by a declaration of an intention to pay the same, but supported by no consideration, is not a ratification binding the subscriber.</p> <p>Same. — Verbal Promise to Pay Debt of Another. — Statute of Frauds. — A verbal promise to pay the subscription of another is void by the statute of frauds.</p>

<p>Surety or the Peace. — Continuance.— Justice may Require Recognizance. —In case a continuance of a prosecution for surety of the peace is granted, either by agreement, on application by the defendant or by order of the justice hearing the same, the defendant may be required to enter into a recognizance for his appearance.</p> <p>Same. — Action for Breach. — The defendant in a prosecution for surety of the peace, being under recognizance for his appearance in the court of the justice of the peace where it was pending, appeared on the day appointed, whereupon the justice, on account of sickness in his family and without requiring a new recognizance, continued the cause, without fixing a day for trial, directing the defendant to return home until he was notified. ‘ Notice having been given the defendant, he appeared, wa3 tried, and ordered to enter into recognizance to appear before the circuit court, but, having departed without leave, his recognizance was forfeited.</p> <p>Held, in an action on the forfeited recognizance, that the recognizance was-valid, and that his sui'ety is liable.</p>

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

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

<p>Insurance. — Foreign Companies. — Certificate of Auditor of State. — When Renewal to be Filed. — Under the act of December 21st, 1865, 1 E. S. 1876, p. 594, in relation to foreign insurance companies, such a company may, after having filed, in the office of the clerk of the circuit court of a county •wherein It is transacting business, the certificate of the auditor of state and the certified copy of the statement on which it is issued, as required by section 1 of such act, file renewals of such certificate and copy at any time during the months of January and July respectively, in each succeeding year, and may validly transact its insurance business during the whole of such months, though such renewals be not filed until the last day thereof.</p>

<p>Broker. — Action for Damages for Failure to Record Mortgage. — Defence.— Pleading. — Insolvency.—In an action by the vendor of a dairy, against a broker, who, on behalf of the plaintiff, had negotiated the sale, to recover damages resulting to the plaintiff by reason of the failure of the defendant to have recorded, within the proper time, a mortgage executed by the vendee to the vendor, and delivered to the broker, securing an unpaid balance of the purchase-money, wherein the complaint alleged that the mortgaged property had passed into the hands of an innocent purchaser, that the debt remained due and unpaid, and that the vendee was insolvent, it is no defence to allege, that, while the mortgaged premises remained the unencumbered property of the vendee, the latter had offered to execute a new mortgage to the plaintiff, or to reeonvey to him sufficient of the property to indemnify him.</p> <p>Same. — Novation.—It is no defence in such action, that the vendee, with the plaintiff’s knowledge and consent, had sold the premises to one who had assumed to pay the debt; that the plaintiff had novated the debt, by releasing the defendant and accepting the promise of such third person; and that the plaintiff had delayed obtaining a judgment against such third person for the debt, until after the property had been sold to an innocent holder, and until such third person had become insolvent.</p> <p>Same. — Evidence.—Mitigation of Damages. — If such matters of defence are admissible as evidence in mitigation of damages, they are admissible under the general denial.</p>

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

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

<p>Criminal Law. — Motion for New Trial.— When to he Made. — The motion for a new trial in a ci'iminal case must be made before judgment is rendered, but in civil actions it may be made either before or after.</p>

<p>Replevin. — Complaint in Justice’s Court. — Description of the Property.— Fixture. — In an action to recover the possession of personal property, commenced before a justice of the peace and appealed thence to the circuit court, the cause was tried upon a complaint which described the property in controversy as “ one crib of corn, said crib being the north crib of three cribs situated south of the house.”</p> <p>Held, on motion to dismiss the action for want of a sufficient complaint, and on motion in arrest of judgment, that the complaint sufficiently described the property.</p> <p>Held, also, that, if the plaintiff sought also to recover the crib, the question as to whether it was part of the realty depended upon whether or not it was set into or attached thereto, and was matter of defence.</p> <p>Supreme Court. — New Trial. — Evidence.—Assignment of Error. — Practice. —On appeal to the Supreme Court, the evidence should he in the record, to properly present any question raised by an assignment of error in overruling a motion for a new trial.</p>

<p>Practice. — Judgment Non Obstante Veredicto. — Special Findings. — Supreme-Court. — Where no motion is made for judgment on special findings of fact by a jury, which are inconsistent with their general verdict, judgment in accordance with the verdict can not he questioned in the Supreme Court.</p>

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

<p>Criminal Law. — Brief.—Supreme Court. — Dismissal of Appeal. — Where, on appeal to the Supreme Court in a criminal prosecution, the only brief filed by the appellant is one merely for a supersedeas, and does not discuss the merits, the appeal will be dismissed.</p>

<p>Supreme Court. — Rule 19. — Marginal Notes. — Appeal Dismissed. — Practice. —An appeal to the Supreme Court will he dismissed for want of the marginal notes on the transcript, required by rule 19 of that court.</p>

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

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

<p>Criminal Law. — Appeal on Question of Law Reserved. — An appeal to the Supreme Court, in a criminal prosecution, upon a question of law reserved by the prosecuting attorney, can not be taken by the State where the defendant has been convicted.</p>

<p>Demurrer to Evidence. — Practice.—On a demurrer to evidence, its fair weight, and all reasonable inferences deducible therefrom, fall against tha party demurring.</p>

<p>Practice.— Superior Court. — Supreme Court.— Assignment of Error.— Waiver. — Pleading.—Where, in the Superior Court, on appeal to general term, no error is assigned upon the action of the court at special term, in overruling a demurrer questioning the sufficiency of the complaint, an assignment of error in the Supreme Court on appeal, questioning the sufficiency of the complaint, merely raises the question as to its sufficiency after verdict.</p> <p>'Contract. — Performance.—“Erection ” of Building. — Instruction to Jury.— A, contracted with B., in writing, that if, “ during ” a specified year and at a point named, the latter would erect a brick “ building, forty by one hundred feet in size, and three or four stories high, * for the purpose of manufacturing ” cei-tain articles, and would then and there “ actually engage” in manufacturing the same, he, A., would pay to B. a certain sum of money.</p> <p>On the trial of an action by B. against A., to recover such sum, the court instructed the jui-y, that if, during such year and at such place, the plaintiff had erected a brick building, “ three or four stories high, and enclosed, except that two or three windows might not have been in, two or three doors might not have been hung, the building not plastered, some part of the floor not laid, and an elevator not built, the building was erected, within the meaning of the contract.”</p> <p>Held, that the instruction was proper.</p> <p>.Same, —Agreement to “ Engage” in Manufacturing. — The court also instructed the jury in such action, that if, on or before the last day of the year specified, the plaintiff had placed the tools and material necessary for such manufacturing business in such building, and had then and there, at work, “four or five workmen engaged in fitting and combining the materials out of which ” such articles “ are made into completed and perfected ” articles, the plaintiff was “ actually engaged in ” such manufacture, within the meaning of the contract, although the different parts of such articles may have been manufactured at some other point.</p> <p>Held, that the instruction was proper.</p> <p>Same. — Evidence Explaining Contract. — Evidence, in such, action, as to the meaning of the term “ engaged in the business of manufacturing,” is harmless.</p>

<p>Sheriff’s Sale. — Publication of Notice. — Local Habitation of Newspaper.— “ The local habitation ” of a newspaper is the town or city, and not the particular building in such town or city, in which it is published ; and where real estate, lying within the limits of a town or city, is about to be sold at sheriff’s sale, notice of the sale may be published in any newspaper printed in such town or city, without reference to the particular location of the building in which such newspaper is printed.</p>

<p>“Taxes. — Powers of City as to Appraisement of Real Estate. — Constitutional Law. — Under section 26 of the act on the subject of the incorporation of cities, etc., 1 E. S. 1876, p. 278, cities are given two modes of ascertaining the value of real estate within their limits for the purpose of taxation : Eirst, by adopting the appraisement made under the law for general taxation ; and, second, by causing it to be appraised ; and these provisions are-constitutional.</p> <p>Same. — Equalization.—“When a city council has adopted the appraisementwhich has been made by the township assessor, that appraisement becomes-the basis of the assessment of city taxes; and such council has no authority to add to the appraisement thus adopted, by way of equalizing the same- or otherwise.</p> <p>Same. — The fact, that the copy of the appraisement is certified to the city clerk before the board of commissioners of the county has met as a board.! of equalization, does not authorize the common council to equalize theappraisement for the purpose of city taxation ; but such council may,,. perhaps, adopt the appraisement as equalized by the county board of equalization.</p>

<p>Criminal Law. — Indictment.—Assault with Intent to Kill. — When an indictment alleges, that the defendant “ then and there having the present ability," had “ unlawfully and feloniously " attempted “ to commit a violent injury upon ” another, by “ then and there unlawfully, feloniously, purposely and with premeditated malice,” shooting, etc., “toward, at and against the body of ” the latter, a loaded pistol, etc., with “ intent then and there and thereby * unlawfully, feloniously, purposely, and with premeditated malice, to kill and murder ” the latter, it charges an assault with intent.</p> <p>.Same. — Assault and Battery. — Such indictment does not charge an assault and battery ; the words “ toward, at and against ” as used therein, and the words descriptive of the offence, such as “ unlawfully, feloniously, purposely and with premeditated malice,” not necessarily implying that the unlawful touching was done either in a rude, insolent or angry manner.</p> <p>Same. — Instruction.—In such case the court, after giving the statutory definition of an assault, instructed the jury, that, “if you are satisfied that the defendant unlawfully attempted to commit a violent injury on ” such person, “ and that he had then and there a present ability to commit such injury, as charged in the indictment, then, does the evidence convince you, beyond a reasonable doubt, that such assault was perpetrated with intent to commit the felony mentioned in the indictment ?”</p> <p>Held, that it is not open to the objection that the jury would reasonably infer therefrom, that, if the defendant had attempted to commit any violent injury on the person mentioned, having the ability and intending to commit the injury charged in the indictment, then they should find him guilty.</p> <p>Same.- —Reasonable Doubt. — Practice.—Where, in such case, the court has once instructed the jury as to the defendant’s right to the benefit of every reasonable doubt in his favor, it is wholly unnecessary to repeat this doctrine in every subsequent instruction.</p> <p>Same. — Punishment.—Supreme Court. — Where the punishment affixed by the jury is within the law, it will not be disturbed by the Supreme Court, although it may seem severe.</p> <p>New Trial. — Question of Fact. — Affidavit.—Supreme Court.— Weight of Evidence. — Where a question of fact as to the alleged misconduct of a juror is presented to the court below, by an assignment of such misconduct as a cause for a new trial, supported by affidavits tending to show such misconduct, and controverted by counter affidavits tending to disprove it, such question of fact is to be determined by such court upon the weight of the evidence ; and the Supreme Court will not disturb the decision, if there be evidence tending to sustain it.</p>

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

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

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

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

<p>Principal and Agent. — Authority of Agent. — Contract.— Performance.— County Commissioners. — An order of record, made by the board of commissioners of a county, authorized a person named to procure and attach a certain fixture, for the improvement of a public building of the county, at a price specified.</p> <p>Held, that such person was not authorized to purchase at a higher price than that named, and could not recover for any excess expended by him.</p> <p>Same. — Former Adjudication. — Order of Board. — JwMdiction.— Appeal.— Such agent, having procured and attached such fixture, reported the same to the board of commissioners, with vouchers showing the expenditure of a larger sum than that mentioned in the order, whereupon the board entered an order allowing to him therefor the sum specified in their previous order, but such agent subsequently filed a claim before them for the full amount.</p> <p>Held, that the order making such allowance was one that the board had jurisdiction to make, that an appeal therefrom might have been taken to the circuit court, and that, unappealed from, it was a former adjudication of the matter, barring any subsequent claim or recovery therefor.</p>

<p>Ditches and Drains. — Act of 1867. — Assessment, where Recorded.— An assessment against a tract of land, made under the drainage act of March 11th, 1867, Acts 1867, Beg. Sess., p. 186, to aid in the construction of a proposed drain, was required to be recorded, not in the miscellaneous, but in the mortgage, record.</p> <p>Same. — Evidence.—Record of Assessment. — A certified copy of such an assessment, which had been recorded in the miscellaneous record, is not competent evidence in an action to recover the amount of such assessment.</p> <p>iSame.— Validity of Assessment.- — An assessment which declares that the appraisers had examined all lands liable to be aifected by the construction of the proposed drain, describing' them, and which assesses all the tracts-described therein, sufficiently shows the due examination of all lands liable to be so affected.</p> <p>Same. — Complaint.—Motion in Arrest. — Though the complaint in a personal action to recover the amount of the assessment might be insufficient on demurrer, on account of defects in the assessment, it may be sufficient on. motion in arrest.</p>

<p>Supreme Court.- — Motion to Strike Out. — Bill of Exceptions. — Practice.— Record. — In order to bring a motion to strike out part of a pleading before the Supreme Court, such motion must be made part of the record by bill of exceptions. '</p> <p>Same. — New Trial.— Misconduct of Juror.--Affidavits.— "Where affidavits are filed in support of a motion for a new trial, alleging misconduct of certain jurors and the opposite party to the action, and such affidavits are contradicted by counter affidavits, the Supreme Court can not judicially say that such misconduct existed.</p> <p>Same. — Absence of Witnesses. — Where a party to an action is aware, before entering into trial, that certain witnesses, upon whose testimony he depends, are absent, but makes no application for delay on that ground, he can not afterward set up such absence, in support of a motion for a now trial.</p> <p>Promissory Note.— Warranty. — Fraud.—Pleading.— In a suit upon a promissory note given for the purchase-money of a chattel, an answer of “ no value ” in the article purchased is no defence for the vendee, unless it be coupled with an averment of warranty, fraud or some fault on the part of the vendor.</p> <p>Same. — Recommendation.—A written statement made by the vendor to the vendee of a horse, “ that he is sound to the best of” the vendor’s “knowledge,” is a mere representation and not a warranty.</p>

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

<p>'Contract. — Statute of Frauds. — Law of Place. — "Where the agent of a person doing business in another state contracts with a merchant in this State for the sale of a bill of goods for a price exceeding fifty dollars, and no part of the property is received by the purchaser, no earnest is given to bind the bargain, or in part payment, and no note or memorandum, signed by the party to be charged or his lawfully authorized agent, is made, such contract is an Indiana contract and void by the statute of frauds.</p> <p>¡Same. — Entirety.— Delivery to Carrier. — Acceptance by Purchaser.— Such contract is an entire one for the whole of the bill of goods ordered, and, if a part only be shipped to the vendee, he is not obliged to accept such part ; and the delivery of a part to a carrier, in the absence, and without the-knowledge, of such vendee, is not a delivery under the contract; and a delivery to a carrier not named by the vendee is not a delivery to such vendee and neither constitutes such an acceptance of the goods by the purchaser - as the statute requires.</p>

<p>Habeas Corpus. — Order of Commitment, when Void.— Contempt. — Sheriff.— The defendant in a habeas corpus proceeding, a sheriff, made return to the. writ, that he held the petitioner in custody by virtue of a certain order made by the superior court of his county, and issued to the sheriff, in a certain-action, setting out a copy thereof, which recited, that said petitioner had? failed and refused to comply with an order theretofore entered by the court, in such action, requiring him to deliver to the sheriff of said county “ ali the goods covered by the mortgage of the plaintiff, received by him? from ” H., “ or account to the plaintiff for the value thereof, and adjudged! that said petitioner be “taken by the said sheriff and held in custody until he shall obey the said order ; * * that is to say, until he shall deliver said property to said sheriff, or account for the value thereof.”</p> <p>jHeld, that the order upon which the commitment was based is so indefinite and uncertain as to be a nullity, and that the order of commitment is void : the goods which the petitioner was ordered to deliver not being described or identified, nor their value stated.</p> <p>Held, also, that, had a contempt been the basis of the order of the commitment, such order should have shown a conviction of the contempt.</p>

<p>Contract. — Specific Performance. — Mortgage.— Defeasance, Effect of Surrender of. — Coimter-Glaim.—Redemption.-—Instruction.-—A complaint to enforce specific performance alleged, that the plaintiff, on a certain date, was the owner of certain lands, and, being desirous of obtaining loans of money from time to time, agreed with the defendant, that, in consideration of his undertaking to endorse for the plaintiff as he might direct, not exceeding a certain amount at any one time, he would convey to said defendant the lands mentioned, to indemnify him on account of said endorsements ; that, in pursuance of such agreement, said lands were so conveyed to the defendant by deed; that, at the same time, the defendant executed and delivered to plaintiff a defeasance, binding himself to reconvey said lands, if saved harmless from said endorsements ; that, subsequently, the plaintiff and defendant had an accounting of all matters of indebtedness between them, and nothing was found to be due to the defendant from the plaintiff ; and that the plaintiff then notified the defendant that he was released from all former endorsements, and would not be required to make any more, and demanded a reconveyance of said lands, which the defendant refused. A second paragraph charged a refusal of the defendant to endorse for the plaintiff as stipulated. To this complaint a general denial was filed, and also a special paragraph of answer, averring, that, prior to the conveyance of said lands to the defendant, the plaintiff had executed to him a note, together with a mortgage on said lands to secure its payment; that, after the execution of said deed and defeasance, the plaintiff became indebted to the defendant in other sums of money; that, on said settlement between the parties, it was agreed that the defendant .should release the plaintiff from said mortgage and all other claims, and that the plaintiff should surrender said defeasance for cancellation, and that defendant should hold said lands in fee-simple and discharged of all conditions ; that the plaintiff so surrendered and delivered '■up said defeasance as cancelled; and that the defendant thereby released him from all demands, concluding with a prayer that the defendant should he decreed the owner of said lands, free from the equity of redemption.</p> <p>Held, that the surrender of the defeasance, under the circumstances alleged, vested in the defendant an absolute title to the lands in suit.</p> <p>Held, also, that the special paragraph of answer can not perform the double office of answer and counter-claim, and, having been treated by the parties as a counter-claim, it should be so regarded, and is sufficient on demurrer.</p> <p>Held, also, that an instruction to the jury in such case, that the plaintiff was required to establish more on the trial, as regards the matters embraced in such settlement, than the conditions of the defeasance stipulated, was erroneous.</p> <p>Held, also, there being evidence on the trial tending to show, that, at the time of such settlement, the defendant promised orally to reconvey to the plaintiff, and that he had made some admissions as to the terms of the settlement, and as to his promise or liability to reconvey those lands, that an instruction, which told the jury that “this testimony can be considered by you in determining the question as to whether there was such an accounting had between the parties or not, but it can not be considered as fixing any original liability on the defendant,” and that, if the plaintiff conveyed to the defendant absolutely in the first instance, “ his after oral promise to reconvey would not be binding, but the evidence may be considered in so far as it tends to throw light upon the question as to whether there was a full and final accounting between the parties,” in connection with the defeasance, was erroneous as probably misleading the jury as to the weight to which such evidence was entitled.</p>

<p>Decedents’ Estates. — Partnership.—Priority of Individual Creditors in Administration of Individual Assets. — Stare Decisis. — Individual creditors have priority in the administration of the individual assets of the estate of their deceased debtor, and partnership creditors can only have distribution of the surplus. This rule, in this State, is stare decisis.</p> <p>.'Same.. — -Instructions.—In a proceeding to compel an administrator to apply the individual assets of a deceased partner to the payment of individual debts, it is not error to refuse to give an instruction to the jury which assumes that the decedent and another were partners ; nor to refuse to instruct them, that, if they fpund certain stated facts to be true, the decedent and another “ would be partners, and your verdict should be for the plaintiff,” there being other facts in issue to be found before a verdict could properly be so returned ; nor to refuse to give an instruction containing the sentence, that “ if there was no contract between ” such person and the decedent, “ as to the respective shares or compensation of each in said business, in that event” the decedent “ would be held liable as a partner,”' and the firm become a partnership.</p> <p>Same. — Pleading.—Preference.—In such case an answer setting up facts-which show that the claims of the plaintiff have no preference over those of the defendants is good on demurrer.</p> <p>Same. — Admissions of Partner.— When not Competent Evidence. — The admissions of a partner, made during the partnership, may be introduced as-evidence against him, in favor of the creditors of the partnership, but such, admissions are not competent evidence against the creditors of the partnership, for the purpose of diverting the assets of the partnership to the-payment of his individual debts.</p> <p>Same. - Implied Admissions after Dissolution. — An inventory filed in court by one partner after the death of the other partner, purporting to contain the assets of the partnership, is no more than an implied admission of the-partnership, made after its dissolution, and is not evidence either to-prove the partnership as against the decedent, or to bind the creditors of the partnership as against the individual creditors of the decedent.</p> <p>New Trial. — Practice.—A cause for a new trial, that “ The court erred in giving certain instructions to the jury on its own motion,” etc., is too indefinite to present any question to 'the Supreme Court.</p>

<p>Mortgage.— Setting Aside Judgment of Foreclosure. — Excusable Neglect.— When Building is not Fixture. — Pleading.—In a complaint by a husband and wife, under section 99 of the code, 2 R. S. 1876, p. 82, to set aside a judgment of foreclosure rendered against them by default in favor of the mortgagee, it was alleged, in substance, that, during the pendency of •said suit, the husband was exceedingly sick, and wholly unable to provide for his defence to said suit; that the wife knew nothing of any defence to said suit, and was too much occupied in attending to her husband during his sickness to make any arrangements for the defence of said suit, even had she possessed such knowledge ; that, at the time said mortgage was executed, there were upon the lands em braced therein a portable steam, sawmill, boiler, engine, etc., which were personal property, and had always been so treated, and had been moved from time to time, and were attached to said real estate only to the extent necessary to steady the machinery of said mill, and could he removed when desired without injury to said real estate ; that said mortgage did not, and was not to, include said mill, and the mortgagors were ignorant that it was so claimed ; that it was alleged in the complaint on which said judgment was rendered, that said mill was covered by and included in said mortgage, and that said judgment embraced said mill, and it was sold by the. sheriff, with the real estate-upon which it was standing, to the mortgagee, etc.</p> <p>Held, that tho complaint contained facts sufficient to put the mortgagee upon his defence, and was good on demurrer.</p> <p>Held, also, that the allegations of the complaint show the mill in question to have been personal property and not subject to the mortgage.</p>

<p>Venue, Change of. — Justice of the Peace. — Attachment of Recusant Witness. — Contempt.—Trial by Jury. — A. witness who had refused to obey a subpoena which had been duly issued by a justice of the peace, and served upon him, on being attached for contempt, instead of attempting to purge himself thereof, filed an affidavit for a change of venue on the ground of the alleged bias and prejudice of the justice.</p> <p>.Held, that a justice of the peace has the power to enforce the attendance of recusant witnesses by attachment and fine.</p> <p>Held, also, that such proceeding is summary, that no trial is necessary, and that, if the witness fail to purge himself, he must either pay the fine assessed against him or appeal to the circuit court.</p> <p>Held, also, that such proceeding is neither a civil action nor a state prosecution, and that the recusant witness was not entitled to a change of venue.</p>

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

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

<p>'‘Crimikal Law. — Suffering Minor to Play Billiards. — To constitute an of-fence under section 2 of the act of March 8th, 1873, 2 R. S. 1870, p. 484, making it unlawful for any person owning, etc., any billiard table, etc., kept in a public place, to suffer or permit minors to congregate there, a congregation or assemblage of minors at such place must be shown.</p> <p>¡Same. — “Congregate” Defined. — Evidence. — To congregate, within the meaning of section 2, supra, necessarily implies the joint action or co-operation of two or more persons, and is usually applicable to the coming together of a considerable number of persons ; and, to sustain an indictment under said section, it must be shown, that, upon some occasion within the time covered by the indictment, the minors named therein assembled, and were found at the same time together, at the place where such billiard table was kept.</p>

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

<p>Warranty. — Sale of Personal Property. — Where a bill of sale of a saw-mill and attachments, containing a stipulation that the vendors “ warrant the said property to be clear of all encumbrances whatever, and that the ” vendee “ is to have immediate possession, as his own property,” is transferred by him, on his making sale of the property to another, with an endorsement thereon, that he thereby transfers “the within property, as herein described, to ” his vendee, “ property and conditions and all as above described,” he thereby expressly warrants the property, the same as it was warranted in such bill of sale.</p> <p>Same. — Action for Breach. — Estoppel.—Fixture.— Will. — In an action for the breach of said warranty, on the alleged ground that the property in question was a fixture on the real estate of another, at the time such bill of sala was executed to the defendant, and that such real estate, with the said saw-mill, had been subsequently conveyed to one who had died testate, devising the same to his widow, the defendant answered, setting up matter which would have tended to estop either such grantor or testator from asserting title to the property in question, and also statements by the widow, in relation to the same property, 'tending to estop her from claiming title thereto, but failing to allege that such devisee and this defendant, at the time such statements were made, did not know the legal rights of the devisee in said saw-mill, nor that such statements were made with the intention that the defendant should act, and were relied upon by him, in purchasing it.</p> <p>Held, on demurrer, that the answer is insufficient.</p> <p>Same.- -Evidence. — Tax Sale. — Under such warranty the defendant was bound to make actual delivery of possession of the saw-mill to the plaintiff, and therefore evidence was competent to show that it had been sold for taxes due before the plaintiff’s purchase, and had been transferred to a purchaser, and by him sold and delivered to another who had removed and was in possession of the same.</p> <p>Same. — Claim of Title by Owner of Realty. — Evidence that title to such sawmill was claimed by the owner of the land on which it was situated was-competent in such action.</p>

<p>Decedents’ Estates. — Right of Widow Under Section 28 of the Statute of Descents. — Under section 28 of the statute of descents, 1 E. S. 1876, p. 413, the surviving wife and minor children of a decedent may not only occupy the messuage and adjacent fields, if any, not exceeding forty acres, but they may receive, use and enjoy the fruits and products of the same which naturally ripen, mature and come off during the year for which they have the right to occupy the premises.</p> <p>Same. — Conversion.—Right of Action. — Landlord and Tenant. — Emblements. —Where, previous to the death of the decedent, a tenant had rented and sowed in grain a certain field adjacent to the decedent’s dwelling-house, which was growing thereon at the death of the decedent, and, by the terms of the tenancy, the tenant was not to have any of the straw raised upon such field, and such straw matures during the year, the widow has a right thereto ; and if the tenant wrongfully converts the same to his own use, she has a right to .recover therefor.</p>

<p>Erom tlie Vigo Circuit Court.</p>

<p>Judgment Non Obstante.— New Trial. — Practice.—Amotion for a judgment on the answers to interrogatories, notwithstanding the general verdict, does not preclude a motion for a new trial.</p> <p>Same. — Interrogatories to Jury. — Where the interrogatories and answers do not bring out the facts of the case with the certainty required to enable the Supreme Court to judge correctly of its merits, that court will respect the judgment of the court below.</p> <p>Same. — Repugnancy.—Where the repugnancy between answers to interrogatories and the general verdict is not such that it could not have been removed by evidence legitimately admissible under the issues in the cause, it is not available, even though all the facts necessary to justify the rendition of a judgment on such general verdict do not appear in said answers.</p> <p>Query. — Where two new trials of an action have been had, can any question upon the evidence he considered by the Supreme Court on appeal ?</p>

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

<p>Principal and Surety, — Action by Surety Against Principal. — Before a surety can recover of his principal because of his suretyship, he must first have paid the debt of his principal or some part thereof.</p> <p>Supreme Court. — New Trial.— Truth of Alleged Error. — The truth of matter alleged as ground for a new trial must appear by the record, to make the overruling of such motion available as error, in the Supreme Court.</p>

<p>Practice. — New Trial. — Refusing Continuance. — Amendment. — Supreme Court. — Error in allowing an amendment of th'e complaint during trial, and in overruling a motion for a continuance on that account, must, to be available on appeal to the Supreme Court, be made ground of a motion for a new trial.</p> <p>Witness.— Mortgage. — Promissory Note. — Action by Assignee.— Wife of Assignor. — The wife of an assignor of a promissory note is a competent witness on behalf of the plaintiff, in an action by the assignee, against the maker, on such note, and for foreclosure of a mortgage given to secure the same, where no question is made as to the assignment.</p>

<p>Guardian and Ward. — Duty of Guardian as to Ward’s Money. — Investments. — It is the duty of a guardian to loan or otherwise invest the money of his ward, in such a way as to keep it always at interest, as far as practicable, and to use due care in malting such loans or investments.</p> <p>Same. — Conversion of Trust Funds. — A guardian is answerable for any mismanagement or unauthorized dealings with the trust moneys in his hands ; and any misapplication of such moneys is a conversion of them, within the meaning of the statute relating to guardians. 2 B. S. 1876, p. 592, sec. 13.</p> <p>Same. — Identity of Trust Fund Must be Preserved. — It is the duty of a guardian to preserve the indentity as well as the existence of the fund under his control. If he destroys the fund he renders himself responsible for it at once ; and if he pays away the money as his own, the trust is practically at an end.</p> <p>Same. — Investment of Trust Funds by Guardian in His Own Business. — Inability on Bond. — Surety.—New Bond. — The investment of the ward’s money by the guardian in his own business, or in the business of others in which he has an interest, as a mere business investment, is a conversion of such money, for which he becomes immediately liable on his bond ; and the solvency of such guardian at a subsequent time, when he signs a new bond with a new surety, is both an irrelevant and immaterial question, so far as concerns the liability of the surety in the original bond, for the money so invested.</p>

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

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

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

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

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

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