Volume 63 — Indiana Reports

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

<p>Pleading. — Practice.—Harmless Error. — The sustaining of a demurrer to a paragraph of a pleading is harmless, -where the matters alleged therein are admissible in evidence under a remaining paragraph.</p> <p>Keplevin. — Evidence.—In replevin, evidence of ownership in the defendant may be given under the general denial.</p> <p>Bill ok Exceptions. — Supreme Court. — Evidence.—Instructions.—The Supreme Court, on appeal, will not consider the evidence nor the instructions to the jury, unless it affirmatively appear hy the hill of exceptions that it contains all the evidence.</p>

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

<p>Contract by Copartnership. —Effect of Dissolution of Copartnership.— Abandonment of Contract. — Rescission.—Set-Off.—Pleading.-—In an action against the members of a copartnership as such, to recover for goods sold and delivered by the plaintiff to the defendants, wherein the latter answered asking damages, by way of set-off, for alleged breaches by the plaintiff of a contract in writing, entered into between the plaintiff and the defendants as such copartners, which contract was to continue for a specified term of years, the plaintiff replied, alleging, that, after the execution of the contract and before its expiration, such copartnership had ceased to exist, thereby working an abandonment of the contract by the defendants ; and also alleging, that, prior to such dissolution, the plaintiff had fully performed his part of the contract.</p> <p>Held, on demurrer, that such contract, though entered into by the defendants in their copartnership name, was the joint contract of all the defendants.</p> <p>Held, also,- that the dissolution of the co-partnership did not woi-k an abandonment of the contract, nor authorize the plaintiff to treat it as rescinded.</p> <p>Held, also, such copartnership not having been dissolved by the death of any of its members, that the defendants have the right to perform their stipulations, under the contract, and to receive the benefits thereof.</p> <p>Held, also, that the reply is insufficient.</p>

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

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

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

<p>Interest on Open Account. — Interest on an open account may, in a proper case, be allowed. /</p> <p>Practice.— Withdrawal of Appearance Withdraws Pleading.— Default.— Process. — Record.—Supreme Court. — "Where a defendant who has been served with process withdraws his appearance, he thereby withdraws his answer also, and should be defaulted ; and in such case, on appeal to the Supreme Court, the record must show the issue and service of process upon him, or the judgment against him will be reversed.</p> <p>Same. — Appearance Without Process. — Discretion of Court. — It is within the discretion of the court, on objection by the plaintiff, to refuse leave to a defendant, who has appeared without service of process, to withdraw his appearance.</p>

<p>Real Estate, Action to Recover. — Information by State on Relation of' Attorney General.— Lands Escheated to State for want of Heirs. — Under-section 9 of the act of March 10th, 1873, prescribing the ¿Duties of the attorney general, 1 R. S. 1876, p. 151, he may file an information in the nature of a quo warranto, in the name of the State, on his- own relation;. to recover the possession of real estate which has escheated to the State, for the use of the common school futid, for want of heirs or kindred entir tlcd to inherit.</p> <p>Same. — Adoption Under Laws of Foreign State. — Constitutional Law. — Common School Fund. — The act of December 21st, 1865, 1 R. S. 1876, p. 417, enabling children adopted under the laws of any other state of the United States to take and hold real estate in this State, is not in conflict with section 2 of article 8 of the constitution of this State, 1 R. S. 1876, p. 38, prescribing what shall constitute the common school fund.</p> <p>Same. — Under said section 2 of article 8 of the constitution, it is “the fund to be 'derived from the sale of” escheated real estate, and not such real estate itself, which becomes a part of the common school fund.</p> <p>Same. — Defence.—•Adopted Child. — -Where an information has been filed in the name of the State, on the relation of the Attorney General, to recover the possession of real estate alleged to have escheated to the State for want of heirs or kindred entitled to the inheritance, it is sufficient to answer, alleging title through one adopted by the intestate, under the laws of another state of the United States, and the filing of the record of adoption, in this State, in accordance with said act of December 21st,'1865.</p> <p>Same. — Evidence.—General Denial. — All defences to such proceeding are admissible in evidence under the general denial.</p>

<p>Mortgage. — Foreclosure. — Action Against Subsequent Purchaser. — No¿¿ce4 — Recording Mortgage. — In an action to foreclose a mortgage on real estate, and to recover a personal judgment for the amount of the mortgage debt, against a subsequent purchaser of the mortgaged premises, who is alleged in the complaint to have assumed the payment of the mortgage debt as part of the purchase-money, it is not necessary to aver that such mortgage was ever recorded:</p> <p>Same.- -Identifying Mortgage Assumed. — Whore the averments of the complaint clearly identify the mortgage assumed "by the defendant as the mortgage in suit, the fact that the defendant assumed the same as being payable to only one of several persons for whose use if was in fact payable, as appears from the complaint, does not render it insufficient.</p> <p>Same. — Defect of Parties. — In an action to foreclose a mortgage on real estate, against the last of several subsequent purchasers, each of whom, in receiving a conveyance of the land in fee-simple, had assumed the payment of the mortgage debt as part of the purchase-money, such other purchasers arc not necessary parties defendants.</p> <p>Same. — Evidence.—Record of Conveyance. — The record of the deed to such defendant for the mortgaged promises is competent evidence of the delivery'to him of such deed.</p> <p>Same. — Indemnity Mortgage. — Where the mortgage in suit was executed to indemnify the mortgagee against loss by reason of another mortgage, which was a lien upon another tract of land conveyed to the plaintiff by the mortgagor, an objection to admitting the latter mortgage in evidence, on the ground that the record thereof had not been satisfied, admits that it had been recorded, and that the defendant had notice of it.</p> <p>Same. — Deed to Plaintiff. — The said deed from such mortgagor to the plaintiff for the latter mentioned tract of land is competent evidence against the defendant.</p> <p>Same.— Witness. — Husband and Wife. — Where such mortgage was executed lor the use of a husband and wife, he is a competent witness in his own behalf, in a joint action by them to foreclose the same, though such deed of conveyance was made to her alone.</p> <p>Same. — Harmless Evidence. — The introduction in evidence of the deed from the mortgagor, for the mortgaged promises, to the defendant’s grantor, and of the record of the foreclosure of the mortgage for which the one in suit was given as an indemnity, though probably unnecessary, was not harmful.</p> <p>Supreme Court. — Improper Amendment by nune pro tune Entry. — Certiorari. — Where, upon the whole record, except that objected to, a judgment appealed from appears to be right, the Supreme Court will affirm the judgment, though an improper amendment of the record be made by the court below, by a nunc pro tunc entry, over the objection of the party appealing.</p>

<p>False Imprisonment. — Action on the Case.^-Trespass. — Evidence.—In an action for damages for false imprisonment, wherein the complaint alleged, that the defendants, while unlawfully holding the plaintiff in custody, had compelled him, by menaces, force and as the price of his libertv, to execute and deliver to one of the defendants a promissory note for a certain sum, the defendants offered to prove that the payee had directed a co-defendant to visit the plaintiff, to procure him to execute such promissory note, pursuant to á contract which, the payee stated to such co-defendant,, existed between the payee and plaintiff.</p> <p>Held, that the evidence was properly excluded.</p> <p>Same. — Measure of Damages. — Exemplary Damages. — Where, in such action, the facts alleged or proved against the defendants amount to a criminal offence, exemplary damages can not be assessed.</p> <p>Same. — Compensatory Damages. — In assessing the damages to he recovered; hy the plaintiff in such an action, the jury trying the case are not restricted to the mere naked amount of pecuniary loss suffered by the plaintiff; but.they may also take into consideration any indirect pecuniary injury which is a necessary consequence of the defendant’s direct act, if warranted by the averments of the complaint, such as loss of time, delay in business and expenses incurred ; also the plaintiff's physical suffering, such as bodily pain, permanent disability and disfiguration; also the plaintiff’s mental suffering, such as anguish of mind, sense of shame or humiliation and loss-of honor ; and also injury to the plaintiff’s business, piofcssion, reputation, or social position ; — all of which are compensatory, and not exemplary.</p>

<p>Premium.— Wager. — Gaming.— Public Policy. — Horse-Race.—Contract.—A premium offered by an mthorized corporation or a private partnership to-the owner of the horse that shall “make the best and quickest time,” or exhibit a certain rate of speed, in a proposed trial of the speed of horses, to be had in a proper place, is not a bet or wager, is not unlawful or against public policy, and may be collected in an action by the owner of the horse which “makes” such “ time,” or exhibits such rate of speed.</p> <p>Practice. — Harmless Ruling on Demurrer. — Pleading.—Where the facts al leged. in a special paragraph of answer are admissible in evidence under the general denial, which is also pleaded, the sustaining of a demurrer to* the former is harmless.</p>

<p>Principal and Surety. — Promissory Note. — Answer of Suretyship, and Extension of Time. — Notice of Suretyship. — Contract.—Where suretyship is not apparent on the face of the note, and notice thereof to the plaintiff is ' not averred, an answer by one of several makers of a promissory note, in an action thereon, alleging himself to be merely surety for his co-makers, and that the plaintiff had extended the time of payment of such note, pursuant to a valid contract therefor between himself and such co-makers, is insufficient.</p>

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

<p>Trespass. — Defence.—Pleading. — Supervisor. — Township Trustee.— Opening Highway Through Enclosed Lands. — Notice to Owner to Move Fence.— ■Where, in an action by the owner of land for damages for unlawfully entering upon his premises and throwing down his fences, the defendants justify by alleging that the acts complained of wore committed by them as township trustee, supervisor and laborers, in opening a highway duly located by order of the proper board of commissioners, it is necessary to allege also, that the notice required by section 41 of the highway act, 1 R. S. 1876, p. 534, has been given.</p> <p>Same.— County Commissioners. — Order Locating Highway.— Viewers. — Reviewers. — Judgment Unappealed From. — Jurisdiction.— Waiver. — Description of Route.— Record of Highway. — Damages.—Remonstrance.—Tender.— From the record of the county commissioners, attached to the answer, it appeared, that, upon a legal petition for the location of the highway in question, viewers were appointed, who. reported to the proper hoard of commissioners, that they had “ carefully viewed the said proposed route, * and * believe the location will be of public utility, and thirty feet wide,” describing the route particularly; that such report was received and confirmed by the hoard; that, upon remonstrance, reviewers were appointed, who reported to such hoard, that they had found that the high'way proposed would “he of utility "and had “laid it out thirty feet wide,” describing the route as described by the viewers, and allowing a certain sum to the remonstrant as damages “ to he paid by the original petitioners! or persons benefited,” etc.; that thereupon the hoard had made an order, that, “ whenever the original petitioners shall pay to ’’ the remonstrant the said damages, “then the said highway shall be located and established on said route, thirty feet in width, and that the said road shall he opened accordingly,” etc., and' that the proper trustee he notified thereof; and that such notice had been given, such damages tendered,and the lender kept good.</p> <p>Held, that the hoard had jurisdiction, and, no appeal having been taken from their order, its effect could only be avoided by showing it to he void.</p> <p>Held, also, that, by failing to appeal, any question as to the order for payment of the damages assessed was waived.</p> <p>Held, also, that an objection that the highway should have been ordered to he taken equally from adjoining proprietors is of no force, it not appearing that-the route was upon a line between adjoining proprietors.</p> <p>Held, also, that the viewers only, and not the reviewers, have authority to lay out and mark a highway.</p> <p>Held, also, that a board of commissioners has no power to lay out and mark a highway.</p> <p>Held, also, that, where the report of viewers specifies the route of the highway to he on a straight lino between permanent, specified points, such an order as was made in this ease is sufficient.</p> <p>Held, also, that the record of the highway laid out by the viewers could not he made by the board until after the report of the reviowers.</p>

<p>Contempt. — Proceeding against Clerk for Failure to Pay Over Money.— Arrest. — Decedents' Estates. — Affidavit.—Liability of Clerk and Sureties. —Criminal Law. — In a proceeding in the name of the State, on the relation of an affiant, against the clerk of a circuit court, for contempt of an order made by that court, the verified complaint alleged, that, in a proceeding by the relator against a distributee of the estate of a certain decedent, the court had adjudged that the relator was entitled to certain moneys theretofore paid to the clerk for such distributee, and ordered that the same should he paid by the clerk to the affiant ; and that demand therefor had been made upon the clerk, by the relator, prior to the making of such order, which he, in contempt of the court, had refused to obey.</p> <p>Meld, on demurrer, that the complaint was insufficient.</p> <p>Me Id, also, that the demand alleged was insufficient.</p> <p>Meld, also, that, under the act of March 9th, 1875, 2 R.S. 1876, p. 17, the clerk and his sureties were liable, on his bond, for a failure to pay such money to the person entitled thereto, but that he can not be proceeded against for contempt of court in refusing to obey such order.</p> <p>Meld, also, that,’ for fraudulently withholding such money, he is liable to prosecution for a felony.</p> <p>Same. — Fine.—Judgment.—Common Schools. — The fine imposed by a court as a punishment for a contempt of its authority must be for the use of the common school fund of the State, and not for the benefit of the .relator.</p>

<p>Practice. — Newly-Discovered p Evidence. — Neto Trial. — Supreme (Court.— Where the evidence given on the trial of-a cause is not in the record, on appeal to the Supreme Court, no question is presented as to the overruling of a motion for a.new trial, based upon the alleged ground of newly-discovered evidence.</p>

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

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

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

<p>Promissory Note .— Presumption as to Place of Execution. — "Where suit is brought upon a promissory note in a court of this State, it -will be presumed, the contrary not appearing, that the note was executed in this State.</p> <p>•'Same. — Presumption as to Locality of Bank where Note is Payable. — If such note be payable in a bank, the locality of which is not designated, it will be presumed that such bank is located in this State.</p> <p>Same. — Answer.—Accommodation Endorser. — An answer, in such action, by an endorser in blank, that he was merely an accommodation endorser and not a maker of the note, is insufficient.</p>

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

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

<p>Decedents’ Estates. — Priority of Debts. — J%idgment.—The rights of priority, and the order of payment, of claims against a deceased debtor’s estate, are fixed and determined by section 109 of the act in relation to the settlement of decedents’ estates, 2 E. S. 1876, p. 534, and can not be determined otherwise by the judgment of a court.</p> <p>Same. — Judgment of Priority of One over Others. — Notice.—A judgment giving priority to the plaintiff’s claim, rendered in an action by the administrator personally against such estate, does not bind creditors who have had no notice of such action.</p> <p>Same. — Insolvent Estate. — Former Adjudication. — Merger.—Practice.—Trial. —The administrator of the estate of a deceased debtor, being himself a creditor, filed his claim against the estate and procured its allowance by the court, simply as a general claim. He afterward filed a complaint against such estate, asking that the estate be declared insolvent and that his judgment be adjudged a preferred debt, alleging as ground that the claim was secured by a mortgage executed to him, by his decedent, in his lifetime, on personal property which he had since, as administrator, converted into money. Upon the hearing of the cause it was found by the court that the estate was probably insolvent, and decreed that such claim should be paid out of the proceeds of such property, as a preferred debt. Afterward, upon filing what he intended as his final report, exceptions were filed thereto by other creditors, tried by the court and determined in their favor, whereupon the court, over his .objections and exceptions, ordered his said complaint for preferment to be re-docketed for trial.</p> <p>Held, on a verified motion by the plaintiff to strike the cause from the docket, sotting out the proceedings had by him and the judgments rendered in his favor, that the judgment of preferment did not bind the other creditors, and that the motion was properly overruled.</p> <p>Held, also, that, by obtaining the allowance of his claim as a general debt, it was merged in the judgment of allowance, and that his action for preferment could not be maintained.</p>

<p>Guardian and Ward. — Sale of WarcCs Real Estate. — Payment by Cancel-ling Guardian’s Debt. — A guardian, on making sale of his ward’s real estate, has no right to receive from the purchaser, as a part of the purchase-money, his own promissory note or other individual obligation, held against him by the purchaser.</p> <p>Samb. — Action against Purchaser for Purchase-Money, or to set aside Sale.— Where a guardian does receive such a payment, and fails to pay over the amount thereof in money, the ward may maintain an action against the purchaser, either for the purchase-money or to set aside such sale.</p> <p>Same. — Such a salo deprives the ward of no rights, so long as the property, or the proceeds thereof, can be traced in the hands of any one having full knowledge of all the equities.</p> <p>Same. — Principal and Agent. — Sale by Agent. — One who acts as the agent of another, in making a sale of real estate belonging to the principal, has no right to receive from the purchaser, as a part of the purchase-money, a discharge of an individual obligation held against him by the purchaser.</p> <p>Same. — Applying Payment. — Presumption.—-A purchaser of real estate from one who makes the sale as the guardian of one, and as the agent of another, joint owner, and pays part of the purchase-money by surrendering and satisfying an obligation held by him against such guardian and agent individually, has no right to presume that such payment will he applied on the amount due to such principal and not on the amount due to the ward.</p> <p>Same.— Husband and Wife. — The fact that such contract of sale was made with the knowledge of the husband of such principal, who was also an infant, and that, by the terms of such contract, such obligation was to he applied as a payment upon the purchase-money due to the principal, does not make such payment valid.</p> <p>Same. — Report of Sale by Guardian. — The facts, that the residue of the purchase-money was paid in cash, and that the guardian reported the sale of the ward’s real estate as made for cash, do. not make such sale valid as against the ward.</p> <p>Same. — Ratification of Sale by Ward. — A recovery by the ward, against the guardian and his sureties, for the amount of such sale, constitutes, prima facie, a ratification of the act of the guardian.</p>

<p>Teespass. — Answer.—Husband and. Wife. — Principal and Agent. — Attachment suit before Justice of the Peace of Foreign State. — Law of Foreign State. —Jurisdiction.—In an action for damages for the unlawful taking and conversion, in this State, of a chattel, the defendant answered, alleging, that, in the absence of the plaintiff, who had absconded, he had taken possession of the chattel in this State, at the request of the plaintiff’s wife, and that, while it was in his possession, in another State, the same was attached and sold in an action instituted by the defendant and other attaching creditors, against the plaintiff, before a justice of the peace of such State, a copy of which proceedings was made part of the answer.</p> <p>Held, on demurrer, that the statute of the foreign State, authorizing suits in attachment, before a justice of the peace, should have been made part of the answer, that the authority of the wife to so deliver such chattel to him should have been averred, and that the answer is insufficient.</p>

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

<p>. Review of Judgment.— Cross Complaint for Review. — Fraudulent Conveyance. — Evidence.—Husband and Wife. — -Demurrer. — Insufficiency of Complaint a Ground for Review. — Coverture.-—Limitations.—Legal Disabilities. — Practice.—Sheriff s Sale. — In an action by B., against A., G. and others, to review a judgment in favor of G., against A. and B., rendered in an action by G., against A. and B., to set aside certain alleged fraudulent conveyances made through J., by S., to A. and B„ the wife and minor child of S., A. filed a cross complaint against G., alleging, that, in the action sought to be reviewed, G.’s complaint against A. and B. alleged, that the conveyances attacked had! been made by S, to defraud G. in the collection of a debt in his favor against S, existing prior, and merged in a judgment subsequent, to the making of such conveyances, and that S., from and after the rendition of such judgment, had been “wholly insolvent;” that A., on her own behalf and as guardian act litem of B, had filed a cross complaint against G., alleging that, in consideration of money advanced by A. to S., hej1 husband, to-pay off a debt owing by him, and in consideration of her joining with him in a conveyance of certain other lands, he had promised to procure the conveyance to her of the land in controversy; that, either by mistake or otherwise, but without her knowledge or consent, he had taken such conveyance in his own name; that thereupon, without any intention on her part to defraud his creditors, and without any knowledge of her husband’s-indebtedness, and solely to carry out his agreement with her, she and her husband made the conveyance complained of to J, and J, at her request,, had made the conveyance complained of to A. and B.; and that, at the-time of such conveyances, S. was solvent; that a demurrer to such cross-complaint, for insufficiency, had been sustained, to which A. had excepted; that thereupon judgment was rendered, setting aside such conveyances and subjecting the land in controversy to sale on execution to satisfy G.’s judgment against S.; that said land had been sold, and a certificate of purchase issued, to G, by the sheriff; that A. was, at the time of such actions by G., and now is, a married woman. Prayer, that the sheriff be enjoined from conveying to G., that the judgment against A. and B. be reviewed, that the demurrer to A.’s said cross complaint be overruled, and that the title to the land be quieted in A. and B. A.’s cross complaint for review set out a transcript of the proceedings and judgment had in the action sought to be reviewed, which transcript, though not certified to by the clerk, was averred to be a full, true and complete copy thereof.</p> <p>'Held, on demurrer, that A.’s cross complaint, for review is sufficient.</p> <p>Held, also, that her cross complaint in the action sought to be reviewed was-sufficient.</p> <p>Held, also, that G.’s demurrer to A.’s cross complaint for review admitted the truth of the allegation that the transcript of the former action was full, true and complete.</p> <p>Held, also, that, as A.'s cross complaint in the original action was not an. answer to G.’s complaint, the demurrer to the former could not have been carried back and sustained to the latter.</p> <p>Held, also, that the allegations of such cross complaint, seeking affirmative-relief, could not have been given in evidence under the general denial-, which was also pleaded by A.</p> <p>Held, also, that the insufficiency of G.’s complaint was good ground for a review of the judgment, though no demurrer thereto was filed.</p> <p>Held, also, that such complaint was insufficient.</p> <p>Held, also, that the failure of A. to file her cross complaint for review, within three years after the rendition of the judgment sought to he reviewed, is avoided hy the averment of her coverture as a legal disability.</p> <p>Same. — Legal Disabilities.— When Pleaded. — Demurrer.—Where a complaint shows upon its face that the action is barred hy the statute of limitations; and also shows that the plaintiff is under no legal disability, it is insufficient on demurrer; hut, where it does not affirmatively show that the plaintiff is under legal disability, such fact must he made to appear hy answer.</p>

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

<p>Highway. — Petition to Ascertain, Describe and Record Highway. — Motion to Strike Out. — Supreme Court. — Practice.—The judgment of a court, rendered upon a petition for ascertaining, describing and entering of record an unrecorded highway, will not, generally, be reversed by the Supreme Court, for overruling a motion to strike out parts of the petition.</p> <p>Same. — Motion to Dismiss. — It is not error to overrule a motion to dismiss such a petition, where no ground for the motion is specified.</p> <p>Same. — Electing Between Paragraphs. — The petitioners in such case can not be compelled to elect upon which of several paragraphs of their petition they will proceed to trial.</p> <p>Same. — -Number of Freeholders. — Such a petition is not required to be signed by twelve freeholders of the county.</p> <p>Same. — Demurrer.—Sufficiency of Petition. — The sufficiency of such a petition may be tested by demurrer or motion.</p> <p>Same. — Notice.-—Such petition should state the names of the owners of lands affected, so that the court may cause proper notice to be given.</p> <p>Same. — Appearance.—An appearance by a remonstrant cures the want of notice.</p> <p>Same. — Viewers not Required.— User. — Evidence.—Viewers are not required in such proceeding; as the fact necessary to be established is, in one class of cases, user for more than twenty years, with the consent of the owners, or, in the other class, that the highway has been laid out but not recorded.</p> <p>Same. — New Trial. — Motion to Strike Out and Dismiss. — Practice.—Error in refusing to strike out parts of the petition, or in overruling amotion to dismiss the same, are not causes for a new trial.</p> <p>Same. — -Evidence.—-Instructions.— Supreme Court. — Assignment of Error.- — Error in admitting or excluding evidence, and in giving or refusing instruetions to a jury, are causes for a new trial, and can not properly he as? signed as error, in the Supreme Court.</p> <p>Samis. — Motion in Arrest. — Record.—No question upon' the ruling on a motion in arrest of judgment can he presented to the Supreme Court, where the record does not contain a motion therefor, assigning reasons.</p>

<p>Criminal Law.. — Assault and Battery. — Evidence of Two Offences. — Election by the State. — Where, in a prosecution for assault and battery, the State has given evidence, on the trial, of one as-ault and battery, committed by the defendant upon the person of the prosecuting witness, she thereby elects to claim a conviction for that offence, and can not properly give evidence of another and distinct assault and battery, committed by the defendant upon the person of the prosecuting witness, and elect to abandon the former, and to claim a conviction for the latter, offence.</p>

<p>Practice. — Parties.— Witness. — Default.—Answer struck out. — Where oneof several defendants, who has been subpceníed as a witness on behalf of the plaintiff, refuses to appear and testify oh the trial, the court may order that his answer be struck out, and that he he defaulted.</p> <p>Same. — Jmnt Answer. — Tn such case a joint answer by him-and a co-defendant may be struck out, so far as the former is concerned.</p> <p>Promissory Note. — Partnership.—Note executed by one partner, in name of co-partner. — Judgment NonObstante. — Interrogatories to Jury. — Payment.— In an action against A.,B. and C., as makers, on a promissory note purporting on its face to have been executed by A., in the individual names of A., p. and C., wherein B. and C. answered by a verified denial, the jury, with their general verdict against A., and in favor of B. and 0., found specially, in answer to interrogatories, that A., B., C. and D. were partners at the time the note was executed ; that D.. was a resident of another State and unknown to the payee as a partner; that the note in suit was executed for personal property sold, and money loaned, by the payee to A., for the partnership, in the regular course of the partnership business ¡ and that such property and money had passed into the partnership fund.</p> <p>Held, that, as to B. and 0., the answers to the interrogatories are inconsistent with and control the general verdict, and that judgment should be rendered against them.</p> <p>Held, also, there being no plea of payment, that it was not necessary, to warrant such a judgment, that the jury should have found specially that the note was unpaid.</p>

<p>Criminal Law. — Seduction.—Indictment.—“ Promise of Marriage.” — It is sufficient, in an indictment for seduction, to chango the defendant with having accomplished the seduction of the prosecutrix, “by means of a promise of marriage ” previously made to her.</p> <p>Same. — Condition of Promise. — A “ promise of marriage ” hy means of which a seduction is accomplished, made by the defendant, to the prosecutrix, on condition that she will consent to the act of sexual intercourse, is a “ promise of marriage” within the meaning of section 15, 2. It. S. 1876, p. 431. defining the crime of seduction.</p> <p>Same. — Promise by Married Man. — The seduction of an unmarried female, “ under promise of marriage, ” by a man whom she knows to he already married and living with his wife, does not come within said section 15.</p>

<p>StlPEEME Couet.— Weight of Evidence. — The Supreme Court, on appeal, will not- disturb the verdict of a jury upon the mere weight of evidence.</p>

<p>Demurrer.— Capacity to Sue. — Church Trustees. — Corporation.—A demurrer questioning the sufficiency of a complaint by a plaintiff styled “ The Trustees of ” a certain “ Church ” does not question, but admits, the plaintiff’s capacity to sue.</p> <p>Same.— Corporate Existence not put in Issue hy General Denial. — Such plaintiff’s corporate existence is not put in issue by an answer of general denial, nor by an answer specially alleging that certain persons named in the complaint as such trustees are, in fact, not the trustees.</p> <p>Same. — Evidence.—Instructions.—Harmless Error. — Under the issues made by such pleadings, error in the admission of evidence, or in the giving of instructions to the jury, relating to the corporate existence of the plaintiff, is harmless.</p> <p>Same. — The mere fact that an instruction to a jury is “ out of place and not pertinent to the issues ” is not ground for new trial, nor for reversing the judgment.</p>

<p>Guardian and ~WAnn. — Release of Surety, and Execution of New Bond.— Action on Old Bond. — Answer.—Where, by order of the proper court,, upon his own application, a surety on a guardian’s bond is released from his suretyship, and a new bond, with new surety, has been executed, he is thereby released as to any future liability on such bond; but such facts-constitute no answer, on behalf of such surety, to a complaint on the old. bond, for a prior breach.</p> <p>Same. — Former Recovery. — An answer in such action, by such surety, alleging a former recovery by the plaintiff, in an action on such new bond,against such guardian and the new surety, is insufficient on demurrer.</p>

<p>Specific Peefoemance.— Complaint Against Widow and Heirs, to Enforce performance of Ancestor’s Contract. —Conveyance.—Mortgage. —Tender.— Demurrer Carried Back. — -A. and B. executed a written contract, wherein the former, for a specified sum of money, agreed to convey a certain tract of land to the latter, by a “ good and sufficient deed; and B. agreed therein to procure certain moneys and pay the same to A., as part of the purchase-money, and to execute to A. a mortgage on a specified portion of such land, to secure the payment of the residue of such purchase-money; 'and all of such stipulations were to be performed on a day in the future, named in the contract. B. having died subsequent to such day for performance, A. brought an action against the widow and heirs of B., to enforce specific performance of such contract,alleging in his complaint, that, on such day, he had executed and tendered to B. a “good and sufficient deed ” for such land, and had demanded performance, by B., of his stipulations, which the latter refused ; that, subsequent to B’s death, he had tendered the same deed to the defendants, and demanded of them the performance of B’s stipulations, which they refused; that the same deed was brought into court for the defendants; that such land had remained in the possession of B. and the defendants ever since the execution, and pursuant to the terms, of such contract; and that such contract was executed as a settlement of an action then pending between A. and B., concerning the title to such land.</p> <p>Held, on demurrer to the defendants’ answer, that such tender to the defendants was insufficient, and that the demurrer should be carried back and sustained to the complaint.</p>

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

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

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

<p>Liquor Law. — Act of 1873, Section 12. — Action by Wife.— Exemplary Damages. — Interrogatory to Jtiry. — Remittitur.—Supreme Court. — On the trial of an action by a married woman, instituted under the 12th section of the act of February 27th, 1873, Acts 1873, p. 151, regulating the sale of intox¡eating liquors, to recover damages for the act of the defendant in unlawfully causing the intoxication of her husband, the jury trying the cause, with their general verdict assessing damages in favor of the plaintiff, returned an interrogatory put to them, answering that a specified sum of the damages assessed by their general verdict was allowed as exemplary damages.</p> <p>Held, that the allowance of exemplary damages was unauthorized.</p> <p>Held, also, that the exemplary damages should he remitted, in the Supreme Court on appeal, or the judgment reversed.</p>

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

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

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

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

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

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

<p>Criminal Law. — Practice.—New Trial. — Assignment of Error. — Supreme Court. — Instructions.—Evidence.—Error in giving or refusing instructions to the jury, or in admitting or excluding evidence, is cause for a new trial, but can not be properly assigned as error on appeal to the Supreme Court.</p> <p>Same. — -Betting on Election. — Indictment.—An indictment, charging the defendant with, losing money bj- betting on an election, which alleges the purchase, by the defendant, of a chattel, at its alleged value, to bo paid for, at that price, only in the event of the election of a candidate named, to a particular office, at a certain election, is insufficient</p>

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

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

<p>Fees and Salaries. — Saldfyy of Prosecuting Attorney of Marion Criminal Circuit Court. — Jurisdiction.—Term of Office. — Constitutional Law. — Mandate. — In a proceeding against the auditor of state, for a writ of mandate requiring the defendant to issue to the plaintiff a warrant upon the-state treasurer for salary alleged to be due to the plaintiff as a prosecuting attorney, the complaint alleged that the defendant had been duly elected and qualified as prosecuting attorney in and for the 16th Judicial Circuit, which was created by the act of December 20th, 1865, Acts 1865,. Spec. Sess., p. 153.</p> <p>Held, on demurrer, that the complaint is insufficient.</p> <p>Held, also, that the court created by said act was the Marion Criminal Circuit Court, a court of jurisdiction inferior to that of the circuit courts mentioned in section 1 of article 7 of the constitution of this State.</p> <p>Held, also, that the salary of the prosecuting attorney of such court is to be-paid, not out of the state, but out of the county, treasury'.</p> <p>Held, also, his term of office not having been fixed by that act, that, by section 2 of article 15 of the constitution of this State, his term of office continues four years.</p>

<p>Supreme Court. — Practice,—Brief.— Waiver of Error Assigned. — The failure of counsel to dismiss, in his brief, errors assigned on behalf of the party for whom he appears, is deemed by the Supreme Court to be- a waiver thereof.</p> <p>New Trial. — Refusal of Trial by Jury. — Exception.—Practice.—"Where a jury trial is demanded by a party, and refused by the court, the party demanding must, to make such refusal available as ground for a new trial,, except at the time to such refusal.</p>

<p>CeiMinal Law. — Returning Indictment into Court. — Arrest of Judgment.— Motion to Quash. — Where the record does not show that the indictment has been duly returned into open court, a motion to quash or in arrest of judgment should be sustained.</p> <p>Same. — Liquor Law. — Name.—Idem Sonans. — Tvoof of an unlawful sale of intoxicating liquor to one “ Hairholts” does not sustain the allegation of an unlawful sale to one “ Hairholser.”</p>

<p>Criminal Law. — Murder.—Insanity Produced by Disease.— Instruction to Jury. — On the trial of a defendant indicted formurder, wherein he had introduced evidence tending to prove that he was subject to attacks of epilepsy, and that such disease tends to produce insanity, the court instructed the jury, that, “ When the defence of insanity is interposed to a prosecution for murder, the jury should carefully and intelligently scrutinize and consider the evidence by which it is sought to be established. Tf the jury should find from the evidence, that there is a reasonable doubt whether the defendant has been subject to attacks of epilepsy, and if this fact (if so found) has been supplemented by testimony of expert witnesses, establishing to the satisfaction, of the jury (evidence raising a reasonable doubt being sufficient), that epilepsy is a disease which tends to produce insanity, this evidence would not be sufficient to raise a reasonable doubt of his sanity, at the time of the alleged commission of the homicide. There must be sufficient evidence to raise a reasonable doubt of actual insanity at the time of the alleged commission of the offence.1’</p> <p>Held, that the instruction was erroneous.</p> <p>Held, also, that an erroneous instruction is not cured by a proper instruction unless the former be withdrawn.</p>

<p>Criminal Law. — Betting on Election. — Parol Evidence of Terms of a Writing. — Parol evidence of the contents of a memorandum of the terms of a bet upon the result of an election is inadmissible, without first accounting for the absence of such memorandum.</p>

<p>Criminal Law. — Larceny of Estray. — Felonious Intent. — In order to constitute a larceny of an estray, converted by the finder to his own use, the felonious intent to misappropriate must have existed at the time he took the estray into his possession.</p> <p>Same. — Intent Subsequently Formed. — Instruction.—The defendant in such case has a right to have the jury trying the case instructed, that, if the felonious intent was formed after he had taken possession of the estray, he was not guilty of larceny.</p>

<p>Promissory Note. — Assignment.—Endorsement.—Complaint by Assignee, in Justice's Court. — Defect of Parties. — In an action originating before a justice of the peace, by an assignee, against the maker, on a promissory note, the complaint alleged that the note in suit had been assigned to the plaintiff “in writing,” and that copies of both the note and assignment were attached to the complaint, as parts thereof, but in fact no copy of the assignment was so attached.</p> <p>Held, on demurrer for failure to make the payee a party defendant, that the complaint is insufficient ; as, even in a justice’s court, the payee must be made a party' defendant in such an action, unless the assignment be by endorsement upon the note.</p>

<p>Érom the Gibson Circuit Court.</p>

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

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

<p>Promissory b) OTE. — Action before Justice of the Peace. — Practice.—Plead- . ing. — Supreme Court. — On appeal to the Supreme Court, in an action on a promissory note, commenced before a justice of the peace, wherein the note itself was the only cause of action filed, the record contained copies of the note only as they were set out in the justice’s transcript and the bill of exceptions containing the evidence.</p> <p>Held, that an objection, that no cause of action was on file in the circuit court, can not he made for the first time in the Supreme Court.</p> <p>Same. — Failure of Justice to Transmit Note. — Motion to Dismiss Action.— Where, on appeal of such action to the circuit court, the'justiee fails to-transmit the note with the transcript, the proper practice for the defendant is to move to dismiss the suit for want of a cause of action.</p> <p>Same. — Cause of Action. — The note itself is a suificient cause of action in such a suit.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a finding on the mere weight of evidence.</p>

<p>•Guardian and Ward. — Action on Guardian’s Bond. — Settlement of Trust. —Removal of Guardian. — An action may be maintained on the bond of a guardian, by the ward, for a breach thereof, before the settlement of the estate or the removal of the guardian.</p> <p>Same. — Relator.—Parties Plaintiffs. — A joint and several bond, executed by the guardian of several wards, may be put in suit on the relation of any one of them, without joining the others as relators.</p> <p>Same. — Parties Defendants. — Non-Joinder of Surety. — An action on such bond may be maintained without joining the sureties therein as parties defendants.</p> <p>Same. — Where, in an action on the relation of one only of several wards, on their guardian’s bond, it is alleged that credits allowed to the guardian, in his reports to the court, jointly against all the wards, should have been allowed, not against the relator, but against the other wards, the guardian of the latter may be properly made a party defendant.</p> <p>Same. —Mistake.— Negligence.— Account Current. — Receipt.—Answer.—Evidence. —Where, in an action on a guardian’s bond, the complaint, alleges mistake, negligence and waste on the part of the guardian, resulting in loss to the trust estate, an answer alleging that current settlements, covering the matters in issue, had been made by the guardian and approved by the court, prior to his final settlement, is insufficient; and evidence is admissible to show the incorrectness of the vouchers filed with such reports.</p> <p>Same. — Acceptance by Guardian of Promissory Note, as Payment of Money-due Ward. — A guardian has no right, on settlement with an administrator or other person having funds belonging to the ward, to accept any thing but cash in payment of the amount due to his ward; and if he accept, sis cash, a promissory note or other obligation, which proves worthless or is 'lost in collection, he is liable therefor on his bond.</p> <p>Same. — Statute Construed. — Section 114 of Decedents' Estates' Act. — Section 114, 2 R. S. 1876, p. 536, of the act in relation to the settlement of decedents’ estates, authorizes only an adult legatee or heir, and not the guai’- - dian of a minor, to accept a chose in action as a payment.</p> <p>Same. — Special Finding of Court.- — Proceeds of Real Estate. — Damages.— Liability on Original Bond. — Presumption.—Where,in the special finding of facts by the court, in an action on the- original bond of a guardian, the court charges him with “ an amount received from the sale of real estate,” hut it does not appear that such sum was realized from a sale by the guardian of his ward’s real estate, and the evidence is not in the record, the Supreme Court, on appeal, will presume in favor of the finding.</p> <p>Same. — Non-Joincler of Surety. — The guardian is liable in an action on his original bond, for the proceeds of a sale, by him of his ward’s real estate, where his surety is not joined with him as a defendant.</p> <p>Same. — Exemplary Damages. — Stay of. Execution. — Judgment.—Appraisement-. — The judgment in an action on the bond of a guardian may include ten per cent, on the amount due the ward, as damages, and may be rendered without stay of execution, or benefit of appraisement laws. ,</p>

<p>Promissory Note. — Sale.—Contract concerning Title to Chattel. — Assignment. — jReplevin.—The endorsement in blank of a promissory note which stipulates that a certain chattel, therein described, shall remain the property of the payee until the note has been paid, does not, of itself, vest the title to such chattel in the endorsee, so as to enable- him to replevy such chattel, on demand, for non-payment of the note.</p>

<p>Okimijsal Law. — Indictment.—Murder.—Description of Deceased. — It is not necessary, in an indictment for the murder of a person therein named, to aver that such person was “ a human being.”</p> <p>Same. — Negative Averment. — In an indictment for murder, wherein death is alleged to have resulted from a mortal wound, made upon the person of the deceased “ by cutting ” with a purpose to kill and with premeditated malice, it need not be alleged that such wound was not inflicted in performing a necessary surgical operation upon the person of the deceased.</p> <p>Same. — Electing between Counts. — "Where an indictment contains several counts, each charging the murder of the same person, but in a different manner, the State can not be compelled to elect between such counts.</p> <p>Same.— Change of Venue from County.— Judicial Discretion.— Supreme Court. — The Supreme Court will' not review the overruling of a motion for a change of venue from the county, where it does not appear from the record that the court had exceeded its discretion.</p> <p>Same. — Affidavit for Continuance. — An affidavit for a continuance on account of the absence of a witness should show that due diligence has been used to procure the attendance of the witness, and the time when his attendance can probably be had.</p> <p>Same. — Empanelling Special Jury on Special Venire. — The court has power to order a special venire for a special jury to try a defendant, if the business of the court so require.</p> <p>Same. — Order of Introducing Evidence. — Judicial Discretion. — It is within the discretion of the court to allow the State, during the introduction of the defendant’s evidence in chief, to call a witness as to original matter.</p> <p>Same. — Supreme Court. — Record.—Instructions.—Presumption.—Where the evidence is not in the record, and the instructions given to the jury are not abstractly wrong, the Supreme Court, on appeal, will presume that the instructions were properly given.</p> <p>Same. — Refusal to Give Instruction. — In such state of the record, the refusal of the court to give to the jury an instruction asked will be presumed by the Supreme Court to have been right.</p> <p>Same.— Murder. — Evidence.—Body of Deceased. — It is not error, on the trial of a defendant indicted for murder, to admit evidence that a body claimed to be that of the deceased is the body of a human being.</p> <p>Same. — Possession of Deadly Weapons. — Where an indictment for murder charged the killing to have been caused by the infliction of mortal wounds, it was not error to admit evidence that weapons with which such wounds might have been inflicted were carried by the defendant on the alleged day of the murder.</p> <p>Same.— Verdict. — A general verdict of guilty “as charged in the indictment,” returned on. an indictment charging the same crime in separate counts, is valid.</p> <p>Same.— Venire De Novo. — A venire de novo can be awarded only where no judgment can be rendered upon the verdict, in consequence of its imperfection or uncertainty.</p> <p>Same. — Arrest of Judgment. — The judgment in a criminal case can be arrested only because the court has no jurisdiction of the case, or because the indictment does not state facts constituting a public offence.</p> <p>Same. — Evidence Before Grand Jury. — The prosecuting attorney can not be compelled to furnish the defendant with a copy of the evidence given against him before the grand jury in finding the indictment.</p> <p>Same. — Short-Hand Reporter. — Rights of, as to Payment. — Defending as Poor Person. — Judicial Discretion. — ITnder section 4 of the act of March 10th, 1875, 1 E. S. 1876, p. 770, a short-hand reporter may require payment, or security therefor, of a party demanding a long-hand copy of his notes of the evidence, before proceeding to prepare it ; though the court may, in its discretion, admit-the defendant to defend as a poor person, and direct that such copy be furnished to him, to enable him to prepare a bill of exceptions.</p> <p>Same. — Bill of Exceptions. — It is not error to refuse to admit a copy of the short-hand notes of the evidence into a bill of exceptions..</p> <p>Same. — Supreme Court. — The Supreme Court has no authority to direct such short-hand notes to be copied and to order them to be paid for out of the state or coun ty treasury.</p> <p>Same. — Error can not be predicated upon the action of the lower court in tying the short-hand notes of the evidence to the record of the cause.</p> <p>Same. — Time for filing Bill of Exceptions. — Judicial Discretion. — The length of time to be allowed for the preparation of a bill of exceptions is to be fixed by the court trying the cause, in the exercise of a sound discretion.</p>

<p>Kailkoad. — Complaint before Mayor or Justice, for Jailing Stock. — Defect* Cured by Verdict. — Fence.—In an action under the statute, before-tlie mayor of a city, against a railroad company, for killing stock, the complaint alleged, that, “on,” etc, “at a point in said county of * where said railway track was not securely fenced, and not at a public crossing nor within the limits of an incorporated town or city, said defendant, b'y her agents. » ran a train of cars over and against ” the stock of the.plaintiff, which was of a certain value, and killed it.</p> <p>Held, on an assignment of error in the Supreme Court?,, questioning for the first time the sufficiency of the complaint, that it is-goodafter.' verdict,, in an action commenced before a mayor or justice of the peace, though it does not allege that the stock had entered upon the railroad at a point where it was not securely fenced.</p> <p>Same. — Evidence.— Proof of possession of the stock killed is ¡irima facie evidence of ownership.</p>

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

<p>Kailkoad. — Negligent Killing of Stock. — Contributory Negligence. — Degrees of Negligence. — Instruction.—In an action against a railroad company, for the alleged negligent killing of stock belonging to the plaintiff, by the defendant’s employees, the court instructed the jury, that, to constitute contributory negligence on the part of the plaintiff, in allowing said stock to run at large, he must have knowingly suffered his stock to habitually run at large in the immediate vicinity of the place where it was killed ; and that the plaintiff “can not recover, although he may have been guilty of less negligence " than the employees of the defendant.</p> <p>Held, that the instruction was erroneous.</p>

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

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

<p>Supreme Court. — Appeal. — Bond. — Stay of Execution. — Supersedeas.—An appeal will lie to the Supreme Court without filing an appeal bond, but such appeal will not stay execution.</p> <p>Same. — Requiring New Bond, on Insolvency of Surety. — Where the security on the bond given on appeal to the Supreme Court becomes worthless, that court may, on proper evidence of that fact, order a new bond to be filed, within a reasonable time, and that, in default thereof, execution may issue.</p> <p>Same.— Weight of Evidence. — The Supreme Court, on appeal, will not disturb a verdict on the mere weight of evidence.</p>

<p>Negligence. — Liability of Bank for Failure to Protest Promissory Note.— Pleading. — A. promissory note payable in a bank of this State was deposited, before maturity, with that bank, by a bona fide endorsee, for collection; but, on maturity of the note,which remained unpaid, the bank failed to protest the note and to notify the endorser of its non-payment, and within -ninety days thereafter the maker was adjudged a bankrupt, whereupon the endorsee sued the bank for damages.</p> <p>Held, on demurrer to the complaint, which alleged such facts and set out a copy of the note, that the complaint is sufficient.</p>

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

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

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

<p>Negligence.— Wilful Injury. — Action for Damages. — Complaint.—Act of Agent, Employee, or Servant —In an action by a passenger upon a steamboat, against a corporation owning and operating the same, to recover damages for injuries alleged to have been suffered by him while a passenger, through the negligence of the employees of the defendant, the ■complaint alleged, that the plaintiff had been “ violently pushed, pulled ■and thrown through ” a ' hatchway negligently left open by such employees, resulting in the injuries alleged.</p> <p>Held, on demurrer, that the failure of the complaint to allege that such violence was the act of the defendant’s employees renders it insufficient.</p> <p>Practice. — Trial on Complaint Containing an Insufficient Paragraph.— Verdict. — Supreme Court. — Record.■—Where a demurrer has been overruled to an insufficient paragraph of a complaint, an exception reserved, and, •upon trial, a general verdict found for the plaintiff, the Supreme Court, on .appeal, will reverse a judgment upon the verdict, unless it appear by the ■record that trial was had, and such verdict found, upon some other and sufficient paragraph of the complaint.</p>

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

<p>Criminal Law. — Incest.—Evidence.—Impeaching Witness. — The fact as to whether or not the prosecuting witness had become pregnant by means of sexual intercourse had by her with others than the defendant, and her declarations in relation thereto, are immaterial and irrelevant, on the trial of a defendant indicted for incest, either for the purpose of impeaching her testimony or for any other purpose.</p> <p>Same. — Reputation for Chastity and Virtue. — Evidence attacking her reputation for chastity and virtue is inadmissible.</p>

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

<p>Decedents’ Estates. — Guardian and Ward. — Petition by Surety against Administrator of Deceased Guardian. — Order of Court to pay over Wardis Estate. — Judgment.—Appeal to Supreme Court. — A surety upon the bond of a deceased guardian filed a petition against the administrator of such decedent’s estate, representing that moneys belonging to the ward were in the hands of such administrator, who was paying the same out upon the general debts of such estate, and praying that the administrator be ordered to make a report of the amount of the ward's estate in his hands and pay the same over to the court for the use of such guardian’s successor. 'Whereupon, under the order of the court, the administrator reported that his decedent’s estate was chargeable with a certain sum belonging to such ward, that the estate was insolvent, and that the decedent had so commingled his ward’s estate with his own, that the same could not be identified; anl thereupon the court approved the report and ordered the administrator to pay into court, for the benefit of the ward, the amount so reported as belonging to him.</p> <p>Held, that the surety, having paid no part of the amount due from his principal, had no right of action, and that such order was erroneous.</p> <p>Held, also, that such order was a final judgment from which an appeal lies to the Supreme Court.</p>

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

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

<p>Action toon Covenant. — Failure to Remove Encumbrance. — Conveyance_ —Mortgage.—Damages.—Unless he has paid part or all of the encumbrance, or has been evicted, the grantee of land convoyed by deed covenanting against encumbrances can recover of his grantor only nominal damages, in an action on the covenant, for failure to pay off or remove an encumbrance existing at the time of such conveyance.</p> <p>Same.— Verbal Promise to Pay Encumbrance. — The verbal promise of the covenantor to the grantee to pay off such encumbrance adds nothing to the covenant.</p>

<p>Mortgage. — Mortgaging same Land, on same Lay, to Lifferent Persons.— Priority. — Separate mortgages upon the same real estate, executed by the mortgagor, to several mortgagees, upon the same day, to secure the payment of debts having no priority, and recorded within time though upon different days, have no priority.</p> <p>Same. — Foreclosure Without Notice. — •Sheriff's Sale. — Rights of Mortgagee 'Having no Notice. — Redemption.—Purchaser May Pay off Mortgage.— The foreclosure of one of such mortgages, without notice to the holder of the other, and the sale and conveyance of the mortgaged premises by a sheriff pursuant to such foreclosure, do not debar such holder from either foreclosing without redeeming or redeeming and foreclosing ; but the holder under such sheriff’s sale may pay off such mortgage and retain the premises.</p> <p>Same. — Tender of Redemption Money. — Mesne Profits. — Such holder, in an action to redeem and foreclose, need not tender the redemption money before bringing his suit; but he can not cause the holder under such •sheriff’s sale to account for mesne profits.</p>

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

<p>Landlord and Tenant. — Forfeiture of Lease for Non-Payment of Rent.— ■ Demand. — By the terms of a written lease of a tract of real estate, the tenant was to pay to the landlord annually, on a specified day, a stipulated sum of money as rent ; and if the annual rent was not promptly paid, as it became due, on or before the day specified, the lease was to he null and void.</p> <p>Held, there being no place of payment stipulated, that, to work a forfeiture-of the lease for non-payment of rent, payment of the rent due should have been demanded by the landlord of the tenant, on the premises, just before sunset on the day specified.</p> <p>Held, also, that a demand, made at any other time on such day, wórked no forfeiture of the lease.</p> <p>Same. — Notice to Quit for Non-payment of Rent. — Service.—Statute Construed. — The ten days’ written notice to quit for non-payment of rent, under section 4 of the act of May 20th, 1852, 2 jR. S. 1876, p.-336, “regarding landlords, tenants,” etc., must, under section 6 of such act, be served by delivering the notice itself to the tenant, or, if he can not be found, to-some person of proper age and discretion, residing on the premises, after having first made known to him the contents of the notice.</p> <p>Same. — Service of such notice by reading the same to the tenant is insufficient.</p>

<p>Practice. — Striking out Pleading. — Harmless Error. — Error in striking out a paragraph of a pleading is harmless, where the facts therein alleged are admissible in evidence under a remaining paragraph.</p> <p>Evidence. — Damages.—Opinion of Witness.— Watercourse. — The damages to be recovered for an alleged wrongful obstruction of a watercourse forming the line between the lands of the parties can not be estimated by the mere opinion of a witness.</p> <p>Same. — Time.—Evidence of Previous Tort. — Where, in such case, the tort is alleged by the complaint to have been committed on a particular day, evidence of similar torts, previously committed, is inadmissible.</p> <p>Same.. — Costs not Exceeding Damages. — Form of Motion.- — Practice. — The verdict in such case assessed the plaintiff’s damages at one dollar,'whereupon the defendant moved the court “for a judgment for all the costs in the case, except the sum of one dollar, against the plaintiff’.”</p> <p>Held, that the motion was properly overruled.</p> <p>Held, also, that the proper motion in such case is, “that the plaintiff recover no more costs than damages,” etc.</p>

<p>Sheriff. — Action on Sheriff’s Bond, for Failure to Advertise and Sell.— Defence. — Attorney.—la an action by an execution plaintiff, against a sheriff and his sureties, upon the sheriff’s bond, for a failure of the sheriff to advertise and sell the property of the execution debtor, an answer, that the sheriff’s failure to advertise and sell was pursuant to the direction of the plaintiff’s attorney, is sufficient.</p> <p>Same. — Exemption from Execution. — Pleading.—Exhibit.—The defendants in such action answered, that, when about to make a levy, the debtor, who ' was a resident householder of the State, had demanded three hundred dollars worth of property as exempt from execution, and presented his verified schedule of his property, and that an appraisement thereof showed it to be of a less value than three hundred dollars.</p> <p>Held, on demurrer, that the answer is sufficient.</p> <p>Held, also, that copies of such schedule and appraisement could not be made part of such answer by attaching them thereto.</p>

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

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

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

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

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

<p>• Conveyance. — Condition Subsequent. — Complaint to Cancel Deed and Recover Land. — Demurrer.—Relief Regardless of Prayer. — Account for Rents, Improvements, etc. — Measure of Damages. — A warranty deed, conveying certain lands, contained this stipulation; “This deed is upon * * * condition that the grantor * * * agrees to make her home with the ” grantee, who “ agrees to provide for and take care of the grantor during her natural life, and to he at all expense that may necessarily accrue for the maintenance of the” grantor. An action was instituted by the grantor, against the grantee, wherein the complaint alleged, that, commencing with a certain date, the grantee had “ failed to provide for and support her, as required by the deed.” Prayer, in one paragraph, that the deed be can-celled, and, in another paragraph, that the grantee he decreed a trustee. of such land, required to give bond, and to account, etc.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that no question upon the uncertainty of the averments of the complaint is presented by the demurrer.</p> <p>Held, also, that, regardless of the prayer of the complaint, the court may grant any relief to which, under the issues, the plaintiff is entitled.</p> <p>Held, also, that such deed was upon a condition subsequent.</p> <p>Held, also, that, for a failure by the grantee to perform such condition, the grantor may recover the real estate so conveyed, and have an account taken, charging the grantee with the rents of the whole tract conveyed, including any portion cleared by him, and crediting him with the value of improvements made, rents paid, and any partial performance, by him.</p> <p>Same. — Notice.—Estoppel.—A person contracting with the grantee of such deed, upon the faith of the arrangement between the grantee and grantor, is bound to take notice of such condition, subsequent.</p> <p>Practice.— Venire de kNovo.— Verdict. — A venire de novo is only awardedi when, the verdict is uncertain, or fails to find upon all the issues, or to assess damages.</p> <p>Same. — Special Verdict. — "Where both a general and special verdict is found, and the former finds, though only inferentially, upon all the issues, it is not necessary to the validity of the latter that it find upon the whole case.</p> <p>Same. — Form of Verdict. — Failure to Instruct Jury. — Where, in such case, the jury has not been instructed as to the form of their verdict, the joinder of their general and special verdict does not invalidate either.</p> <p>Same. — Judgment non Obstante. — Judgment on the special verdict, notwith- . standing the general verdict, can bo had only where the former is repugnant to the latter.</p>

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

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

<p>Attachment. — Auxiliary Proceeding. — An attachment under the statute-of this State is not an independent proceeding, but is merely in aid of an action commenced concurrently with, or prior to, the attachment.</p> <p>Same. — Appeal from. Justice of the Peace. — Where an appeal is taken to the-circuit or superior court, from a judgment rendered by a justice of the peace in an action wherein a writ of attachment has been issued, the whole cause there stands for trial de novo.</p> <p>íSamb. — Appeal from Judgment in Attachment. — Case Modified. — An appeal will not lie in such action from the judgment in attachment independently of the main action. Theirmanv. Vahle, 32 Ind. 400, modified.</p>

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

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

<p>Pleading. — Set-Off.—Tort.—A claim arising out of a tort can not be pleaded as a set-off to an action on account.</p> <p>Same. — Motionto set aside Default. — A judgment rendered against a defendant by default, on his failure to appear, will not be set aside to allow proof of a set-off arising out of a tort, though the motion therefor allege a sufficient excuse for the failure to appear.</p>

<p>Justice oe the Peace. — Appeal to Circuit Court. — Appeal Bond Executed Without Surety. — Mandate.—A party, against whom a judgment had been rendered by a justice of the peace, tendered to the justice a bond executed by him without any surety, and demanded an appeal to the circuit court.</p> <p>Held, in an action by such judgment defendant, against such justice and the judgment plaintiff, for a writ of mandate to compel the granting of-such, appeal, that such bond was insufficient.</p>

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

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

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

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

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

<p>Conveyance. — Breach of Covenant.— Counter-Claim.- — -Copy.—Exhibit.— A. counter-claim, based upon an alleged breach of the covenants of a deed of conveyance of lands executed by the plaintiff to the defendant, must, ta be sufficient on demurrer, set out either the original deed or a copy thereof</p> <p>Practice. — Affidavit to Set Aside Judgment. — Bill of Exceptions. — Record.— Supreme Court. — An affidavit, supporting a motion to set aside a judgment, forms no part of the record on appeal to the Supreme Court, unless-embodied in a bill of exceptions.</p>

<p>Covenant. — Seizin.—Husband and Wife. — Deed Executed in this, for Land in another, State. — Complaint.—Demurrer.—Tn an action for damages for a breach of the covenants of warranty contained in a deed of conveyance of lands in another State, purporting on its face to have been executed in this State, for a valuable consideration, by the defendants as husband and wife, to the plaintiff, the complaint set out a copy of the deed and alleged that it had been executed in this State, between residents thereof, upon a valuable consideration, hut that the defendants had never had either title-to or possession of such lands.</p> <p>Held, that, on joint demurrer, the complaint is sufficient, though insufficient! on separate demurrer by the wife.</p> <p>Held, also, that the covenant of seizin in the deed was purely personal, didl not run with the land, and was broken immediately upon the execution: of the deed.</p>

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

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

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

<p>Criminal Law.— Witness. — Child Under Ten Years of Age. — The question, as to whether or not a child under ten years of age is capable of understanding the facts about which it is to' be examined, is to be determined by the court in which such child is offered as a witness, upon the answers of the child to interrogatories put to it by the court.</p> <p>Sam-e. — Judicial Discretion. — Supreme Court. — The determination of such question by the court will not be reviewed by the Supreme Court on appeal, except for a clear abuse of its discretion.</p> <p>Same.— Misconduct of Juror. — Taking Notes of Evidence. — The act of a juror in taking notes of the evidence being given is not misconduct sufficient to set aside the verdict, where he, upon being admonished by the court of the impropriety of his act, ceased taking notes.</p> <p>Same.— Verdict. — Fixing Term of Imprisonment. — -The fact that the jury, in fixing upon the term of imprisonment tobe suffered by the defendant, took the quotient arising from the division of the aggregate of the periods indicated by each juror by the number of jurors, as a proposition merely of the term of imprisonment, is not improper, if not done pursuant to a previous agreement to accept such quotient as such term.</p> <p>Same. — Newly-Discovered Cumulative or Impeaching Evidence. — A new trial will not be granted on the ground of newly-discovered evidence which is merely cumulative or impeaching.</p> <p>Same. — Reasonable Doubt. — Supreme Court.-■ Where, from the evidence, the Supreme Court, on appeal, is satisfied that a reasonable doubt of the guilt of the defendant manifestly exists, a judgment of conviction will be reversed.</p>

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

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

<p>Criminal Law. — Common Law.— Jury. — Instructions.—At common law • the jury in a criminal cause were the exclusive judges of the evidence but were bound to accept, as correct, the law laid down by the court in its instructions.</p> <p>Same. — The Jury Exclusive Judges of Law and Evidence. — Province of the Court Merely Advisory. — In this State, under the present constitution, the jury in a criminal cause are the exclusive judges of both the law and the evidence, the duty of the court, in giving them instructions, being merely advisory.</p> <p>Same. — On the trial of a criminal cause the court instructed the jury, that, “ If the court instruct the jury truly and fully as to the law, the jurors must he governed hy the instructions. If the court does not do this, the jury may disregard the instructions.”</p> <p>Held, that the instruction was erroneous.</p>

<p>Criminal Law. — Jury. — Excusing Juror.— Judicial Discretion.— During the term of court at which a criminal cause was pending for trial, the court discharged the jury from further attendance until a later day in the term, and, at the same time, over the objection of the defendant in such cause, excused altogether certain of the jurors who had expressed an opinion that the defendant was guilty.</p> <p>Held, that the court had exercised its discretion fairly, and that the defendant can not complain thereof.</p> <p>Same. — Murder.—Evidence.—Dying Declarations. — On the trial of a defendant indicted for murder, the dying declarations of the deceased are admissible in evidence when it clearly appears, that, at the time they were made, he was aware that death was rapidly approaching.</p> <p>Same. — Premeditction.—Wheresufñcient time has elapsed between the killing and an angry altercation between the deceased and the defendant for his anger to cool, the killing can not be excused as unpremeditated.</p>

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

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

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

<p>Mortgage. — Purchaser for Valuable Consideration.— Pre-existing Debt.— Extension of Payment.— One who obtains the execution of a mortgage to secure the payment of a pre-existing debt, in consideration of an extension thereby made of the time of payment, is ayourchaser for a valuable consideration.</p> <p>Same. — Mortgage Recorded, after Time. — Notice.—Though a mortgage be not recorded until after the time proscribed by law, yet the record thereof is notice to all purchasers or encumbrancers subsequent to the recording.</p> <p>Same. — Extent of Notice. — Such record is notice of its own contents, and of the existence of the mortgage of which it purports to he a record, but not of the contents of such mortgage.</p> <p>Same. — Entry Book. — Case Overruled. — The entry book kept by the recorder pursuant to section 29 of the act concerning the alienation of real property, etc., 1 R. S. 1876. p. 367, is notice of the exact time of reception, the names of the grantor and grantee, the description of the lands conveyed, the date and existence, hut not of the contents, of a mortgage or other conveyance which has been entered therein and recorded. Kessler v. The State, ex rel., etc., 2i Ind. 813, overruled.</p> <p>Same. — Index.—The index of mortgages and other conveyances, kept by the recorder pursuant to section 3 of the act prescribing his duties, etc., 1 R. S. 1876, p. 758, is not notice of the amount of the consideration of any such instrument, even though the index specify such amount.</p> <p>Same. — Mistake of Record, as to Amount of Debt. — Priorities.—A mortgage on real estate was so entered in the , entry book, and also indexed, as to show the true amount of the mortgage debt, but by a mistake in recording, made without the knowledge of the mortgagee, the record showed the amount of such debt to be much less than it really was, Subsequently the same land was mortgaged to one who had no actual knowledge of the existence of the prior mortgage.</p> <p>Held, in an action for the foreclosure of the first mortgage, against the mortgagee of the second mortgage, that, except as to the amount of the first mortgage debt shown by the record, the second mortgage has priority over the first.</p>

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

<p>Criminal Law. — Alibi.—Instruction to Jury. — An instruction to a jury, which tends to prejudice their minds against evidence introduced by the defendant to establish an alibi, or which tends to cast suspicion upon such defence, is erroneous.</p>