Volume 64 — Indiana Reports

<p>“Foreign Corporation” Defined. — The statutes of this State define a foreign corporation to he “ a corporation created by or under the laws of any othor state, government or country,” or one “not incorporated or organized in this State.”</p> <p>Same. — Insurance Company Created by Act of Congress. — An insurance company created by an act of Congress is a foreign corporation subject to the requirements of the statute of this State approved June 17th, 1852, “respecting foreign corporations and their agents in this State.” 1 R. S. 1876, p. 373.</p> <p>Same. — Congress as a Local Legislature.— Constitutional Law. — An act of Congress creating a private corporation is the act of Congress as the local Legislature of the District of Columbia ; as Congress can not, under the federal constitution, as the Congress of the United States, create a private corporation.</p> <p>Same. — Act Regulating Foreign Insurance Companies. — Repeal of Statue. — .- Foreign State. — The act of December 21st, 1865, “ regulating foreign-insurance companies,” etc., 1 R. S. 1876, p. 594, applies to insurance- companies-“incorporated by any other State than the State of Indiana”'and'those, “incorporated by any government foreign to the United States,” but. nofi to those created by Congress ; and, as to the latter class of companies, such act does not repeal said act of June 17th, 1852.-</p> <p>Same. — Loaning Money. — Said act of December 21st, 1865, does not so apply to foreign insurance companies, as to enable them to loan money through their agents, in this state, without complying with the provisions of said act of June 17th, 1852.</p> <p>Same — Foreclosure of Mortgage by Foreign Corporation. — Failure to comply with Act Concerning Foreign Corporations and Agents.— Plea in Abatement. — In an action by an insurance company created by an act of Congress, to foreclose a mortgage on lands in this State, executed by a husband and wife to secure the payment of a loan made to the husband by the plaintiff through its local agent in this State, and to recover the mortgage debt, it is a good answer as a plea in abatement, to allege the failure of the plaintiff and its agent to comply with the requirements of said act of June 17th, 1852.</p> <p>Same. — Effect of such Failure. — Such.failure does not render the mortgage void, but merely suspends the right to foreclose it until the provisions of (such act shall have been complied with.</p> <p>Same. — Loan by Insurance Company. — Charter.— Ultra Vires. — A section of the charter of such insurance company, authorizing it to invest its capital, etc., in “bonds, and mortgages on unencumbered real estate,” sufficiently authorized the taking of the mortgage in suit.</p> <p>Same. — Husband and Wife. — Quieting Title. — A failure to comply with the requirements of said act of June 17th, 1852, is not sufficient ground to sustain a cross complaint hy the wife, the owner of the mortgaged premises, to have the mortgage declared null and void and to quiet her title against' it.</p> <p>Same. — Set-Off.—A cross complaint in the nature of a set-off, for moneys alleged to be due and owing from such plaintiff to the husband, may properly be pleadecUn such action.</p> <p>Dissenting opinion by Biddle, J.</p>

<p>Criminal Law. — Robbery.—Constructive Violence. — Though the distinguishing feature of robbery is violence, yet robbery may be committed without actual violence, as by exciting fear in the person robbed, which, in law, constitutes constructive violence.</p> <p>Same. — The violence necessary to constitute robbery must be more than a sudden taking or snatching of the property, and must precede or accompany the taking.</p> <p>Same. — Fraud.—Trick.—The fraudulent and felonious taking of property by means of a trick or contrivance, but unaccompanied by violence, does not constitute robbery.</p>

<p>Costs. — Renewal of Action Voluntarily Dismissed.• — Order Staying Proceedings until Costs are Paid. — Mandamus.—Presumption.—A plaintiff who had voluntarily dismissed his action, and withdrawn his complaint, immediately refiled the same complaint, whereupon the court, upon being satisfied that the costs of the first action had not been paid, and that the plaintiff was insolvent, ordered that the proceedings in the second action should be stayed until such costs had been paid.</p> <p>Held, in-a proceeding to compel the judge of such court, by mandate, to proceed with the trial of such action, that the order staying proceedings was proper.</p> <p>Held, also, the contrary not being shown, that it is presumed that the second action was vexatiously brought.</p>

<p>Fixture. — Sale of Land Without Reserving Fixture. — Subsequent Purchaser of Fixture. — Promissory Note. — Failure of Consideration. — Breach of Implied Warranty. — Evidence.—Practice,—Pleading.—Justice of Peace.- -Tho owner of a tract of land upon which he had placed a cane mill, let into the ground, to manufacture his cane crop, sold and conveyed the same, without reservation, .to a purchaser, and then sold, hut did not deliver, the cane mill to a purchaser who executed his promissory note for the purchase price, hut the purchaser of the land, on taking possession, refused to allow the purchaser of the mill to remove it.</p> <p>Held, in a suit on the note, originating before a justice of the peace, that the defendant could, without plea, give evidence of either a failure of consideration or of a breach of the implied warranty of title to the mill. Held, also, that the fixture passed with the land, as part thereof, to the grantee.</p>

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

<p>Dower. — Lands Sold on Execution Prior to May 14th, 1852. — Rights of Widow in, — Tenancies by the courtesy and in dower were abolished by section 16 of the act of May 14th, 1852, “ regulating descents,” etc., 1 R. S. 1876, p. 408 ; and therefore the widow of one dying subsequent to the taking effect of that act has no right of dower in real estate belonging to, and sold on execution against, him prior to its taking effect and during the existence of the marriage relation.</p>

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

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

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

<p>Criminal Law. — Arrest of Judgment.— Causes for. — A motion in arrest of judgment lies only for two causes, viz. : 1. That the grand jury had no Legal authority to present the indictment, for want of jurisdiction in the court; or, 2. That the facts stated do not constitute a public offence.</p> <p>Same. — Misconduct of Counsel. — Reference to Former Trial. — Evidence.—A statement, that, on a former trial, the. defendant had been convicted, made in the hearing of the jury, by the prosecuting attorney, to opposing counsel, in reply to a remark by - the latter calculated to elicit such remark, and remarks of the same character, made by a witness in the course of his examination, in fixing certain dates, are not sufficient causes for reversing the judgment.</p> <p>Same. — Murder.—Verdict upon Circumstantial Evidence. — Supreme Court.— Where a murder has been committed, and, after a fair trial, on a sufficient indictment, under a proper presentation of the law by the court, and upon a chain of evidence which, though wholly circumstantial, clearly points to the defendant as the' murderer, the jury trying the cause find the defendant guilty as charged in the indictment and. affix a lawful penalty, the Supreme Court will not disturb the verdict.</p>

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

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

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

<p>Decedents’ Estates. — Foreclosure of Mortgage Executed by Decedent. — No Personal Judgment. — Promissory .Note. — In an action to foreclose a mortgage on lands belonging to the estate of a decedent, executed by him in hi's lifetime to secure the payment of a promissory note also executed by him, to which the administrator is not a party, there can be no personal judgment over for any residue of the mortgage debt remaining unsatisfied on sale of the mortgaged premises.</p> <p>Same. — Claim for Residue. — Merger.—Cause of Action. — Measure of Damages. — The judgment of foreclosure in Such action does not merge such promissory note; and any claim against the decedent’s estate, for an unpaid residue of the mortgage debt, is founded, not upon the judgment of foreclosure, but upon such note; and the administrator is not bound by,'but may go behind, the judgment of foreclosure to show the amount really unpaid.</p> <p>Compound Interest. — Contract for Extension of Time. — Evidence.—Evidence that, subsequent to an offer by the debtor to pay interest on interest accrued, in consideration of an extensión of the time of payment for a specified period, the attorney of the creditor had indefinitely extended such time, pursuant to a direction by the creditor to give the debtor “all the time that could be safely given,” does not sustain a complaint based upon an alleged contract to pay interest on interest accrued, in consideration of an extension of time.</p>

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

<p>Descents.— Widow’s Descendants. — Complaint.—Action to Quiet Title. — Enjoining Guardian’s Sale of Land. — A complaint alleged that a certain person had died intestate, seized in fee-simple of certain real estate, leaving a widow, but no child or parent, surviving him ¡ that subsequently the widow died, leaving the plaintiffs, her brothers and sisters and the children of such as had died, but no child or parent, surviving her ; and that the defendant, as guardian of a ward not alleged to have been related to the intestate husband, was about to sell such real estate pursuant to an order of court. Prayer, that such sale bo enjoined, and that the plaintiffs’ title be quieted. Held, on demurrer, that the complaint is sufficient.</p> <p>Same — Death of Widow who was a Second Wife. — Grandchild by Previous Marriage. — A husband died intestate, leaving no parent, but leaving a widow, who was his second wife and who had borne him a child which did not survive him, and also a grandchild which was the child of a deceased child by his previous marriage, surviving him. Subsequently the widow died without having remarried, leaving brothers and sisters, but no parent or child surviving her.</p> <p>Held, that, upon the death of the widow, all the real estate of which the husband had died seized, descended to the grandchild.</p> <p>Same. — Section 2 and Proviso of Section 24 Construed. — The words “ children alive,” in the proviso of section 24 of the statute of descents, 1 R. S. 1876, p. 412, must, to give effect to section 2 of that act, be construed to mean “ hildren or their descendants alive.”</p>

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

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

<p>Supreme Court. — Record.—Evidence.—Judgment.—Execution.—Motion to Distribute Moneys realized on Execution. — Presumption.—A judgment in favor of the State, on behalf of several relators, having been rendered by a certain circuit court, against a certain defendant, and several separate executions issued thereon having been returned by the sheriff, one of such relators moved the court in writing for a distribution of money alleged to have been realized on such executions, to which motion the other relators answered, and the motion was denied, to which exception was reserved. .</p> <p>Held, by the Supreme Court, the Tecord containing only such motion, the ruling thereon, and the exception thereto, that the ruling is presumed to be right.</p> <p>Held, also, that such judgment and executions, never having been offered in evidence, form no part of the record.</p>

<p>Malpractice. — Complaint against Physician. — Tort.—Contract.—Contrilutory Negligence. — In an action against a physician, for malpractice, the complaint alleged that the defendant had undertaken, on promise of compensation, to perform certain duties in the line of his profession, for the plaintiff, in treating him for a wound ; hut that the defendant had hath neglected to perform such duties professionally and had performed them in an improper manner, resulting in a permanent physical injury to the plaintiff</p> <p>Held, on demurrer for insufficiency, that the action, though sounding in tort, is founded upon a contract, and that the complaint need not aver a want of negligence on the part of the plaintiff.</p>

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

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

<p>Pleading. — Complaint for Overflowing Lands. — License.-—Defence.—In an action agiiinst an adjoining proprietor, to recover damages for overflowing the lands of the plaintiff by means of ¡a ditch constructed by the defendant on his own land, the complaint need not aver that such act of the defendant was wrongful and unlawful or without license ; as the fact that his act was rightful and lawful, or one which he had license to do, is matter of defence.</p> <p>Howk, C. J., and Niblack, J., dissented.</p> <p>Instruction. — Supreme Court.- — Where, on appeal to the Supreme Court, the evidence is not in the record, .the Supreme Court will presume that the instructions to the .jury, if not abstractly wrong, were properly given.</p>

<p>Infant. — Conveyance during Infancy. — Disaffirmance by Conveyance at Majority. — Adverse Possession. — Action to Recover Real Estate. — A conveyance, made by a grantor on attaining the age of twenty-one years, of lands adversely held by one claiming title thereto under a conveyance made by the same grantor during his infancy, is void as against the adverse holder, hut operates as a disaffirmance of the first deed, and authorizes the grantee thereunder to sue the adverse holder, in the name of the grantor, for the recovery of such lands.</p> <p>Same. — Entry.—If, by entry or otherwise, prior to the making of such second conveyance, such grantcr has obtained possession of such lands, such conveyance is effectual for all purposes.</p>

<p>Ditches and Drains. — Action on Assessment.— Evidence.— Where, in an action to collect an assessment for the construction of a drain petitioned for after the talcing effect of the act of March 9th, 1875, 1 R. S. 1876, p. 428, neither the petition, the finding of the board of commissioners, nor any evidence showing that the drain was necessary and conducive to the public health, convenience or welfare, or of-public benefit or utility, is introduced, the finding should he for the defendant.</p>

<p>Instruction. — Facts Outside the Issues. — An instruction to a jury, authorizing them to consider matters foreign to the issues, is- erroneous.</p> <p>Same. — Action on Account, for Value of Chattels. — Recovery for Cash Paid.— Settlement. — Former Adjudication. — Payment.—Evidence.—In an action on an account for personal property sold and delivered, wherein the defendant answered the general denial, settlement, former adjudication and payment, and the plaintiff replied the general denial, the court instructed the jury,, that, in arriving at a verdict, they might consider, on behalf of the plaintiff, any payments made by him on a certain judgment theretofore recovered against him by the defendant.</p> <p>Held, that the instruction was erroneous.</p> <p>Held, also; that evidence, of such payments was inadmissible under the issues. '</p> <p>Same. — Instruction Ignoring Defence. — Where, in such action, there was evidence tending to sustain each of such,special defences, an. instruction to the jury, limiting their attention and the defendant’s right to recover to one only of these defences, is erroneous.</p> <p>Same. — Instruction as to Settlement. — An instruction in such action, that, to entitle the defendant to recover on the alleged settlement, he must have established, that, on such settlement, a balance remained due to him, is erroneous.</p> <p>Same. — Promissory Note Executed on Settlement. — Legal Effed of. — The paragraph of defence alleging settlement, having also alleged that the plaintiff had executed his promissory note to the defendant for; the balance due on settlement, it was error to instruct the jury to determine the legal effect of such note , that being a question of law solely for the court.</p>

<p>Justice of Peace.— Verdict for Over Two Hundred Dollars. — Remittitur, —Jurisdiction.—hi an action originating before a justice of the peace, wherein the amount demanded was less than two hundred dollars, the jury trying the cause in the circuit court, on appeal, found a verdict for more than two hundred dollars, whereupon the party recovering- remitted all' . damages in excess of the amount demanded, and judgment, was rendered., for the residue.</p> <p>Held, that the verdict did not oust jurisdiction, and that the remittitur and judgment were proper.</p> <p>Railroad. — Killing Stock. — Evidence.— Venue. — Jurisdiction.—In an action under the statute, against a railroad company, for killing stock, the evidence must affirmatively show, either directly or by inference, that the stock was killed within the county where the action was brought.</p>

<p>Trespassing Animals. — Adjoining Proprietors. — Partition Fence.— Instruction. — In an action for damages, against an adjoining proprietor, for injury to a crop growing within the plaintiff’s enclosure, by the cattle of the defendant, which had broken over a partition fence and entered upon such crop, wherein a third person had testified that he was the owner of an undivided interest in such crop, it was not error in the court, in its instructions to the jury, to refer to the ownership claimed by the witness.</p> <p>Same. — Agreement to Maintain Partition Fence. — Evidence.— Witness. — Expert. — It was not error in such action to instruct the jury, that, if the defendant’s cattle had broken over that part of such fence which it was the plaintiff’s duty to maintain, the plaintiff could not recover unless he had established “ by the testimony of skilful men,” that “ the fence was such as good husbandmen generally keep.”</p>

<p>Promissory Note. — Payable in Bank. — Negotiability.—The negotiability of a promissory note payable in bank is not affected by the fact, that, by its terms, it is payable in a specified time, “ or before, if made out of the sale ” of a chattel therein.named,</p> <p>Same. — Negligence.—Fraud.—One who, relying upon the representations of another as-to the legal character of an instrument which he is asked to sign, executes to the latter what proves to he a promissory note payable in hank, is guilty of negligence and is liable on the note to a bona fide endorsee thereof for. value and before its maturity, though such representations were false, though he did not know he was executing a promissory note and though the consideration of the note has failed.</p> <p>Same. — Notice to Endorsee. — Answer.—An answer averring such facts, and also that the note had been executed for a worthless patent-right, and that the endorsee, by reason of the general had odor of the patent-right business, was bound to take notice of the fraudulent character of the note, is insufficient.</p> <p>Same. — One who, supposing that he is executing a simple article of agreement, executes an instrument which may he so separated as to show him to have apparently executed a perfect promissory note payable in bank, is liable thereon to a bona fide endorsee thereof before maturity and for value.</p>

<p>Practice.— Waiver of Demurrer by Answer. — Where the defendant in an action answers prior to. and without, a decision upon a demurrer previously filed by him to the complaint, he thereby waives his demurrer.</p> <p>Contract. — Agreement to Furnish Subscribers for Newspaper. — Evidence.— Failure of Consideration. — In an action upon a contract wherein the _ defendants had agreed to furnish, within a certain period, a certain number of subscribers for a newspaper published by the plaintiff, or to pay him a certain sum of money in lieu thereof, “ in consideration ” that such newspaper should “be conducted in the interest, and for the advocacy, of” a certain political party, and in accordance with its platform of principles, the only evidence introduced was the written agreement and the testimony of a witness that such newspaper had been published as agreed upon, that no subscribers had been furnished within the period fixed, and that a certain part of such sum remained unpaid.</p> <p>Held, that the evidence sustains a verdict for the plaintiff.</p> <p>Held, also, that a failure to publish such newspaper in the interest of such party would constitute a failure of consideration, tobe pleaded and proved by the defendants.</p> <p>Same. — Instruction to Find, for Plaintiff. — Interest.—It was proper for the court to instruct the jury trying such cause to find a verdict for the plaintiff for the amount of such sum remaining unpaid, with interest thereon from the expiration of such period.</p>

<p>Justice of Peace . — Finding and Judgment More than Four Days After Trial. — Dismissal of Game by Circuit Court. — The fact that the justice’s transcript, in a cause appealed from a judgment rendered by him to the circuit court, shows that his finding was made and the judgment rendered by him more than four days after the trial of the cause, is not ground for dismissing the cause.</p> <p>Same. — The entry of such judgment was an act coram non judice. but, on appeal to the circuit court, the judgment was opened and the cause there stood for trial de novo.</p>

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

<p>Pleading. — Counter-Claim,.—Answer.—No single pleading can perform the double office of answer and counter-claim.</p> <p>Contract. — Breach of Parol Contract. — Acceptance.-—Pleading.—Fraud.—In a complaint upon a parol contract for the manufacture of a certain quantity of brick, at a certain price, and for laying them in a wall, at a certain additional price,- the plaintiff alleged the manufacture of the brick, and the refusal of the defendant either to pay for the same or to permit the plaintiff to lay them in such wall. The defendant filed a counter-claim, admitting the contract for manufacturing and averring that he had paid for the same in full, but alleging, that, though the plaintiff had contracted to manufacture a first-class article, he had in fact manufactured an inferior and useless article.</p> <p>Held, on demurrer, that the counter-claim is insufficient.</p> <p>Held, also, no fraud being alleged, that the defendant, by accepting the article, became bound for its reasonable value.</p> <p>Same. — Evidence.—Damages.—Evidence showing the damages suffered by the plaintiff by reason of the alleged breach of contract is admissible under a general allegation in his complaint of damages.</p> <p>Pleading. — Practice.—Harmless Error. — Error in sustaining a demurrer to a paragraph of a pleading is harmless, if the facts therein alleged are admissible in evidence under a remaining paragraph.</p> <p>Instruction. — Harmless Refusal. — "Where the substance of an instruction refused is embraced in one given, the refusal is harmless.</p>

<p>Prosecuting Attorneys of Circuit Courts. — Duties of are Statutory.— Constitutional Law. — The duties of the prosecuting attorneys of the circuit courts of this State are prescribed by statute, and- not by the constitution.</p> <p>Same. — Power of Legislature. — The Legislature has "the right to increase or diminish the duties of such prosecuting attorneys, or to divide them with the prosecuting attorneys of other courts.</p> <p>Same. — Act Abolishing Common Pleas Courts. — By the act abolishing common pleas courts, the duty of the prosecuting attorneys of those courts to prosecute criminal cases before justices of the peace was transferred to and imposed upon the prosecuting attorneys of t'he circuit courts.</p> <p>Same. — Criminal Circuit Prosecuting Attorney. — Prosecution of Criminal Cases before Justices. — Fees and Salaries. — In all counties where criminal circuit courts have been established, the prosecuting attorneys of those courts have the exclusive right to prosecute criminal cases before justices of the peace, and to collect the docket fees assessed in such cases. But, where there is no criminal circuit court, such right belongs to the prosecuting attorneys of the proper circuit courts.</p>

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

<p>Habeas Corpus. — Petition for. — Imprisonment for Violating City Ordinance. —Escape and Recapture. — Answer.—In a proceeding for a writ of habeas corpus, against a city marshal, the petition alleged, “ that the pretended cause for” the imprisonment of the petitioner by the defendant was, that, on a certain day, the city had “recovered a judgment against the” petitioner for a certain sum and costs, “ for and on account of a violation of an ordinance of said city by ” the petitioner ; that, on said day, the petitioner “ was committed to the city prison of said city for failing to pay or replevy said judgment and costs ; ” that the petitioner had been placed at labor upon the streets of said city, by the defendant, under the care of the street commissioner, and while so laboring he had escaped ;" and that, more than thirty days after the rendition of said judgment, ho had openly returned to said city, whereupon the defendant, without warrant or other authority, had arrested and imprisoned him, and restrains him of his liberty.</p> <p>Held, on motion to quash the writ, that the petition is sufficient.</p> <p>Held, also, that the re-arrest and commitment of the petitioner, after the expiration of the thirty days, were unlawful.</p> <p>Held, also, that the defendant, by answer, may show that such judgment provided for'the imprisonment of the defendant until he had compensated the same by labor.</p> <p>Same.— Judgment of Imprisonment. — Imprisonment at Hard Labor. — Payment. — Female.—Section 20 of the act for the incorporation of cities, 1 R. S. 1876, p. 267, contemplates two different' modes of enforcing the payment of a judgment for a violation of a city ordinance, viz.:</p> <p>First. By imprisonment of the defendant, whether a male or female, in the workhouse or city prison, for a period not exceeding thirty days, where the judgment remains unpaid or unreplevied; and,</p> <p>Second. By adjudging that the defendant, if a male, shall be required to pay the judgment and costs by manual labor, he remaining in custody until the judgment has been paid or replevied.</p> <p>Same. — Effect of Simple Imprisonment. — Termination of. — The thirty days’ , imprisonment is inflicted to enforce payment or replevy of the judgment, but does not operate as a payment of the judgment, and must be computed continuously from the date of the judgment.</p>

<p>Watercourse.— Wabash River Navigable. — Riparian Ownership.— United States.Lands. — The Wabash river is, a navigable stream, the bed of which has neither been surveyed nor sold.</p> <p>Conveyance. — Description. — Mistalce. — Reforming Deed. — Congressional Surveys. — Supreme Court. — Judicial Notice. — Action to Recover Real Estate. —A conveyance of a certain tract of land described the same as “ The south-west fraction of section 37, town 22, range 6 west,” in Warren county, Indiana, “except20 acres off of west side of above described south-west quarter ” section ; — such section being a portion of the public lands surveyed, platted'and sold by the United States, and being so traversed by the Wabash river, in a south-westerly direction, as to cut off an irregularly shaped portion of the south-east corner of the south-west quarter thereof as shown by the plat of the government survey.</p> <p>Held, in an action by one claiming under such deed, against the heirs of the grantor, to reform the description in such deed and to recover possession, that such description is sufficient without reformation.</p> <p>Held, also, that the Supreme Court takes judicial notice of the location of the counties of this State, and that the description ‘‘ Town 22 ” in such deed is equivalent to “ Town 22 N orth.”</p>

<p>Watercourse. — Obstruction of. — Action by Administrator for Damages.— Pleading. — 'Heir.—In an action "by one styling himself administrator of the estate of a deceased land-owner, against an adjoining proprietor, for obstructing the passage of drift-wood theretofore carried across the lands of both by the overflow of an adjacent river during freshets, the complaint averred, that the plaintiff, by inheritance from the decedent, was the sole owner of the lands injured by such obstruction.</p> <p>Held, on demurrer, that such action can not be maintained by the plaintiff as administrator, but that the averments of the complaint show a right of action in him personally.</p> <p>Same.— Rights of Administrator in Laxids of His Decedent. — Tn this State, an administrator has no rights, as such, in the lands of his decedent, except to subject the same to the payment of debts, if necessary, or in the absence of heirs or devisees.</p> <p>Same. — Riparian Proprietor. — • Property of, in Watercourse.— A riparian proprietor has-a mere usufruct property in- water flowing over his lands in its regular channel.</p> <p>Same. — Subterranean Water. — Surface-Water.—Overflow During Freshet.— Water which percolates through the soil, beneath the surface, without a known channel, water which temporarily flows upon or over the surface, from the falling of rains and the melting of snows, without a channel, but . simply as the natural or artificial elevations and depressions may guide it, and water temporarily flowing from a watercourse, over adjacent lands, without a channel, on the overflow of such watercourse by reason of freshets, forms part of the realty and belongs to the owner thereof.</p> <p>Same. — Obstructing Overflow Carrying Drift- Wood. — The proprietor of certain lands sued an adjoining proprietor for obstructing the passage of drift-wood carried by the overflow of an adjacent watercourse during freshets, by planting a row of trees upon the land of the defendant, and along the line dividing their lands, by means of which the drift-wood was lodged upon the lands of the plaintiff.</p> <p>Held, that no action lies for such obstruction.</p>

<p>Practice. — Demurrer Waived by Pleading. — Where a- party who has filed a demurrer to a pleading pleads thereto before his demurrer has been ruled upon, he thereby waives his demurrer.</p> <p>Judgment. — Copy.—Exhibit.—Pleading.—A judgment pleaded in bar of an action is not a “ written instrument ” within the meaning of section 78 of the practice act, and neither it nor a copy thereof need be filed with the pleading. »</p> <p>Promissory Note. — Payable in Bank. — Separate Actions Against Endorsers and Mahers. — Jurisdiction.—The bona fide endorsee, for value and before maturity, of a promissory note payable in bank, may maintain separate actions, and recover separate judgments, against each party liable thereon ; but no two actions thereon can be brought at the same .term of court, and any action thereon, to which the maker is a party, must be brought in the county where he resides.</p> <p>Same. — Recovery Against Endorser no Bar to Action Against Maher. — The recovery of a judgment by such holder, against an endorser, on such note,-, is no bar to a subsequent action thereon against the maker.</p>

<p>Descents. — Conveyance by Widow of Her Third. — Reconveyance to Her on Remarriage. — Rights of Her Widower. — Children by Previous Marriage.— Partition. — One-third of the lands of an intestate having been duly-partitioned to his widow, and the residue to his children by her, she then, with a view to a second marriage, without consideration and without delivering possession, conveyed her said third to another, by a warranty deed, and, having remarried, such grantee recoriveyed the same to her, without consideration. She, having died intestate, left her second husband and such children by her previous marriage surviving her, whereupon he brought an action to partition such third.</p> <p>Held, that he inherited one-third thereof.</p> <p>Same. — Children. —Vested Rights.— Creditors.— Disinheritance.— Children have no vested rights in lands owned by the parent in fee-simple, neither do they stand to him in the relation of creditors ; for the parent may, i£ he choose, disinherit them.</p>

<p>Prosecuting Attorney. — Circuit Prosecutor. — Constitutional Law.— The office of the prosecuting attorney of a. circuit court js one provided for by the constitution, which fixes the term of office at two years ; and the Legislature can neither abolish the office nor abridge the term thereof.</p> <p>Same. — Circuit Districting Act of 1873 Construed. — Effect of, on Prosecuting Attorneys. — The act of March 6th, 1873, 1 R. S. 1876, p. 380, dividing “the. State into circuits for judicial puposes, * * abolishing the courts of common pleas,” etc., by implication provided that prosecuting attorneys of the several judicial circuits theretofore existing should continue to discharge their duties, as such, in the several circuits in which, under the new districting, they happened to reside.</p> <p>Same. — Election of Prosecutor %n 1873. — Section 82 of such act contemplated the election, on the second Tuesday of October, 1873, of prosecuting attorneys for such new circuits only as had no prosecuting attorney residing within them, on the taking effect of the act.</p> <p>Same.— Vacancy. — Appointee.—Upon the resignation of a prosecuting attorney residing within a circuit created by such act, and the appointment of his successor by the Governor, after the taking effect of such act but prior to the second Tuesday of October, 1873, such appointee was entitled to hold the office until the election of his successor at the election held on the second Tuesday of October, 1874.</p> <p>Same. — The election of a successor to such appointee on the second Tuesday of October, 1873, was invalid.</p> <p>Same. — Commission. — A circuit prosecuting attorney elected at the general election in October, 1872, resigned, and his successor was appointed in April, 1873 ; such successor was elected as his own successor on the second Tuesday of October, 1873, and re-elected on the second Tuesday of October, 1874, and commissioned for terms ending respectively November 12th, 1875, and November 12th, 1877, but resigned on the 12th day of October, 1876. On the 14th day of November, 1876, the Governor, to fill the supposed vacancy, appointed A., who had been elected on the second Tuesday of October, 1876, and had been commissioned to serve for the two years expiring November 12th, 1879. On the second Tuesday of October, 1878, B. was elected and commissioned to serve for the two years commencing November 12th, 1878.</p> <p>Held, in an action by B. against A., that, regardless of the dates, fixed by A.’s commissions, B. was entitled to the office from Nov.'12th, 1878.</p> <p>Held, also, that the appointment of A. of November-14th, 1876, was a nullity.</p>

<p>Process.— Infant Defendants. — Jurisdiction. — Presumption.— Record. — Supreme Court. — Appearance after- Verdict. — Whore, on appeal to the Supreme Court by the defendants, some of whom are infants, the record does not show'either the service of process against the defendants, or an appearance by them, it is presumed that the lower court had no jurisdiction over them, and the judgment will be reversed, notwithstandidg the appearance of an adult defendant, after verdict, to move for a particular judgment.</p> <p>Same. — Infant.—Notice.—Guardian ad Litem. — No guardian ad litem can be appointed by the court for an infant defendant who has not been personally served with process if a resident, or, if a non-resident, with notice by publication.</p>

<p>Instruction to Jury.— Comparative Weight of Oral Evidence and Depositions. — Case Overruled. — On the trial of a cause wherein hoth oral evidence and depositions of witnesses had been introduced, the court instructed the jury, that, “ In weighing the evidence of witnesses, you are to look on their means of knowledge, and at their honesty, in the light of all the corroborating and surrounding facts and circumstances in the case ; and in this connection you have a right to look at the appearance of the witnesses upon the stand, and, because of this, other things being equal in regard to witnesses, the testimony of those examined in open court is entitled to greater weight than the testimony of witnesses embodied in depositions. ”</p> <p>Held, that the instruction was erroneous, Carver v. Louthain, 88 Ind. 580, overruled in part.</p>

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

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

<p>Warranty. — Breach of, as a Defence. — •Presumed to be Parol, if not Alleged to be Written.- — Evidence.—Where a breach of an alleged warranty of a chattel is relied upon as a defence to an action for the contract price, it is presumed, where such warranty is not alleged by the answer to be in writing, that it was merely verbal ; and, in such case, a written or printed instrument, claimed to be the warranty, is not admissible as evidence to sustain the warranty alleged.</p> <p>Ham'S. — Price-List.— Correspondence.— A printed price-list issued by the plaintiff, and also correspondence between him and the defendant, fall within the above rule.</p>

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

<p>Promissory Note —Parol Evidence that Endorsement toas intended, as Collateral.— Parol evidence is competent to establish the fact that an endorsement of a promissory note was intended to transfer the note simply as collateral security and not absolutely.</p> <p>Same. — Sale of Collateral. — Measure of Damages. — An endorsee of a promissory note held as collateral to secure advances, who sells and transfers the same to another, is liable to the endorser for the value thereof at the time of sale ; which value is, prima fficie, the amount of the note when transferred, including interest.</p> <p>Same. — Compensation for Collecting. — Instruction.—Such collateral endorsee can not complain of an instruction to the jury trying an action against him by the endorser, which directs them to charge him with interest on the balance due the plaintiff, after deducting advances by the defendant, interest thereon and compensation for collecting such note.</p> <p>Same. — Interest.—Interest is allowable on money wrongfully or unreasonably withheld.</p>

<p>Criminal Law. — Larceny.—Indictment.—An indictment for larceny must, to be sufficient, charge the defendant with having feloniously taken, stolen and carried away the property the larceny of which is alleged.</p>

<p>Criminal Law. — Injuring Toll-Gate. — Affidavit.— Malice. — Mischief.— In a prosecution, under section 66 of the act defining misdemeanors, 2 R. S. 1876, p. 479, for injuring a toll-gate, the affidavit, information or indictment need not allege either a malicious purpose or mischievous intent on the part of the defendant.</p> <p>Same. — Mayor of City. — Authentication of Transcript. — Seal.-—-Justice of Peace. — When a criminal prosecution is instituted before the mayor of a city of this State, he acts in the capacity of a justice of the peace only ; and a certified transcript of such cause, on either a change of venue from him or an appeal to the circuit court, need not hear the corporate seal of the city.</p> <p>Same. — Supreme Court. — Transcript Filed too Late. — Appearance.— Waiver. —The transcript on an appeal to the Supreme Court having been filed more than thirty days after the appeal was taken, the appellee moved for a dismissal of the cause on that ground, hut, without awaiting a decision of his motion, joined issue on ¡the assignment of errors and submitted the cause.</p> <p>Meld, that his motion and right to a dismissal were waived.</p>

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

<p>Bond. — Replevin by Church Corporation. — Bond Executed by Surety Only.— A bond signed by the surety only, in replevin by a church corporation before a justice of the peace, is sufficient</p> <p>Same. — Informality of Bond. — Mere informality in the bond filed in such action is not fatal, but is cured by section 790 of the practice act.</p>

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

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

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

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

<p>Mechanic’s Lien. — Notice Claiming too Much. — Special Finding. — In an action to enforce a mechanic's lien, the court found specially that the amount really duo to the plaintiff was much less than the amount claimed in the noti.ee of the lien, but also found that the notice was recorded in good faith, under a mistaken opinion as to the amount due.</p> <p>Held, the evidence not being in the record, no objection having been made to the introduction of the notice in evidence, if, indeed, it was introduced, and the complaint not having been attacked by demurrer, that the conclusion of law authorized a judgment for the plaintiff</p>

<p>Justice of Peace. — Jurisdiction.—Recovery Demanded. — Judgment.—Joimder of Actions. — Replevin.—Embezzlement.—In an action before a justice of the peace, wherein one paragraph of the complaint demanded the recovery of personal property valued at fifty dollars and fifty dollars damages for the detention thereof, and another paragraph demanded judgment for one hundred and six dollars “ additional,” for moneys alleged to have been embezzled by the defendant, judgment was rendered against the defendant by default, for one hundred and fifty-six dollars.</p> <p>Meld, that the amount claimed exceeded the justice’s jurisdiction, and that therefore the judgment was void.</p> <p>Same. — Execution.—Liability of Constable. — A constable holding an execution upon such judgment is not liable for a failure to levy and sell.</p> <p>Query. — Could the justice, on motion of the defendant, recall and quash such execution ?</p>

<p>Fraudulent Conveyance. — Complaint to Set Aside. — Husband, and Wife. —Infant.—'Notice.—In an action by a judgment creditor, against the judgment debtor, his wife and infant children, and a third person, to set aside, as fraudulent, a conveyance of the real estate of the debtor, executed by him and his wife to such third person, and a subsequent conveyance of the same real estate by the latter to the wife and infant children of the debtor, the complaint alleged the recovery of a judgment by the creditor, against the debtor, for a debt existing at the time such conveyances were made ; that execution was issued on such judgment and returned nulla bona ; that such conveyances were made without consideration and with intent to defraud the plaintiff; and that, at the.time the first Conveyance was made, the debtor did not possess other property, subject to execution, sufficient to pay the plaintiff’s debt, and is now insolvent.-</p> <p>Held, on demurrer by the grantees of the second deed, that the complaint Í3 insufficient.</p> <p>Held, also, that the complaint should have alleged that the grantees had notice of the alleged fraud.</p> <p>Same. — Cross Complaint. — Mechanic's Lien. — A cross complaint in such action, by another judgment creditor, alleging the recovery of a judgment against the debtor and a contractor, on a mechanic’s lien against part of the real estate conveyed, but alleging no fraud, is insufficient.</p>

<p>Complaint.— Uncertainty Cured by Verdict. — A substantial cause of action, which, though defectively stated, is not attacked before verdict by demurrer or motion, will sustain a verdict and judgment.</p> <p>Same. — Misjoinder of Parties.— Warner.— Guarantor. — The misjoinder of a debtor and his guarantor, m an action for the debt, may be waived.</p> <p>Same. — Negligence.—Refresal to Allow Plea of Non Est Factum.- -In an action upon a guaranty, wherein issue had been joined for oyer two years, the defendant, when the cause was called for trial, asked leave to file a plea of non est factum.</p> <p>Held, that he was guilty of negligence, and that leave was properly denied.</p> <p>Evidence. — Bills of Lading. — Secondary Evidence. — Common Carrier.— Without establishing the loss of the originals, and proving that notice has been given to the opposite party to produce duplicates of the same, which are in his possession, copies of bills of lading issued by a common carrier are not competent evidence to establish the delivery of goods for the value of which suit is brought.</p>

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

<p>Supreme Court.— Weight of Evidence. — The Supreme Court, on appeal, will not disturb a verdict or finding on the mere weight of the evidence.</p>

<p>Contract. — Agreement with Debtor to Taha his Property and Pay his Debts. —A creditor may maintain an action upon a promise, made by the defendant to the debtor, to pay all of the debts of the latter .in consideration of property sold and delivered by the debtor to the defendant.</p> <p>Same. — Answer.—Argumentative Denial. — The defendant in such an action answered that he had received the debtor’s property and was to apply the proceeds to the payment, first, of certain specified debts, and then to the payment of debts due the plaintiff and others ; that he had realized from such property its fair value and applied the proceeds to the payment of the debts specified, and that nothing remained to apply on the plaintiff’s debt.</p> <p>Held, on demurrer, that, though amounting only to an argumentative denial, the answer is sufficient.</p> <p>Instruction to Jury.— Uncertainty. — The court may refuse to give to the jury an instruction aslced, which is indefinite and ambiguous.</p>

<p>Fraudulent Conveyance.— Complaint to Set Aside. — A complaint to set aside an alleged fraudulent conveyance of real estate by a debtor, which does not aver the insolvency of the debtor at the time of making the conveyance, is insufficient on demurrer.</p> <p>Same. — Answer.—-Evidence.—Harmless Ruling. — Where, in such action, the defendant has pleaded the general denial, evidence is admissible thereunder to support the deed, and the sustaining of a demurrer to a paragraph of answer pleading such matters specially is harmless.</p>

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

<p>Supreme Court. — Superior Court. — Assignment of Error. — Practice.—On an appeal from the special, to the general, term of the superior court, no assignment of error was made ; but, on appeal thence to the Supreme Court, error was there assigned upon the judgment of both general and special terms.</p> <p>Held, that the assignment of error upon the judgment at special term was too late, that the assignment of error upon the judgment at general term raised no question not thei'e assigned on appeal from special term, and that, as no error was assigned on such appeal, no question is presented °to the Supreme Court for decision.</p> <p>Same. — Negligence.—Diminution of Record. — Mistake, Inadvertence, Surprise or Excusable Neglect. — A party appealing a cause must rely upon his own diligence and not upon that of the clerk of the lower court, to procure and file a correct transcript of the cause ; and the lapse of time, after an omission by the clerk of an essential part of the record, whereby the error relied upon by him can not be considered by the appellate court, will prevent his obtaining relief from such omission as a mistake, an inadvertence, a surprise or an excusable neglect.</p> <p>Same. — Rehearing.—A rehearing will not be granted for the purpose of amending the transcript.</p> <p>Same. — Affirming Judgment. — Dismissal of Appeal. — The Supreme Court, on appeal, will not dismiss the appeal, but will affirm the judgment, where no question is presented though the appeal was properly taken.</p>

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

<p>. Mortgage.— Mistake.— Action to Reform, Against Judgment Creditor.— Purchaser Without Notice. — A mortgage may be reformed as against the judgment plaintiff, so as to include real estate upon which a judgment is a lien, and which, by mistake, was not included in the mortgage ; but such reformation can not be had as against a purchaser of such judgment for a valuable consideration, without notice of the mistake made in the mortgage.</p> <p>Same. — Evidence of Notice. — In an action by the holder of such mortgage, against such purchaser, to reform such mistake, of which the defendant was alleged to have had notice, the mistake being a misdescription of one of several tracts of land intended to have been included in the mortgage, the plaintiff offered to prove that the defendant had insisted on, and succeeded in, purchasing the judgment at much less than its face, by reason of the existence of the mortgage as a prior lien.</p> <p>Held, that the exclusion of the evidence was not error.</p>

<p>Supreme Court. — Evidence.—Record.—Bill of Exceptions. — -Where, on appeal to the Supreme Court, it appears by the record that it doe's not contain all the evidence given on the trial of the cause, that court will not disturb the judgment rendered below, on any question'as to the weight or sufficiency of the evidence.</p> <p>Same. — Agreement to Submit. — Master Commissioner. — New Trial.— Trial without Issue. — Where the parties to a cause agree in writing, that the cause shall be heard and decided upon the evidence taken and reported by a master commissioner appointed by the court, neither party can, after decision, be heard to complain that no issue had been formed in the cause.</p> <p>Same.— Objections to Administrator's Report. — Arrest of Judgment. — Parties. —Set-Off.—Counter-Claim.—Where objections are filed to the allowance of the final settlement report of an administrator, he stands as plaintiff, and the objector as defendant, in the proceeding; and a motion by the administrator in arrest of judgment, on account of the insufficiency of the objections, presents no question for-decision, unless the defendant has answered by way of set-off, counter-claim or other affirmative plea, and the finding of the court is founded thereon.</p> <p>Same. — Motion in Arrest, When Made. — A motion in arrest must precede the judgment sought to be arrested.</p> <p>Supreme Court. — Assignment of Error.— Motion.,— Record. — Ho question can be presented to the Supreme Court in relation to a motion made in the court below, which the record shows was never decided.</p> <p>Same. — Judgment Without Objection and Exception. — Contempt.—A judgment was rendered against an. administrator, without objection or exception of record, that he be attached as for contempt of court, should he fail to pay over certain trust funds in his hands, within a certain time. By a bill of exceptions it appeared, that, at the time of its rendition, he objected to such judgment as exceeding the power of the court. '</p> <p>Held, that no question as to the form or substance of such judgment is presented to the Supreme Court. ”</p> <p>Held, also, that, to present such question, the record should show an objection to the rendition of such judgment, the overruling of the objection, and an exception to the ruling.</p>

<p>City. — Common Council. — Resolution Removing City Attorney. — Record of Yeas and Nays. — On the adoption of a resolution by the common council of a city, removing the city attorney, the yeas and nays thereon must, under section 78 of the act “for the incorporation of cities,” etc., 1 R. S. 1876, p. 309, be taken and entered of record.</p> <p>Same. — Resolution Fixing City Attorney's Salary. — The yeas and nays must, in like manner, be taken and entered of record on the adoption of a resolution by the common council, fixing the salary of the city attorney.</p> <p>Same. — Parol Evidence of Yeas and Nays Incompetent. — Parol evidence is inadmissible to prove the yeas and nays on the adoption of a resolution by the common council of a city, removing the city attorney; the record, or a duly authenticated copy thereof, being the only competent evidence of such fact.</p> <p>Same. — Omission of Yeas and Nays by City Clerk.— Nunc Pro Tunc Entry. —Where the city clerk has failed to keep the record of the yeas and nays upon the adoption of a resolution by the common council, the proper remedy is for the common council to cause a nunc pro tunc entry of the yeas and nays to be made.</p>

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

<p>Mechanic’s Lien. — Purchaser of Part of Property. — Joint Action Against Grantor and Grantee. — Application of Payment. — Special Finding.— In an action to enforce separate mechanic’s liens, upon several tracts of real estate, for separate buildings thereon, against the owner of the same at the time such buildings were erected, and a purchaser of one of the tracts subsequent to the filing of the notices of the liens, the court found specially, on the trial, that certain sums had been paid on each lien respectively, and that a certain other sum, exceeding the amount yet due on the purchaser’s tract, had been paid “ without specifying ” that “ any particular amount ” should be applied “ on either of said houses.”</p> <p>.Held, that, as a conclusion of law, such payment should be applied first to the discharge of the lien on such purchaser’s tract.</p>

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

<p>Contract.' — Dissolution of Copartnership. — Agreement to Pay Partnership Indebtedness. — Action for Breach of.- — A member of a partnership who has sold and delivered to his copartners his interest in the partnership property and dioses in action, in consideration of their payment to him of a stipulated sum and their agreement to pay off the partnership indebtedness, may, if he be compelled to pay off any of such indebtedness, recover the same of them.</p> <p>Same. — Statute of Frauds. — Consideration.—Such an agreement is not within the statute of frauds, and is upon a valuable consideration.</p>

<p>Criminal Law. — Indictment.—Assault with Intent to Murder. — An indictment charged, that, on, etc., at, etc., the defendant “did feloniously attempt to commit a violent injury upon” a person named, the defendant “ having then and there a present ability ” so to do, “ by then and there feloniously, purposely and with premeditated malice shooting at and against” such person, with a pistol loaded with gunpowder and leaden balls and then and there in the defendant’s hands, “with intent then and there and thereby ” such person “ feloniously, purposely and with premeditated malice to kill and murder.”</p> <p>Meld, that the indictment is sufficient.</p> <p>Same. — Resisting Arrest on Warrant for Bastardy. — Self-Defence.—-Assisting Officer. — Instructions.—On the trial of the defendant, on such indictment, the evidence of the State was, in effect, that the defendant, in avoiding an arrest for bastardy upon a warrant which he knew was in the hands of the prosecuting witness, who was authorized by the officer to make the arrest, threatened to and did shoot at such witness with a loaded pistol, and there was also evidence tending to show an exchange of shots after the first fire ; and the defendant’s evidence was, substantially, that he had no knowledge that the prosecuting witness had the warrant, or any authority to arrest him, and knew he was not an officer, that the defendant shot at the prosecuting witness only upon the latter’s presenting a loaded pistol and threatening to kill him, that there was an exchange of shots, and that he did not intend to kill the prosecuting witness, but shot merely in self-defence.</p> <p>The defendant asked the court to give to the jury certain instructions relating to the right of self-defence, arid denying the right of an officer to kill a person who is fleeing from arrest upon such a warrant.</p> <p>Meld, the instructions (which are set out in the opinion in full) properly stating the law, that they ought to have been given.</p>

<p>Negligence. — Erection of Building by Contractor. — Excavation in Sidewalk of City. — Injury of Passer-By.— Owner not Liable for Contractor’s Negligence. — Nuisance per se. — Case Overruled. — Copy — Exhibit.— Pleading.— " In an action against the owner of a certain Jot, fronting upon a sidewalk of a public street, in a city, and one who had contracted with him to erect a building thereon, to recover damages for a physical injury received by the plaintiff through the alleged negligence of the defendants in leaving -open an excavation made by them in the ground theretofore covered by the sidewalk, wherein the complaint alleged that the excavation was made in the course of the erection of such building, and that the defendants had negligently covered a part of the excavation in such manner as to constitute a continuation of the sidewalk, but had left open the other part, into which the plaintiff, without fault, had fallen, while passing- along such sidewalk in the night-time, the owner answered admitting the'-injury received by the plaintiff, but alleging that such lot.and its appurtenances, at the time of the injury, were in the exclusive possession of the contractor, a skilful, reliable and competent builder, pursuant to a written contract between them for the erection of' such building, and that, at that time, neither the. owner, nor any agent, servant or person in his employ or under his control, had any charge, management or" control of the premises, and that the acts charged as the cause of the injury were not the acts of either the owner, his agents, servants or employees.</p> <p>Held, on demurrer, that the answer is sufficient. Silvers v. Nerdlinger, 30 Ind. 53, overruled in part.</p> <p>Held, also, that a copy of such contract, attached to the answer as an exhibit, forms no part thereof.</p> <p>Held, also, that, unless the work contracted' for is a nuisance per se, the owner is not liable for the negligence of the contractor.</p>

<p>Guaranty. — Guaranty to Landlord of Tenants Rent. — Action on. — Answer of Lessee's Death. — In an action by the lessor’s endorsee, against the lessee’s guarantor, upon a written lease and guaranty, to recover rent due, it is no defence to answer that the rent sued for accrued after the death of the lessee and during the occupancy of the premises by a third person. Same.— Unnecessary Reply. — A paragraph of answer simply denying such guaranty needs no reply, and, if such a reply be filed, there is no error in sustaining a demurrer thereto.</p> <p>Same. — Proof of Service of Notice. — Sheriff’s Return. — A written notice to such guarantor of the default of the lessee, bearing the official certificate of the sheriff that he had served the same upon the guarantor by copy, is competent evidence of service of the notice.</p> <p>Same. — Lease.—Demand.—Notice.—Where, by the terms of such lease, the rent is payable at stated times, in specified instalments, the guarantor, on default of the lessee, is immediately liable, without either notice or demand. Same.- Judgment Follows Verdict.— Unnecessary Party. — Clerical Error.— Where, though the complaint states no cause of action against any but the defendant, a third person is permitted, on his own petition, to appear and answer, and a verdict is found against ‘‘ the defendant,” the use of the word “ defendants ” in the judgment will be treated as a mere clerical error, and the judgment be held as one against the original defendant only.</p>

<p>United States Courts. — Removal of Cause from State Court. — Application and Bond. — A court of this State has the right to judicially pass upon the sufficiency of an application to remove a cause pendingtherein to a United States court, and of the bond accompanying the same.</p> <p>Tax Sale. — A sale of land for taxes legally assessed may be illegal and void.</p> <p>Same. — Sale Without Remand for Personalty. — Action to Set Aside. — Tender of Redemption Money. — Evidence.—A sale of land for taxes, without a demand upon the owner for personal property, of which he has sufficient subject to levy and sale, is illegal and void ; but, in an action to set aside such sale, and to declare the certificate thereof void, the plaintiff must both plead and prove a tender of the amount necessary to redeem.</p> <p>Same. — Liability of County to Purchaser. — A decree setting aside such sale as void renders the county liable to the defendant, for the amount paid by him, unless he has received the same from the plaintiff.</p> <p>Same. — Judgment.—Land Illegally Sold Still Liable. — The court has no power, in an action to set aside an illegal sale for legally assessed delinquent taxes, to decree the lands to be discharged from the lien of such taxes, as, under section 227 of the assessment act, 1 R. S. 1876, p. 124, the lands should be again placed upon the delinquent list.</p>

<p>Will. — Construction of. — Legacy Payable out of Capital Stock. — Execution Against' Legatee. — Injunction by Executor. — The owner of a certain number of shares of the capital stock of an incorporated gas and coke company died testate, devising to A. and certain other legatees, severally, specified sums of money “ to be paid out of the gas and coke company stock,” and the residue to yet other legatees,, and directing that his estate should be settled “ without administration thereon or controversy between ” the legatees. An administrator with the will annexed having been appointed, an execution against A. was levied upon a number of such shares equal in value to his legacy, whereupon the administrator brought an action to enjoin sale upon the execution.</p> <p>Held, on demurrer to the complaint, that the devise to A. was not a specific legacy ; but that, whether it was general, demonstrative or specific, it was not subject to execution.</p>

<p>Criminal Law.— Blackmail. — Instruction. — Punishment for One Crime on Proof of Another. — Seduction.—On the trial of an indictment eharg-. ing the defendant with having threatened to accuse the prosecuting witness of the seduction of a woman whom the defendant himself had seduced, as the State claimed, the court instructed the jury, that, if they found the defendant guilty of blackmail, they might, “ as bearing on the question of punishment,” consider the facts in relation to the seduction by the defendant.</p> <p>Held, that the instruction was erroneous.</p> <p>Same.— Cause Stricken from Docket. — Nolle Prosequi. — Where, by leave of court and in the absence of the defendant, a criminal prosecution is unconditionally and absolutely stricken from the docket, on the motion of the prosecuting attorney, it can not be reinstated, over the objection of the defendant, the eifect of such action being that of a nolle prosequi.</p>

<p>Mortgage. — Misdescription.— Complaint Against Subsequent Purchaser.— Notice. — Mistake.—In an action against the mortgagor and a subsequent purchaser, to foreclose a duly recorded mortgage on real estate described therein as “three town lots, * being all the town lots owned by the” mortgagor, in a certain town, the complaint, without alleging any mistake in the drawing of the mortgage, alleged that the intention of the parties was to mortgage a certain tract of land adjoining said town, and that, as the purchaser well knew, such tract was all the land owned by the mortgagor in or about such town.</p> <p>Held, on demurrer by the purchaser, that the complaint is insufficient.</p> <p>Held, also, the contrary not being alleged, that he is presumed to be a purchaser for a valuable consideration.</p> <p>Held, also, that the record of the mortgage was constructive notice of its own contents only.</p> <p>Held, also, that a complaint to reform and foreclose such mortgage, for mistake, should allege a mutual mistake by the parties thereto, and that the purchaser had actual notice thereof.</p>

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

<p>Contract. — Proposition, and Promise to Pay, for Conveyance. — Complaint to Recover Purchase-Money.— Copy.- — Administrator of Estate of Surviving Partner. — In an action against the administrator of the estate of an intestate surviving partner, by the widow of a debtor of the partnership, the complaint contained a copy, and specifically alleged a compliance with the terms, of a writing executed by the partnership, as follows, viz.:</p> <p>“ Mr. S.” (the debtor) “ requests us to say to you, in writing, what we will pay you, in addition to the claim he and you owe us. We will give you, by you and your husband giving us a clear title of a deed for the farm that is mortgaged to us, three hundred dollars.” Prayer for a recovery for the purchase-money.</p> <p>Held, on an assignment of error questioning, for the first time, the sufficiency of the complaint, that the writing is not the foundation of the action, and that the complaint is sufficient.</p> <p>Same., — Statute of Frauds. — Executed Contract. — Upon a conveyance of the lands referred to in such writing, the contract ceased to be merely executory, became executed, and was not within the statute of frauds.</p> <p>Same. — Answer Alleging Encumbrance. — Reply Alleging Indemnity. — Abandonment of, by Failure to Give Evidence Under. — The defendant in such action answered, that, prior to such conveyance, a judgment had been rendered which was a lien upon the land conveyed; to which the plaintiff replied that the deceased partners had retained, by agreement, a sum of money belonging to the debtor, sufficient to indemnify them against such judgment; and also, in another paragraph, that the amount of such judgment was much less than the sum agreed to be paid for the conveyance, and judgment was demanded for the residue ; but on the trial no evidence was offered in support ol the reply alleging indemnity.</p> <p>Held, that the reply of indemnity was abandoned, and that the supreme court therefore need not consider it.</p> <p>Held, also, on demurrer to such other reply, that it is sufficient.</p> <p>Same. — Evidence.—Identifying Lands. — Admissions.—Record.—Acceptance.— Presumption. — On the trial of such action the plaintiff introduced in evidence, over the defendant’s objection, the writing copied into the complaint, proof of its possession by the plaintiff prior to the conveyance, certified copies of the record of such mortgage and conveyance, and also the deed under which the debtor held.</p> <p>Held, that the evidence was competent.</p> <p>Held, also, that the lands intended by the writing are identified by the mortgage and deed.</p> <p>Held, also, that the fact that the deed was of record was prima facie evidence of its acceptance by the grantees.</p> <p>Same. — Interest.—Excessive Damages. — Presumption.—Interest on the contract price being proper, and having been allowed, and judgment having been rendered simply for the contract price, it is presumed by the Supreme , Court, the contrary not appearing by the record, that the judgment lien on the land was liquidated by the interest computed.</p> <p>Same. — Judgment Against Decedents Estate. — Judgment in such action was properly rendered payable out of the assets of the decedent’s estate.</p>

<p>Supreme Court. — Appeal.—Dismissal of, on Motion. — Action Originating Before Justice.- — Amount in Controversy. — Jurisdiction.—An appeal to the Supreme Court, in an action originating before a justice of the peace, will he dismissed on motion, for want of jurisdiction, where it affirmatively appeal’s hy the record that the amount involved, exclusive of costs, does not exceed fifty dollars.</p>

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

<p>Mortgage.— Foreclosure. — A complaint for foreclosure was based upon a writing executed by A. to B., reading “ This indenture witnessetb that A., for the sum of *, has mortgaged and assigned to ” B. “* the Montieello “Woollen Mills, situated *, consisting of the building, all the machinery therein,” etc., to secure certain promissory notes described therein.</p> <p>Held, that the instrument sued upon is a mortgage.</p> <p>Same. — Averment as to Record. — The complaint in an action to foreclose a mortgage need not aver that the mortgage has been recorded, where the action is between the original parties to the mortgage, or their assignees or legal representatives.</p> <p>Practice. — Failure to Perfect Change of Venue. — Failure to Answer. — Trial, as Upon Default. — In an action wherein a defendant had appeared, demurred, and been ruled to answer to a cross-complaint filed by a codefendant, a change of venue from the county was granted but never perfected, whereupon the court, at its next term, mafle the rulp to answer absolute and tried the cause.</p> <p>Held, that the action of the court was proper.</p>

<p>Insolvent Corporation. — Receiver.—Action by Creditor. — Distribution of Assets. — Purchase of Stock, and Assumption of Debts of Corporation.— Novation.- — Payment.— Promissory Note. — Mortgage.—In an action against an insolvent incorporated stock company, its duly appointed receiver and A., to recover for money expended by the plaintiff' for the use of the company, the court found, specially, that the capital stock of the corporation had once been owned, severally, hy A., B., C., D. and the plaintiff, who were also directors of the company ; that the corporation was then indebted to B., C. and the plaintiff, severally, in certain sums of money expended for its use, evidenced by its promissory notes ; that thereupon the stockholders entered into an agreement that B., C., D. and the plaintiff .should transfer their stock, and surrender such promissory notes, to A., who was to assume the payment of the seme.individually, and to execute his promissory notes to the retiring stockholders, severally, for the price of the stock sold by, and the debt due to, each; that this agreement had been duly executed, but that the corporation had never assented thereto,; that there was no agreement that A.’s individual notes should be accepted in payment of the company’s notes ; that A., to secure the notes so executed . by him, had executed a mortgage to the retiring partners, upon the property of the corporation ;. that the corporation • was then largely indebted to other creditors; and that A.’s notes remained unpaid, and he had become insolvent.</p> <p>Held, as a conclusion of law, that the plaintiff was entitled to share, pro rata, with the other general creditors of the corporation, for the money so paid by him for the use of the corporation, but that the debt for the stock sold was payable only from the surplus, if any, after the payment of the general debts.</p> <p>Held, also, that, because of the failure of the corporation to assent to such agreement, there was no novation.</p> <p>Held, also, that such debt was not paid by such exchange of notes.</p>

<p>Verbal Contract to Convey or Devtse Lands. — Statute of Frauds.— Lost or Destroyed Will. — Evidence of. — Partition.—In an action for partition of the lands of an intestate, a defendant answered claiming title to the whole of the lands by virtue of the performance of a verbal contract made between such intestate and the defendant, whereby the former put the latter in possession of the lands, and agreed to convey or devise the same to him, in consideration of the promise of the latter to board and care for the former during life.</p> <p>Held, that such contract is not within the statute of frauds.</p> <p>Held, also, that evidence of a will prepared by the intestate, devising part only of such lands to the defendant, spoken of by the witnesses as lost or destroyed, and the existence of which at and since the intestate’s decease was unknown, was incompetent and immaterial.</p>

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

<p>Practice. — Grounds of Objection to Evidence. — An objection to the admission of evidence introduced should clearly point out to the court below the grounds of the objection.</p>

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

<p>Mortgage. — Foreclosure of Absolute Deed Intended as Mortgage. — Finding and Judgment. — A complaint for foreclosure alleged the execution to the plaintiff, by the defendants, of a warranty deed for certain lands, as security for the payment of a debt; that the plaintiff had verbally agreed to roconvey the lands on payment of the debt; and that the debt was due and unpaid. The court, upon trial, found “that the equity of redemption of the defendants to the lands * be foreclosed, * and that the deed * be absolute,” and judgment was rendered for foreclosure, and that the deed “ bo, and the same is now declared, absolute.”</p> <p>Held, that the finding and judgment should have been for the amount due, that the deed was only a mortgage, and for foreclosure and sale.</p>

<p>Principal and Surety. — Extension of Payment of One, on Promise to Pay Another, Promissory Note. — Answer.—In an action by the payee, against the makers, on a promissory note, one of the defendants answered that he was merely surety for his co maker, as the plaintiff well knew when the note was executed; and that, without the knowledge or consent of the surety, the payee had verbally extended the time of payment of the note, for a specified period, in consideration of the verbal promise of the principal to pay, before its maturity, a promissory note executed by him alone to the payee, which would not mature within the time of the extension of the note in suit.</p> <p>Held, on demurrer, that the agreement of extension was valid, and that the answer is sufficient.</p>

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

<p>Criminal. Law. — Forgery.—Indictment.—An indictment for the forgery of a promissory note payable to and endorsed by one “ E. J. Schweitzer,” as appeared by copies of the note and endorsement set out in the indictment, alleged that the forgery was committed by the defendant “ with intent to defraud one Emily J.- Schweitzer.”</p> <p>Held, that the indictment is insufficient.</p> <p>Same. — Verdict.—Acquittal.—A verdict of guilty as charged in one of two counts in an indictment, alleging, respectively, the forgery of a promissory note, and the utterahce of the same, is equivalent to an acquittal on the other count.</p>

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

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

<p>Appeal Bond. — Rule of Court Prohibiting Attorneys from Becoming Sureties on.— Contempt. — Appeal from Justice. — ’On an appeal by a railroad oompany, from a judgment rendered by a justice of the peace, to the circuit court, the appeal bond was executed by the company’s attorneys only, notwithstanding a rule of the latter court prohibiting attorneys “from being received as security in such cases.”</p> <p>Held, on motion to dismiss the appeal, that such attorneys, though probably liable for contempt of such rule, are liable on the bond, and that the bond is sufficient.</p> <p>Same. — Approval of Bond by Justice. — The transmission to the circuit court, by the justice, with the other papers in the cause, of an appeal bond filed therein with him, implies his approval thereof.</p>

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

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

<p>Attorney. — Proceeding to Disbar.— Criminal Prosecution. — A proceeding to disbar an attorney for tbe commission of a crime may precede a criminal prosecution therefor.</p> <p>Same. — Forgery of Affidavit. — Professional Misconduct. — An attorney who forges and files in court'an affidavit for, and thereby obtains, a change of the venue of a cause therein pending, thereby violates clause 4 of section 771, 2 R. S. 1876, p. 304, and may be disbarred therefor.</p> <p>Same. — Surprise.—New Trial, — Where, on the trial of a proceeding to disbar an attorney for such misconduct, the person whose name appears as the affiant testifies denying that he made or signed such affidavit, the defendant cannot, on the ground that he was surprised at such testimony, obtain a new trial.</p> <p>Same. — Burden of Proof . — Mistake.—Admissions—instructions to Jury.— An admission by the defendant in such proceeding, in a statement of his defence, made by him to the jury, that he had prepared and filed the affidavit as charged, but that, by his mistake, the name signed to the affidavit, insteadof the name of the real affiant, was attached thereto, makes out a prima facie case against him, and shifts the burden of proof, as to the mistake, to him, and it is proper to so instruct the jury.</p> <p>New Trial. — Newly-Discovered Evidence. — Surprise.—Diligence.—Amotion for a new trial on the ground of newly-discovered evidence or surprise should be denied, where, from the motion or the evidence, it appears that the applicant did not use due diligence to procure the evidence or to avoid the surprise.</p>

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

<p>Petition in the Supreme Court.</p>

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

<p>Promissory Note. — Payable in Bank. — Contract Susceptible of being Altered Into a Note. — Negligence.—Bone Fide Holder. One who, in executing what he understands to be, and is, a contract other than a promissory note, executes an instrument which may be so mechanically separated as to present an apparently perfect promissory note payable in bank and bearing his signature as maker, is guilty of negligence, and is liable thereon to a bona fide endorsee thereof, for value and before maturity.-</p>

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

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

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

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

<p>Partnership. — Implied from Acts or Declarations. — Contract. One who, by his acts or declarations, creates in the mind of another a reasonable belief that he and a third person are copartners in a particular business, is liable to the person so believing, on a bona fide contract made by the latter with such supposed copartner, as such, in the regular course of such business, although in fact no such partnership existed.</p> <p>Evidence. — Proposition to Pay, to Avoid Lawsuit. — -A proposition to pay money, made by a party expressly to avoid a lawsuit, is not competent evidence against him in an action on the same demand.</p>

<p>Foreign Corporations and their Agents. — Promissory Note. — Abatement of Action. — Pleading.—Contract.—In an action by a foreign corporation, as payee, against the maker, on a promissory note executed pursuant to a contract entered into, in this State, between the defendant and an agent of the payee, as such, the defendant answered, alleging, in effect, that, at and prior to the execution of the note, such agent had failed to .comply with the requirements of sections 1 and 2 of the “act respecting foreign corporations and their agents in this State.” 1 R. S. 1876, p. 373.</p> <p>Held, on demurrer, that, for want of an allegation that the requirements of such sections had not been complied with at or prior to the commencement of the action, the answer is insufficient.</p> <p>Held, also, that the effect of such non-compliance is, not to render the contract void, but to prevent its enforcement until compliance.</p>

<p>Criminal Law.— Words and Phrases. — Public Place. — The words “on a public highway” are not equivalent to the words “in any public place,” used in section 22, 2 R. S. 1876, p. 466, of the act defining misdemeanors.</p> <p>Same. — Notorious Lewdness. — Indictment.—An indictment charging acts constituting “ notorious lewdness,” as committed “ on a public highway,” . and in the presence of divers persons named, is insufficient.</p> <p>Same. — Judicial Notice. — Construction of Statute. — The history of this State, its topography and condition, enter into the construction of its statutes, and are judicially noticed by its courts.</p>

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

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

<p>Promise of Marriage. — Complaint for Breach. — Request of Performance. —In an action for a breach of a mutual promise to marry on a certain day, the complaint need not aver a request for performance.</p> <p>Same. — Place of Performance. — The residence of the woman is, prima facie, the place of marriage, when the promise is silent on that point.</p> <p>Same. — Request of Perfcrrmance. — In an action for a breach of a mutual promise to marry, wherein the complaint avers the marriage of the defendant to another, it is not necessary to aver that the plaintiff had requested the defendant to fulfil the promise.</p> <p>Same. — Readiness to Perforin. — Instruction.—Evidence.—An allegation of the readiness of the plaintiff to fulfil the marriage promise is material, and one which must be proved; and it was error to instruct the jury, in such case, that the plaintiff was entitled to recover on proof simply of the mutual promise and the defendant’s marriage to another.</p> <p>Same .— ’Preparation by Plaintiff to Marry.- — It is error to instruct the jury, that, in deciding whether the alleged promise had been made, they might consider evidence given of “ any preparation ” made by the plaintiff “ for marriage.”</p> <p>Practice. — Special Demurrer.— Uncertainty. — Amendment.—There is no special demurrer, under the code of this State, its place being occupied by the controlling power of the court to amend, render more certain or strike out pleadings or parts thereof.</p> <p>Bill of Exceptions. — Short-Hand, Reporter. — A bill of exceptions prepared and filed confoimably to the act of March 7th, 1873, 1 R. S. 1876, p. 769, concerning short-hand reporters, etc., is not invalid because it does not conform to the act of March 10th, 1873, 1 R. S. 1876, p. 770, on the same subject.</p>

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

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

<p>New Trial. — Compelling Trial Without Issue.— Waiver. — Irregularity, in compelling the defendant to go to trial without requiring a reply to a special answer, is cause for a new trial, hut is waived by his failure to give evidence under such answer.</p> <p>Same. — Striking Out Answer Filed Without Leave. — Bill of Exceptions.— Judgment on Pleadings. — A cause pending on a rule to reply having been announced by the parties, several days before the time fixed to try it, as ready for trial, the defendant afterward filed an additional answer without leave of court, and, when the cause was called for trial, he objected that it was not at issue, whereupon the court struck out the additional answer and tried the cause without a reply.</p> <p>Held, the answer struck out not being made part of the record by bill of exceptions, that the action of the court was proper, and that the defendant is not entitled to judgment on the pleadings.</p> <p>Interest.— Voluntary Payment of.— Recoupment. — Promissory Note.— Case Overruled. — Interest at the rate of ten per cent., voluntarily paid and accepted after maturity, on a promissory note stipulating for only six per cent., can not be recouped. Snyder v. Braden, 58 Ind. 143, overruled.</p> <p>Mortgage. — Foreclosure Against Subsequent Purchaser. — Evidence.—la. an action to foreclose a mortgage on real estate, against a subsequent purchaser, the evidence must show that the mortgage was recorded, or that the purchaser had notice thereof at the time of the purchase, or judgment of foreclosure is erroneous.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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