Volume 65 — Indiana Reports

<p>Guardian and "Ward. — Complaint on Defective Bond. — Merely formal defects in a guardian’s bond may be cured by proper averments in a complaint thereon. ¡</p> <p>Same. — Relator.—An action may properly he maintained on a guardian!» bond, on the relation of his successor.</p> <p>Same. — Bond on Sale of Ward's Realty. — Breaches.—The failure of a guardian to loan moneys realized by him from the sale of his ward’s real estate; the conversion of such money by him, and his failure to pay over and account for the same, are breaches of the bond executed by him to procure the sale.</p> <p>Same. — Guardian’s Reports Attached Collaterally. The correctness of reports made by a guardian, to the court, of the condition of his trust, may he attacked collaterally, in an action on his bond.</p> <p>Same. — Judgment Against Surety. — Failure to Default Guardian. — "Where, in an action against a guardian and his sureties, on his bond, the sureties fail to object, at the time, to the rendition of judgment against them alone, on the ground that there has been neither an appearance nor answer by the guardian, nor dny default taken against him, they can not afterward object on those grounds.</p> <p>Practice. — Motion to Strike Out. — BUI of Exceptions. — A ruling upon a motion to strike out parts of a pleading must be made part of the record by a bill of exceptions.</p> <p>Same. — Trial without Issue.— Waiver. — A trial by agreement of parties, without issue, is a waiver of an issue.</p> <p>Same. — New Trial. — Motion for, When Made. — Record.—Supreme Court. — A motion for a new trial must be in writing, and must be filed at the term at which the finding or verdict is rendered.</p> <p>Evidence. — Nunc Pro Tunc Entry. — A nunc pro tunc entry of record, made upon proper notice and evidence, is competent evidence of the facts it recites.</p>

<p>Lire Insurance Policy. — -Application for. — Answer to Question. — Habits of Assured. — Waiver.—In the application for a policy of insurance upon his life, the applicant, in reply to the double question “What are your habits in respect to the use of intoxicating liquors ? have you ever used intoxicating liquors to excess ? ” answered “ temperate,” whereupon a policy was issued to him, containing a clause declaring that it was issued “in consideration of the representations made ” in the application, “ on the faith of which this policy is written,” and also containing a condition, that, “ if any of the * answers * made in the application * shall he found in any respect untrue, then this policy shall he * void.” An action having been brought upon such policy, the only defence relied upon was that such answer of “ temperate ” was false.</p> <p>Held, that the answer referred only to the. habits of the applicant, at the time the application was made, and that further answer to such question was waived by the company by issuing the policy.</p> <p>Same. — Instruction.—Burden of Proof . — Evidence.—It was proper to instruct the jury trying such cause, that the only issue before them was whether or not the answer was true when made ; that, if true, they should find for the plaintiff, hut, if untrue, for the defendant; that evidence of previous intemperate habits could only he considered in determining the truth of the answer when made; and that the burden of proof of the alleged untruth was upon the defendant.</p> <p>Same. — Answers to Interrogatories. — Answers to interrogatories put to the jury in such case, finding that the habits of the assured were “temperate,” at the time of the application, though previously “intemperate,” support a general verdict for the plaintiff.</p> <p>Same. — Admissions as to Previous Habits. — Evidence.—Admissions made by the assured, previous to his application, that he was then intemperate, were incompetent evidence under the issue in such action.</p>

<p>New Trial. — Cause.—Assignment of Error. — Practice.—Error which is merely cause for a new trial can not properly he assigned as error, in the Supreme Court, on appeal.</p> <p>Open and Close. — Burden of Proof . — Promissory Note. — Attorney's Fees. —Pleading. --In an action upon a promissory note containing a stipulation for a z'easonahle attorney’s fee, wherein the complaint demanded a certain sum, alleged to he reasonable, as the attorney’s fee, the defendant, for the purpose of obtaining the right to open and close the cause, in which he had otherwise set up affirmative defences only, answered admitting that the plaintiff was entitled to recover, as an attorney’s fee, a sum hearing the same proportion to the amount otherwise recovered, as the sum demanded therefor bore to the total amount of the note, on its face, at the commencement of the action.</p> <p>Held, on demurrer, that the answer is insufficient, that the burden of proof is upon the plaintiff, and that he is entitled to the open and close.</p> <p>Supreme Court. — Objection to Evidence. — Record.—New Trial. — Practice. —'Where the record, on appeal, does not show that the grounds of an objection made to the admission of evidence were stated t'o the court where it was made, it will not be considered by the Supreme Court.</p> <p>Same. — Truth of Error Alleged. — Bill of Exceptions. — Where the truth of matter alleged as cause for a new trial does not appear by a bill of exceptions, the Supreme Court will not consider it.</p> <p>Payment. — Application of. — Promissory Notes Maturing at Different Times. —Statute of Limitations. — Credibility of Witness.— Instruction. — In an action by the payee, against the maker, on several promissory notes maturing at different times, wherein the defendant alleged and testified that he had paid the note which had first matured to the plaintiff’s husband, on her request, the court, in its instructions to the jury as to the application of certain other payments made to the plaintiff, instructed them, that, if they did not believe that such note had been paid, and if no application of such other payments had been made by either party, they should be first applied on that note.</p> <p>Held, the jury possibly disbelieving such witness, that the instruction was proper.</p> <p>Same. — Money Paid to Third Person, on Request. — It appearing from the evidence in such action, that the defendant was surety on a claim against the estate of the payee’s deceased husband, of which she was the administratrix, and that he was entrusted by her with the assets and business of such estate, it was proper to instruct the jury, in relation to a payment which the defendant alleged and testified he had made, out of the notes in suit, on her request, upon such claim against the decedent, that it was incumbent upon the defendant to establish, by a preponderance of the evidence, that such request was to make the payment out of money owing to her individually.</p> <p>Same. — Land Purchased by Maker, on Payee’s Request. — Trusts.—Where, in such case, the defendant sought to obtain a credit on the notes for money alleged to have been paid by him, on the request of the plaintiff, for lands purchased by, and conveyed to, the defendant, for the plaintiff, the court instructed the jury, that, if such purchase was made pursuant to an agreement that the defendant should take the conveyance in his own name, and pay for the same out of the money he owed the plaintiff, such payment should be credited on the notes as of the date it was made, but that, if the purchase was made without any agreement that payment therefor should be made out of the money owing to the plaintiff, or without her request, knowledge or consent, or an unreasonable time after such request, and without notice to the plaintiff, it should not be allowed as a credit.</p> <p>Held, that the instruction was proper.</p> <p>Same.— Instruction on Failure to Answer Interrogatories. — On failure of a jury to answer some of certain interrogatories the court explained the interrogatories and directed them to be answered fully, “ even if it required a re-examination of the whole case, and had the effect to change their general verdict.”</p> <p>Held that the instruction was proper.</p> <p>Same. — Failure to Except.— Waiver. — A failure to except to the giving of an instruction, at the time it is given, waives all objection thereto.</p>

<p>Supreme Court.— Appeal. — Notice.—Dismissal.—An appeal to the Supreme Court, by one only of several co-parties, without giving notice to the others, will be dismissed.</p>

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

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

<p>Town. — Street Improvement. — Notice of Letting. — Sunday.—Time.—The board of trustees of an incorporated town, in advertising for proposals for certain street improvements, pursuant to tbe act of April 27th, 1869, 1 B. S. 1876, p. 890, caused a notice-to be inserted in a public newspaper published on the 10th day of September, 1875, stating that proposals would be received up till “12 o’clock m. of Saturday, September 19th, 1875,” but, the 19th being Sunday, the bids were opened, and the contract awarded, on the 18th, at 7: 30 p. M.</p> <p>Held, that the notice was sufficient to authorize the award.</p>

<p>Principal and Aqent. — Sale, through Agent, for Future Delivery. — Compromise hy Agent.- — “ Options.” — Broker.—Certain grain dealers in this State having authorized certain commission merchants in another State to sell a certain quantity of grain, on the account of the former, at a specified price, to be delivered at the “ option ” of the former, to' the purchaser, at any time during a specified month, and such sale, and partial delivery pursuant thereto, having been made, the sellers telegraphed to the commission merchants, thirteen days prior to the expiration of the month, to buy grain sufficient “ to fill balance of our sale,” whereupon the latter, on the next day, compromised the contract by paying to the purchaser the difference between the contract price and the market price of such grain at that time, but before the expiration of the month the mai'ket price had fallen.</p> <p>Held, in an action by the agents against their principals, to recover such compromise payment as money paid for the use of the principals, that they can not recover</p>

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

<p>Cbiminal Law.— Verdict. — Assault and Battery voith Intent to Murder.— On the trial of A., B., O., D., E. and E., jointly indicted for assault and battery with intent to murder, the jury returned a verdict as follows, viz.: ‘‘ We, the jury, find the defendants guilty as charged in the indictment, as follows:” A. “ be confined in the state-prison eight years;” B. “seven years;” O. “ four years; ” D. “ three years; ” E. “two years;” E. “two years; and that each be fined one dollar.”</p> <p>Held, that the verdict was sufficiently certain.</p> <p>Same. — Instruction.—Natural, Consequences of Act. — It was proper for the court to instruct the jury in such case, that, if the means used in committing the assault and battery upon the prosecuting witness were such as “ would ordinarily and probably have produced death,” they might find the defendants guilty of the alleged intent.</p> <p>Same. — Evidence.—Name.—The rule of evidence as to the names of defendants is not the same as it is as to the names -of third persons, mentioned in an indictment.</p> <p>Same. — Instruction.—New Trial. — Record.—An instruction alleged to have been erroneously given, does not become part of the record on appeal to the Supreme Court, merely by being copied into the motion for a new trial.</p>

<p>Justice of the Peace. — May Use More Than One Docket. — A justice of the peace may lawfully keep and use, at one and the same time, more than one “ docket,” of the description required hy section 18, 2 K. S. 1876, p. 608, in which to record the proceedings had and judgments rendered in any or all suits before him.</p>

<p>Promissory Note. — Fraudulent Representations. — Counter- Claim.— Written Lease. — Landlord and Tenant. — Rescission.—In an action by the payee. against the makers, a principal and surety, upon a promissory note executed in part consideration of a lease of real estate, made by the payee, to the principal, by. a writing which was silent as to the character and condition of the real estate leased, the principal answered by way of counter-claim, sotting out the lease, alleging the suretyship, and averring that the payee, in making such lease, had falsely and fraudulently represented to the principal that the real estate was so underdrained as to be lit for farming equally well in wet and dry seasons; that he had no means of ascertaining whether or not such representations were true, and, relying upon them, accepted the lease and executed the note; and that such representations were false, that a part of the lease was during a wet season, and that for want of' underdraining his crops had failed.</p> <p>Held, on demurrer, that the answer is sufficient as a counter-claim.</p>

<p>Bastardy. — Admission of Maintenance Provided for Child.- — The admission .of the mother of a bastard child, that provision for the maintenance of her child has been made to her satisfaction, as contemplated by section 17 of the bastardy act, 2 B. S. 1876, p. 660, must be entered of record.</p> <p>Same. — An admission, in writing, that such provision has been made, which has not been entered of record, though containing a request that it be so entered, is no bar to a subsequent prosecution.</p> <p>Same. — Arrest of Judgment.— Venue. — Amendment.—The omission of the venue from tlxe affidavit instituting a prosecution for bastardy is not ground for arresting the judgment, and is deemed, by the Supreme Court, as having been supplied by amendment in the court below.</p> <p>Same. — Motion to Dismiss Action. — Exception.— Supreme Court. — Error in overruling a motion to dismiss such a prosecution, if not excepted to at the time, is not available in the Supreme Court.</p> <p>Same. — New Trial. — Bill of Exceptions. — The truth of causes alleged in a motion for a new trial must be shown by a bill of exceptions.</p> <p>Same. — Assignment of Error. — A mere cause for a new trial can not properly be assigned as error, in the Supreme Court.</p>

<p>Seduction.— Complaint. — In an action under section 24 of the code, 2 B. 8. 1876, p. 43, for seduction, the complaint must allege that the plaintiff is an “unmarried female.”</p> <p>Same.- — Common Law. — Such action did not exist at common law.</p>

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

<p>Express Company. — Action for Failure to Deliver Money. — Answers to Interrogatories. — Judgment Non Obstante. — Principal and Agent.- — In an action against an express company, to recover for money entrusted to it by the plaintiff for delivery to another, and alleged to have been lost, the jury, with their general verdict for the plaintiff, found specially, in answer to interrogatories, that the money hadbeen received from the plaintiff, by the agent of the company, for delivery to the consignee, and that the package containing it bad been delivered by another agent, with the seals unbroken, to one not the consignee.</p> <p>Held, the evidence not being in the record, that the answers are not inconsistent with the general verdict.</p> <p>Same. — Motion.—Exception.—Record.—A motion for a judgment non ob stante, and an exception to the ruling thereon, are parts of the record.</p>

<p>Replevin. — Justice of Peace. — Assessment of Value Exceeding that Alleged. — Verdict. — New Trial.- — -Amendment of Complaint. — Supreme Court. — On trial in the circuit court, on appeal by the plaintiff, of an action commenced before a justice of the peace to recover the possession of a chattel, alleged in the complaint to be of the value of twenty-five dollars, the jury returned a verdict that the plaintiff was the owner and entitled to the possession of the chattel, that it was of the value of sixty-five dollars, and that it was unlawfully detained by the defendant.</p> <p>Held, that, if the property be adjudged to the plaintiff, and is not returned or ean not be found, he is entitled to judgment for the value thereof, whether demanded by the complaint or not.</p> <p>Held, also, that the fact that the value assessed by the verdict exceeds that . alleged in the complaint is not cause for anew trial. .</p> <p>Held, also, that the Supreme Court will deem the complaint to have been so amended as to correspond with the verdict.</p>

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

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

<p>Fraudulent Conveyance. — Sheriff's Sale of Real Estate Conveyed before Judgment. — Action to Recover.- — Special Verdict. — In an action to recover possession of real estate conveyed by a debtor during the pendency of an action against him for a debt, and afterward levied upon and sold to the plaintiff upon an execution issued upon the judgment recovered in such action, the jury returned a special v.erdict which was silent as to whether or not the debtor, at the time of making such conveyance, had other property subject to execution.</p> <p>Held, that the defendant is entitled to judgment on the verdict.</p>

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

<p>Criminal Law.— Uttering Forged Endorsement of Promissory Note. — Indictment Containing Copies of Note and Endorsement. — Evidence.— Variance in Dates in Note and Copy. — On the trial of a defendant (charged with having uttered a forged endorsement of a promissory note, upon an indictment containing copies of both the note and endorsement, the State gave in evidence the original note and endorsement, which corresponded with such copies in every material part, except that there was an erasure in the figures indicating the date of the note, the figures first made being the same as those appearing in the indictment and the amended figures fixing the date a day earlier.</p> <p>Held, that there was a fatal variance, and that the evidence was incompetent.</p> <p>Held, also, that a copy or description of the note was essential to the sufficiency of the indictment.</p>

<p>Heies. — Action Against, on Judgment Against Ancestor. — Sheriff’s Sale on Decree Against Decedent. — Purchase by Administrator Personally. — Surplus of Purchase-Money. — Judgment without Exception.— Limitations.— Lie?i. — A judgment debtor having died intestate, leaving no property except a tract of real estate encumbered by a mortgage, and one of the heirs having been appointed administrator, the judgment creditor filed his judgment, which had been rendered more than ten years previous to the death of the debtor, against the estate, but the administrator neither allow.ed the claim nor took any steps to sell real estate to pay the same. The real estate having been sold and conveyed to the administrator personally, at a sheriff’s sale on a decree foreclosing such mortgage, for a sum exceeding the amount necessary to satisfy such decree and costs, the j udgment creditor brought an action, and recovered, for the amount of his judgment, against the heirs, who neither objected nor excepted to the form of the judgment.</p> <p>Held, on motion for a new trial, that the surplus at such sheriff’s sale belonged to the estate, and not to the heirs, and, the evidence supporting the finding, that the Supreme Court will not disturb the judgment.</p> <p>Held, also, that, though such judgment had ceased to be a lien on the real estate, it might be a valid claim against the estate.</p>

<p>Raileoad. — Billing Stock. — Fact Inf erred from Evidence. — Supreme Court.— "Where, in an action against a railroad company, under the statute, for killing stock, there is evidence, that, at the time of the killing, the defendant owned and operated the railroad upon which the stock was killed, the court trying the cause might reasonably infer therefrom, in the absence'of evidence to the contrary, that the locomotive and cars which struck and killed the stock were the property of the defendant; and in such case the Supreme Court will not disturb a finding for the plaintiff merely for want of direct evidence of such ownership.</p> <p>Same.— Weight of Evidence. — The Supreme Court will not disturb a finding on the mere weight of the evidence.</p>

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

<p>Contract. — Agreement to Pay Promissory Note of Another. — Extension of Time. — Mortgage.—Sheriff's Sale. — Redemption.—Measure of Damages.— A purchaser of the equity of redemption of certain real estate which had been sold at sheriff’s sale on execution to one who also held a mortgage thereon to secure the payment of an unmatured promissory note, executed to him hy such purchaser’s grantor, entered into a written agreement with the mortgagee, which recited the foregoing facts and stipulated that, in consideration of the payment, therein acknowledged, to the mortgagee, of the redemption money on such sheriff’s sale, with interest to date, the mortgagee agreed to extend the time of payment of a specified portion of such note for one year after its maturity, and, if that instalment, with ten per cent, interest to that time on the whole amount of the note, was then paid, the time of payment of the residue should be extended another year ; and the said purchaser agreed also, “ in consideration of the premises, to pay said note in accordance with the tenor and effect thereof, and at the time in this agreement provided.”</p> <p>Held, in an action on the agreement, that it is valid.</p> <p>Held, also, that the measure of damages is the amount that could have been recovered in a direct action on the note.</p>

<p>Law op the Case. — The rule of law applied by the Supreme Court in the decision of a case remains the law of that ease in all subsequent decisions thereof.</p> <p>Justice op the Peace. — Complaint onBond.— Fraud in Rendering Judgment. —Mistake.—In an action on the bond of a j ustice of the peace, the complaint alleged, that, in rendering judgmentin a cause pending before him, wherein the relator was a party, the justice, without the knowledge or fault of the relator, and with intent to cheat and defraud him, had fraudulently and purposely rendered the judgment for less than he was entitled to recover.</p> <p>Held, on demurrer, that the complaint is insufficient.</p> <p>Same. — Judicial Officer not Uablefor Judicial Act. — A judicial officer is not liable pecuniarily for injury resulting from his wrongful rendition of judgment however erroneous, false or fraudulent that judgment may be.</p>

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

<p>Supreme Court. — Removal of Brief, — "Where the brief of an. appellant has been removed from the files of the Supreme Court, and, on due and reasonable notice, he fails to return it or file another, the judgment will be affirmed.</p>

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

<p>Promissory Note.— Mortgage.— Action by Endorsee.— Counter-Claim by Payee Claiming Title.— Verdict.— Uncertainty.- — Venire De Novo. — In an action on a promissory note and to foreclose a mortgage securing it, brought by an endorsee against the mortgagors and a junior mortgagee, the payee of the note, on his own petition, was made a party, and filed a counterclaim alleging ownership of the note ; and, judgment having been rendered, by agreement of parties, in favor of the junior mortgagee, against the mortgagors, before verdict, the jury returned a verdict that the senior note and mortgage were the property of the payee, assessing his damages and finding that he was entitled to foreclosure.</p> <p>Held, on motion by the plaintiff for a venire de novo, that the verdict is certain as to him, and that he can not complain of its uncertainty as to others.</p> <p>Same. — Assignment of Note as Indemnity. — -Payment of Debt by Assignor. — Rescission. — The evidence on the trial in such action established, thatthenotein question had been endorsed by the payee to the plaintiff, simply to securehim against loss on account of debts of the payee which the plaintiff was assisting him to pay off, but that, before the commencement of the action, the payee had paid the same out of his own means.</p> <p>Held, that, on such payment, the assignment was rescinded, and the note and mortgage reverted to the payee.</p>

<p>Decedents’ Estates. — Petition by Creditor for Sale of Land to Pay Debts.— The petition of a creditor of a decedent's estate, under section 78, 2 R. S. 1876, p. 523, for the sale of the decedent's real estate to pay debts, need not aver that the administrator has refused to act in the matter.</p> <p>Same. — Sale to be made by Administrator.■ — The sale in such case, if ordered, must be made by the administrator and not by the creditor.</p> <p>Same. — Administrator may Redeem from Sale on Foreclosure. — Real estate sold on foreclosure against the heirs of a decedent may he redeemed by the administrator, even though he was not a party to the foreclosure.</p> <p>Same. — Abandonment of Title by Compromise. — Tax Deed. — Sheriff s Deed.— Answers to Interrogatories. — On a petition by a creditor of an insolvent decedent’s estate, under said section 78, one of the defendants was a creditor who claimed title to the real estate in question under a tax deed, a sheriff’s deed on foreclosure of a mortgage executed by the decedent, and also under a decree rendered in an action by him against the administrator, heirs and certain creditors of the decedent, to quiet title based on such sheriff’s deed and tax deed, to which action the petitioning creditor was not a party. On the trial of the petition the jury, with their general verdict for the petitioner, found specially that the administrator had paid into the clerk’s office the sum necessary to redeem from such sheriff’s sale; that, after the year of redemption, the action to quiet title was brought, and, by agreement, the administrator withdrew the redemption monej-, the plaintiffs therein paid him a certain sum for the other creditors, the tax deed, sheriff’s deed and all debts due the plaintiff from the estate were declared satisfied, and the title to the real estate in question was quieted in the plaintiff; and a decree reciting such agreement was entered accordingly.</p> <p>Held, that the plaintiffs, by such compromise, abandoned their title under such deeds and rested the same on the decree.</p> <p>Held, also, that such decree did not bind the petitioner.</p> <p>Held, also, that the answers to interrogatories supported the verdict.</p> <p>Same. — Sale in solido. — Land Susceptible of Division. — A sheriff’s sale in solide of lands susceptible of sale in parcels can not ordinarily be upheld.</p>

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

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

<p>Railroad. — Appropriation to. — Petition.—Notice.—A petition to a board of commissioners to make an appropriation of money, by taxation of a certain township, to aid in the construction of a railroad, and also the notice of election, specified a certain sum, “or a sum equal to two per centum of all taxable property in said township,” as the appropriation desired.</p> <p>Held, that the amount of the appropriation is set out with sufficient certainty.</p> <p>Same. — Harmless Evidence.— Unassessed Property.- — On the trial of an action by. a tax-payer to enjoin the collection of such tax, it appearing that the sum specified was exactly two per centum of the assessed taxable property of the township, it was harmless to allow evidence by the defendant of unassessed property subject to taxation in that township.</p> <p>Same. — Gases Distinguished. — The Cincinnati, etc., S. JR. Co.v. Wells, 39 Ind. 539, and The Detroit, etc., R. R. Go v. Bearss, 39 Ind 59$, distinguished.</p> <p>Biddle, J., dissented, denying the constitutionality of- the law authorizing such appropriations.</p>

<p>Fees and Salames. — County Treasurer. — Compensation for Collecting DeUnguent Taxes. — Statutes Construed. — Construing section 14 of the fee and salary act of March 12th, 1875, 1 R. S. 1876, p. 471, and sections 152 and 155 of the assessment act of December 21st, 1872, 1 R. S. 1876, p. Ill, together, a county treasurer is entitled to receive and retain, out of all delinquent taxes collected by him, a commission of five per cent, on amounts voluntarily paid, and six per cent, on amounts paid after levy, regardless of the time in the year -when such collections are piade.</p> <p>Same. — Cases Distinguished.— The Board of Comm’rs, etc, v. Miles, 21 Ind. 438, and Wells v. Shoemaker, 39 Ind. 115, distinguished.</p>

<p>Pkomissoby Note. — Answer of Failure of Consideration. — Life Insurance.— In an action by a life insurance company, as payee, against the makers, a principal and surety, on a promissory note, the defendants answered that the note in suit had been executed “ in consideration of a valid paid-up life policy, to bo issued and delivered to the” principal, “by the plaintiff, and for no other or different consideration whatever ; that, although a reasonable time for the issuing and delivering of said policy * has long since elapsed, yet the plaintiff has wholly neglected and refused to execute and deliver - a valid life policy for the value of said note.”</p> <p>Held, on demurrer, that the answer, as a plea of either ft partial or total failure of consideration, is insufficient.</p>

<p>Replevin Bail.' — Stay of Execution beyond Six Months. — Failure of Go-Recognizor to Sign. — The attorney of the judgment creditor having proposed to the judgment debtor to stay execution on a judgment for fifteen months, if the latter would procure certain persons to execute the necessary recognizance, and such recognizance, in the form “We," naming the bail proposed “ hereby acknowledge ourselves replevin bail,” etc., having been prepared, was signed by one of the recognizors only, to become operative when signed by the other ; but it was never either 'signed by the latter or approved by the clerk.</p> <p>Held, that the recognizance never became operative.</p>

<p>Vendor’s Liex. — Sale by Commissioner in Partition. — Foreclosure for Purchase-Money. — Decree.—Judgment.—Appraisement.—Sheriff’s Sale on Certified Copy, Issued after Death of Debtor. — Revivor:—Complaint by Heirs, to Redeem,. — Exhibit.—Demurrer Carried Bach. — Certain tracts of land having been sold, and certificates of purchase issued, severally, to purchasers, by a commissioner in partition, and one of the purchasers having obtained assignments of the certificates of the others, the commissioner obtained a judgment against him for the unpaid balance of the purchase-money, and a decree of foreclosure, subject to appraisement; and, the judgment debtor then dying, the real estate was sold at sheriff’s sale, to a third person, for the sum necessary to satisfy such decree and costs, and a sheriff’s deed was duly made, on a certified copy of such decree, issued subsequent to the decease of the debtor. The heirs of the debtor then sued the sheriff’s grantee, seeking to redeem, or to obtain a decree'for the purchase-money paid by the decedent, setting out in their complaint the record of such proceedings, alleging the foregoing facts, and averring that such sale was invalid.</p> <p>Held, on demurrer to the answer, carried back to the complaint, that such record forms no part of the complaint, which is insufficient.</p> <p>Held, also, that, in such case, sale upon the certified copy of the decree was proper, that it was not necessary to revive the decree against the heirs, and that it was properly issued after such decease.</p> <p>Held, also, that an averment that the sale was invalid because “ no valid appraisement had been made ” is an averment of a conclusion of law.</p> <p>Held, also, that the heirs were not entitled to either form of relief sought.</p> <p>Held, also, that, though there may have been erroneous rulings, adverse to the plaintiffs, upon demurrer to the answer, and on the trial, yet, as the complaint was insufficient, judgment against them was proper.</p>

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

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

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

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

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

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

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

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

<p>Okimiítal Law. — Suffering Minor to Play Billiards. — Indictment.—An indictment charged, that, on, etc., at, etc., the defendant, “ then and there having the care, management and control of a billiard table, did then and there allow, suffer and permit ” G. B. “ to play billiards, and a game commonly called ‘ pool,’ upon said table, with persons whose names are unknown to the grand jury, he, the said ” G. B., “ then and there being a person under the age of twenty-one years ; and said table not being then ■ and there kept or used in a private family,” etc.</p> <p>Held, that the indictment is good.</p> <p>Same. — Evidence.—Name.— Words Describing Offence. — The words “ with persons whose names are unknown,” etc., used in the indictment, are descriptive of the offence, and evidence that the game alleged was played by G. B. with “ a person whose name is unknown,” etc., will not sustain a verdict of guilty.</p> <p>Same. — Bill of Exceptions. — Signing and Filing of.— Record. — A bill of exceptions containing the evidence, signed by the judge before the making of a motion for a new trial, and filed at the time such motion is made, is ' part of the record.</p> <p>Same. — Motion for New Trial. — A motion for,a new trial is part of the record without a bill of exceptions.</p>

<p>Insolvent Manufacturing Company. — Liability of Stockholder. — Company's Bill of Exchange. — Endorsement of, by Executor of Deceased Stockholder.— Withdrawal of Stock. — Statute Construed. — Corporation.—In an action against the estate of a deceased stockholder of an insolvent manufacturing company organized under the act of May 20th, 1852, 1 R. S. 1876, p. 619, on a hill of exchange drawn, after the decedent’s death, on the company, by its president and accepted by its treasurer, and endorsed by the drawee, and also, without recourse, by a stockholder who was one of the decedent’s executors, the complaint set out the foregoing facts and a copy of such bill, and alleged that the decedent’s 'executors continued to hold his stock ; that such endorsement was made by such executor with the consent of his co-executor, and on behalf of such estate, pursuant to a resolution, of record, by the corporation, after the decedent’s death, “ that each stockholder should endorse the company’s paper to the amount of his stock,” etc. : and that, prior to the decedent’s death, there had been a withdrawal of money by the stockholders from the capital stock of the company, at a time when it was largely indebted.</p> <p>Held, on demurrer, that the complaint is insufficient.</p> <p>Held, that sections 7, 8 and 9 of the act of June 15th, 1852, 1 R. S. 1876, p. 869, “ respecting corporations,” even were that act applicable to “ manufacturing companies,” do not render the decedent’s estate in this case liable.</p>

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

<p>Contract for Benefit of Another. — Sale and Conveyance Subject to Specified Encumbrances —Action by Another Encumbrancer. — Judgment.—Bankruptcy. — Indemnity.—The assignee of a bankrupt estate having represented to the bankrupt court, in writing, that he had negotiated the sale of the bankrupt’s real estate to another, subject to the lien of a certain mortgage and certain taxes thereon, that court made an entry reciting the substance of such writing, and ordering the assignee to “ make said sale * upon the terms aforesaid,” the purchaser, “ by a proper instrument. * covenanting to pay the incumbrances thereon,” whereupon the assignee conveyed as ordered, and the purchaser executed a bond assuming, “ as a part of the purchase consideration * the payment of all taxes, liens and encumbrances, of any and all descriptions, on and against said lands,” etc.</p> <p>Held, in an action on such bond, against the purchaser, by one holding a personal judgment against the bankrupt, which was a lien upon such land before he became bankrupt, that the plaintiff can not recover.</p>

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

<p>Erom the M arren Circuit Court.</p>

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

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

<p>Evidence. — Action in Separate Counts, upon Promissory Note and a Judgement thereon. — Merger.—Former Recovery. — Where one paragraph of a complaint counts upon a judgment rendered on a promissory note, and a second paragraph counts upon the note itself, to which latter count former recovery is pleaded, no objection to the admission of the note in evidence under the second paragraph can be founded on the fact that it is merged in the judgment.</p> <p>Same. — Judgment.—Foreclosure.—Execution.—Merger of Promissory Note.— In an action upon a promissory note, and to foreclose a mortgage securing its payment, against the maker and his wife, there was a finding for the amount due on the note, and judgment was rendered on the finding, against the maker personally, “ to be levied and collected without any relief,” etc. There was also a decree for the foreclosure of the mortgage, and sale of the mortgaged premises, and for execution over for any residue, but this latter clause was subsequently struck out.</p> <p>Held, that the note was merged in the judgment.</p> <p>Held, also, that the judgment was personal, that execution could properly have been issued thereon for any residue unsatisfied after sale of the mortgaged premises, and that a transcript of such proceedings and judgment is competent evidence in an action against such maker alone, on such judgment.</p> <p>Supreme Court. — Judgment of. — Petition for Rehearing. — The action of the Supreme Court upon a petition for a rehearing is the action, not of any single judge thereof, but of the court as a unit.</p>

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

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

<p>Fobeclosube ott School-Fund Mobt&age. — Remedy.—Merger.—Sheriff’s Sale. — Sale by County Auditor. — Appraisement.— Appraisers —Action to Recover Land. — Special Findings. — In an action to recover the possession of real estate, the court found specially, that, on January 26th, 1849, the defendant’s grantor executed a school-fund mortgage on the land, which was duly recorded on that day ; that, on March 1st, 1859, a judgment for the amount of the debt, and a decree foreclosing such mortgage, were rendered in an action thereon by the State on the relation of the county auditor, against the mortgagor only ; that, on September 15th, 1860, such real estate was bid in, at sheriff’s sale on such decree, by the county auditor ; and that, on March 27th, 1871, the real estate was sold, under such mortgage, by the county auditor, to the plaintiff, without appraisement, for cash.</p> <p>Held, that under sections 79, 81 and 82 of the act of March 5th, 1855, 1 G. & H. 542, the auditor might either sell the land under the mortgage, or recover judgment on the debt secured by the mortgage, or both ; but this would not prevent an action to recover for the debt and to foreclose the mortgage.</p> <p>Held, also, that the mortgage was merged in such decree of foreclosure.</p> <p>Held, also, that, after foreclosure, the county auditor could not sell the land under the mortgage.</p> <p>Held, also, that, under section 97 of the act of March 6th, 1865,1 R. S. 1876, p. 801, a sale, by a county auditor, of lands so bid in by him, must be on a credit of five years, and for a sum not less than the appraised value thereof. Held, also, that a sale for cash and without appraisement is invalid.</p> <p>Held, also, that such appraisement should be made by three disinterested freeholders of the neighborhood.</p> <p>Held, also, that the defendant was entitled to judgment on the special findings.</p>

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

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

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

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

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

<p>Mortgage. — Complaint for Foreclosure.— Copy of Aclmmoledgment Unnecessary. — Recording Instrument. — Defence.—In an action by the mortgagee, against the mortgagor and a subsequent purchaser, to foreclose a mortgage on real estate, the complaint alleged that the mortgage had been duly executed and recorded, setting out a copy thereof which did not show any certificate of acknowledgment.</p> <p>Beld, on demurrer, that the acknowledgment is no part of the cause of action, and a copy thereof is not necessary, and that the reasonable inference from the averments of the complaint is that the mortgage had been duly acknowledged.</p> <p>Beh/, also, that the want of an acknowledgment should, in such case, be set up affirmatively as a defence.</p> <p>Same. — Illegal Loan by County Commissioners.— Ultra Vires. — In an action by a board of county commissioners, upon a promissory note, and to foreclose a mortgage on real estate given to secure the payment of the note, both executed to the plaintiff, the mortgagor answered, alleging that the consideration for the note was an illegal, unauthorized loan to him, by the plaintiff, of a sum of money belonging to the “court-house fund” of such county.</p> <p>Belli, on demurrer, that the answer is insufficient.</p>

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

<p>Practice. — Nunc Pro Tunc Entry of Time to File Bill of Exceptions. — Parol Evidence. — Parol evidence alone is not sufficient to authorize a nunc pro tunc entry, after the expiration of the term, showing that time was granted in term time for the filing of a bill of exceptions.</p> <p>Same._Docket Entry. — To authorize such an entry there must have been a minute on some docket or order book, made at the term, showing that time was duly granted.</p> <p>Same. — 'Statement of Judge in Bill of Exceptions. — Record.—A statement by the judge, in a bill of exceptions signed by him and filed after the expiration of the term, that time for the filing thereof had been granted, is not sufficient to authorize such entry, and such bill of exceptious forms no part of the record.</p>

<p>Cbiminal Law. — Larceny.—Robbery. ■— False Pretences. — Money Paid to Avoid Arrest Threatened by One Falsely Personating Officer. — On the trial of a defendant indicted for the larceny of certain hanlc-hills, the evidence on hehalf of the State established, substantially, that the defendant had falsely represented to the prosecuting witness and another, that he was an officer having a warrant for the arrest of the latter on a chai'ge of passing counterfeit money ; and that, to avoid threatened arrest and imprisonment, the prosecuting witness voluntarily, as the surety, and at the request, of the alleged criminal, and on his promise to repay, executed a promissory note, and paid the bank-bills in question, to the defendant.</p> <p>Held, that, though the facts may constitute the crime of obtaining money, etc., on false pretences, the defendant is not guilty of either larceny or robbery.</p>

<p>Supreme Court.— Waiver of Error Assigned. — An assignment of error in the Supreme Court is waived by the failure of the party assigning it to discuss it in his brief..</p> <p>Continuance. — Absent Witness. — Diligence.—A motion for a continuance on account of an absent witness, which affirmatively shows that the applicant has not used due diligence to obtain the attendance of the witness, should be overruled.</p> <p>Rear Estate, Action to Recover. — Improvements.—Special Denial of.— Demurrer. — In an action to recover possession of real estate, wherein the defendant answered claiming an allowance for improvements, the plaintiff replied by general denial, and also by a special paragraph averring “ that the defendant never made the improvements ” alleged “ while he was in • possession * as owner, after he had executed the mortgage under which, upon a sale on foreclosure, the plaintiff claims title and in no other way,” etc.</p> <p>Held, that such special paragraph is a special denial, and not open to demurrer.</p> <p>Same. — Evidence.—Transcript of Decree of Foreclosure. — Return Day. — A transcript of such decree of foreclosure and order of sale is competent evidence in such case, though no return day bo specified therein, as by law that day is fixedby the day the transcript goes into tliesheriff’s hands.</p> <p>Same. — Improvements After Sale. — The defendant in such case can not give evidence of improvements made by him subsequent to the sale of the real estate hy the sheriff.</p> <p>Same . — Improvement by Direction of Plaintiff ’ s Attorney. — Agency.—Redemption. — Evidence that such improvements were made at the request of the plaintiff’s attorney, in consideration of an extension of the time of redemption, is incompetent, unless accompanied hy direct proof that the attorney had authority to make such request.</p> <p>Same. — Judgment can not be Attached Collaterally. — Such decree can not be attacked collaterally by evidence that the plaintiff in the foreclosure suit was not the owner of the note and mortgage sued on hy him.</p>

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

<p>Decedents’ Estates. — Action by Executor on Promissory Note. — Set-Off.— —Rents of Testator's Real Estate.— Tort of Executor. — In an action by an executor, on a promissory note executed to him, as such, for property belonging to the estate and sold by him to the defendant, thelatter answered by way of set-off, seeking to charge the plaintiff, as executor, for rents accruing to the defendant since the executor's appointment, from real estate of which the' testator died seized, collected by the executor and used for the benefit of the estate, which was solvent.</p> <p>Held, on demurrer, that the answer is insufficient.</p> <p>Held, also, that the executor individually, but not the estate, is liable for such rents.</p> <p>Same.— When Executor May Receive Rents. — An executor, as such, has no right to take possession of his testator’s real estate, or to receive the rents thereof, unless authorized so to do by the will, or in the absence of any heir or devisee on the death of the testator.</p>

<p>Nuisance, Abatement oe. — Damages.—Complaint.—Obstruction of WaterCourse by Dam. — Surplusage.—In an action by one adjoining proprietor against another, for damages and to abate a nuisance, the complaint alleged that a certain watercourse flowed over the lands of the plaintiff, onto and across those of the defendant; that a certain dam across such watercourse, erected on the lands of the defendant by his remote grantor, had been so increased in height, first by the defendant’s immediate grantor, and then by the defendant himself, as to back water upon and over the lands of the plaintiff and others ; that, in reconstructing the dam, the natural channel had been so narrowed by levees, etc., as to impede the natural flow of the water; and that, in consequence, the lands of the plaintiff had been, and would continue to be, overflowed and rendered unfit for cultivation, and his growing crops damaged.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that a complaint is not rendered insufficient merely because of surplusage contained therein.</p> <p>Same —Answer of License, by Deed from Plaintiff’s Grantor. — Reply InterpretingDeed. — Harmless Ruling on Demurrer. — The defendant in such action having answered, setting up a deed to the defendant’s immediate grantor, from one who was the plaintiff’s immediate, and the defendant’s remote, grantor, prior to the grievance complained of, for “ the right of way for a mill-race, with ground sufficient for abutments of a dam across” such watercourse, the plaintiff replied, setting out the state of facts under which the deed was executed, to assist in its interpretation.</p> <p>Held, on demurrer to the reply, that the defendant was not authorized by such deed tó so construct his dam as to injure the plaintiff’s lands, and that the overruling of the demurrer, even if erroneous, was harmless.</p> <p>Same.— Uncertainty in Interrogatories and Answers. — Judgment Non Obstante, —Record.-—The jury trying such cause, with their general verdict for the plaintiff, answered certain interrogatories, some of which, with the answers thereto, referred to certain diagrams and maps which had been used on the trial, but were not in the record on appeal to the Supreme Court.</p> <p>Held, that judgment on the answers, notwithstanding the verdict, can not be rendered in such case.</p> <p>Same. — It appearing in such case that such watercourse had been so narrowed by the dam as to divide it into two branches, one only of which was crossed by the dam, a special finding that the dam did not extend across the watercourse is not inconsistent with the general verdict.</p> <p>Same.— Variance. — Amendment.—A variance between an immaterial allegation in the complaint and the answer to an interrogatory relating thereto will be deemed, in the Supreme Court, to have been amended below.</p> <p>Bill of Exceptions. — Filed Too Late. — Record.—A bill of exceptions filed at a term subsequent to the term at which the cause was tried, without leave granted that it might be so filed, forms no part of the record.</p> <p>Same. — Supreme Court. — Evidence.-—New Trial. — Where, on appeal to the Supreme Court, the evidence is not all in the record, no question is presented as to whether or not the evidence sustains the verdict.</p> <p>Same. — Refusal to Strike Out. — Harmless Error. — Error in refusing to strike out parts of a pleading is not available in the Supreme Court.</p>

<p>Life Insurance. — Policy on Husband’s Life, for Benefit of His Wife, Belongs to Her. — Assignment of. — An insurance policy, issued upon the life of a husband for the benefit of his wife, is her property, and an effectual assignment and delivery thereof to another, even during the lifetime of the husband, can be made only by her.</p> <p>Same. — Assignment and Delivery —Interrogatory to Jury. — "Where the title to the proceeds of such an insurance policy is in issue, and an interrogatory is propounded to the jury as to whether or not such policy had been assigned and delivered (without specifying by whom,) to a third person,the jury have a right to assume that the interrogatory is as to whether or not such assignment and delivery had been made by the person to whom the proceeds belonged, or by her agent, and they may properly answer accordingly.</p> <p>Same. — Fraud.—Premiums Paid by Insolvent. — Only on the clearest proof of fraud, if at all, can the premiums paid by an insolvent on a policy of insurance upon his life for the benefit of his wife and children be recovered by his creditors ; and in no event can any excess over the amount of the premiums so paid bo recovered by them.</p> <p>Same. — Denial of Assignment. — Non Est Factum. — Issue.—Insolvency.—Inter-pleader. — A husband, upon whose life an insurance company had issued a policy for the benefit of his wife, having died, the insurance company, by a bill of interpleader1, brought the money due on the policy into court, asking the court to determine to whom it belonged, and alleging that both the widow and a third person claimed to be entitled to the same. Whereupon the latter alleged title to the money under an assignment of the policy to him, by the wife and her husband, in writing, in the lifetime of the latter, to secure a debt due from him to such assignee, and that the policy, on which ho had paid several premiums, was in his possession, to which she answered by a verified denial of the assignment.</p> <p>Held, that the only issue between the claimants was as to the making of such assignment, and that the solvency of the husband when he procured the policy and paid the premiums thereon is not, and could not by either of them be put, in issue.</p> <p>Same. — Title to Policy — Assignment and Delivery by Husband, without Wife’s Authority. — Possession.—Presumption.—Instruction.—It was proper, under such issue, to instruct the jury, that such policy, whenissued, belonged to the wife absolutely ; that “it could not be assigned or transferred * by her husband * without her authority that, to prove the assignment claimed, the assignee “ must prove, not only that she signed her name to the assignment, but must prove, also, that she either delivered, or authorized the delivery of, the policy;” that “possession of the policy and payment of premiums upon it by” the assignée “could give him no right to it, even though it appeared to be assigned to him, if ” the wife “ had not signed the assignment or authorized ” its delivery to him; and that they could not presume that the wife had authorized her husband to make the assignment.</p> <p>Same. — There being no evidence that she had authorized another to sign her name to the assignment, it was not necessary to instruct the jury on that point.</p> <p>Evidence. — Admissions.—Yerbal admissions or statements, consisting of mere repetitions of oral statements previously made, should be received as evidence with great caution ; but admissions deliberately made, and well understood, are entitled to consideration, especially when they are adverse to the interest of the party making them.</p> <p>Same.— Testimony of Subscribing Witness. — The testimony of a subscribing witness, in whose presence a written, instrument purports to have been executed, is the best, but not the only, evidence of its execution.</p> <p>Practice. — Supreme Court.— Objection to Evidence. — Leading Question. — The objection, that a question put to a witness is leading, can not be made for the first time in the Supreme Court.</p> <p>Same. — Alteration.—Question Assuming Fact to be Proved. — A question put to a witness, as to whether or not he had caused a certain alteration apparent upon the face of a written instrument already in evidence, is not objectionable as assuming a fact yet to be proved.</p> <p>Same.' — Question rendered Harmless by Answer. — An answer by a witness, disclosing his ignorance concerning a matter about which he is questioned, renders the question itself harmless.</p> <p>Instruction. — Blank.—Failure to Instruct Fully. — An omission or blank left in an instruction, or an instruction covering part only of the facts, may be cured by asking an additional instruction or the filling of the blank.</p> <p>Same.— Certiorari. — Harmless Error. — Amendment.—Where a material part of an instruction is left blank in the record, a certiorari should be procured ; but a blank in an instruction, which does not mislead the jury, is harmless.</p>

<p>Mechanic’s Lien.— Material Man.— Copy.- — Notice of Lien. — Complaint.— Description of Premises. — Cases Distinguished. — Parties.-—In an action by a material man, against a city as the owner of real estate, to enforce a mechanic’s lien for the value of materials furnished for and used in the construction of a building erected on such real estate by a contractor, the notice recited that the plaintiff had furnished the “material for the erection of the city engine building now being erected on part of lot number,” etc., giving notice that he intended to hold a lien on said “ part of said lot * and the improvements situate thereon,” etc., but the complaint contained no more particular description thereof.</p> <p>Held, on demurrer, that the description in the notice is sufficient, but, for want of averments rendering such description certain, the complaint is insufficient. Dourgette v. Huhinger, 30 Ind. 296, and O’Halloran v. Leachey, 39 Ind. 150, distinguished.</p> <p>Held, also, on demurrer for defect of parties defendants, that the contractor, though a proper, was not a necessary, party.</p> <p>Same. — Extent of Lien. — A mechanic’s or material man’s lien attaches to the whole lot or subdivision of land upon which the building is erected, and not merely to the ground covered by it.</p>

<p>Contract Implied. — Services Rendered by Attwney at Request of Clients Attorney. — Ratification.—Principal and Agent. — The attorneys of one of the parties to an action, being non-residents of the county wherein the action was pending, and having no authority from their client to employ additional counsel, telegraphed to certain resident attorneys to file a certain pleading in such cause, on behalf of the client, which they, entering their appearance for the client, did. Certain interrogatories having been filed by the opposite party, directed to such client, the resident attorneys moved to strike them out, and, on the overruling of that im tion, forwarded the interrogatories to the non-resident attorneys, who caused them to he answered by the client, and then returned them to the resident attorneys to be filed. "When the cause came on for trial, the latter attorneys, without being requested so to do, but with the knowledge of the client, assisted the non-resident attorneys in empanelling the jury, in taking down evidence, and in consultations regarding the defence.</p> <p>Held, in an action therefor, that the resident attorneys are entitled to recover from the client for their services.</p>

<p>Bastardy. — Instruction as to Time Child was Begotten. — "Where, in a proseeution for bastardy, it is a question, from the evidence, as to whether or not another than the defendant was the father of the child, which was a “full grown, nine months child,” and as to whether, from the testimony of the relatrix, the defendant had had access to her within the period during which it must have been begotten, it was erroneous to instruct the jury trying the cause, that the day and month on which it was begotten were unimportant, if they found that he was its father.</p> <p>Same. — Access Does Not Import Intercourse.— It was also improper to instruct the jury, in relation to testimony by the relatrix that the defendant had been in her company at certain times, that such testimony tended to prove, that, at those times, he was having sexual intercourse with her.</p> <p>Same. — Defendants Knowledge of lielatrix’s Pregnancy. — An instruction, that the fact that the defendant was aware, and communicated to others his knowledge, of the pregnancy of the relatrix soon after the child was begotten, should be considered, was erroneous.</p> <p>Same. — Occupation.— Credibility of Witness. — An instruction, that, if the defendant was a teacher, that fact added nothing to his credibility, but in fact detracted therefrom, if he had in fact had sexual intercourse with the relatrix, was erroneous.</p> <p>Same. — Pauper.—Instruction Prejudicing Jury. — A statement, in an instruction, that the child was a bastard, and would become a charge upon the county if no father should be found for it, was improper.</p> <p>Same. — Standing and Character of Defendant and Relatrix. — It was improper for the court to instruct the jury, that they may consider whether the defendant, as a man of character, was likely to influence the relatrix, as a woman of a confiding nature, to consent to the sexual act.</p> <p>Same.— Impeachment of Witness. — Character.—The general moral character, but not specific acts, of a witness may be given in evidence to impeach him.</p> <p>Same. — Instruction Reciting Evidence. — An instruction professing to recite the testimony of a witness as it was given is erroneous.</p> <p>Same.— Weight of Evidence. — An instruction charging the jury as to the weight they should give to certain testimony is erroneous.</p>

<p>Liquor Law. — Sale to Minor in Good Faith. — Representations of Minor as to Ms Age. — Instruction Assuming Fact not Proved. — On the trial of a defendant indicted for selling intoxicating liquor to a minor, wherein the defence was that the sale alleged had been made by the defendant in good faith, upon the strength, and in the honest belief of the truth, of representations proved to have been made to the defendant, by the minor and others, at and before the time the sale was made, that such minor was an adult, it was error in the court, in its instructions to the jury, in the absence of evidence to that effect, to charge them that, if such representations were made after the sale charged, they could not be considered by them.</p>

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

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

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

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

<p>Criminal Law. — Obstructing Public Street of Town. — Board of Trustees.— Supervisor. — Repeal of Statute. — Evidence.—Or the trial of a prosecution for obstructing a public street of an incorporated town lying within the limits of a certain road district, the defendant proved, over objection by the State, that the acts constituting the obstruction complained of had been committed by him in repairing such street as a public highway of such road district, of which ho was supervisor.</p> <p>Held, that the evidence was erroneous.</p> <p>Held, also, that, under section 1 of the act of April 27th, 1869, 1 K. S. 1876, p. 890, the board of trustees of such town had exclusive power over its streets, and therefore that the acts of the defendant were unlawful.</p> <p>Held, also, that such act impliedly repeals section 47 of the act of June 11th, 1852, 1 K. S. 1876, p. 884, so far as they conflict as to the control of the streets and highways of a town.</p>

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

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

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

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

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

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

<p>Pasties Defendants.— Who are Necessary. — Statute Construed. -Under section 18 of the code, 2 B. S. 1876, p. 39, all parties whose interests, under the issues, are adverse to the interests of the plaintiff, and who, of necessity, must and will be affected by the judgment in the cause, or who are necessary parties to a complete determination or settlement of the questions involved, must be made parties defendants.</p> <p>Same.— Railroad.— Appropriation by Township.— Enjoining Tax. — •Township. — -County Commissioners. — Railroad Company. — Petitioners.—In an action by a tax-payer, against a county treasurer, to enjoin the collection of a tax levied as an appropriation voted by a township to aid in the construction of a railroad, the township is a necessary party defendant, hut the railroad company and the hoard of county commissioners are not; and neither are the petitioners for the appropriation where their interests are not affirmatively shown by the complaint to bo adverse to the plaintiff.</p> <p>Same. — Amendment in Proceedings of County Commissioners. — Any error in the proceedings before the board of county commissioners to secure such appropriation must be amended, if amendable at all, by the board, on application m&de to it as such, and can not be made in or by the circuit court, in such action for an injunction.</p> <p>Same. — New Parties Defendants. — Tax-Payer of Township. — A tax-payer of the township, alleging himself to be in favor of the appropriation as made, and that the defendant is not a tax-payer of such township, should, on proper application, be allowed to appear, answer to and defend such action.</p> <p>Same. — Appropriation by Township on Condition. — Case Distinguished. — In a proceeding under the act of May 12th, 1869, 1 R. S. 1876, p. 736, a condition contained in the petition and notice of election, that the appropriation should be made, and stock taken, by the township, only in case of the location and construction, by the railroad company, of a depot at a certain point, is valid. The Indiana, etc., R. W. Co. v. The City of Attica, 56 Ind. 476, distinguished.</p> <p>Same. — Levy of Tax. — Informality not Fatal. — The fact that the county commissioners, on being duly informed that such appropriation had been voted by such township, entered of record an order granting the prayer of the petition, and levying the whole of the appropriation as a tax, but extending on the duplicate, for collection during the current year, a lawful part only thereof, and deferring the residue until the succeeding year, does not invalidate the same.</p> <p>Same. — If an order by a board of commissioners is substantially right, it is not rendered invalid by mere informality.</p> <p>Query. — Can a petitioner for such an appropriation maintain an action to enjoin the collection of the tax ?</p> <p>Biddle, J., dissents, denying the constitutionality of the act authorizing such appropriation.</p>

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

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

<p>Practice. — Demurrer Waived by Pleading. — A. demurrer to a complaint is waived by answering without requiring a decision on the demurrer.</p> <p>Turnpike Company. — Complaint for Stock Subscription. — Averment that Subscription is Due. — Notice by Publication. — Demand.— Cured by Verdict. — In an action by a turnpike company, to collect stock subscribed to it by the defendants and payable “ in such instalments, and at such times, as the company may direct,” the complaint alleged that the company ordered “that the subscription” should be paid “in three equal instalments, in thirty, sixty and ninety days from June 1st, 1872,” and that “said plaintiff demanded payment of” such subscription “of said defendants, on the 1st day of April, 1874, with which demand said defendants refused to comply. 'Wherefore,’’ etc.</p> <p>Held, on assignment questioning the sufficiency of the complaint, that its averments sufficiently allege the subscription to be due and unpaid, and that it was not necessary to allege either demand, or the publication required by section 11, 1 R. S. 1876, p. 658.</p> <p>Same. — Defence.—Alteration of Route. — Statutes Construed. — An answer in such action alleged, that, after the signing of the company’s articles of association, the company had altered the line of its road specified in such articles, between the termini.</p> <p>Held, on demurrer, that the company had power to change the route of their road to avoid obstacles and obtain the best route, except as to its termini and general direction, and that, therefore, the answer is insufficient.</p> <p>Same. — Construction of Written Evidence. — Instruction to find for a Party named. — The only evidence given on the trial of such cause by the plaintiff being contained in written instruments fixing a prima facie liability on the defendants, and they having introduced no evidence tending to prove a defence, it was not erroneous to instruct the jury to “ find for the plaintiff, for the amount of the subscription, less, any payments which may be proven, because the variations proven are immaterial.”</p>

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

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

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

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

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

<p>Practice. — Bill of Exceptions Filed too Late. — Record.—A bill of exceptions, setting out certain motions and the rulings thereon, filed without leave of record, subsequent to the term at which such rulings were made, forms no part of the record.</p> <p>Same. — Motion for Neio Trial not Cut Off by Special Finding. — Answers to Interrogatories. — The making of a special finding of facts by the jury, in answer to interrogatories, does not cut off a motion for a new trial.</p> <p>Same. — New Trial.— Assignment of Error. — Continuance.—Allowing Jury to take Evidence to their Room. — Error in refusing a continuance, in refusing to submit an interrogatory to the jury, and in allowing the jury to take items of written evidence with them to their room, are grounds for a new trial, hut can not he assigned in the Supreme Court, as errors.</p> <p>Same. — Bill of Exceptions. — Motions to Strike Out, and to Paragraph. — Bill of Particulars. — Unless made part of the record hy a hill of exceptions, no question is presented to the Supreme Court as to the action of the lower court in overruling motions for an order to paragraph the complaint, to strike out parts thereof, 'and for a hill of particulars thereto.</p> <p>Same. — Demurrer for Misjoinder of Actions. — Harmless Puling. — An erroneous ruling upon a demurrer for a misjoinder of causes of action is not available to reverse a judgment.</p> <p>Township Trustee. — Action on Bond. — Relator.—County Superintendent.— Section 7 of the amendatory act of March 8th, 1873, Acts 1873, p. 79, and 1 B. S. 1876, p. 816, authorizes the proper county superintendent, in specified cases, to institute actions, on his own relation, on the bond of a defaulting township trustee, but does not confer that right upon him to the exclusion of such trustee’s successor.</p> <p>Same. — The successor of a defaulting township trustee is a proper relator in an action on the bond of the latter.</p> <p>Same.— Complaint. — Approval of Bond. — Demand.—In an action on the bond of a deceased defaulting township trustee, the complaint set out the bond as an exhibit, which showed upon its face that it had been executed and ae- . knowledged before, and approved hy, the county auditor and had been duly recorded. The breaches alleged were a conversion of, and a failure to pay over, certain funds specifically alleged to have come into his hands, as such trustee.</p> <p>Held, on demurrer, that no special demand was necessary, and that the bond had been executed, acknowledged, approved and recorded in accordance with the statute.</p> <p>¡Same. — Duplicity.—Practice.—Duplicity in a complaint may bo reached by a motion.</p> <p>Same. — Evidence.—Report.—Principal and Surety: — A report made hy a defaulting trustee to the county commissioners is admissible in evidence against, hut is not conclusive upon, his estate or his sureties.</p> <p>Practice. — Discretion of Court. — Evidence after Close. — It is within the-discretion of the court, after a party has closed his evidence, to allow him to introduce evidence as to a material fact, omitted before.</p> <p>Same. — Interrogatory.—It is within the discretion of the court trying a cause to decide whether an interrogatory propounded is relevant, properly framed and presented in time. And, if the ground covered by it has already been covered by another interrogatory, it may he refused.</p> <p>Same. — Jury may not take with them Written Evidence. — It is settled law in this State, that it is error to allow the jury, over the objections of a party, to take with them to their room, in consulting as to their verdict, items of documentary evidence introduced by the opposite party.</p>

<p>Negligence.— Wilful Carelessness.— Obstruction of Highway.— Bridge.— Complaint for Damages. — A complaint for damages alleged tliat the plain: tiff, in travelling along a public highway, without fault or negligence on his part, drove his team upon a “pile of wooden timbers, intended to serve as a bridge, which the defendant had placed in said road at a point where” it crossed a “ deep and dangerous bayou; ” that such timbers “ had been so carelessly placed there by the defendant, that” plaintiff’s team “fell through and over said timbers,” and were killed ; that such accident “was wholly and solely attributable to the negligence, carelessness and wilful misconduct of the defendant in placing ” such timbers at a point in “ said road -where they could not he avoided by travellers, nor the danger * ascertained beforo going upon them.”</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Same. — Evidence.—Supervisor.—’Evidence showing that the defendant, as the proper supervisor, had built such bridge in an unskilful manner, and of unfit material, would not sustain a verdict for the plaintiff under such complaint.</p>

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

<p>Pees and Salaries. — Act of 1875. — Clerics Fees. — Enrolled Act. — Mistake.— The 6th item of the specifications of section 5 of the fee and salary act of .March 12th, 1875, reading “ For all entries in order books on complete record,” etc., as published in the Acts of 1875 Spec. Sess., p. 33, and in 1 B. S. 1876, p. 468, should read “ For all entries in order books or complete record,” etc., as shown by the enrolled act on file in the office of the Sect retary of State.</p> <p>Same. — Fees for Copies, Transcripts, etc. — Items 4 and 5 of such section relate to the same subject-matter, viz. : Copies, transcripts or exemplifications of any record or paper remaining in the clerk’s office.</p> <p>Same. — Fee for Copy. —"Where any such copy contains less than five hundred words, the clerk is authorized, by item 5, to charge fifty cents ; but, if the number of words exceeds five hundred, then, by item 4, he is authorized to charge a foe of ten cents for each hundred words.</p> <p>Same. — Entries on Order Book or Complete Record. — Items 6 and 7 of such section relate to the same subject-matter, viz.: Entries in the order book or complete record.</p> <p>Same. — Fee for Entry on Order Book and Fee Book. — Special Finding. — On a motion to re-tax the clerk’s fees in a cause which had been tried in the circuit court, that court found specially that there had been five separate entries made by the clerk in the order book, in said cause, containing an aggregate of less than five hundred words ; and that an entry had been made upon the fee book by the clerk, in such cause, containing less than five hundred words.</p> <p>Held, as a conclusion of law, that, under item 7 of said section 5, the clerk was entitled to tax a fee of fifty cents for each of such entries in the order-book.</p> <p>Held, also, that, for such entry in the fee book, he was entitled to tax a fee of ten cents for each hundred words contained therein.</p>

<p>Liqtjor Law. — Act of 1875. — Section 8 Construed. — Inhabitant.—Application, Notice ana Evidence of Applicant for License. — The words “Any male inhabitant,” etc., in section 3 of the act of March 17th, 1875, 1 E. S. 1876, p, 869, concerning the sale of intoxicating liquors, mean any male inhabitant of this State, etc. ; and neither the application, notice nor evidence on behalf of an applicant for a license under such act need show that he is a resident of the town, township or county where he desires to sell.</p>

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

<p>Supreme Court. — Record.—Action to Recover Real Estate. — Trial on Substituted Complaint. — Special Finding. — The record, in the Supreme Court) of an action to recover real estate, showed a trial of the cause by the court, upon the issues formed upon the original complaint, hut that, without any finding having been made, a substituted complaint and an answer thereto were filed; -that trial was had and judgment rendered thereon for the defendant; and that, on a new trial as of right, by the court, a general and a special finding were made, and judgment rendered by the court, for the defendant.</p> <p>Held, that the original complaint and answer, though copied into the transcript, form no part of the record.</p> <p>Held, also, neither the substituted complaint, the answer thereto, nor the evidence being in the record, that the Supreme Court can not say that the special finding was not within the issues.</p> <p>Same. — Purchase Pendente Lite. — Presumption.—One fact of such special finding being that the plaintiff had purchased the real estate in question at a sheriff's sale thereof, made after the filing of the complaint and the issue of process in an action by this defendant, against a third person, to recover such real estate, resulting in a judgment for the former, the Supreme Court is hound to presume, in the absence of any thing in the record to the contrary, in favor of the finding and judgment below.</p>

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

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

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

<p>Frato.- — Fraudulent Representations of Location of Land Sold. — Interrogatory to Jury. — In an action by the grantee, against the grantor, of certain real estate, to recover damages for alleged fraudulent representations by the grantor to the grantee, in falsely pointing out to the latter, as the lands to be conveyed, other and more valuable lands, the defendant asked leave to submit an interrogatory to the jury trying the cause, as to whether the plaintiff did not have ample opportunity, after the defendant had furnished him with a description of the lands, to ascertain the true location thereof from the records.</p> <p>Held, that the plaintiff had a right, -in purchasing the lands, to rely on the representations made by the defendant as to the location thereof, and therefore that the interrogatory asked was properly refused.</p>

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

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