Volume 66 — Indiana Reports

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

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

<p>Vendor and Purchaser. — Fraudulent Representations. — Promissory Note and Mortgage. — Injunction.—Rescission.—Raise and fraudulent representations that the title'is good and unencumbered, made by the grantor to the grantee of real estate conveyed by a warranty deed, are grounds sufficient for a counter-claim to enjoin personal judgment against the grantee, in an action against him, by an assignee, on a promissory note not payable in bank, and to foreclose a mortgage on such real estate, executed by the grantee to the grantor to secure the payment of the purchase-money for the same.</p>

<p>Practice. — Special Verdict. — Interrogatories to Jury. — A special verdict of a jury is different from their finding upon particular questions of fact stated in writing.</p> <p>Same. — A special verdict is never found by a jury when they return a general verdict.</p> <p>Same. — A jury finds specially upon particular questions of fact stated in writing, only when they render a general verdict.</p> <p>Same.— Will.— Contesting Validity of. — Fraud.—Duress.— Insanity!— Undue Influence.— Undue Execution. — In an action to contest the validity of a will, wherein the complaint alleged unsoundnoss of mind, undue execution, duress, fraud and undue influence, the defendants asked leave to submit an interrogatory to the jury, asking them whether the testatrix, when she signed the will, had “mind and memory sufficient to understand the ordinary affairs of life, and to act with discretion therein,” whether ‘she knew “her children and grandchildren,” and whether she had “a general knowledge of the estate of which she was possessed ; hut the court refused to submit the same, and substituted interrogatories asking whether the testatrix, when she signed the will, was of sound mind, whether she was then under duress, and whether the will was duly executed or was obtained by fraud, etc.</p> <p>Held, that the interrogatories substituted covered only the general issues embraced in the general verdict, and that the interrogatory propounded by the defendants should have been submitted.</p> <p>Same. — Instructions.—Declarations of Testator.— The defendants in such action having asked the giving of an instruction to the jury, properly-stating the effect to he given by them, in determining the alleged unsoundness of mind, to declarations made by the testatrix at specified times before and after signing the will, and stating, also, that these declarations had no tendency to prove either fraud, duress or undue influence, the court added the words “ Unless they were made at the time, and became a part of the res gestee,” and then gave the instruction.</p> <p>Held, that the addition was erroneous.</p> <p>Same.— Undue Influence— The court also instructed the jury in such case, that, if one or more of the beneficiaries of the will, in the capacity of an agent of the testatrix, by means of such agency or otherwise, exercised “ a controlling influence over her conduct, interests and will, prior to and at the date of said will, and that said will excludes the plaintiffs from participating in her estate, when they might otherwise have been subjects of her bounty, then you may find that such will is not her will, but void on account of undue influence.”</p> <p>Held, that the instruction was erroneous.</p>

<p>Payment. — Principal and Agent. — Harmless Ruling on Demurrer. — Where there is an answer of payment generally, as well as an answer of payment to a particular third person, alleged to have been authorized to receive it, the facts alleged in the latter are admissible under the former, and therefore’the overruling of a demurrer to the latter is harmless.</p> <p>Bill or Pakticulaks. — Measure of Damages. — Instruction.—Evidence.— Supreme Court. — In an action on account, wherein one paragraph purported to set out a hill of particulars, and a second alleged that the plaintiffs were not able to furnish a hill of particulars, though the hill of particulars filed corresponded better with the latter than the former, the court instructed the jury that they could “ not allow the plaintiffs for any item not included in the hill of particulars.”</p> <p>Held, the'evidence not being in the record, that the Supreme Court can not say that the instruction was erroneous.</p>

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

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

<p>Malicious Prosecution. — Evidence.—Delay.—Dismissal of Prosecution.— In an action for damages for malicious prosecution, the jury may consider, as tending to support the action, evidence of delay by tlie defendant in instituting the prosecution complained of, delay in bringing it to a trial after its institution, and the dismissal of the prosecution without a trial. Supreme Court. — New Trial. — Evidence.—The Supreme Court will not grant a new trial merely because of the weakness of evidence tending to support the verdict.</p>

<p>BS&x. Estate. — Action to Recover and Quiet rl\tle. — Fraudulent Conveyance'. —Acceptance.—Delivery.—In an action to recover the possession of, and to quiet the title to, certain real estate, the jury, by a special verdict, found that A., the plaintiffs’ grantor, being the owner in fee, and in the possession, 6f such real estate, without the knowledge, assent or acceptance of the grantees, had executed, acknowledged and, six months later, placed on record, but had never delivered, a deed purporting to convey to the plaintiffs, his minor children, in consideration of natural love and affection, the lands in controversy ; that such deed was made with intent to cheat, hinder, delay and defraud his creditors, and not for the purpose of saving the lands for his children ; that he had remained in possession until he had conveyed to the defendant; that, prior to the execution of the deed, he had mortgaged a portion of the land to the school fund, and, after such deed had been recorded, had purchased such portion and received a conveyance therefor, from the county auditor, on a sale under such mortgage.; that, subsequent to the recording of the deed to the plaintiffs, the residue thereof had been sold at sheriff’s sale on an execution against A., to the execution creditor, who thereupon conveyed to A.; and that, subsequent to the recording of all of such deeds, A. had c mvoyed the lands in question to the defendant, who, in good faith, paid a valuable consideration therefor.</p> <p>Held, that the defendant is entitled to judgment.</p>

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

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

<p>Bastardy. — Appeal by the State, to Circuit Court. — Time.—Justice of the Peace. — An appeal by the State to the circuit court, from the judgment of a justice of the peace discharging the defendant in a prosecution for bastardy, under sec. 64, 2 R. S. 1876, p. 621, must be taken, within thirty days from the rendition of such judgment.</p>

<p>Surety op Peace. — Circuit Court. — Criminal Circuit Court.— Where Defendant should he Recognized to Appear. — Jurisdiction.—Where, in a proceeding before a justice of the peace to obtain surety of the peace, the justice finds against the defendant, the latter should be recognized to appear in the criminal circuit court of such county, if there be such a court therein ; otherwise in the civil circuit court.</p> <p>Same.- — Relator.—Parties.—A proceeding to obtain surety of the peace ; should be instituted in the name of the State, without any relator.</p>

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

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

<p>Criminal Law. — Competency of Juror.— Opinion formed from Newspaper Report. — On the examination of jurors empanelled to try the defendant in a criminal prosecution, a juror answered that, from the evidence given on a former trial of the same prosecution, as reported in a newspaper and read hy him, he had formed and expressed an opinion on the merits of the case, to change which would require some evidence, hut which would readily yield thereto.</p> <p>Held, that the juror was competent.</p> <p>Sameí — Insanity.—Hypothetical Question. — .Ea^eri!.—A hypothetical question, put to a medical expert to obtain his opinion as to the sanity of a defendant, must he based upon facts admitted, proved or assumed, but need not he based on all of such facts.</p> <p>Same. — Relative Strength of Presumptions of Sanity and Innocence. — Instruction. — An instruction stating that “the presumption of innocence is so far of greater strength than ” the presumption “ of sanity, that, when evidence appears tending to prove insanity, it compels the prosecution to establish, from all the evidence, mental soundness beyond a reasonable doubt,” is erroneous, hut can not he complained of hy the defendant.</p> <p>Same. — Frenzy. — The defendant can not complain of an instruction stating that “ "Frenzy arising solely from the passions of anger and jealousy, no matter how furious, is not insanity.” See opinion for instructions held correct.</p> <p>Same. — Presumptions.—An instruction in such case stated that “ the law presumes that a man is of sound mind, until there is some evidence to the contrary. * * * An accused is entitled to an acquittal, if the evidence engenders a reasonable doubt as to the mental capacity at the time the alleged offence is charged to have been committed. Evidence s' tending to rebut the presumption of sanity need not, to-entitle-the defendant to an acquittal, preponderate in favor of the accused. It will be sufficient if it raises in your minds a reasonable doubt.”</p> <p>Held, that the instruction was correct.</p> <p>Same. — Opinion of Medical Expert.— Weight of— It was proper to instruct the jury, that, while they should consider the opinions of medical experts in connection with all the other evidence, they were not bound to act thereon to the exclusion of other testimony, but should determine the question of sanity from all the evidence. And that such an opinion “ based upon a hvpothesis ” which is “ wholly incorrectly assumed,- or incorrect in its material facts to such an extent as to impair the value of the opinion, is of little or no weight.”</p> <p>Same. — Marion Criminal Circuit Court.— Constitutional Law.— The act establishing the Marion Criminal Circuit Court is constitutional.</p>

<p>Soldiers’ Bounties. — Order by County Commissioners not lawfully in Session.— Curative Act. — Constitutional Law. — By the 1st section of the act of March 3d, 1865, 3 Ind. Stat., p. 565, legalizing the acts of boards of .county commissioners in issuing bonds and making appropriations to pay bounties to volunteers in the war of 1801, orders made by a board of county commissioners, though not lawfully in session, offering bounties to volunteers to ho credited on the quota required of the county, were made valid, and a volunteer thereafter enlisted and properly credited to such county may compel payment of the bounty so offered.</p> <p>Same. — Interest.—Demand.—Interest is recoverable in such action, on the amount of the bounty offered, from the date of a demand duly made for the bounty.</p> <p>Same. — Statute of Limitations. — Answer.—The basis of such action being the order of record, offering the bounty, an answer of the statute of limitations of six years is insufficient.</p> <p>Same. — Payment to Third Person. — Notice.—An answer alleging that the bounty offered had been paid to other volunteers than the plaintiff, being the full quota of tlio county, without notice of his enlistment, but not averring the enlistment of the plaintiff to have been after the quota had * been filled, is insufficient.</p> <p>Same ■ — Voluntary Enlistment in Ignorance of Offer. — The fact that the plaintiff was ignorant of the fact that such a bounty had been offered, until after Ms enlistment, does not discharge the county.</p>

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

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

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

<p>Negligence. — Complaint against Town for Injuries resulting from a fall into Excavation in Street. — Notice.—In an action against a town, to recover damages for an injury received by the plaintiff by a fall into an excavation in a sidewalk of a public street of said town, the complaint alleged that the defendant had “negligently permitted such excavation to be made f’ that it was “so situated as to prevent pedestrians from passing along the said sidewalk * . without turning out into ” the street ; that said excavation was upon a street “ most used by the public, * and was by the defendant so negligently and carelessly allowed to remain, several days prior to said accident, without any proper or sufficient guards, lights, notices or railings' ; that, at the date of said accident, the plaintiff resided in said town, and was engaged in daily labor, by which she gained her support ; * ” that in the evening, about dark, she attempted to pass along said street, when, “ without fault or negligence on her part, she fell into said excavation, and was thereby greatly injured, both externally and internally, disabled to labor, put to great expense,” etc.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that the clear inference from the facts alleged is that the defendant had notice of the excavation, and of its condition, but that no such notice to the plaintiff can be inferred.</p> <p>¡Same. — Answer.—Natural Causes Producing Excavation. — The facts alleged in an answer in such action, that, during the making of a lawful excavation by a third person, the sidewalk had given away because of a "thaw,” on the day of the accident, were admissible under the general denial, and therefore the sustaining of a demurrer to such answer was harmless.</p> <p>Same. — Evidence.—Natural Consequences of Injury. — The evidence on the trial of such action showing that the plaintiff had sprained a limb, and been injured internally, by such fall, and that, prior thereto, the officers of the defendant had actual notice of the dangerous condition of such excavation, the plaintiff had a right to give evidence of the effect upon her that actually and naturally followed the injury, as a consequence thereof.</p> <p>Same. — Damages for Permanent Injury. — The plaintiff in such action was entitled, on evidence that the injury was permanent, to -recover for prospect1 ve as well as past .damages.</p> <p>Same. — Occupation of Injured Person. — It was competent in such action for the plaintiff to give evidence of her occupation, and the effect of the injury as affecting her ability to continue in such occupation.</p> <p>Same: — Declarations Indicating Pain. — Complaints by the plaintiff, of pain caused by the injury, wore also competent evidence.</p> <p>Same.— Town Liable for Act of Third Person. — It is the duty of a town to keep its public streets and alleys in a safe condition for ordinary use as such, and the fact that they are rendered unsafe by the act of a third person, without license from the town, is no defence to an action for an injury caused by such act.</p> <p>Same. — Presumption — Notice. — A traveller using a public street in the ordinary manner,'without knowledge that it is defective, has a right to presume that it is in safe condition ; but if he have notice of the defect, and does not use ordinary care to avoid injury therefrom, the town is not liable.</p>

<p>Mobtgage. — Description of Premises.— Promissory 'Note.— Who may Object to Uncertainty. — In an action against A., B. and O., on a promissory .note executed by A. and B. to the plaintiff, and to foreclose a mortgage on real estate executed by B. and O. to the plaintiff, to secure the payment of such note, the complaint and mortgage described the mortgaged premises by metes and bounds in a certain section, etc., and as being “ otherwise described as Lot No. 6 in said section.”</p> <p>Held, on demurrer by A., that, even if the description were void, he can not object thereto, but that the description is sufficiently certain against B. and O.</p>

<p>Replevin. — Answer.—Chattels leoied on by Officer. — In an action of replevin, the defendant answered that he was a constable, and as such had levied executions on the property in question “ as the property of ” an execution defendant, but there was no averment that the property belonged to such execution defendant, nor that it was subject to levy on such executions. Held, on demurrer, that the answer is had.</p> <p>Same.— Chattel Mortgage. — Equity of Redemption subject to Execution. — The equity of redemption of property covered by a chattel mortgage is subject to execution, and therefore the mortgagee can not replevy the same from, an officer who, while they are in the possession of the mortgagor pursuant to the terms of the mortgage, has levied on them for sale on an execution against the mortgagor.</p> <p>Howk, J., dissents.</p>

<p>Vendor’s Lien. — Real Estate Broker. — Lien can not be had for Broker’s Commission, or for Money advanced by him. — Rule as to Vendor's Lien.— Special Finding. — -In an action by A., against C., the holder of the title to certain real estate, and D., the holder of a mortgage thereon, to enforce a vendor's lien, the court found specially, that, at a certain date, C.’s grantor, being then the owner of said real estate, agreed with A. and B. verbally, to accept a certain price for the land ; that subsequently A. and B. effected a sale of the land to O. for a sum exceeding the price above named ; that thereupon C.’s grantor executed to C. a conveyance for the land, receiving promissory notes for the price so fixed, executed by A., B. and 0., and a mortgage executed by C„ on the land, to secure payment of the notes, it being agre- d that the residue of the purchase-money should be received equally by A and B.; that B subsequently received bis share of that residue from C., who also paid off the notes held by his grantor ; that A., to enable C. to pay the same to his grantor, loaned to him a certain sum of money, taking from him his promissory notes for the gross amount of such loan and A.’s share in said residue of purchase-money ; that C. had paid off the note and mortgage held by his grantor; and that D.’s mortgage was subsequently executed for borrowed money.</p> <p>Held, that in no event could A. have enforced a lien for the amount of his notes against C.</p> <p>Held, also, that a plaintiffs right to enforce a vendor’s lien must be decided upon the facts of his particular ease.</p> <p>Same . — Conclusion of Law. — Surplusage.—The* fact that one of several special findings of fact is merely a statement of a conclusion of law does not vitiate the other findings.</p> <p>Same. — New Trial.— Venire de Novo. — Omission of Fact. — Cases Overruled.— A material omission, in a special finding, of some fact in issue, is ground, not for a new trial, but for a venire de novo. Schmitz v. Lauferty, 29 Ind. 400, and Cruzan v. Smith, 41 Ind. 288, overruled on this point.</p>

<p>Specific Performance.— Contract to Convey Ijand. — Action against Widow and Heirs. — Evidence.—Declarations of Husband. — Agency.—In an action against the widow and heirs of a decedent, to enforce specific performance of an alleged parol contract between the plaintiff and decedent, in the lifetime of the latter, for the conveyance of a tract of land sold by the decedent to the plaintiff, the latter proved an agreement between the plaintiff and the husband of one of the heirs, as to the location of a corner of such land, made during a survey thereof.</p> <p>Held, that, though the husband was a nominal defendant, his agreement, without proof of his agency, binds neither his wife nor the other defendants.</p> <p>Same.— Wife’s Contract to Convey Void. — Ratification.—A wife’s agreement to join with her husband in conveying his land, pursuant to a contract of sale, is void, and can not be ratified by or enforced against her, on the death of her husband.</p>

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

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

<p>Forcible Entry and Detainer. — New Trial. — Assignment of Error.— Supreme Court. — Motion to remand Cause to Justice to be Certified. — Title to Land. — In an action originating before a justice of the peace, for forcible entry and detainer', the defendant, in the circuit court on appeal, moved the court, on the ground that the title to real estate had been duly put in issue before the justice by a verified answer, to remand the cause to the justice tobe certified by him to the circuit court, pursuant to section 12, 2 E. S. 1876, p. 607. This motion was overruled, and the action of the court in overruling it was made ground of a motion for a new trial.</p> <p>Held, that such ruling was not ground for a new trial, but should have been assigned independently in the Supreme Court as error.</p> <p>Same. — Force.—Fraud.—Arrest.—The wife of an outgoing tenant having delivered the key to the property to one of the family of a third person for delivery to the landlord, such third person took possession of the property without leave from the landlord. The landlord, afterward finding such intruder away from the property, broke in and removed the chattels of the latter into the street. They two having agreed that the chattels should be placed on an adjoining lot, the landlord departed leaving the house in temporary possession of an agent, but both the landlord and the agent having been arrested and carried before a justice, where they were at once discharged by the officer, such intruder again took possession without leave.</p> <p>Held, that the landlord could maintain an action for forcible entry and detainer.</p>

<p>Criminal Law.— Weight of Evidence. — Where, in a criminal prosecution, there is competent evidence tending to sustain every material fact necessary to authorize a verdict against the defendant, the Supreme Court, on appeal, will not disturb such verdict on the mere weight of the evidence.</p> <p>'Same. — Obstructing Highway.— User. — Presumption.—Dedication.—Instruction. — Evidence.—On the trial of a defendant indicted for obstructing a public highway by the erection of a fence thereon, it appeared by the evidence that the highway had never been established, nor its boundaries ascertained ; that it had been used for more than twenty years ; that it adjoined the defendant’s land; and that he was the owner of the fee of the part obstructed. The defendant also gave evidence .that, twelve years prior to the finding of the indictment, in renewing a fence dividing his land from the highway, he had, as a matter of convenience and not as a dedication to the public, set the new fence in farther on his land, thus throwing the strip of land now in question out with the highway ; and that the obstruction charged was a fence erected by him, re-enclosing ¡the strip formerly thrown out. Upon these facts the defendant asked.the court to instruct the jury, that, where “the State relies upon an user of less than twenty years, '*' ” she must “ give such evidence to the jury as will convince them beyond a reasonable doubt, that the defendant intended to dedicate or grant such ground to the public for the purposes of a public high- . way.”</p> <p>Held, that the instruction should have been given.</p> <p>Held, also, that the presumption of dedication, arising from user of less than twenty years, may he rebutted.</p>

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

<p>Attorney’s 3?ee. — Promissory Note. — An unconditional stipulation in a promissory note, for the payment pf an attorney’s fee, is valid.</p>

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

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

<p>Erom the Allen Criminal Circuit Court.</p>

<p>Prom- the Vanderburgh Circuit' Court.'</p>

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

<p>New Tkial. — Agreed Case. — A motion for a now trial is unnecessary in an action tried under section 386 of the practice act, on an agreed statement of facts.</p> <p>Fees and Salames. — Statutes Construed. — Docket Fees belong to State, and not to County or Clerk. — The docket fees taxed to the losing party by the clerk under the fee and salary acts of Feb. 21st, 1871, March 8th, 1873, and March 12th, 1875, did not belong to him, but were to be paid over by him into the county treasury ; and, under section 6 of the act of March 5th, 1859, 1 B. S. 1876, p. 775, such fees must be paid over to the State as her property.-</p>

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

<p>Criminal Law. — Appeal by State to Supreme Court. — Appearance.— Waiver of Notice of Appeal. — An appearance and joinder in error by the defendant in a criminal prosecution, in the Supreme Court, on appeal thereto by the State, is a waiver of notice of the appeal.</p> <p>Same. — Jurisdiction of Justice in Felonies. — A. justice of the peace has no jurisdiction to either acquit or convict a defendant charged with a felony, his only authority in such case being that of an examining court, to hear and discharge, or commit and hind over to appear before a court having jurisdiction to try.</p> <p>Same. — Discharge no Bar to Subsequent Prosecution. — A discharge by the justice, in such case, is no bar to a subsequent prosecution of the defendant, for the same offence.</p> <p>Same. — Misdemeanor merged in Felony. — Assault and Battery with Intent to Murder. — Former Acquittal or Conviction. — The misdemeanor known as assault and battery, when committed in connection with an attempt to murder, is merged in the felony known as assault and battery with intent to murder, and an acquittal or conviction of the misdemeanor, though by a court of competent jurisdiction, is no bar to a prosecution for the felony ; but, in such case, if the intent to murder he not established, such acquittal or conviction will bar a conviction of the assault and battery. Diddle, J., dissents.</p> <p>Same. — No Conviction of Assault and Battery on proof of Assault, etc., with Intent, etc. — One on trial for simple assault and battery can not be convicted on evidence establishing him guilty of assault and battery with intent to murder.</p> <p>Same. — Trial for Offence including Offences of less Degree.— A defendant on trial for an offence which necessarily includes anotner offence or lesser degrees of offence is on trial for the latter as well as the former, and can not he subsequently convicted thereof.</p>

<p>Principal and Agent. — Payment of Promissory Note to Servant of Agent, after Revocation of Agency. — Notice.—Instruction.—In an action by the payee, against the maker, on a promissory note, wherein payment was pleaded, the evidence established that the note had been executed by the defendant for the price of a chattel sold and delivered to him by an agent appointed by the plaintiff to sell such chattels and collect such notes ; that such agency was subsequently revoked, and a new agent appointed, but the defendant had no notice thereof; that subsequently the defendant called at a place where the former agent carried on his individual business, to pay off the note ; and that, such agent being absent, his servant searched for the note, failed to find it, and, having gone and seen his employer, by direction of the latter received, and receipted to the defendant for, the amount of the note, in the name of his employer.</p> <p>Held, that an instruction that such payment was invalid was erroneous.</p> <p>Held, also, that such payment, if made in good faith and without notice of the revocation of such agency, was valid.</p>

<p>Pleading. — Partial Answer to whole Complaint. — Promissory Note. — Common Count.- — Partnership.—Harmless Ruling on Demurrer. — In an action by the payee, against a copartnership alleged to be composed of A. and others, as maker and debtor, on two promissory notes and an account, in separate paragraphs, A.’s codefendants separately and jointly answered under oath, to the whole complaint, alleging that such copartnership ’was composed solely of A. and a certain incorporated company, and that they, such codefendants, were not liable on the “ note.’’</p> <p>Held, on demurrer, that the answer, being pleaded to the whole complaint, though answering only part thereof, is insufficient.</p> <p>Held, also, a verified general denial being in, that the facts alleged in the special answer were admissible in evidence under the general denial, and, therefore, that the sustaining of the demurrer was harmless.</p>

<p>Covenant. — Breach of Warranty as a Defence to a Foreclosure. — Res Adjudícala. — Evidence.—Former Adjudication. — In an action for the collection of a promissory note, and for the foreclosure ot a mortgage given to secure payment thereof, wherein the defendant answered that the note and mortgage were given solely for the purchase-money for the mortgaged premises, which had been conveyed by the plaintiff to the defendant by warranty deed, and that there had been a breach of the covenants of such deed by reason of the fact that the defendant had been kept out of possession by a tenant holding under the plaintiff, and had expended money in ejecting the tenant, the plaintiff replied that the matters alleged in the answer had been adjudicated upon in a former action by the mortgagor, against the mortgagee, on the covenants of warranty, for breach thereof. The plaintiff, on the trial, offered in evidence a transcript of the pleadings, proceedings and judgment in an action by the mortgagor, against the mortgagee, for a breach of the covenants of such deed.</p> <p>Feld, that the evidence offered was competent.</p> <p>Feld, also, that the breach alleged in the answer was fairly presented by the issues made in the former action, and therefore must he deemed to be “ at rest forever.”</p>

<p>From the St. Joseph Circuit Court.</p>

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

<p>Specific Performance.— Verbal Contract. — Tender.—Answers to Interrogatories. — Instructions to Jury. — In an action by the vendee, against the vendor, his wife, and a subsequent purchaser from such vendor, to enforco specific performance of an alleged verbal contract for the sale and conveyance of certain real estate, the complaint alleged the making of the contract, partial payment of the purchase-money, delivery to the plaintiff of immediate possession, the making of valuable and lasting improvements, tender of a certain sum as the residue of the purchase-money with interest, demand and refusal of a conveyance, and subsequent conveyance by the vendor and his wife to their codefendant, who purchased with knowledge of the plaintiff’s rights. The jifry, with their general verdict for the plaintiff found specially that there was due.-of the purchase-money, to the vendor, from the plaintiff, at the date of the trial, a certain sum of money exceeding the amount of the alleged tender.</p> <p>Held, on appeal, in which the subsequent purchaser formally declined to join, that the special finding does not conflict with the general verdict, nor with the allegation of a tender.</p> <p>Held, also, that the appellants can not complain of instructions to the jury affecting the interests of their codefendant only.</p> <p>Supreme Court. — Presumption.•—Instructions, when Evidence is not in Record. — Where, on appeal to the Supreme Court, the evidence is not, and the instructions are, in the record, and, under the issues, evidence could have been given to which the instructions would be applicable, it is presumed that such evidence was given.</p>

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

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

<p>Ttjkotike. — Minimum Width of. — Under the first specification of section 1 of the act of June 9th, 1852, 1 B. S. 1876, p. 664, “ to amend acts of incorporation for the construction of plank roads and turnpike roads,” the minimum width of a turnpike consisting of a single track is eight and one-half feet.</p> <p>Same. — Gravel Road. — The words “ turnpike roads,” as used in that act, include gravel roads.</p>

<p>Peactice. — Supreme Court. — •Record.—Inconsistency between Verdict and Answers to Interrogatories. — Bill of Exceptions. — The general verdict of a jury, interrogatories propounded to them, and their answers thereto, form parts of the record without a hill of exceptions ; and, therefore, any inconsistency between the verdict and answers presents itself upon the face of the record without being alleged in the motion for a judgment on the answers notwithstanding the verdict.</p> <p>Same. — Case Overruled. — A simple verbal motion for such judgment, and an exception to the ruling thereon, present that ruling to the Supreme Court, without a bill of exceptions. Shaw v. The Merchants National Bank, etc., 60 Ind. 83, overruled.</p> <p>“Same. — Presumptions supporting Verdict. — Evidence.—Where, in such-ease, ■ the evidence is not in the record, the Supreme Court will indulge every possible presumption in favor of the general verdict.</p> <p>Same. — Promissory Note. — Non Est Factum. — Delivery.—Negligence.—In an action by an endorsee, against the maker, on a promissory note payable in bank, wherein the execution of the note was duly put in issue, the jury found • a general verdict for the plaintiff, and,in answer to.interrogatories propounded by him, found that the defendant, being able toread, had negligently signed the note without reading it or having it read, and had impliedly delivered it, and that it was sold and endorsed to the plaintiff prior to the action, but that he had not used due diligence in purchasing it. They also found, in answer to interrogatories propounded by the defendant, that he had signed the noto and laid it down, without knowing it to be a note ; that, while the defendant was in another room consulting his wife concerning the same, the agent of the payee took possession of it, and carried it away without the defendant’s consent ; and that, upon his demand, the note was produced by the agent, and read and objected to by the.defenda.nt and not redelivered.</p> <p>Held, on motion for judgment on the answers, the evidence not being in the record, that the general verdict implies that the note was in the custody of the payee as owner, and that the motion was properly .overruled.</p>

<p>Promissory Notes Secured by Mortgage. — Action by Assignee of Payee. —Defence by Assignee of Equitable Owner. — Attaching Judgment Collaterally. — Divorce.—Husband and Wife. — Jurisdiction of Common Pleas Court. — ■ Process Presumed. — Notice.—In an action by an assignee, against the maker, a purchaser of the equity of redemption, and a junior mortgagee, to collect several non-commercial promissory notes, and to foreclose a mortgage on real estate, executed by the maker to' secure payment of the notes, all the defendants answered jointly, and the latter two filed a counter-claim, alleging that the husband of the payee, being the owner of the lands, was persuaded by the payee and her paramour to conyey the same to her, without consideration ; that the payee and her husband conveyed the lands to the mortgagor, who executed to the payee the notes and mortgage in controversy, for the purchase-money ; that the payee and her paramour then eloped, taking with them the notes and mortgage ; that the husband thereupon, on due notice to the wife and the mortgagor, sued for and obtained, in the common pleas court, a decree of divorce, a judgment that the notes and mortgage were in equity his, and an injunction commanding her, and all claiming under her, to surrender the notes and mortr gage to the husband, and forbidding the mortgagor from paying the same to her or her assigns ; that afterward the mortgagor and the purchaser of the equity of redemption had purchased of the husband the notes and mortgage in question, taking an assignment of the said decree as evidence of their ownership ; and that the plaintiff had purchased the notes subsequently, in bad faith, for an inadequate consideration, and with notice of the husband’s rights and decree.</p> <p>Held, on demurrer, that, regardless of whether or not the complaint for divorce was sufficient, the answer and counter-claim were sufficient.</p> <p>Held, also, that the common pleas court had jurisdiction to render such decree, and that, as nothing to the contrary appears, notice to the defendants therein is presumed.</p> <p>Held, also, that such decree could not he attached collaterally.</p>

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

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

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

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

<p>Supreme Court. — Appeal on Question of Law Reserved. — Assignment of Error. — Dismissal of Appeal. — Without an assignment of error, as in other cases, an appeal to the Supreme Court on a question of law reserved will he dismissed.</p>

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

<p>Mines and Mining. — Clay and Coal. — Action for Damages for Sinking the Surface. — Negligence.—Conveyance.—Lessor and Lessee. — The owner of the fee in certain lands, by written instrument, granted to A. “the sole right to dig, mine, use or sell clay situated on” such land “(except such clay as the ” grantor “ may dig for potter’s use) ; ” and also theright to dig and mine coal on the same premises. He afterward, in like manner, granted to B., in the same lands, the right “ to have, hold and possess all the coal, iron, lead and all other productions,” vegetable and mineral, “under the surface, except the clay and stone heretofore let to ” A. The assignee of the latter, in mining immediately underneath a mine operated by an assignee of the former, failed to leave , sufficient supports to the ground above him, which settled down and thus destroyed the upper mine.</p> <p>Held, in an action by the owner of the upper mine, against the owner of the lower, that the latter is liable for the damages sustained by the plaintiff, and that proof of the defendant’s failure to leave sufficient supports to the ground overhead sustains the allegation of negligence, charged in the complaint.</p>

<p>Demurrer to Evidence.— When may he filed. — Either party to an action on trial by a jury may, on conclusion of the evidence in chief of the opposite party, interpose a demurrer to .the evidence, and all of the evidence then in must be considered in ruling upon the demurrer.</p> <p>Same. — Record.—Supreme Court. — Where, m such ease, an appeal is taken to the Supreme Court, the record should contain all of the evidence. Same. — Effect to he given to Evidence. — In deciding upon a demurrer to evidence, the court must find against the party demurring, if, upon any reasonable construction of the evidence, the jury might have found for the opposite party, had the case gone to them for a verdict.</p> <p>Same.' — Promissory Note Payable in Bank. — Action by remote Endorsee after maturity. — Fraud inadmissible in Evidence under Plea of non est factum.— Negligence. — On the trial of an action by an endorsee of a promissory note payable in bank, wherein the defendant denied the execution of the note. under oath, the evidence established that the defendant, intending merely to accept an appointment as an agent to sell a certain article, and having the ability to read, executed the note in suit, reading “ Six months after date, or before if made out of ” the sale of such article, etc., believing the same to read “ Six months after date, if made out of the sale of ” such article, as the same was read to him. The note showed endorsements by the payee and another in blank and not dated, hut the / endorsement to the plaintiff bore date after the maturity of the note.</p> <p>Held, on demurrer by the plaintiff to the evidence, that he was entitled to recover.</p> <p>Held, also, that mere fraud in the execution of the note was not admissible in evidence under the plea of non est factum.</p>

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

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

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

<p>Criminal Law. — Prostitute.—Affidavit and Inf ormation. — Under section 5 of the act of 1877, Acts 1877, Spec. Sess., p. 80, defining the offence of being a prostitute, it is necessary to the sufficiency of an affidavit and information charging such offence, that they charge the defendant with the commission of acts constituting such offence.</p>

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

<p>Pleading. — Practice.—Common Law. — Demurrer.—Motion.—Where the defects in a complaint are such as, at common law, could have been reached only by special demurrer, they can be reached, under the code, only by motion, and such complaint is good on demurrer.</p> <p>Same. — Exhibit.—Foundation of Action. — Promissory Note. — In a suit by a banking corporation, against the proprietors of a private bank, to recover damages sustained by the former through the neglect of the latter to perform their duty in the collection of a note payable at the latter bank, the note is not the foundation of the action, and a copy thereof attached to the complaint as an exhibit forms no part of the complaint.</p> <p>Same. — Plea in Bar. — Bankruptcy.—Mitigation of Damaget. — In such case, a paragraph of answer, admitting the deposit of the note for collection and a failure to protest the same, but alleging the subsequent bankruptcy of the maker of the note, a composition by him with his creditors, without receiving a discharge, and his then ownership of valuable property, constituted no bar to the plaintiff’s cause of action ; and the facts alleged were available, if at all, only in mitigation of damages.</p> <p>Same. — Existence of Bank put in Issue by General Denial. — An answer of general deniai in such case puts in issue the existence of the hank mentioned in the note.</p> <p>Same. — Harmless Error. — It is a harmless error to sustain a demurrer to a paragraph of answer, when the facts alleged therein could he and were given in evidence under other paragraphs of such answer.</p> <p>Same.— Waiver, by Trial without Issue.- Judgment on Pleadings. — "Where a defendant goes to trial without an issue on his answer, he waives issue and is not entitled to a judgment on the pleadings for the want of a denial or ■ avoidance of such matters.</p> <p>Special Vebdict.— Venire de Novo. — The facts involved in the finding of a special verdict are evidentiary and inferential. It is the duty of the jury to consider the evidentiary facts, hut to find the inferential facts ; and if the special verdict shows upon its face that the jury found the evidentiary facts, but not the inferential, the verdict is ill, because it shows that the jury ought to have found other facts, namely, the inferential. The jury should not find the evidence but the facts, that is, the inferential facts.</p> <p>Same. — Failure of Bank to give At tice of Non-Payment of Note Payable in Bank. — "When the proprietors of a hank are sued for failing to give notice of the dishonor of a note left with them for eolleotion, and the material issue in the cause is as to whether due notice was given to the plaintiff of the dishonor of such noto, a special verdict, which does not find that due notice was given, or facts from which the court can pass upon it as a question of law, is not sufficient to enable the court to render judgment upon it, and a venire facias de novo should be granted.</p> <p>Same. — Abbreviation.—Evidence.—A promissory note ‘‘ payable at Citz-. Bank, Noblesville, Ind.,” is a note payable at “ Citizens Bank,” etc., and if the jury might have so found upon it, such note was admissible in evidence in such case.</p>

<p>PARTNERSHIP. — Set-off.—Promissory Note. — Fraud.—Negligence.—Pleading. —In a suit upon a promissory note not payable in bank, the defendant ■ answered that himself, B. and C. were partners ; that B. and defendant bought out O.’s interest in the concern, each to pay one-half of the amount agreed upon ; that the note in suit was executed by defendant to C., in discharge of his half; that when C. retired from the firm he was indebted to it in a certain sum, on his individual account, which indebtedness C. had fraudulently concealed from defendant; that defendant subsequently bought out B. and became thereby the owner of the entire claim against O. and asked that such claim he allowed as a set-off against the ' note.</p> <p>Held, that such claim does not constitute a set off. “When a partner sells his “ interest in the concern,” it must he presumed that he sells only his legal interest in the firm; and it can not he assumed, in the absence of any stipulation to that effect, that such partner sold or intended to sell his indebtedness to the firm.</p> <p>Held, also, that, when a party relies upon fraud as a ground for relief, facts showing the fraud must he alleged.</p> <p>Held, also, that it will be assumed that O.’s indebtedness to the firm appeared upon its books, and that such books were open to the examination of the defendant, and his alleged ignorance of the existence of such indebtedness was the result of his own inexcusable negligence.</p>

<p>Criminal Law. — Supreme Court. — Defective Record. — Practice.—The Supreme Court will not pass upon any proceeding when some essential part thereof is omitted from the record.</p> <p>Same. — Postponement.—Affidavit.—Bill of Exceptions. — Record.—"Whore an affidavit, which purportsto be the one upon which a motion to postpone the trial of a criminal cause was founded, is simply copied into the record by the clerk without any order of court and not as a part of any bill of exceptions, it is improperly in the recoi'd, and in legal contemplation does not constitute any part thereof, and no question as to its sufficiency is presented.</p>

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

<p>Fraudulent Conveyance. — Complaint by Surety of Defaulting Guardian, to set aside. — Death Presumed from Absence. — Decedents’ Estates. — Heirs. —In an action by tbe surety of a defaulting guardian, against the guardian and another, to set aside an alleged fraudulent conveyance of real estate hy the guardian to his codefendant, the complaint alleged that the guardian had been duly appointed and qualified, with the plaintiff, as surety on his bond, and had received certain moneys belonging to his wards, which he had failed to account for, and which the plaintiff as surety, had been obliged to pay ; that the guardian, being the owner of the real estate in question by virtue of an unrecorded deed, and intending to defraud his creditors, destroyed his deed and procured his grantor to execute a deed conveying the same to his codefendant, who was then an infant ; that the guardian became insolvent, and had been absent from the State, and had not either been seen or heard from, for over fifteen years ; and that, he being presumptively dead, the codefendant was his sole heir.</p> <p>Held, on demurrer, that the guardian is presumed to be dead, that the plaintiff’s claim can not be prosecuted against the heir until administration be had on the guardian’s estate, and therefore that the complaint is insufficient.</p> <p>Same. — Limitations.—Exception.—Demurrer.—An action to set aside a fraudulent conveyance must be brought within six years ; but, though the complaint show the expiration of the six years prior to bringing the action, that fact does not render it insufficient on demurrer unless it also shows that the action does not fall within any of the exceptions to the statute.</p> <p>Death Presumed erom Absence. — Administrator.—Absence of five years, without tidings, raises the presumption of death, and the appointment of an administrator is proper. See note a, 2 B. S. 1876, p. 493.</p> <p>Pleading. — Blank Dates. — • Uncertainty. — Demurrer.—Material blanks as to dates in a pleading may be reached by a motion to make certain, but not by demurrer.</p>

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

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

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

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

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

<p>Chattel Mortgage. — Sale of Mortgaged Goods on Execution. — Justice of the Peace. — On the filing of an affidavit by the judgment creditor, alleging that delay in issuing execution will endanger the collection of his judgment, a justice of the peace may issue an execution thereon, immediately on its rendition ; and a sale, by a constable, on such execution, after due notice, of goods covered by a chattel mortgage, is not void.</p> <p>Record. — Exception to Rejection of Evidence. — Motion for New Trial.— The fact that an exception was reserved to the rejection of evidence offered must be made to appear by the record ; a mere allegation in the motion for a new trial, that such exception was reserved, not being sufficient.</p>

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

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

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

<p>Town. — Street Improvements. —Enforcement of Assessment. — Pleading.—In an action by a contractor, against the owner of a town lot in an incorporated town, to enforce an assessment thereon for a street improvement, the complaint must aver that the essential requisites of sections 8, 9 and 10 of the act of April 27th, 1869,1 It. S. 1876, pp. 893 and 894, authorizing the trustees of such town to cause such improvement to be made, have been complied with.</p> <p>Same. — Contract for Improvement must be Written. — Acceptance of Bid by Trustees not a sufficient Contract.— Presumption. — Under the statute, the contract between the contractor and the town for the work contemplated by such improvement should be in writing ; and when the complaint does not aver that it is in writing, and no copy thereof is filed with the complaint, it will be presumed that it was not in writing, and the complaint will, therefore, be insufficient. The parol acceptance, by the board of trustees of the town, of the written bid of the contractor for the work, is not such a contract as the statute requires in such cases.</p> <p>Same —Averments as to Cost of Improvement. — Under section 9, supra, the contractor should aver in his complaint, for the purpose of showing that the requirements of the statute have been complied with, and that the defendant’s lot has been charged with no more than its just proportion of the cost of the improvement, the facts in regard to such cost, the whole length of the improvement, the length of the defendant’s front line thereon, and -that the cost thereof has been estimated to the different lots or parcels of land bordering thereon, and the owners thereof, in the ratio prescribed by the statute.</p> <p>Same. — Variance.— Written, not Evidence of Parol, Contract. — "Where, in a case of this kind, the contract declared upon for the want of an averment in the complaint to the contrary, is presumptively parol, the contractor’s written bid and the written acceptance of the same by the board of trustees, constituting, if a contract at all, a written contract, are not competent evidence of the contract declared on.</p> <p>Same. — An acceptance of a bid which contains no agreement by the contractor to perform the work according to the specifications, is not a valid contract.</p>

<p>Guardianship. — Final Settlement. — Judgment.—Appeal.—To authorize an appeal from the final settlement of a guardianship, such settlement must he .of such a nature as to fully discharge the guardian from his trust and all duties in regard thereto, and leave nothing to he done hy him in his fiduciary capacity.</p> <p>Same.- — Bill of Exceptions. — Practice.—Supreme Court. — Record.—-"Written exceptions to the reports of a guardian, and oral evidence adduced upon the hearing thereof, can only he made parts of the record hy a hill of exceptions.</p>

<p>Pleadins. — Substituted Complaint on Promissory Note. — Copy.—Arrest of Judgment. — Waiver by Failure to Demur. — Complaint Cured by Finding.— In an action on a promissory note, wherein the defendant, without demurring, had joined issue on a substituted complaint, containing no copy of the note, ho asked and was denied leave, after trial had commenced, to withdraw his answer and demur to such substituted complaint. His motion in arrest having been overruled, he appealed to the Supreme Court, there assigning as error the overruling of his motion in arrest, and also questioning the sufficiency of such complaint.</p> <p>Held, the record showing that both the original and an amended complaint contained copies of the note, that the defendant, by failing to demur, had waived objection to the want of such copy in the substituted complaint, and therefore, as to that point, that such complaint was cured by the finding, and is sufficient.</p>

<p>©ravel Eoad Assessments. — Repealing Act of 1875. — Effect of Reviving Act of 1877. — By the act of March 13th, 1875, Acts 1875, Eeg. Sess., p. 80, all laws authorizing an assessment, or the collection thereof, for plank, macadamized or gravel road purposes in this State were repealed, and, therefore, assessments theretofore made under any previous act could not be collected while that act remained in force ; but by the act of March 2d, 1877, Acts 1877, Eeg. Sess., p. 72, the act of 1875 was modified to the extent that valid assessments, which had been made and placed upon the tax duplicate prior to March 13th, 1875, under the provisions of the act of May 14th, 1869, Acts 1869, Spec. Sess., p. 73, were authorized to be collected, in cases where the corporations had contracted debts on the faith of the assessments, and for that purpose, and to that extent only, said act of 1869 was revived.</p> <p>Same. — Curative Act. — Said act of 1877 was not intended to act as a curative statute, and does not authorize the collection of assessments which were void for non-compliance with the statute under which they were made.</p> <p>Same. — Injunction.—Estoppel.—Pleading.—Notice.-Ao a suit to enjoin the collection of certain void gravel road assessments, made more than two years priorto the passage of said act of 1875, an answer was filed setting up, by way of- estoppel, that such assessments had been upon the tax duplicate for more than two years prior to the passage of said act of 1875, and that the plaintiffs, during that time, had instituted no proceedings to contest their validity, but had stood by and seen the defendant, during said time, perform work and contract debts upon the faith of such assessments, but it did not allege that the plaintiffs, during- said time, had any notice of the facts rendering such assessments void,</p> <p>jHeld, on demurrer, that the answer is insufficient.</p>

<p>Contract. — Statute of Frauds. — Memorandum, Reformation of. — Parol Evidence of Mistake Inadmissible. — Set-Off.—In a suit upon account, for goods sold and delivered, an answer was tiled alleging that the plaintiffs, H. Bros., by their agent, E. E. L., executed and delivered a written memorandum of goods they agreed to deliver to the defendants, A. P L. & Bro., of which the following is a copy: “ Terre Haute, Ind.,--, 187-, A. P. L. & Bro.” (Under this caption a list of the articles, with their specific and aggregate price, is given.) “Ereight. Ship Emp. Line, 60 days’ acceptance. [Signed,] H. Bros., per E. E. L., April 21st, 1875 that said goods were not delivered to the defendants, hy reason whereof they had been damaged in a certain sum : that said memorandum was written on a bill-head of the defendants, and by mistake the word “ sold ” was omitted from before the firm name of defendants. Prayer for a reformation of the memorandum, an offer to set off an amount of the damages equal to the plaintiffs’ claim, and a demand for judgment for the residue.</p> <p>Held, that the contract is within the statute of frauds, and that the memorandum is not a “ note or memorandum in writing of the bargain,” within the meaning of the statute.</p> <p>Held, also, that parol evidence was not admissible to supply the omitted word in the memorandum.</p> <p>Bill op Exceptions. — Filing of. — Practice.—Where special leave beyond the term is not given by the court to reduce exceptions to writing, they can not be made part of the record by a bill of exceptions signed and filed at a subsequent term.</p> <p>Same. — Must be Signed by Judge who tries Cause. — Where a change of venue from the regular judge of a circuit is taken, and another judge is appointed to try the cause, who presides at the trial and renders judgment in said cause, he alone is authorized to sign any bill of exceptions therein.</p> <p>Depositions. — Motion to Strike Out. — Where a motion is made, as an entirety, to strike out a certain question and the answer thereto in a deposition, and some of the matter to which the motion is directed is free from objection and pertinent to the issues in the cause, it will be correctly overruled.</p> <p>Evidence. — Delivery.—Sale.—The delivery of goods pursuant to a written order for their shipment, and the quality and kind of the goods, can be proved by parol evidence.</p>

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

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

<p>Practice. — Demurrer waived. — Amendment.-—Where, after a demurrer has been overruled to a pleading, an additional paragraph is filed, containing the same avennonts, a failure to demur thereto renders the ruling on such demurrer harmless.</p> <p>Same.— Uncertainty in Pleading. — Demurrer.—Motion.-—Uncertainty in a pleading is reached, not by demurrer, but by motion to make certain.</p> <p>Same. — Special Demurrer at Common Law. — Under the practice act, amotion to make certain takes the place of, hut is somewhat broader than, a special demurrer at common law.</p> <p>Same. — Defective Complaint Cured by Verdict. — Under section 580 of the practice act, many defects in a pleading are cured by verdict.</p> <p>Same. — Defects in Complaint Aided by Answer. — In an action to enjoin the sale of land on execution, an insufficient description, in the complaint, of the judgment on which the execution was issued, is cured by an accurate description thereof in the answer.</p> <p>Same. — Presumption Sustaining Instruction. — Supreme Court. — Where, on appeal to the Supreme Court, the evidence is not in the record, hut, under the issues, evidence might have been given to which the instructions would have been applicable, the presumption is that such evidence was given.</p>

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

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

<p>Mortgage, Foreclosure of.— Conveyance. — Breach of Warranty. — Gravel JRoad. Tax. — Lien.—Pleading.—In a suit to foreclose a mortgage and for judgment upon a note secured thereby and given for part of the purchase-money of the real estate covered by said mortgage, a paragraph of answer by the defendant, setting up a breach of a covenant of warranty in the deed conveying such real estate to him, by reason of the alleged lien of a gravel road'tax on the premises, and asking that the amount of such tax be deducted from the note, but not alleging that he had paid such tax or been in any way damaged, and not alleging facts showing such tax to he a valid and binding lien upon the property under the existing stututes upon the subject of such taxes, is insufficient.</p> <p>Same. — Repealing Act of 1875. — Reviving Act of 1877. — Where such conveyance was made after the enactment of 1875, repealing all. gravel road laws, but the cause was tried after the enactment of 1877, reviving certain gravel road assessments, such an answer should aver facts showing that the assessment complained of comes within the latter statute.</p> <p>Same. — Parol Agreement for Extension of Time of Payment. — In such case, a second paragraph of answer setting up, in abatement of the action, a parol agreement, made after the execution of said note and mortgage, for an extension of the time of payment of the same, upon the promise of the defendant to pay such tax, but not showing that such tax was a valid lien upon the real estate, and not averring on the part of the defendant either performance of, or a willingness to perform, such parol agreement, is insufficient.</p> <p>Evidence. — Where the question as to whether or not a cellar is wet is in issue, the evidence of a witness who has never seen it, but who will testify, from the description of it given by other witnesses and from his knowledge of the condition of a cellar in a house at one time owned by him within a square of the collar in question, that it can not be kept dry in wet weather, is not competent.</p> <p>Eravd. — Failure to Complain. — Where fraud is alleged as a defence to an action on a contract to pay money, the fact that the debtor never complained of the alleged fraud, in conversing with the creditor about the payment of the money, may he considered against the debtor.</p>

<p>Attorney. — Disbarment of. — Proceeding must Comply with Statute.— Appeal. — Assignment of Error. — Practice.—A proceeding to disbar an attorney must conform to the requirements of section 780 of the code, 2 R. S. 1876, p. 308. A summary order, made by the court upon its own motion, against a person, impliedly recognizing him as an attorney, prohibiting and debarring him from practising as an attorney at the bar of such court,. without any compliance with said section 780, is void, and an appeal will lie therefrom, and objection to such proceeding can be properly taken by assigning error upon the transcript of it, in the Supreme Court.</p> <p>Same. — Presumption that'Practising Attorney has been Licensed. — Where a person has been in fact practising as an attorney, he will be presumed, the contrary not appearing, to have been licensed to practise.</p>

<p>Chattel Mortgage. — Record of, Admissible m Evidence without Proof as to Original. — Promissory Note. — Replevin.—In a suit to recover the possession of a naortgaged chattel, and damages for its detention, the record of the chattel mortgage to the plaintiff, and of a promissory note set out in such mortgage and record, is, under section 283 of the practice act, 2 B. S. 1876, p. 150, admissible in evidence without proof of the execution, and without accounting for the absence, of the original of either the mortgage or the note.</p> <p>Same. — Foundation of Action. — Pleading.— Copy. — In such case, neither the mortgage nor the note is the foundation of the plaintiffs action, and it is not necessary that either should be filed with or made part of the complaint.</p> <p>Same. -Description of Property Intended, to be Mortgaged. — Parol Evidence. ■ — In a chattel mortgage, the property should be described with reasonable particularity ; but in this State parol evidence is admissible to identify the property ; and where the chattel is described as a “ dark bay mare,” the mortgage is not void for uncertainty in the description.</p> <p>Evidence, How Introduced. — Error in Admission of \ when Cured. — Discretion of Court. — Practice.—A party may introduce his evidence in the order he prefers, subject only to the discretion of the court trying the cause ; and where evidence has been admitted, which, standing by itself, is erroneous, the error may be cured by the subsequent admission of evi- . denee supplying the defect, and is not then available on appeal.</p>

<p>Depositions. — Sufficiency of Officer’s Certificate to. — The certificate annexed to depositions was substantially as follows : “ I,” etc., ‘‘ a notary public in and for,” etc., “duly commissioned,” etc., “do hereby certify that the above named,” etc., “ were by me first duly sworn,” etc., “ to testify the truth,” etc., “ relating to said cau&e ; that said depositions were reduced to writing by me ; that the said,” etc., “adverse party herein, did not attend by attorney or in person, and said depositions were taken at the law-office of,” etc., “ in,” etc., “ on,” etc., “between the hours of,” etc. “In testimony,” etc.</p> <p>Held, that this certificate fills the requirements of the statute.</p>

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

<p>Master and Servant. — Action by Servant against Go-Servant. — Negligence. — A servant is liable to a co-servant in damages, for a physical injury resulting to the latter by means of the negligence of the former, in the performance of labor for a common master.</p> <p>Instruction. — Harmless Refusal. — Where an instruction given embraces the substance of one refused, the refusal is harmless.</p>

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

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

<p>Criminal Law. — Indictment for Obstructing Highway. — Description.—An indictment for obstructing a public highway should describe its location with more particularity than the mere allegation that it was situated in a certain township, county and state.</p>

<p>Liquob Law. — Sale made after Granting, but before Issuing, License. — Cases Overruled. — Under sections 5 and 8 of the liquor law, 1 K. S. 1876, p. 871. a license to retail intoxicating liquors can not be granted for a greater or less time than one year, and the license is issued as of the date it is granted; and where the proper officers receive the applicant’s money and issue his license, after the date of his license and of the grant thereof, he can not thereafter be prosecuted for a sale made after the grant, but before the issue, of his license, as for a sale made without license. To the extent of any actual conflict between the decision in this case and the cases of Houser v. The State, 18 Ind. 106, Schlict v. The State, 31 Ind. 246, and Wiles v. The State, 33 Ind. 206, the latter are overruled.</p>

<p>Conversion. — Evidence.—Practice.—On tlie trial of an action for the conversion of lumber, wherein the plaintiff has given no evidence concerning lumber in the' defendant’s possession, the latter will not be permitted to prove the hind and quality of lumber in his possession and how he obtained it, as evidence that it is not the lumber in controversy.</p> <p>SAME. — Evcesiive Damages. — Supreme Court. — "Where the evidence is conflicting, the Supreme Court will not disturb the verdict, even though the damages assessed seem too large.</p> <p>Same.--New Trial. — Affidavits.—Misconduct of Juror. — Affidavits in support of and against a motion for a new trial on the ground of the misconduct of a juror may be allowed by the circuit court; and the Supreme Court will not disturb the decision of the court below upon any other principle than that upon which it will disturb the verdict of a jury for the want of sufficient evidence to support it.</p> <p>Same. — Objection to Evidence must be Pointed Out. — In order that a question may be saved in the record regarding the admission of evidence, the grounds of objection thereto must be pointed out at the time objection is made.</p>

<p>Board ojt Commissioners. — Liability to Sheriff for Articles Purchased for Jail. — The board of commissioners of a county in this State are liable to the sheriff of such county, for the price of brooms and mops purchased by him and used in keeping the county jail clean.</p>

<p>Estoppel — Withdrawal of Appearance. — Default.—Pleading.—Practice.— Supreme Court. — The facts that a demurrer by the defendant to the complaint is overruled, and that he then withdraws his appearance and makes default, without reserving any exception to the decision upon the demurrer, do not estop him from questioning the sufficiency of the complaint in the Supreme Court, where the case stands as if no demurrer had been filed.</p> <p>Same.— Waiver. — Jurisdiction.—The doctrine of waiver, as applicable to questions ordinarily arising during the progress of a cause, does not apply to questions of jurisdiction over the subject-matter of the action, aor to the sufficiency of the facts set up in the complaint.</p> <p>Execution. — Duty of Officer Holding. — All Property of Debtor prima facie Subject to. — Exemption.- Under the statutory provisions bearing upon the seizure and sale of property upon execution, construed together, all the property of execution defendants in this State is, prima facie, subject to execution, and it is the duty of an officer holding an execution to proceed until some claim for exemption is lawfully interposed.</p> <p>Same. — Action against Officer for Failing to Levy. — Defence.—In an action against a sheriff for failing to levy upon property, it may be shown in defence that the property was exempt from levy and sale ; but, to avail as a defence, such exemption must be affirmatively shown.</p> <p>Same. — Averment as to Value of Property. — In such case, an averment in the complaint, that the execution defendant, at the time the execution was in the sheriff’s hands, “ owned a large amount of both real and personal property, — more than enough to pay and satisfy said execution,” is equivalent to an averment that such property was of some value, and of greater aggregate value than the amount of the relator’s judgment.</p> <p>Same.— What constitutes Service of Execution. — The service of an execution is the communication of its contents to the execution defendant, accompanied by or followed with a demand for its satisfaction, and in its natural order precedes the levy of the execution.</p>

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

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

<p>Contract. — Worh and Labor. — ¡Pleading.—Action.— Where work has been clone and materials furnished, under a special contract, and the work has been fully performed .and the conditions of the contract fulfilled, an action will lie for such work and labor and materials upon the common counts, and upon the trial the plaintiff can prove the special contract and the performance under it.</p> <p>Same.. — Mechanic s Lien. — Married Woman. — In a complaint to enforce a mechanic's lien against the property of a married woman, an allegation that “said improvements were necessary for the full and complete enjoyment of said real estate ” sufficiently shows that they were for the “ betterment ” of her estate.</p> <p>Same. — Act Repealed by Implication. — When a married woman makes improvements upon her separate estate by building, it is not necessary that she should contract with a view of charging such estate, as it is the law and not the contract which gives the mechanic his lien. If there is any irreconcilable conflict between the proviso to section 5 of the act touching the marriage relation^ 1 R. S. 1876, p. 550, and the law on the subject of mechanic’s liens, the latter, being the later law, must prevail.</p>

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

<p>Malicious Prosecution. — Complaint.—A complaint for damages for malicious prosecution, which fully alleges the institution of a criminal prosecution of the plaintiff by the defendant, acquittal thereof, malice, want of probable cause and damage, is sufficient.</p> <p>Same. — Pecuniary Damages. — Motion to make Certain. — Demurrer.—The failure of the complaint in such case to state the particular amount of expense to which the plaintiff alleges he was subjected in resisting the criminal prosecution may be reached by a motion ,to mate certain, but not by demurrer. Bill oe Exceptions. — Time of Filing. — Record.—Where time beyond the term is not granted for the filing of a bill of exceptions, it forms no part of the record if filed after the term.</p>

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

<p>Prom, the Huntington Circuit Court.'</p>

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

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

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

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

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

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

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

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

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