Volume 67 — Indiana Reports

<p>Conveyance. — Reservation of Dam, Race, Water-Rower and Right of Way. —Subseguent Conveyance of Mill Privileges. — Abandonment of. — Easement. —Parties.—On the death of the owner in fee-simple of certain lands, across which flowed a creek which, by means of a dam across it, supplied a millrace with water used in propelling a mill, all situated on said lands and belonging to such land-owner, a commissioner of court, in a suit to partition such lands, sold and conveyed to A., and A. sold and convoyed to B., that part of such lands on which were situated said creek and dam and the upper part of the mill-race ; “ Reserving, however, expressly, the right to the water, dam and mill-race now upon said premises, as the same exist, and the right of way '* to pass and repass on both sides of said race, and along and around said dam on either side of ” said “ creek * , as may be needed for the purpose of repairing, rebuilding or examining the same or eitherof them * and A. “purchased said land subject to rights of way for a race now running through the same.” Said commissioner afterward sold and conveyed to C., who sold and conveyed to D., who sold and conveyed to E., a part of such lands below that conveyed to B., and embracing the mill and the lower part of the mill-race, “ “With all the mills, houses, structures and improvements thereon, the right of water by which said mill is propelled, and right of way to improve * the race in which said water is conveyed (said right of way, when added to said race, to he limited to forty feet in width, taken together, on all lands through which said race now passes, not sold to O. * ), the right to, and use and benefit of; the dam from which said race issues and is supplied, and the further right of way * along ” said “ creek, to said dam, for the purpose of making repairs upon and around the same. Said water-power mentioned being considered as that running within said race, from the dam aforesaid.”</p> <p>B. sued B., alleging that the latter, to supply certain ice-ponds on lands of third persons with water, had suffered the latter to construct a dam in said race ; had run his mill by steam, instead of water, during the ice season ; had increased the height of the dam and increased the capacity of the mill-race, and changed the use of the water from milling purposes to that of supplying such ice-ponds ; and that he had thereby caused pools of water to stand on and in the vicinity of the plaintiff’s premises. Prayer that B.’s easement he declared forfeited.</p> <p>Held, that all the rights reserved in the deeds to A. and B. were not conveyed to C., D. or B.</p> <p>Held, also, that, though B.’s acts he wrongful, B-. can not maintain an action to declare the casement forfeited.</p>

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

<p>Statute of Frauds. — Contract for the Sale of Real Estate. — Specific Performance. — Part Performance. — Pleading.—Practice.—Demurrer.—In an action against a husband and wife, to recover the possession óf real estate, the wife filed a cross complaint, alleging that theretofore her husband was the owner of the real estate in controversy and was indebted to the plaintiff; that said real estate had been purchased with her money, of which plaintiff had notice: that, as an inducement to defendant to join her husband in the execution of a mortgage on the property to secure said debt of her husband to the plaintiff, the plaintiff agreed with her that if she would join in the mortgage, and would pay the plaintiff, out of her separate property» tbe said debt, within a certain time, and the expense of foreclosing said mortgage, he would foreclose said mortgage, buy in the property at the sheriff’s sale, and immediately thereafter convey it to her by deed, in fee-simple ; that, upon the faith of this agreement, to which the husband also assented, she joined in said mortgage ; that she was in possession of said real estate, at the time of said agreement, and was still in possession ; that she had paid said sum before the expiration of the time specified, and also the costs of the foreclosure, but that plaintiff had refused to comply with said agreement, and had refused to execute said deed. Prayer for an order requiring the plaintiff to convey said real estate to her.</p> <p>Held, on demurrer, that it will be presumed, the contrary not being alleged, that the agreement counted upon was verbal; and if it is such as is required by the statute of frauds to be in writing, the objection may be taken by a demurrer for the want of sufficient facts.</p> <p>Held, also, that , such agreement was for the sale of real estate, and, not being in writing, comes within clause i of section 1 of the statute of frauds.</p> <p>Held, also, that the cross complaint shows no such part performance of the agreement on the part of the wife, as will take the case out of the statute, and entitle her to specific performance.</p>

<p>New Trial. — Assignment of Error. — Supreme Court.— Waiver. — "Where an assignment of error in the Supreme Court alleges that “ the court below erred in not granting a new trial for ” a reason stated both in the assignment of error and in the motion for a new trial, it brings in review such ground only, though others be stated in such motion.</p> <p>Bridges, Erection of. — Superintendent.—Agency.—Contract.—Extra Work. —Board of Commissioners. — Under the provisions of the act for the erection and repair of bridges, etc., 1 K. S. 1876, p. 239, the superintendent appointed by the board of commissioners has power to let contracts for the construction of bridges, and to superintend the work; this makes him the agent of the county for the purpose of the construction of the bridge or bridges, and he may bind the county by requiring work to be done beyond that contemplated by the contract.</p> <p>Same. — Measure of Damages for Extra Work. — In such case, where the extra work, required by the superintendent to be done, prolongs the time necessary to the completion of the bridge into a season when the work is more difficult to perform, and when the material required is not so easily procured as that contemplated by the contract, an increased rate of compensation may be allowed for such extra work.</p> <p>Same. — Instruction.—Excessive Damages. — The measure of damages in such case should be settled by an instruction to the jury, and not be raised for the first time by a motion for a new trial, based on the ground of excessive damages.</p>

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

<p>Practice. — Assignments of Error. — Amendment of Complaint after Finding. —Assignments of error, that the court below erred in overruling a demurrer to the complaint and a motion in arrest of judgment, do not present any question concerning the action of the court in permitting or directing the amendment of the complaint after the announcement of the finding.</p> <p>Same. — Supreme Court. — Presumption.—In such case, if the defendant is prejudiced or misled by the amendment, he must, under the px-ovisions of section 94 of the practice act, 2 E. S. 1876, p. 80, show in what respect he was misled, so that the court may order the pleading to be amended upon such terms as may be just. In the absence of such showing, the Suprexxxe Court will assume that the action of the court below was'proper, and that the defendant was not prejudiced or misled thereby.</p>

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

<p>Married Women. — Contracts of, when Void. — Separate Estate.- — Act o/1879 does not Affect Prior Contracts.- Under the provisions of section 5 of “ An act touching the marriage relation,” etc., 1 R. S. 1876, p. 550, a married woman could charge her separate estate in such manner as to encumber the same, only by an instrument in writing, signed and delivered, in which her husband should join ; and a written contract executed by her prior to the passage of the act of 1879, “concerning married women,” Acts 1879, p. 160, by which she acknowledged herself indebted to a certain person, in a certain amount, for money, materials and labor furnished and used in improving her separate real estate, is void in law, as such act of 1879 does not give validity to contracts made prior to its passage.</p>

<p>Railroad. — Police ¡Regulation. — Nuisance.— Constitutional Law. — Section 1 of the act of March 29th, 1879, Acts 1879, p. 173, provides, in substance, that it shall be the duty of all railroad companies, operating in this State, to have attached to every locomotive engine a proper whistle, and that such whistle “shall, when such engine approaches the crossing ot any turnpike or other public highway in this State, and when such engine is not less than eighty, nor more than one hundred rods from such crossing,” be sounded “ continuously, from the time of sounding such whistle until ' such engine shall have fully passed such crossing.” It further provides that it shall not be so construed as to interfere with any city ordinance which has been or may be passed, regulating the management or running of such engine or railroad within the limits of such city.</p> <p>Held, that this statute is a police regulation, clearly within the scope of legislative authority, and is constitutional and valid.</p> <p>Held, also, that the Legislature may, when deemed necessary for the public good, permit or require that to be done which would, on common-law principles and without the statute, be deemed a nuisance.</p> <p>Held, also, that, where a law is unconstitutional, the courts will hold it void but upon no other ground can it be disregarded.</p>

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

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

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

<p>Guaranty. — Notice.—Tender.—Pleading.—Where, in a contract reciting that A. has assigned to B a certain judgment, hearing a specified rate of interest, C. and D. guarantee that said judgment and interest shall he paid to B. on or before a certain day, “and in case it is not paid by that time we guarantee the payment of three per cent, additional interest from said . date until said judgment is paid,’’ such contract is an absolute and original contract on the part of O. and D., with B., to pay both judgment and interest ; and in a complaint thereon by B. it is not necessary to aver that C. and D. had notice of the non-payment of the judgment, and it is not necessary that such complaint should make an offerto assign said judgment to O. and D.</p>

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

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

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

<p>ÍTew Tkial. — Assignment of Error. — Practice.—Supreme Court. — An alleged error in overruling an objection to evidence is merely a cause for a new trial, and is not assignable in the Supreme Court as error.</p> <p>Same.— Evidence must be Pointed Out.— Where a party complains of an alleged erroneous ruling of the court trying the cause, either in the admission or exclusion of evidence offered, he must point out with reasonable certainty, in his motion for a new trial, the particular evidence so admitted or excluded.</p> <p>Same. — Criminal Law. — Variance.--In a prosecution for larceny, an allegation that there was “ a variance in the proof on the trial and the description of the ’’ chattel “ named in the indictment,” is not a statutory cause for a new trial; but if the variance is so great as to show that the defendant did not steal the chattel, it may be said that a verdict of guilty is not sustained by the evidence.</p> <p>Same. — Newly-Discovered Evidence. — Impeachment.—It is a general rule, that a new trial will not be granted for the admission of newly-discovered evidence to impeach the testimony of a witness in the former trial, either by showing that the reputation of such witness for truth was bad or that the evidence given by him was false.</p>

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

<p>Harmless Error. — Pleading.—Practice.—Where every material fact set up in a paragraph of answer may be given in evidence under the answer of general denial, which is pleaded, the striking out of such paragraph is a harmless error.</p> <p>Same. Marriage Promise. — Action for Breach. — Rescission,—Evidence.—In an action for a breach of a promise to marry, evidence of a mutual rescission of the contract prior to the alleged breach is admissible under the answer of general denial.</p>

<p>Decedents’ Estates. — Jurisdiction of Circuit Court. — Amendment.—Promts* „ sory Note. — A claim was filed against the administrator of an estate, in the form of an open account for money paid for the decedent. It was entered upon the appearance docket, refused, and transferred to the issue docket. A demurrer for the want of facts was sustained to the claim. By leave of the court, an amendment to the claim was filed, setting out a promissory note made by the deceased to the plaintiff for a larger amount than the claim, hut giving credits which reduced it to the same amount, and averring that the consideration of the note was money paid for the deceased by the plaintiff, as stated in the original claim, which was made a part of the amended complaint.</p> <p>Held, that the circuit court had jurisdiction over the subject-matter, and that there was no necessity for the amendment, as the original complaint was sufficient.</p>

<p>Highway.— User for Twenty Tears, or Insufficient Description. — County Commissioners. — Pleading.—Notice.—The proceedings contemplated by section 45 of the highway act, 1 R. S. 1876, p. 534, to cause highways laid out but insufficiently described, and highways used for twenty years but not recorded, to be ascertained, described and recorded, are summary in their character, and may be instituted and maintained by the proper boards of county commissioners, without petition by, or notice to, any one.</p> <p>Same. — Application to be made Party. — Petition.—Any person competent to sue may, by petition or upon motion, make himself a party to any such proceeding ; but no question as to the sufficiency of a petition for the institution of such a proceeding can be raised</p> <p>Same. — Remedy.—Appeal.—Injunction.—Any person aggrieved by the final action of the board of commissioners may have his remedy either by injunction or appeal, as the circumstances of the case may require.</p>

<p>Review oe Judgment. — Complaint.—Limitation.—Legal Disabilities.— Demurrer. — The fact that a complaint for review of a judgment shows, upon its face, that it was not filed within three years after rendition of the judgment, does not render the complaint insufficient on demurrer, where it does not also affirmatively show that the plaintiff was not under legal disability to sue.</p> <p>Same. — Such a complaint is bad on demurrer, for want of a complete record of such judgment.</p> <p>Same. — Material New Matter. — A complaint for review, for material new matter, which does not allege the plaintiff’s ignorance of the new matter until after rendition of the judgment, and that he could not have discovered it by reasonable diligence, or which discloses that he was aware of it, before rendition of the judgment, is insufficient.</p>

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

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

<p>Liquor Law —Sale io Minor. — Prosecution instigated by Malice. — Reasonable Doubt. — "Where, in a prosecution for selling intoxicating liquor to a minor, the evidence shows that the prosecution was instigated maliciously by a third person, and there is a reasonable doubt as to whether or not the sale was made in the belief that the minor was of full age, a conviction can not be sustained.</p>

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

<p>Promissory Note. — Railroad, when “ Completed" — It was stipulated in a promissory note, given for common capital stock in a certain railroad, that the maker, for the purpose of aiding in the construction of said railroad, and in consideration thereof, promised to pay, upon the arrival of the first train of cars on said road at a certain place, to the order of the railroad company, at a hank in this State, a certain sum of money ; and that if said road was not completed by a certain day, and the cars running to said place, said note should be null and void. In a suit upon the note, by the assignee of the payee thereof, the evidence showed that the cars which ran to the place and on the day mentioned in the note were not run over the located and established line of the road, but over a temporary track laid down for the purpose, and that it was four months after that day before the cars were running to said place on said road.</p> <p>Held, that it was not necessary that the road should be perfect and finished in every particular, and its track well ballasted; but it should have been so far completed on its located and established line, that the cars might have been and were run, as stipulated in the note, and with reasonable regularity thereafter.</p> <p>Held, also, that the road was not completed, within the meaning of the note, and that it was therefore void.</p>

<p>Mandate. — Publication, by Auditor of State, in Newspapers, of Statements of Foreign Insurance Companies. — His Selection Final. — The auditor of state may be compelled, by mandate, to proceed to exercise the authority conferred upon him by that clause of section 1 of the amendatory act of March 3d, 1877, Acts 1877, Reg. Sess., p. 65, directing him to cause the publication, “ in the two leading daily newspapers of the State having the largest general circulation therein,” of the semi-annual statements of foreign insurance companies doing business in this State. But his selection of such newspapers is final, and he can not be compelled to select any particular newspaper in which to make such publication.</p>

<p>From the "W abash Circuit Court.</p>

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

<p>Contract to Pat Insolvent’s Debts. — Action by Creditor. — "When, by an instrument in writing, an insolvent debtor transfers and delivers all of. his property to another, and the latter therein promises “ to compromise or otherwise settle all the debts ” of the former, an action may be maintained thereon by a creditor who has given notice of his acceptance of its provisions.</p> <p>Same. — Debtor a Proper Co-Plaintiff. — Parties.—Demurrer.—The debtor is a proper co-plaintiff with the creditor in an action on such contract, against the other party thereto ; and, in such ease, a demurrer by the defendant, alleging that the debtor should be made a defendant, is ineffectual.</p> <p>Same. — Excessive Damages. — ■'Where, by the evidence, a finding against the defendant, on the trial of such action, might properly be for the full amount of the debt sued for, he can not complain, on a finding for only a percentage of such debt, that the damages were excessive.</p>

<p>Contract foe Benefit of Another. — Statute of Frauds. — Grammatical Construction. — Special Finding by Jury. — In an action on account, by employees of a certainmanufacturing company, against a creditor of such company, for labor alleged to have been performed by the plaintiffs for such creditor, the jury, with their general verdict for the plaintiffs, found specially, in substance, as follows : That, at a time when the plaintiffs were employed by such company in manufacturing, the defendant, on being notified by such company, that manufacturing must cease unless he would furnish means to continue the same, agreed with said president, upon a sufficient consideration, to furnish the means to operate the factory and carry on its business, including the payment of the operatives engaged in the factory ; that means were furnished by him for that purpose, and that he received the proceeds of the business ; that the operatives were informed of this contract, and acted upon it in rendering their services ; and that the defendant was informed of, and did not object to, the fact that such operatives were acting upon the faith of such contract, in rendering such services.</p> <p>Held, that, on the facts found, the defendant is liable.</p> <p>Held, also, that such contract was one for the benefit of the plaintiff, and was not within the statute of frauds.</p> <p>Held, also,1 that the defendant can not object to the use of the verb “ operate,” used in the instructions to the jury, in an active sense.</p>

<p>Obimiítal Law. — Toll-Gate on Turnpilx out of Repair. — Statute Construed. — Nuisance.—The inevitable inference from section 1 of the act of March 5th, 1859, 1 B. S. 187G, p. G71, is, that a turnpike company has no right to maintain a toll-gate upon a part of its road which has remained out of repair for an unreasonable time ; and that if such company persists in maintaining a toll-gate upon any part of its road so remaining out of repair, such toll-gate becomes an obstruction which may be abated as a public nuisance.</p> <p>Same. — The franchise of such company in such case lapses, at least until the road is duly put in repair.</p> <p>Same. — Breaking Down Toll-Gate. — A traveller who, without committing a breach of the peace; breaks down a toll-gate so maintained, is not guilty of the misdemeanor defined in section 66, 2 E. S. 1876, p. 479.</p>

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

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

<p>Decedents’ Estates. — Amendment of Claim, on Appointment of New Administrator. — Supreme Court.- — Practice.— Upon the appointment of "a successor to a former administrator of an estate against which a complaint is pending, the complaint should be amended by striking out the name of the former administrator, and inserting the name of bis successor ; but if the latter appear to the action, without objecting to the complaint on that ground, the Supreme Court will deem such amendment to have been made.</p> <p>Statute oe Limitations. — Judgment not a Contract. — Section 211 Construed. — A judgment is neither a contract, nor in the nature of a contnict, within the meaning of the word “ contracts,” as it is used in clause G, section 211, of the practice act, limiting actions “Upon contracts in writing” to twenty years.</p> <p>Same. — New Acknowledgment or Promise. — Section 220 Construed. — Section 220 of the practice act, providing that “No acknowledgment or promise shall be evidence of a new or continuing contract whereby to take a case out of the operation of the” statute of limitations, “unless * in * writing,” etc., contemplates only actions upon contracts, arid does not apply to actions upon judgments. ' -</p> <p>Same. — Deed of Assignment for Benefit of Creditors. — A deed of assignment by a debtor, for the benefit of his creditors, to a third person, constituting the latter his assignee and directing the assignee to pay his debts, is not an “ acknowledgment or promise,’’ within the meaning of said section 220.</p> <p>Same. — Requisites of “ Acknowledgment or Promise.” — The “ acknowledgment or promise ” sufficient to take a case out of the statute of limitations must be in writing, signed by the debtor, and to the creditor or his agent.</p> <p>Same. — Acknowledgment or Promise to pay Judgment Invalid. — No “ agieement or promise ” will take a judgment out of the operation of the statute of limitations.</p> <p>Same.- — Argumentative Reply in Denial rejected on Motion.- — Harmless Ruling on Demurrer. — Practice.—When the statute of limitations is pleaded in bar of an action, a reply alleging that the action was commenced before the expiration of the time limited amounts only to an argumentative denial, and, if the general denial bo also replied, may bo rejected on motion, and the sustaining of a demurrer thereto is harmless.</p> <p>Same. — Action against Administrator and Another struck from.Issue Docket. —Refiling of, on Appearance Docket, a New Action. — Civil Action. — Claim. —Continuation of Action. — Commencement of Action. — Appearance.— After the death of a judgment debtor, and within twenty years after the rendition of the judgment, a joint complaint against his administrator and an assignee for the benefit of his creditors, founded on the judgment, was filed by the creditor with the clerk of a circuit court, by whom it was placed upon the issue docket, but no summons was issued until after the expiration of the twenty years. Afterward, on the motion of the administrator, the cause was struck from the docket by an order of the court which gave leave to the “ plaintiff to file his claim herein against the estate of said ” decedent, and to “ have the same entered upon the appearance docket.” Subsequently, the creditor filed the same complaint, with the name of the defendant assignee struck out, upon the appearance docket, and, it not having been allowed, it was transferred to the issue docket, whereupon the administrator, more than twenty-one vears and six months after the date of the judgment, appeared voluntarily, and pleaded the statute of limitations.</p> <p>Held, that the joint action was a civil action, was not commenced until process issued therein, and was finally disposed of by the order striking it from the docket.</p> <p>Held, also, that the filing of the complaint upon the appearance docket was not a continuation of the first action, but was a new action, and was not commenced until the appearance of the administrator thereto, and was barred by the statute of limitations.</p> <p>Decedents’ Estates. — fíase Overruled.— Void Amendment. — The case of Langdon v. Applegate, 5 Ind. 327, holding that, to be validi amendments of a section of a statute must set out,'not only the section as amended, but the section to be amended, was overruled by the case of The Greencastle, etc., Turnpike Co. v. The State, ex rel., 28 Ind. 382, which holds that it is sufficient to set out the section in full, as amended.</p> <p>Same. — Amendment of Statutes. — Sections 63 and 06. — Amendatory Acts of 1833 and 1855. — Repealing Act of 1867. — Revival of Original Sections.— Sections 6 and 7 of the act of March 4th, 1853, Acts 1853, p. 40, amending sections-65 and 66 of the act of June 17th, 1852, 2 R. S. 1852, p. 261, providing for the settlement of decedents’ estate, were valid ; and therefore sections 1 and 2 of the act of Eebruary 20th, 1855, Acts 1855, p. 81, attempting to amend said sections 65 and 66 of said act of Juno 17th, 1852, were invalid ; but the act of March 9th, 1867, 1 R. S. 1876, p. 941, repealing all statutes not conforming to the overruled case of Langdon v. Applegate, supra, repealed said sections 6 and 7 of the act of March 4th, 1853, and thereby revived said sections 65 and 66 as enacted in said act of June 17th, 1852.</p> <p>Same. — Act of 1877, as to Repeal of Repealing Act, not Retroactive. — The act of March 12th, 1877, Acts 1877, Spec. Sess., p. 73, enacting that the repeal of a repealing act shall not revive the original act, is not retroactive as to the act of March 9th, 1867, supra.</p> <p>Same. — Claim.—Joinder of Parties Defendants Unauthorized. — The law does not authorize the joinder of third persons as parties defendants, in claims filed against a decedent’s estate.</p> <p>Statute of Limitations. — Absence from State. — Section 216 Construed.— Residence. —Process.—If a debtor, though personally absent from the State, so maintains his residence within the State, as that process may be served upon him, he is not “ absent ” within the meaning of that clause oí section 216 of the practice act, providing that “The time during which the defendant is a non-resident of the State, or absent on public business, shall not be computed in any of the periods of limitation.”</p> <p>Decedents’ Estates. — Amendment of Statutes. — Validity of. — Act 0/1877. — The act of March 13th, 1877, Acts 1877, Spec. Sess., p. 37, attempting to amend said section 66 of the decedents estates act, as attempted to be amended by said section 2 of said act of February 20th, 1855, is illegal and void.</p> <p>Same. — Evidence without Plea.- — Parties may Plead Specially. — Though, under section 66 of the decedents’ estates act, “ all matters of valid defence, except set-off, may be given in evidence without any special plea,” on the trial of a claim against an estate, yet, if the defendant elects to plead specially, the sustaining of a demurrer to a plea stating a good defence is available error.</p> <p>Same. — System of Practice. — Though said sections 1 and 2 of said act of Feb. 20th, 1855, supra, are unconstitutional, the system of practice thereunder is valid.</p> <p>Note. — Niblack, J., being a party to this cause, was absent during its consideration.</p> <p>Note. — Niblack, J., being a party to the record, was not present at or during the consideration of the petition for a 'rehearing in this cause.</p>

<p>From the Clark Circuit- Court.</p>

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

<p>Judgment. — Justice of Peace. — Confession without Affidavit. — A judgment rendered by a justice of the peace, on confession,. for a sum within his jurisdiction, without an affidavit by the defendant, though void as to-creditors, is valid between the parties.</p> <p>Same. — informality does not render Void. — -An entry of judgment in such a' case, showing an appearance by the defendant and his confession of judgment for a certain amount, with costs of confession duly taxed, is sufficient without the formal addition “ It is therefore considered,” etc.</p> <p>Same. — Transcript in Common Pleas Court. — Execution from Circuit Court. —On the abolishing of the common pleas court, the clerk of the circuit court had authority to issue executions on transcripts of judgments of justices of the peace, duly recorded and docketed in the common pleas court.</p> <p>Same. — Execution without Affidavit. — Sheriff’s Sale of Land.. — Estoppel.— An execution issued upon such a transcript, without an affidavit by the judgment plaintiff that the judgment is unpaid, is voidable merely, and not void; and a sale of lands upon such execution is valid, though, before sale, the judgment defendant might have had such execution set aside.</p> <p>Same. — Death of Judgment Plaintiff. — Execution hy Administrador without Revivor. —The administrator of a deceased judgment plaintiff may have execution without revivor of the judgment.</p>

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

<p>Liqtjob. Law. — Sale to Intoxicated Person. — Indictment.—An indictment charged, that, at, etc., on, etc., the defendant “ did unlawfully sell to ” J1. K. “ one gill of intoxicating liquor, at and for the price of ten cents, he, the said ” 1?. K., “ being then and there in a state of intoxication, contrary,” etc.</p> <p>Held, that the indictment is sufficient.</p>

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

<p>Erom tbe St. Joseph. Circuit Court.</p>

<p>Watercourse. — Dam Backing Water on Mill of Non-Riparian Proprietor. —Easement.—A non-riparian proprietor of a mill situated near a watercourse, and propelled by water drawn from and returned to such watercourse by means of races constructed through the intervening land, under grants authorizing the same, may maintain an action against a riparian proprietor below the tail-race, who so obstructs the flow of the Watercourse as to back water upon the water wheels of the plaintiffs mill ; and this regardless of whether or not the plaintiff has a grant from the riparian proprietors between the points where such races severally connect with the watercourse.</p> <p>Same.— Variance.— Words and Phrases. — The fact that the plaintiff alleges in his complaint, that his mill is situated “ on ” the watercourse does not amount to an allegation that he is a riparian proprietor, at variance with the real extent of his ownership.</p> <p>Same. — Amendment deemed Made. — Supreme Court. — An amendment of the complaint in such case so as to fit the evidence, being one that might be made below, will be deemed by the Supreme Court, on appeal, as having been made.</p> <p>Same. — Rights of Upper and Lower Proprietor. — Floods.—A lower riparian proprietor has no right to so construct his dam as, in times of ordinary freshets, to throw the water back upon the premises of the proprietor above ; and, if he does, he is responsible in damages. He, however, is not responsible for damages occasioned by extraordinary floods, against which ordinary skill and foresight could not provide, though the backing of the water be increased by his dam.</p> <p>Same. — Condemnation of Site for Dam, etc. — Extent of. — The defendant in such case introduced in evidence the record of condemnation, under the act of March lltb, 1867, 1 K. S. 1876, p. 829, of the land on which their dam was erected, and of the right to thereby overflow certain other lands situated below the plaintiffs premises.</p> <p>Held, that such condemnation gave the defendant no right to overflow the premises of the plaintiff.</p>

<p>Payment. — Extension of Time of Bond, by executing Promissory Note.— Principal and Surety. — Pleading.—In an action by the obligee, against the principal and surety, on a penal bond executed to secure the faithful accounting of the principal to the obligee, for moneys which came into the hands of the foimer as an agent of the latter, the surety answered separately, alleging that, on a settlement between his principal and the obligee, the former executed to the latter his promissory note for the amount due, payable thereafter, without the knowledge or consent of the surety.</p> <p>Held, on demurrer, that, for want of an allegation that the note was payable in bank, the answer is bad as a plea of payment.</p> <p>Held, also, that, for want of an averment that there was a contract made for extending the time of payment, the answer is bad as a plea of extension of time.</p> <p>Same. — Law of Kentucky. — The plaintiff in such action replied that the note was executed without consideration atid bore no interest; that it was executed in the State of Kentucky, payable at a bank therein ; that, by the law of that State, such notes were not governed by the law merchant, unless endorsed to a bank of that State ; and that it had not been so endorsed.</p> <p>Held, on demurrer, that the reply was sufficient.</p>

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

<p>Turnpike. — Gravel Road. — Debts contracted in Excess of Stoclc. — Director not Liable on Contract made by his Successor. — Statute Construed. — An ex-member of the board of directors of a gravel road company organized under the act of May 12th, 1852, 1 R. S. 1876, p. 654, is not liable individually, under section 25 of that act, on a contract in excess of the solvent stock of the company, entered into by the successors of such board.</p> <p>Same. — Protesting Director not Liable. — A member of a board of directors contracting such a debt over his protest and without his consent is not liable thereon individually, even though his protest was merely verbal.</p> <p>Same. — Assessments are Part of Stock. — Articles of Association. — Assessments of benefits to lands, as well as the stock subscribed, constitute solvent stock, though the aggregate exceed the amount of stock specified in the articles of association.</p>

<p>LlQtroK Law. — Criminal Law. — Appeal after Plea of Guilty. — Indictment.— A defendant in a criminal prosecution may appeal to the Supreme Court, from a judgment rendered on his plea of ‘‘ guilty,” and there attack the indictment for the first time.</p> <p>Same. — Quantity.—An indictment for a violation of the liquor law charged that the defendant, on,” etc., “ at,” etc., “ did then and there unlawfully sell intoxicating liquor, to wit, one gill, to one ” named and alleged to be a minor.</p> <p>Held, that, for want of an averment that tho quantity sold was less than a quart at a time, the indictment is insufficient.</p>

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

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

<p>Liquor Law. — Belief of Juror. — Challenge for Cause. — "Where, on the empanelling of a jury to try a licensed liquor dealer charged with a violation of the liquor law, a juror answers, on his voire dire, that he believes that a licensed liquor dealer is not engaged in a legitimate business, and can not be a moral man, he is not qualified to sit as a juror, though he also answer that he believes he can give the defendant a fair and impartial trial.</p>

<p>From the Union Common Pleas Court.</p>

<p>Criminal Law. — Assault and Battery, with Intent. — Former Conviction of the Assault and Battery. — •Instruction directing Acquittal. —Question of Law Reserved. — Oil the trial of a defendant indicted for assault and battery, with intent to murder, the court instructed the jury that, “ under the evidence, had the defendant killed’’the person assaulted, he “ would have been guilty of involuntary manslaughter that, if they found him guilty of the intent charged, “ under the evidence it would be ’’ the duty of the court “ to set the verdict aside ; ” and that, “ as it is admitted that the defendant has been fined for the assault and battery,” they should “ bring in a verdict of not guilty.”</p> <p>Held, on appeal by the State, on a question of law reserved as to the correctness of the instruction, that its correctness depends wholly upon the evidence in the case, and as that would involve a decision by the Supreme Court on a matter of fact only, the appeal is not authorized by section 119, 2 R. S. 1876, p 405.</p>

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

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

<p>Mortgage. — Foreclosure.—Joinder of several Promissory Notes in One Paragraph. — The joinder, in one paragraph of complaint, of several matured and unmatured promissory notes secured by a mortgage on real estate, in an action on the notes and for foreclosure, is not error after judgment.</p> <p>Same. — Decree.—Sale of several Parcels at once. — On proof that a sale in parcels would be injurious, the court may decree the sale of the whole of the mortgaged premises, though consisting of distinct tracts or lots.</p>

<p>Promissory Noth. — Assignment by Endorsement. — Complaint.—Suit by Ward, on Note assigned to Guardian. — Defect of Parties Defendants.— Waiver. — Demurrer.—Executors and Administrators. — In an action on a promissory note, against the maker, hy one claiming under an assignment of the note, the complaint alleged that the payee had assigned the note “in writing,'’ to A., the plaintiff’s guardian, since deceased ; that such guardian had accepted such assignment in his capacity as guardian ; and that the plaintiff had attained majority. Copies of the note and assignment were made part of the complaint. The assignment read “ Por value received, I assign the within to ’’ A , and was signed hy the payee.</p> <p>Held, on demurrer for not joining the payee as a defendant, that the complaint shows that the assignment was “ hy endorsement in writing.”</p> <p>Held, also, that, though the complaint was defective, on proper demurrer, for not joining the representatives of the decedent as defendants, such defect is not presented hy demurrer for insufficiency.</p> <p>Held, also, on demurrer for insufficiency, that the complaint shows a right of action in the plaintiff.</p> <p>Mistake. — Promissory Note. — Mortgage.—Reformation against Subsequent Purchaser. — In an action on a promissory note, and to foreclose a mortgage on real estate, given to secure payment of the note, in which a subsequent purchaser of the mortgaged premises was a party defendant, the complaint alleged a mistake in omitting from the note the agreed rate of interest as expressed in the mortgage, which was on record prior to the conveyance to such defendant.</p> <p>Held, on demurrer, that the plaintiff was entitled to reformation.</p> <p>Supreme Court. — Assignment of Error. — Good and Bad Paragraphs. — An assignment of error, in the Supreme Court, questioning the sufficiency of a complaint containing one or more sufficient paragiv: « is unavailable, though the remaining paragraphs be insufficient.</p>

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

<p>Liquor Law. — Sale to Minor. — Quantity.—Indictment.—An indictment for selling intoxicating liquor to a minor must affirmatively allege that the quantity so sold was less than a quart at a time.</p>

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

<p>Turnpike Company. — Corporation.—Record of Articles. — A turnpike company is deemed to be a corporation, from the time its articles are recorded in the proper recorder’s office.</p> <p>Same. — Irregularity.—Action for Stock Subscribed, —(¿uo Warranto. — Irregularity in or after the election of the directors of a turnpike company might he ground for a quo warranto, hut is no defence to an action by the company to collect stock subscribed to its preliminary articles.</p> <p>Practice' — Reconsideration of Ruling on Demurrer, after Withdrawal of General Denial. — The court having sustained a demurrer, for insufficiency, to the affirmative paragraphs of an answer, to which the defendant excepted, he then withdrew his general denial, whereupon the court reconsidered its previous aotion and overruled said demurrer, to which the defendant excepted.</p> <p>Held, that the action of the court was not error.</p> <p>Demurrer to Evidence., — Inference.—Where a party to an action on trial, before a jury, on the conclusion of the evidence of the opposite party, demurs to the evidence, evei'y thing which the evidence tends to prove, including every fair inference, will be taken against him, and if the jury, had it completed the trial, might have found a verdict against him, his demurrer should be overruled.</p>

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

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

<p>Promissory Note. — Breach of Covenant. — Fraud of Payee. — In an action on a promissory note not payable in bank, by an endorsee, against tbe maker and a third person, the maker answered that the note in suit was given solely for purehase-monev of land conveyed by the payee, to the maker, by warranty deed ; that, pi’ior to such conveyance, the land had been subject to a mortgage for purchase-money owing from the payee to this codefendant, but that the payee had fraudulently procured a release of the mortgage, and had then conveyed, as aforesaid, to the maker ; that the payee had subsequently assigned the note in suit to the plaintiff, for a pre-existing debt ; that subsequently this codefendant, in an action against the payee and maker, had recovered a judgment-subjecting the unpaid purchase-money evidenced by the note in suit to the payment of the debt due from the payee to this codefendant ; and that the plaintiff had due notice to appear to that action. The codefendant set up said judgment as a defence.</p> <p>Held, on demurrer, that the answers were sufficient.</p>

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

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

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

<p>Infant. — Suit by. — Removal of Next Friend. — ■Record.—Supreme Court.— Under section 11 of the practico act, the court may remove the next friend of an infant plaintiff, and, where this hasbeen done, the SupremeCourt will presume in favor of the correctness of the order of removal, until the contrary be shown.</p> <p>Same. — May sue as Poor Person. — Statutes Construed. — Construing sections 11 and 15 of the practice act together, an infant plaintiff has a right, upon a proper showing, to prosecute his suit as a poor person, without a next friend.</p> <p>Same. — Sufficiency of Affidavit.— Waiver. — Brief.—Petition for Rehearing.— Where, on appeal to the Supreme Court in such case, the sufficiency of the affidavit constituting such showing is not questioned by the opposite party in his brief, that question is waived and can not be made ground for a rehearing.</p> <p>Same. — Such an affidavit is accepted m prima facie true, and it need not allege that it contains all the evidence adduced in support of the truth of its allegations.</p> <p>Same. — Ccmtinuance.—Change of Venue. — Attachment.—Contempt.—Surprise. —New Trial. — Verification of Pleading. — Process.—Injunction.— An affidavit for a continuance, for a change of venue, to found a rule upon, for an attachment, for contempt, in matters of surprise or for a new trial, to obtain a writ, to verify a plea or the service of a summons, or for an injunction, need not show that it contains all the evidence of the truth of ' its own allegations.</p> <p>Same. — Presumption.—Supreme Court. — An affidavit in support of a motion is presumed, by the Supreme Court, where the contrary is not shown by the record, to be the sole ground upon which a ruling on the motion is made, even in cases where counter affidavits or other adverse evidence was admissible.</p>

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

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

<p>Fees and Salaries.— County Clerk. — No Per Diem for Attendance on Circuit Court. — Statute Construed. — The per diem allowance to the clerk, authorized by section 19 of the fee and salary act of March 31st, 1879, Acts 1879, p. 130, is intended only for his attendance upon the superior and criminal courts, and not for his attendance m the circuit court; and there is now no statute authorizing a per diem allowance to the clerk for attendance upon the circuit court.</p>

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

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

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

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

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

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

<p>Prom tlie Madison Circuit Court.</p>

<p>Execution. — Levy.—Priority.—Property Jjevied on and Left with Owner. —Replevin.—Certain personal property, which had been levied upon by a sheriff on an execution against the owner, was left in the possession of the latter, with privilege to sell the same, whereupon a constable levied. upon a part of the same on an execution against the owner.</p> <p>Held, on replevin by the sheriff, against the constable, that the levy of the former was void, while that of the latter was valid.</p>

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

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

<p>Chattel Mortgage. — Barter of Chattel, by Mortgagor, with License of Mortgagee. — Estoppel.—Replevin.—Notice.—If mortgaged chattels be left in the possession of the mortgagor, by the mortgagee, with license to sell or exchange the same, he and his assigns are estopped to claim the chattels under the mortgage, from one who, without knowledge ofthe mortgage, exchanged other chattels for the mortgaged chattels, with the mortgagor, and with the knowledge of the mortgagee.</p> <p>Same. — Where such third person, though afterward notified of the existence of the mortgage and of the mortgagor’s license to sell or exchange, and after having been in possession for a year, surrenders the mortgaged property, on demand, to the mortgagee or his assigns, under the mortgage, he can not replevy from the mortgagor the chattels so received in exxhange for the mortgaged chattels.</p>

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

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

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

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

<p>Witness. — Husband and Wife. — Criminal Law. — Since the taking effect of the act of March 15th, 1879, Acts 1879, p. 245, a husband and wife are competent witnesses for or against each other, in all civil actioná or criminal prosecutions against them or either of them, •• except as to communications made to each other during marriage ; ” and, in an action by the 'husband, for the seduction of the wife, she can not testify.</p>

<p>Mortgage by' Executor. — Borrowing Money to pay Decedent's Debts.— Widow. — Appearance of Infant by Attorney. — Notice.—Coverture.—Ratification. — A testator devised his real estate in equal proportions, in fee-simple, to his widow and their two minor children, appointing the widow executrix, and devising the whole of the real estate to her until the majority of the youngest child, for the purpose of paying his debts and supporting her and the children from the rents. Subsequently she, as executrix, during the minority of, and without notice to, the children, and during the existence of a second marriage relation entered into by her, petitioned for and obtained an order of court authorizing her to borrow money to pay debts of the estate, and to execute therefor her promissory note and a mortgage on the testator's lands to secure the same. She thereupon bor rowed the money, and, without the knowledge or consent of her husband, executed such note and mortgage. When the children attained their majority, they brought an action against the executrix and the holder of the note and mortgage to cancel the mortgage, and quiet their title, alleging the foregoing facts in the complaint.</p> <p>Held, that the mortgage was absolutely void as against the children.</p> <p>Held, also, that an appearance by the infants,by attorney, to resist the report of a master commissioner recommending the confirmation of such mortgage, does not hind them.</p> <p>Held, also, that they could not ratify such void mortgage, on attaining their majority.</p> <p>Held, also, the contrary not being alleged, that it is presumed that the widow took under the law and not under the will. And, therefore.—</p> <p>Held, also, that though the widow, as executrix, was hound by such order of court, the mortgage does not bind her real estate.</p>

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

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

<p>Principal and Surety. — Extensión of Time. — An answer by a co-surety, in an action by the payee, against the principal maker and his sureties, on a promissory note, alleging an extension of the time of payment, granted by the payee to the principal, but failing to allege that such extension was for a definite time and without the knowledge of such surety, is insufficient.</p> <p>Same. — Conversion of Collateral Security. — The misappropriation, by a surety, of property delivered to him by his principal as collateral security, is no defence to an action by the creditor, against a co-surety, for the debt.</p> <p>Continuance. — Absent Witness. — The refusal of a continuance on account of the absence,of a witness, by whom can be proved the facts alleged in a pleading to which a demurrer has been properly sustained, is not erroneous.</p>

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

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

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

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

<p>Real Estate, Action to Quiet Title. — Partition.—Complaint.—A complaint demanding partition of a certain tract of land alleged the respective interests therein of the plaintiff and defendant, but, averring that the latter claimed title to the whole, demanded that the plaintiff’s title he quieted.</p> <p>Held, that the action was really one to quiet title, and that a new trial, as of right, could he demanded by the losing party.</p> <p>Same. — ■New Trial, of Right, granted without Objection. — Irregularity.— Waiver.- — Where a new trial, as of right, is granted without exception or objection, though irregularly, no question can be raised in relation to the regularity thereof, by an objection and exception to a second order of the court granting a new trial without vacating the previous order therefor.</p> <p>Same. — Title-Bond.— Copy. — Pleading.—Where a title-bond, which is the basis of an alleged title to real estate, has been made part of the original pleading setting up such title, an amended and supplemental pleading, which refers to the original pleading and to the title-bond therein set out, is not had on demurrer merely because it does not set out the title-bond or a copy thereof.</p> <p>Same.' — -Demurrer.— Uncertainty. — Where, from the chain of title set up in a pleading, an equitable title in the party pleading the same may ho inferred, the absence of an affirmative allegation of title in siich party does not render the pleading bad on demurrer, but renders it subject to a motion to make certain.</p> <p>Same. — Purchase with Notice of Prior Title. — A vendee of real estate can not hold the same, as against the holder of a prior equitable title, of which such vendee had notice prior to the completion of his purchase.</p> <p>Same. — Constructive Fraud. — Conveyance during Adverse Possession.— Heirs. — One who purchases land from the heirs of the deceased maker of a title-bond for such land, with knowledge that the obligee of such bond, or an assignee thereof, is in possession and claiming title thereunder, thereby commits a constructive fraud against the latter, and can not recover possession from him. But allegations of fraud in such case need not he alleged, because the conveyance is void as against such adverse holder.</p> <p>Same. — Statute of Limitations. — The statute of limitations, pleaded against such adverse holder by such purchaser, is insufficient. Worden, J., dissenting.</p> <p>Supreme Court. — Instructions.—New Trial. — -No question can be presented to the Supreme Court, as to the sufficiency of instructions given to the jury, where the instructions complained of are not identified in a motion for a new trial.</p> <p>Note. — Worden, J., does not agree that the demurrer to the second paragraph of the appellant’s answer to Morrison’s cross complaint was properly sustained.</p>

<p>Mines and Mining. — Lease.—Adionby Lessor’s Executor, against Lessee and Assignee, for Rent. — Parties.—Heir.—Complaint.—Abandonment of Lease a Defence. — A lease of certain lauds, for mining the coal beneath its surface, provided that the lessee should pay to the lessor a certain sum for each ton of coal mined each year, and that, after the first year, the amount ■ of the rent should not he less than a specified sum. It also provided that ' “ If no coal is found under said land, and this lease is abandoned, then said payments aTe not to he made.” The lessor having died testate, his executor brought an action on the lease, against the lessee and one to whom he was alleged to have assigned in writing an interest in the lease, to recover for rents alleged to have accrued during the second year of the lease, and in the lifetime of the assignee, averring that the defendants had paid to the lessor the royalty agreed on the coal mined during that year by the defendants, being a certain sum less than the agreed minimum rent.</p> <p>Held, on demurrer, that the executor, and not the heir, was the proper party plaintiff.</p> <p>Held, also, that abandonment of the premises was matter of defence, and need not he negatived by the complaint.</p> <p>Held, also, that the. assigneo was liable jointly with the lessee.</p> <p>Same. — The fact that sufficient coal could not be mined to make the royalty amount to the minimum rent, though it might be ground for abandoning the lease, constitutes no defence, so long us the defendants continue in possession, to an action on the lease, for the rent.</p> <p>Same. — Mortgage.—Insolvency.—The fact that the land had been mortgaged prior to the execution of the lease, that the lessor’s estate was insolvent, and that the mortgagee was threatening foreclosure, was no defence to an action for the rent.</p>

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

<p>Appeal to Supreme Court. — Judgment for Recovery of Real Estate.— Death of Plaintiff. — Appeal by Administrator and Legatees. — Heir's.—• Will revolted by Marriage:— Conveyance, during Adverse Possession. — In an action by the widow of an intestate, to recover possession of her deceased husband’s real estate, wherein judgment was rendered in her favor for the undivided one-third, and in favor of the defendant for the undivided two-thirds, an appeal was taken to the Supreme Court in the name of A., B. and C. Accompanying their assignment of errors was an unverified statement, alleging that, subsequent to the rendition of such judgment, the plaintiff had married D., and then died, leaving her husband as her sole heir ; that, prior to such second marriage, she had duly executed a will, devising all of her property to B. and C.¡ that D., to carry out the intentions of the testatrix, had duly conveyed all of the testatrix’s estate to B. and C.; and that this appeal was prosecuted in the name of A., as administrator. etc., and B. and C., as devisees.</p> <p>Held, that the will was revoked by such marriage, and therefore gave no title to B. and C.; that D.’s conveyance to them, during the adverse possession of the defendant, was void as to the latter ; that they should have prosecuted the appeal in the name of A. personally, and that the appeal by A. as administrator was unauthorized by law.</p>

<p>Slander. — Answer m Justification.— Uncertainty. — In an action for slander in charging the plaintiff "with having committed perjury as a witness in one of two lawsuits wherein he had testified, the defendant answered in justification, alleging that the plaintiff, in testifying in a lawsuit, as to a particular material fact, specified, had contradicted his evidence as a witness in a previous lawsuit, concerning the same fact, which was material in that suit also.</p> <p>Held, on demurrer, that the answer is insufficient, for uncertainty.</p> <p>Same. — Statement of Clerbno Part of Record. — Evidence.—Supreme Court. —The minutes of the clerk, in such case, showed that the plaintiff, on the conclusion of his evidence, had withdrawn part of the paragraphs ot the complaint, and that thereupon the cause was submitted to the jury by-agreement of the parties, without any evidence for the defendant, and without argument.</p> <p>Hela, that such statement by the clerk forms no part of the record, and therefore, m the absence of the evidence from- the record, the Supreme Court can not say that the plaintiff had not been harmed by the overruling of his demurrer to such insufficient answer.</p>

<p>Glebe. — Sureties.—Action on Bond for Money Paid to Clerk by Administrator, — Neither the clerk of the common pleas court, nor his sureties, are liable on his bond, for money paid to him by the administrator of a decedent’s estate.</p> <p>Same— Remedy.--The remedy in such case is by an action against the clerk personally, as for money had and received.</p>

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

<p>Railkoad. — Stock killed. — Jurisdiction of Circuit Court. — Dismissal of Action after Verdict. — If, upon the trial of an action originating in the circuit court, against a railroad company, to recover under the statute, 1 R. ¡3. 1876, p. 752, for stock killed on the defendant’s railroad, the jury find that the value of the stock killed was less than fifty dollars, the court should at once dismiss the . ause, notwithstanding the fact that the complaint alleges such value to have been in excess of fifty dollars.</p> <p>Note. — Biddle, J., dissents.</p>

<p>Pleading. — Defective Paragraph not Aided by Reference to Another. — As a general rule, defective allegations in a paragraph of a pleading can not be aided by reference to the allegations of another paragraph.</p> <p>Same. — Partial Answer to Entire Complaint. — A paragraph of answer, purporting but failing to answer the whole complaint, is insufficient on demurrer.</p> <p>Replevin. — Partial Answer. — Title under Sale for Storage. — In an action of replevin, wherein the complaint alleged title and right of possession in the plaintiff at the date of the commencement of the action, the answer, without either confessing and avoiding or denying the allegations of the complaint, alleged title in the defendant at the date of the filing of the answer, based on an alleged sale of the chattel, made previous to the commencement of the action, for storage charges accrued upon a contract to which the plaintiff was not alleged to have been a party.</p> <p>Held, on demurrer, that the answer is insufficient.</p> <p>Same. — Foreign Corporations Act. — Section 2 of the “ act concerning foreign corporations and their agents in this State,” 1, B. S. 1876, p. 373, requiring the filing of an instrument authorizing service of process on the agent, in actions against the principal, refers only to actions on contract, and not to replevin suits.</p> <p>New Teiax..— When Applied for. — Except for causes discovered after the term at which a cause is tried, an application for a new trial can not be made after the term, without the consent of the opposite parly.</p>

<p>Evidence. — Action by Widow, for Property Burned. — Decedents' Estates.— In an action to recover for the value of a dwelling-house and certain personal property contained therein, alleged to have been set on fire and burned by the defendant, wherein the plaintiff testified that some of the things came to ’’ her from her husband, an intestate whose estate had not been administered upon, the defendant offered to prove, by the clerk of the court, that the estate of the intestate was worth less than five hundred dollars, and had never been set off to the plaintiff'.</p> <p>Held, that, in the absence of any evidence, or offer to prove, that some part oí the burned property belonged to the estate of the deepdent, the evidence offered was immaterial.</p> <p>SurivEMK Court. — Record.—Instructions.—New Trial. — Bill of Exceptions. —An instruction given or refused, copied into the motion for a new trial, forms no part of the record in the Supreme Court, if not otherwise properly set out therein.</p>

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

<p>Bounty. — Adjutant General's Eecoi'cls. — Judicial Notice, — History.—The courts of this State are bound to take notice, from its general history, that, during and since the war of the Rebellion, the Adjutant General^of this State has made records of the muster rolls of the different regiments of volunteers, furnished by this State, in the military service of the United States.'</p> <p>Same. — Certified Copy is Competent Evidence.— Expiration of Term of Officer. — A copy of the proper muster roll, duly certified by the Adjutant General, is competent evidence of the enlistment, mustering and discharge of a volunteer in any of such regiments, in an action by him to recover a bounty offered by a county which received credit for his enlistment. And ‘the fact that the term of such officer has expired previous to the use of such copy as evidence does not render it incompetent.</p>

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

<p>Practice. — Demurrer.—“ Legal Capacity to Sue." — A demurrer to a complaint for alleged want of “ legal capacity ” in the plaintiff to sue presents questions only as to some legal disability ; as infancy, idiocy or coverture.</p> <p>Same.— U?íúerta'?i¡h/.~-Uncertainty in a pleading stating a good cause of' action or defence is reached, not by demurrer, but hv a motion to make certain.</p> <p>Partnership.- — Complaint by Partner against Copartners, after Dissolution of Copartnership. — A complaint by a member of a copartnership, against the othev members, to recover from the defendants their proportion of a debt due to the plaintiff from the copartnership, for goods soldand delivered to the latter by the former, alleged that the affairs of the copartnership "had all been closed up,” all of its debts except the one in suit paid, and its assets exhausted.</p> <p>Held, on demurrer, that the complaint is sufficient.</p>

<p>Decedents’ Estates. — Administrator's Settlement, on Resignation, not a “ Final Settlement,” bat can not be attacked Collaterally. — A final settlement, by the administrator of the estate of a decedent, made by him upon resigning his trust while the estate remains unsettled, is not a final settlement within the meaning of section 116 of the decedents’ estates act; but that settlement binds all interested in such estate, as to all matters embraced in the report, until it is set aside in some direct proceeding for that purpose, and can not be attacked collaterally.</p>

<p>Replevin. — Complaint against Sheriff. — Levy on Undivided Interest in Personal Property. — Evidence.—In an action of replevin against a sheriff, the complaint alleged that the plaintiff was the owner, and entitled to the possession, of a certain undivided interest in certain personal property, possession of which had been unlawfully taken, and was unlawfully detained, by the defendant, etc.</p> <p>Held, on demurrer, that the complaint is sufficient.</p> <p>Held, also, that proof of the seizure, by the defendant, of the undivided interest of the plaintiff’s co-owner, would not sustain the action.</p>

<p>Divorce. — Award of Custody of Child lo Mother deprives Father of right to its Services, and frees ■ him of Liability for its Maintenance by Mother.— Res Adjudícala.- — The awarding to the mother of the custody of her minor child, on decreeing to her a divorce from the father, deprives him of all right to the services of the child, and, consequently, frees him from all liability to the mother, for the care, support and maintenance of the child.</p>

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

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

<p>Supreme Court.— Verdict. — Evidence.—"Where, from the evidence in the record, the Supreme Court can not say that the verdict, though unsatisfactory, is palpably wrong, it will not be disturbed.</p>

<p>Criminal Taw. — Desecration of Sabbath. — Harvesting Crops. — The harvesting on Sunday, of “ dead ripe ” wheat, which could not he cut sooner and which might he spoiled hy rain if left until a later day, is not a desecration of the Sahhath.</p>

<p>Replevin-. — Right of Possession. — The action of replevin decides only the right of possession.</p> <p>Same. — Complaint to Recover Promissory Notes. — The fact that, in an action of replevin of a promissory note, the complaint describes a note payable to a third person and not assigned to the plaintiff, does not render the complaint insufficient:</p> <p>Same. — Personal Effects of Decedent. — Administrator.—Legatee.— Will. — A testator devised his personal estate to his wife during her life, with remainder over to another. Upon her death, intestate, such legatee brought an action against one who was both administrator of the estate of the wife, and administrator, with the will annexed, of the estate of the testator, to recover possession of promissory notes constituting a part of the testator's personal estate.</p> <p>Held, that the defendant, as the representative of the testator, was entitled to possession, at least until such estate was settled.</p>

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

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

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

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

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

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