Volume 68 — Indiana Reports

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

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

<p>Foreclosure or Mortgage. — Special Verdict.— Venire de novo. — In an action to foreclose a mortgage on real estate, and on several matured and unmatured promissory notes secured thereby, wherein the mortgagor answered by way of confession and avoidance, and his co-mortgagor, his wife, by a general denial, the jury returned a special verdict, finding affirmatively, on all the material allegations of the complaint, the amounts due on the matured notes, and the dates of maturity, and the amounts, of the unmatured notes.</p> <p>Held, on motion for a, venire de novo, that the special verdict authorized judgment for the plaintiff.</p> <p>Same. — Dismissal of Action. — The dismissal of such action, by the plaintiff, as to a third party defendant therein, was not ground for granting the mortgagors a venire de novo.</p> <p>Same. — Judgment.—Divisibility of Mortgaged Premises. — Judgment for the sale of the mortgaged premises should not be rendered, until the court has ascertained whether or not the premises can be sold m parcels, without injury, in cases where the mortgage debt consists oí both matured and unmatured instalments.</p> <p>Same. — Exception.—A formal exception to the rendition of such judgment, immediately succeeding tlie judgment itself, without specifying any grounds for the objection, presents the question as to the failure of the court to find as to the divisibility of the mortgaged premises.</p>

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

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

<p>County Commissioners. — Absence of Papers, on Appeal. — Dismissal of Appeal. — Practice.■—The absence of material papers in a cause appealed from a board of county commissioners to the circuit court is ground for a motion to cause them to be supplied, hut not to dismiss the appeal.</p> <p>Same. — Defective Appeal Bond. — -The fact that the appeal bond given on appeal from a board of commissioners to the circuit court is made payable to the county, instead of to the board of county commissioners, is not ground for dismissing the appeal, but may be reached by motion.</p> <p>Same. — Complamt.—Names of Parties. — An account against aboard of commissioners, filed for allowance, was in the form of an ordinary account, specifying the county as the debtor and the claimants in their partnership name, hut sworn to in their individual names.</p> <p>Held, that, on demurrer, this was sufficient, both before the board and in the circuit court on appeal.</p> <p>Same. — Appeal.—Goods furnished for Pauper.— An appeal will lie to the circuit court, from the decision of a board of commissioners, refusing an allowance for clothing furnished for a pauper, on the order of a township trustee.</p> <p>Same. — Order of Board. — Notice by Publication. — An answer alleging that the board had made, entered of record, and by.publication given notice of, an order that no goods for paupers should he paid for in the future, in excess of a specified amount, alleging notice thereof to the township trustee, hut not alleging that the claimant had notice thereof before the goods were furnished, is insufficient.</p> <p>Same. — Refused of Trial by Jury.— Waiver. — Change of Venue. — Where a county is a party to an action for the recovery of a money judgment-pending in a court of that county, and, refusing to take a change of venue, persistently challenges all jurors empanelled in the action, for cause, the court may disregard its demand fora trial by jury, and try the cause itself.</p>

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

<p>Criminal Law. — Indictment —Assault and Battery with Intent to Rob.— Time and Place.— Value. — Description of Property. — Words and Phrases.— An indictment charged, that, at, etc , on, etc., the defendant, “ in a rude, , insolent and angry maimer, did unlawfully touch one ” J. M., “ with intent forcibly and feloniously, by violence and putting him in fear, to take from his person the goods and chattels of him, the said ” J. M., etc.</p> <p>. Held, that the indictment sufficiently charges an assault and battery, with intent to commit robbery.</p> <p>Held, also, that it sufficiently charged the “ time and place.”</p> <p>■ Held, also, that it was not necessary to describe the “ goods and chattels” mentioned, nor (as a value is imported by these words) to allege their value.</p> <p>Samb.- — ■Recalling Jury to withdraw Erroneous Instruction. — After a jury had retired to consult as to their verdict, the court recalled them into open court, and, in the presence of the defendant, withdrew an erroneous instruction given to them before retiring, and gave them a proper instruction upon the subject covered by that withdrawn.</p> <p>Held, that there was no error.</p>

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

<p>Criminal Law. — Carrying off Growing Crop. — Description of Lands. — Indictment. — An indictment under section 76 of the act defining misdemeanors, 2 B. S. 1876', p. 481, need not describe lands alleged to have been entered upon, more fully than as the lands of the owner, with their location, etc,;*</p> <p>Same. — Crowing Corn. — Ripe Corn. — An indictment under such section for pulling off and carrying away corn must, to be sufficient, allege that the corn was growing on the stalk, or green. Pulling off and carrying away ripe corn on the stalk is punishable under section 14 of the misdemeanor act</p>

<p>Criminal Law. — Keeping Gaming House. — Indictment.—An indictment charged that, at, etc., on a certain day “and on divers other days between said day ’’ and the returning of the indictment, the defendant “ did then and there unlawfully keep a certain building, arbor, booth, shed and tenement, to be used for gaming, and then and there unlawfully suffered” certain persons named and others unknown “ to play at a certain game of cards called ‘ poker,’ for money and other articles of value.”</p> <p>Held, that the indictment is sufficient.</p> <p>Samis. — Evidence.—Gaming on Defendant’s Premises, without his Knowledge. —A conviction in such case will not be sustained on proof that gaming was carried on by third persons, on the premises of the defendant, without' his knowledge.</p>

<p>Proceedings Supplementary to Execution. — Complainti—Pfactice:__ Examination Under Oath, — ■Demurrer.—In a proceeding supplementary to execution, the creditor may compel the defendants to answer fully under oath, and, from the information thus obtained, frame a complaint. But, if the creditor seeks to subject a particular claim to the payment of his judgment, he should, in the first instance, file a verified complaint, the-sufficiency of which may be tested by demurrer.</p> <p>Same. — Turnpike Company and its Stockholders. — In such a proceeding, by. a judgment creditor of a turnpike company, against the debtor and some-of its stockholders, to subject the stock subscribed by them to the payment of the judgment, it was not alleged in the complaint that a proper • subscription had ever been obtained, that the articles-of association had ever been recorded, that a board of directors had ever been elected, nor that the stockholders had ever been ordered by the board of directors to pay their stock, as was provided in their subscription.</p> <p>Held, on demurrer, that the complaint was insufficient.</p>

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

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

<p>Judicial Sale. — Conveyance to Assignee in Bankruptcy. — The adjudication that a debtor is a bankrupt is the foundation of all subsequent proceedings therein, including the conveyance of the bankrupt’s property, by the judge or register, to the assignee, whether the proceedings bo voluntary or involuntary.</p> <p>Same. — Inchoate Interest of Wife m Bankrupt's Land. — Such conveyance is a “judicial sale,” within the meaning of section 1 of the act of March 11th, 1875, 1 R. S. 1876, p. 554, making absolute the wife’s inchoate interest in lands of her husband, sold at a judicial sale.</p> <p>Same. — Partition.—The inchoate interest of the wife in lands of a husband adjudged a bankrupt after the taking effect of such act becomes absolute, and she is entitled to partition, immediately upon the conveyance of the bankrupt’s estate to the assignee.</p>

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

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

<p>Principal and Surety. — Subrogation of Surety on Payment of Judgment* —Assignment of Judgment by Attorney. — Notice.—In an action agaiqst A., B. and C., the complaint alleged the rendition of a joint judgment against the plaintiff and A., in favor of B., on a pronÜBsory note executed by the plaintiff as surety and A. as principal; that the plaintiff, to obtain an assignment of the judgment, paid the amount thereof to a sheriff holding, an execution thereon, and that B.’s attorney of record thereupon assigned the same to the plaintiff, on the record ; that subsequently A. had become the owner of real estate subject to the lien of such judgment; and that O. had subsequently obtained a judgment against A.J which' ibis a lien on such realty. Prayer that the plaintiff be subrogated to B.’s former rights- in the judgment, as against all the defendants</p> <p>Held, bn demurrer, that such assignment was notice of the plaintiffs rights, and that the complaint is sufficient.</p>

<p>Judgment. — No Lien on Land held by Equitable Title.- — -Mistake in Convey- ' anee to Judgment Debtor. — Reformation of, by Subsequent Purchaser.— Sheriff s Sale —Quieting Title. — After the rendition of a judgment by a common pleas court, a certain.town lot was sold, and possession thereof delivered, to the judgment debtor ; but, by mistake, the deed of conveyance to the judgment debtor described a different lot, being one to which the grantor never had any title. Subsequently, the judgment debtor soid, and delivered possession of, the same lot to A., but, by mistake, it was misdescribed as before. A. afterward having, in the proper action, obtained a decree reforming such conveyances, and having also obtained-' a conveyance of the lot by a commissioner appointed by the court, the executors of the judgment creditor caused execu^pn to bo issued upon such judgment and levied on such lot, and purchased the same at sheriff’s sale on 1 such execution.</p> <p>Held, in an action by A. against such executors, t'o quiet his title, that such judgment never was a lien upon such, lot,-and-that the defendants . obtained no title by their purchase at such sheriff’s- sale.</p>

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

<p>Draining Association. — Action by, against Member, for Assessment. — Defence. — Case Distinguished. — -In an action by a draining association, against one of its members, to collect an assessment against his lands for the benefit of the association, his only defence to the assessment is restricted, by-section 21 of the act of March 10th, 1873, 1 R. S. 1876, p. 418, to the amount thereof. Swinney v. The Ft. Wayne, etc., R. R. Co., 59 Ind. 205, distinguished.</p> <p>Instruction to Return Particular Verdict.' — Where, on the trial of a cause duly put at issue, there is competent evidence other than merely documentary, it is error to instruct the jury to find a verdict for a particular party.</p>

<p>Subrogation. — Payment of Debt of Third Person, on Request. — Promissory ■ Note. — Mortgage.—Extinguishment of. — A. member of a copartnership, at the request of a copartner and on his promise to repay the partnership,. paid off, out of the partnership funds, the individual debt of the latter, evidenced by his promissory note secured by a mortgage, and then delivered the same to A. as collateral security for a loan obtained by him for the partnership.</p> <p>Held, in an action by A., against the members of the partnership, on such , note and mortgage, that these instruments were extinguished by such payment, and that neither the copartnership nor the plaintiff was subrogated to the rights of the payee.</p>

<p>Liquor Law. — Indictment.—Sale without License, — Quality of Liquor Sold. —An indictment charging the sale, without license, “of intoxicating liquor in a less quantity than a quart ata time, to wit, one pint of ale,” sufficiently alleges the intoxicating property of the liquor mentioned.</p> <p>Same. — Evidence.— Venue. — Motion for New Trial. — Record.—Supreme Court. — "Without proof of the venue, a finding of guilty can not stand; and this failure of proof is presented by a motion for a new trial, on the alleged ground that the finding is contrary to the law and the evidence.</p>

<p>(Guardian. — Complaint on Bond.— Uncertainty. — Demurrer.—Mere uncertainty of the breach alleged, in a complaint on a guardian’s bond, is reached by motion and not by demurrer.</p> <p>Same. — Answer of Distribution and Payment. — Loss of Report and Vouchers before Approval — A settlement and distribution of the funds sued for, alleged to have been made by the guardian, as shown by a report and vouchers, lost before submission thereof to the court for approval, constitute no bar to a complaint on a guardian’s bond.</p> <p>Harmless Buling on Demurrer — The sustaining of a demurrer toa paragraph of answer is harmless, if the facts alleged therein were admissible in evidence under the remaining paragraph.</p>

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

<p>Partnership. — Action against surviving Partner and Administrator of Deceased, on Promissory Note. — Plaintiff a Competent Witness. — In an action on a promissory note alleged to have been executed by a copartnership, brought by the payee against the surviving partner and the administrator of the deceased partner, wherein the administrator answers by an unverified general denial, and the surviving partner by a verified denial, the plaintiff is a competent witness on the latter issue.</p> <p>Same.- — Statements of Deceased Partner. — Evidence.—-There being evidence tending to establish the alleged copartnership, it was competent for the plaintiff to testify as to the statements of the deceased partner at the time he executed the note and obtained the money for which it was given, to the effect that the money was for the use of the firm.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a verdict on the mere weight of the evidence.</p>

<p>Highway. — Appeal to Circuit Court vacates Order. — Report of Reviewers.— On appeal from a board of commissioners, to the circuit court, from an order for the location of a highway, the cause stands for trial de novo, and the overruling of a motion to set aside the report of reviewers is a harmless ruling.</p> <p>Same . — Clerical Error in Petition.— Waiver. — Where a mere clerical error in the petition, in the description of a- proposed highway, is supplied by the order establishing the highway, and the only matter contested by. the remonstrant is the amount of damages claimed by him, objection on account of such error is waived.</p>

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

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

<p>Performance. — Excuse for Non-Performance. — Lessor and Lessee. — Complaint. — In an action by the lessor, against the lessee, for damages in failing to take possession of the leasehold and pay the stipulated rent, wherein, by the terms of the lease, the lessor was to have made certain improvements before the date when the lessee was to have taken possession, the complaint alleged, as an excuse for not having made such improvements, that the lessee had notified the lessor, between the date of the lease and the date when possession was to have been taken, that ho would not comply with the terms of the lease.</p> <p>Held, on demurrer, that the alleged excuse for non-performance was valid. Practice.' — Excessive Damages. — New Trial. — Supreme Court. — Excessive damages should be made ground for a now trial, and can not be presented, for the first time, to the Supreme Court, on appeal.</p>

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

<p>Special Finding. — Correct Judgment on Erroneous Conclusion. — Mistake.—■ Where, from the facts specially found by the court and its conclusion of law, it is apparent that its judgment was for the proper amount, the fact that the amounts mentioned in the conclusion of law were incorrect is not available error.</p> <p>Partnership. — Interest.—Interest should be allowed on partnership money collected and unlawfully detained by a copartner after dissolution.</p> <p>Brief. — Reference to Record. — Rule 19. — Supreme Court. — Under rule 19 of the Supreme Court, a brief should refer to the part of the record relied on to establish alleged error.</p>

<p>Promissory' Note — Complaint before Justice. — In an action originating before a justice of the peace, on si promissory note, the note alone is a sufficient cause of action.</p> <p>Same. — Jurisdiction of Action. — A justice of the peace has jurisdiction of an action on a promissory note calling for less than two hundred dollars.</p> <p>Same. — Jurisdiction of Defendant. — Copy of Summons. — Record.—The record on appeal to the Supreme Court, in an action originating in a justice’s court, showed the issuing of summons, and the service thereof on the defendant, by a constable, more than three days before trial, but contained no copy of the summons. It also showed a judgment by the justice, by default, an appeal to the eireuit court and the appearance there of the defendant.</p> <p>Held, that the record shows jurisdiction over the defendant.</p> <p>Principal ahb Surety. — Supreme Court. — Process.—-The rendition of judgment without process, in favor of a surety, against the principal, in an action by the creditor against both, under sec. 674, 2 R. S. 1876, p. 277, is not ground for an assignment of error in the Supreme Court, by the defendants, against the plaintiff, but will reverse the judgment, as between the defendants.</p> <p>Same. — Excessive Damages. — New Trial. — Assignment of Error. — Excessive damages is cause for a new trial, but can not be assigned as error,</p>

<p>Railroad. — Proceeding to Appropriate Land already Occupied. — Measure of Damages.— Time. — Instruction.•—In a proceeding by a railroad company, against a land-owner, to appropriate for its railroad land entered upon and occupied by it previous to the institution of such proceeding, the circuit court instructed the jury that their “inquiries as to the amount of damages sustained by the ” land-owner, “ if any, should relate to the time of the filing of the act of appropriation.”</p> <p>Held, that the instruction was proper.</p> <p>Same. — Occupation of Canal Bank.— It -was proper in such proceeding to refuse to instruct the jury, that the land-owner was not entitled to any damages on account of the company’s occupation of a bank of the Wabash & Erie Canal, the fee-simple of which was in the land-owner</p> <p>Same. — Increased Danger of Fire, Rate of Insurance, and Depreciation of Rents.- — It was likewise proper to refuse to instruct the jury that they should not consider the increased danger of fire emitted by tlie company’s locomotives, the increased cost of insurance, nor the consequent decrease of rental value.</p> <p>Same.- — Injury to Buildings and Business. — Injury to a warehouse on the ground in question, and to the facilities for using it, properly enters into the measure of damages.</p> <p>Same. — Damages for Trespass no Defence. — A 'judgment in favor of the land-owner, against the company, in suc-h case, lor its unlawful entry on his premises prior to the institution of its proceeding to appropriate, is not competent evidence for the company. „</p> <p>Practice. — Harmless Refusal of Instruction.- — "Where the substance of an instruction asked and refused is covered by one given, the refusal is harmless.</p> <p>Same. — Assumption of Fact. — An instruction assuming, as proved, a fact in controversy, should he refused.</p>

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

<p>Promissory Hots. — Conveyance of Interest in Intestate's Lands. — Mistake as to Extend of that Interest. — Special Finding. — Settlement.— Covenant.— In an action on a promissory note, the court found specially, that a promissory note for a certain amount had been executed to the plaintiff, by the defendant, for the unpaid purchase-money of the plaintiff's undivided intei-est in the real estate of his intestate ancestor,•■which was calculated at a certain proportion and specified price and conveyed by a warranty deed ; that, in a partition suit, it had been decreed that the defendant took, under his conveyance from the plaintiff, a less proportion in such lands than had been estimated by the plaintiff and defendant ; that, on settlement, the old note was surrendered, and the note in suit was executed for an amount loss than the former equal to the diminution of the defendant's interest in such land, under such deed ; and that all these facts were equally well known to the plaintiff and defendant, when the note in suit was executed.</p> <p>Held, as a conclusion of law, that no mistake appears, and that the plaintiff should recover the full amount of the note.</p>

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

<p>Promissory Note. — Endorsement of, to obtain Release of Mortgage. — Insolvency of Maker. — Complaint.-—In an action on a promissory note not payable in bank, brought by the payee against an endorser as such, the complaint alleged that such note had been given for the unpaid balance of the purchase-money of certain real estate, and had been secured thereon by a mortgage ; that the maker, to secure the release of the mortgage, had procured this defendant to endorse the note, and the plaintiff had thereupon released the mortgage ; and that the makers, at the maturity of the note, had become,-and ever since had remained, wholly insolvent.</p> <p>Held, on demurrer, that the complaint was sufficient.</p> <p>Same. — Answer in Abatement. — Bankruptcy of Maker. — Failure to use Diligence. — The defendant in such action answered, in abatement, that the note in suit was duly secured by a mortgage on real estate sufficient to satisfy the same ; that the makers had been adjudged voluntary bankrupts; and that, though such estates remained unsettled and would pay at least a part of the note, no steps had been taken to file the same in the bankrupt court.</p> <p>Held, on demurrer, that the answer was sufficient.</p>

<p>Statute of Limitations. — Exceptions to. — Pleading.—Demurrer.—The fact that the cause of action stated in a complaint appears to be within the statute of limitations does not render the complaint insufficient on demurrer, unless it also affirmatively appears that it is not within any of the exceptions to the statute.</p> <p>Partition. — Administrator’s Sale withoiit Notice to Widow. — Adverse Possession. — A sale of the whole of a decedent’s real estate to pay debts, made by his administrator pursuant to an order of court in a proceeding to which the intestate’s widow was not a party, passes to the purchaser no interest in her one-third ; and possession thereof by the purchaser is not an adverse possession, but simply that of a tenant in common.</p>

<p>Jury. — Return of Verdict, during Voluntary Absence of Parties and Counsel. —Separation of Jury. — •Waiver.—After the retirement of a jury, to consult as to their verdict, one of the parties to the cause on trial, and his attorneys, voluntarily departed to places distant from the court-house. During their absence, and at an hour long after nightfall, the jury brought their verdict into court, but, on account of the absence of such party and his attorneys, the court permitted them to separate, refused to receive the verdict and directed the jury to seal up their verdict, to communicate it to no one, and to return the same into court next morning, which they did without objection, though such party and his counsel were then present.</p> <p>Held, that, upon the first presentation of such verdict, the court might have then properly received it, or might have returned the jury to their room until morning, or have adopted the course it did.</p>

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

<p>County Commissioners. — Application for License. — Action by Applicant for Damages. — Liquor Law. — An application for a license to sell intoxicating liquors is a judicial proceeding ; and, therefore, the hoard of commissioners are not personally liable in an action against them to recover damages alleged to have resulted from their action in such a proceeding.</p>

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

<p>Appeat, Bond. — Action on. — Attorney's Fees. — Damages.—Attorney’s fees expended in resisting an appeal to the Supreme Court can not be recovered hack from the appellant, in an action on the appeal hond executed on taking such appeal.</p>

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

<p>Criminal Law. — Larceny by Bailee. — Evidence of Intent. — Statements, of' Defendant. — On the trial of a defendant indicted for larceny, wherein the, evidence established that the defendant had borrowed the chattel alleged' to havebeen stolen, to take it to a certain place, and that he had then, gone. to a different place and there sold the chattel and used the proceeds, it was competent for the defendant to prove, as bearing on his intent in borrowing the chattel, that he had previously arranged to go with another to such .first mentioned place, and that he did not go there because of the faetthat such other person was prevented by sickness from going with Him.</p>

<p>Conveyance oe Heal Estate. — Breach of Covenant. — Mistake in Description.. — Reformation of Deed.— Tender. —In an action upon the covenants in a deed of conveyance of real estate, alleging as a breach that the defendant had no title to, and did not put the plaintiff in possession 'of, the ¡real estate described, an answer, alleging that, at the time the defendant .executed the deed, be was the owner of certain described real estate, which he had sold to the plaintiff, and for the purpose of conveying which to the plaintiff the deed in question was made, hut that by a mistake of one H., „ who drew up said deed, it was made to contain other land than that intended to be conveyed, and that the defendant is ready to execute and deliver to the plaintiff a warranty deed for the land intended to beconveyed, hut not alleging how the scrivener fell into the mistake, nor that it - was mutual, is insufficient. Qucere ? Whether a mistake in the description of land can be pleaded in bar of an action upon the covenants in a deed.</p>

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

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

<p>Murder. — Habeas Corpus. — Bail.—Where a person is in eustody under an indictment charging murder in the first degree, such person is entitled to be admitted to bail, when the evidence, upon the hearing of his petition for a writ of habeas corpus, shows that the killing charged in'the indictment was the result of a combat entered into upon a sudden heat and without any previous acquaintance between the petitioner and the deceased, and when the proof as to the guilty intent of. the petitioner .to take the life of the deceased is not clearly evident.</p>

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

<p>Promissory Note. — Pleading,—A complaint upon a promissory note, which allegesihe indebtedness of the defendant t© the plaintiffs, as partners, upon .such note, giving the .day of the execution of the same by the defendant to the plaintiffs, its amount, when due, where payable, alleging a waiver of valuation and appraisement laws, giving the proper credit for a payment, and averring that the remainder of the note is due and unpaid, and setting out as an exhibit a copy of a note corresponding with the one described and referring to such copy by a proper reference, is good upon demurrer.</p>

<p>County Commissioners.- — Bid for Public Worlc.— Bond. — Resident Freeholder. —Construction of Statute. — The provision in section 1 of the act of March. 14th, 1877, Acts 1877, Spec. Sess., p. 29, that no bid shall be received or entertained by the board of commissioners of any county for the building or repairing of any county building or work, unless accompanied with a good and sufficient bond, “ signed by at least two resident freeholders sureties,” means resident freeholders of the State, and not of the county merely.</p> <p>Same. — Amount of Bond. — Discretion of Commissioners. — The statute does not prescribe the amount of the bond in such case ; and such bond being authorized by law, and the amount required not given, the matter is left to the administrative discretion of the board of commissioners, and can not be reviewed by an appellate court.</p>

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

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

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

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

<p>Judgmbnt. — Payment to Sheriff Holding Execution. — Entry of Satisfaction. —A judgment debtor, who pays the amount due upon the judgment to the sheriff holding an execution for its collection, will be shielded, although the judgment creditor may never receive the money, and he is entitled, in a proceeding for that purpose, to have the judgment entered satisfied.</p>

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

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

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

<p>Promissory Note. — Subsequent Surety.— Contract.— Consideration. — "Whore A. has signed a promissory note, not governed by the law merchant, after it has been executed by the origina! maker, accepted by thepayee, and the contract evidenced by the note completely executed, without any new consideration, he is not bound thereon.</p> <p>Same. — Estoppel.—Admission.—In such case a statement made by A. to an endorsee of the note, after its purchase, that such note is all right, can not estop him to set up the defence, nor, viewed as an admission, make him liable upon the note.</p> <p>Same. — Law Merchant. — In order to place a note upon the footing of bills of exchange, it should show on its face that it is payable at or in a hank ; and, unless it does so, averment and proof that the place named for payment is a bank, will not place the paper upon the footing of bills of exchange.</p>

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

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

<p>Bill op Exchange. — Promissory Note. — Law Merchant — Payment of Debt. — "Burden of .Proof. -The taking of a promissory note not governed by the law merchant, by the creditor from his debtor, for an existing debt, is not a payment of the debt, unless it is so agreed to be by the parties, and the onus of proving such agreement would lie upon the debtor ; but the taking of a bill of exchange, or a promissory note governed by the law merchant, by the creditor, for an existing debt, is a payment of the debt, unless it is otherwise agreed by the parties, and the onus of proving such agreement would lie upon the creditor, and this rule is the same whether the negotiable paper be executed by the debtor or by some third person.</p>

<p>Disturbance or Religious Meeting. — Evidence.—In a prosecution under section 1, 2 R. S. 1876, p. 472, for disturbing a religious meeting, the State is not limited to proof that the defendant disturbed the collection of inhabitants referred to in the indictment, -while they were engaged in ■ religious worship, but is entitled to show any thing which such defendant did tending to make a disturbance at any time while the congregation remained assembled together after having met for religious worship. The protection of the statute does not cease with the benediction of the minister, but continues until an actual dispersion takes place.</p> <p>Ari?EAL BY State. —Reserved Question. — Supreme Court. — Where, in a criminal case, the State appeals to the Supremo Court upon a specific question reserved under the provisions of section 150, 2 R. S. 1876, p. 411, such court is not authorized to consider any question other than the one so reserved, upon such appeal.</p>

<p>Supreme Court. — Brief.-—"Where errors are assigned in the Supreme Court, questioning the sufficiency of a pleading, "but counsel in their "brief point out no objection thereto, they will not be considered by that court.</p> <p>Same.— Weight of Evidence. — The Supreme Court will not disturb a verdict, -when there is evidence tending to sustain it. 0</p>

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

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

<p>Statute or Limitations. — Actions to be Brought within Twenty Years.— Covenants in Deed. — Contract.—Under clause 5 of section 211 of the practice act, 2 R. S. 1876, p. 122, an action upon a covenant of warranty contained in a deed, and upon a separate written agreement signed by the grantor, binding him to save the grantee harmless from any disturbance of his title to the land conveyed, by certain named heirs, may be commenced within twenty years. The limitation of fifteen years provided in section 212 of the practice act is not applicable in such case.</p> <p>Pleading.— Uncertainty in, how Reached. — Where a pleading states sufficient facts, any uncertainty in the allegations thereof is not reached by demurrer, but by a motion to make more certain.</p> <p>Supreme Court. — Practice.— Causes for New Trial. — Assignment of Errors. —Causes for a new trial are not assignable as errors in the Supreme Court, and when so assigned present no question to that court for decision.</p> <p>Same. — Excessive Damages. — Causes assigned for a new trial, that the finding of the court was not sustained by sufficient evidence, and that it was contrary to law, present no question in relation to the amount of the recovery or excessive damages, to either the circuit or Supreme court. That question is only raised by the fifth statutory cause, 2 R. S. 1876, p. 180, sec. 352.</p> <p>Same.— Weight of Evidence. — The Supreme Court will not disturb the finding below on the mere weight of evidence.</p>

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

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

<p>Assignment oe Error. — Practice.—Pleading.—An assignment of error, that a complaint, consisting of several paragraphs, does not state facts sufficient to constitute a cause of-action, goes to the whole complaint, and, if any paragraph thereof is good, the alleged error fails.</p> <p>Railroad. — Killing Stock. — Special Finding. — Ln an action to recover damages against a railroad company for killing a cow, a negative answer to the question, ‘‘JDo you find the plaintiff was without fault, and guilty of no contributory negligence ?” is equivalent to no finding at all upon that question, and is not inconsistent with a general verdict for the plaintiff.</p> <p>Same. — Contributory Negligence. — Defence.—Contributory negligence is no defence to an aetion undeq, the statute, against a railroad company, for lulling stock at a point on its road not securely fenced.</p>

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

<p>Referees. — Trial by. — Abandonment of Part of Cause of Action by Plaintiff. —Report —Practice.—Under section 350 of the practice act, 2 R. S. 1876, p. 178, the plaintiff, in a trial by referees, may abandon any part of the cause of action stated in his complaint; and, in such case, in relation to the abandoned part of the cause of action, the referees can only be required to report to the court the fact of such abandonment and what was abandoned</p> <p>Same. — Retraxit, Attorney may File. — Where there is a question as to whether the report of referees covers certain matters stated in the complaint, the plaintiff's attorney, under the first clause of section 772 of the practice act, 2 R. S. 1876, p. 305, has power to make and file a written retraxit of such matters and bind his client thereby,and such retraxit will cure the omission or defect in such report, and the court ought thereupon to render judgment in favor of the defendant for the matters so released.</p>

<p>' Auction Sale. — Right to Possession of Property. — Tender.—Promissory Note. — Where a chattel is offered for sale at a public auction, on a credit of six months, the purchaser being required to execute his promissory note with good security, drawing interest at six per cent, from date, and such chattel is bid off at a certain price, the purchaser is not entitled to the pos- ’ session thereof until he tenders to the owner such a note as the terms of the sale require, or a sum of money equal to the principal and interest which would be due upon the note at maturity.</p>

<p>Erom the Noble Circuit- Court.</p>

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

<p>Jukisdiction. — Appearance.—Supreme Court. — Practice.—Where a complaint on a promissory note is filed in the circuit court, and summons issued thereon, only four days before the beginning of the term, and the defend, ant appears to the action, demurs, answers and goes to trial without making any objection to the jurisdiction of the court or reserving any exception, it is too late to raise the question of jurisdiction over the person of the defendant in the Supreme Court on appeal.</p>

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

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

<p>Siiekief’s Sale. — Injunction.— Widow. — Where executions have been issued upon judgments and levied by the sheriff upon real estate of the judgment defendant in his lifetime, and such real estate advertised for sale, the widow of such judgment defendant can not, under section 488 of the practice act, 2 K. S. 1876, p. 222, maintain a suit to enjoin such sale, as her interest in the real estate is expressly exempted by the statute from such sale, and she can not be.injured thereby.</p> <p>Same. — Omission of Word from Statute. — In section 488, supra, as it is printed in 2 K. S. 1876, p. 222, the word “ except,” following “ proceedings thereon ’’ and preceding “ that the amount,’' etc., is omitted where it should appear.</p> <p>S-amjs. — Decedents’ Estates. — Statute Construed,. — Under section 43 of the decedents’ estates act, as amended by the act of Feb. 8th, 1871, 2 B. S. 1876, p. 507, which provides that the widow shall be entitled to five hundred dollars in value of the estate of her deceased husband, and that where the personal estate of the decedent is insufficient to make said sum, it shall constitute a lien on the real estate, and shall be paid in the same order in which judgments and mortgages are now paid,” judgments taken against the decedent in his lifetime, upon which executions have been issued and levied on the real estate, are entitled to priority over the lien of the five hundred dollars so allowed to the widow, as such lien does not attach until the husband’s death, and the judgment creditors are entitled to payment in full of their judgments out of the proceeds of the sale of two-thirds of such real estate, before the widow is entitled to any part thereof.</p>

<p>Criminal Law. — Defendant as Witness. — Impeachment.—Character for Truth. — Where a defendant in a criminal case elects to testify in his own behalf, he occupies the position of both defendant and witness, and assumes the rights, privileges and disabilities which respectively attach to both these relations to the cause. He forfeits no right which has already attached to his character as defendant, but simply in addition thereto becomes also a witness in the cause. In his capacity as a witness he testifies under the same general rules which govern other witnesses in criminal causes, and, while his general moral character can not be attacked for the purpose of his impeachment, his character for truth may.</p>

<p>Insurance. — Premium Note. — Delivery of Policy.— Condition Precedent or Warranty.— Waiver. — Where a mutual fire insurance company executes and delivers a policy to the insured, before the delivery to tho company of the premium note of the insured, such company waives the condition precedent. or warranty, requiring the delivery of such premium note before the policy will take effect, and can not plead the failure of the insured to so deliver such note as a defence against the policy.</p> <p>Same.— Change of Use of Building. — Illegal Use. — •'Where there is nothing in a policy issued by a mutual insurance company prohibiting the insured from changing the business conducted in the building insured, and only a provision in a by-law of the company that buildings occupied for illegal purposes are not allowed to be insured, and a further provision that “ If buildings previously insured are appropriated to such uses during the time of insurance, the agent must either insist upon the removal of the danger or cancellation of tho policy,” the mere fact that such building has been changed from use as a hotel to a house of prostitution, where intoxicating liquors are illegally sold, will not avoid the policy, tho agent of the .company not having performed his duty in tho premises. The insurer can not avoid a policy on "account of the illegal or immoral conduct of the insured, when such conduct in no way affects the legal right of tho insurer. Nor will the negligence, carelessness or misconduct of the insured, in reference to the building, unless coupled with the intention of destroying the building by fire, avoid the obligation of the insurer upon the policy.</p> <p>Same. — Double Insurance.- — Agency.—Under a by-law of a mutual insurance company, declaring, that “should any one have insured property in this and another company, then tho policy of this company shall be void, except such double insurance is with the knowledge and consent of the directors, and is endorsed on tho policy of insurance,” the agent of such company has no authority to consent to a second policy and thereby bind the company, and his neglect to endorse it upon the first policy will not excuse the insured.</p> <p>Same. — Foreign Corporations. — Abatement of Action. — In such ease the fact that the second policy was issued by a company which had not, at the time, complied with the statute authorizing it to do business in this State, 1 R. S. 1876, p. 594, does not make such second policy void, but, when pleaded, simply suspends the right of action until the company has complied with the statute, and, therefore, such second policy being valid, the insured is brought within the prohibition against double insurance contained in the by-law of the company issuing the first policy.</p>

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

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

<p>Surety. — Contribution.—Pleading.—In a complaint by G. against K., L. and Jj\, it was alleged that theretofore the defendant L. recovered a judgment, by default, against the plaintiff, and, on issue and trial, against the defendants K. and F., in a certain sum, in an action upon a promissory note executed to L. by F. as principal, and by the plaintiff and K. as sureties ; that the judgment provided that the sheriff should first exhaust the property of the plaintiff and F. before resorting to the property of K.. ; that F. was at the rendition of the judgment, and had continued to be, insolvent; that plaintiff had been compelled to pay said judgment. The complaint made a copy of the judgment an exhibit and-prayed for judgment against K. by way of contribution.</p> <p>Held, that the complaint is good, and that it was error to sustain K.’s demurrer thereto for the want of facts.</p>

<p>Mortgage or Trust Deed. — Lien.— Conveyance of Real Estate.— In 1854 and prior thereto, certain persons subscribed for stock in a certain railroad compan}' and paid for the same by conveying real estate to the company. Afterward the railroad company, to secure the payment of certain bonds, conveyed said lands by deed of trust or mortgage to one D., as trustee. The mortgage first recited that the company had received, upon subscription to the capital stock, real estate of a certain value ; that said company proposed to make said real estate available in the construction of said road by a sale of its bonds, of the denomination of one thousand dollars each, with agreement of said company “ to deed in fee-simple with warranty, to the holder of any of said bonds, when he may elect to receive the same, at • any time within five years from the date hereof, one thousand dollars’ worth ” of said real estate, etc., upon the surrender of the bonds Immediately following the grant and conveyance, and immediately preceding the habendum of said mortgage, it was provided that said real estate should be “ subject to entry and to be conveyed to the purchaser by said company, discharged from this mortgage, at the office of said company,” under its then existing by-laws, the proceeds of said entries and sales to be invested, with the advice and consent of the said trustee, in such manner as to constitute a sinking fund for the redemption of the bo..ds, etc.</p> <p>jHeld, that under said proviso, the real estate covered by the mortgage, without any limitation as to time, was subject to entry and sale ; and, when thus entered, sold and conveyed by the company pursuant to said proviso, the purchaser and grantee of any such real estate took and held the same freed and discharged from the lien of the mortgage, although the bonds secured by said mortgage matured before the real estate was so entered and conveyed. ■</p>

<p>'"Widow. — Interest in Real Estate upon which Husband has paid Part only of Consideration. — Vendor's Lien. — Statute Construed. — "W. died leaving certain described land. Afterward his executor procured an order from the proper court, by virtue of which he sold the land to G. who paid one-third of the purchase-money, gave notes for the residue, and received a certificate from the executor showing that he was entitled to a deed upon the payment of the residue of the purchase-money. The sale was confirmed by the court. G. died, having paid no more of the purchase-money, and R. was appointed as administrator of his estate, who filed his petition for an order to sell the whole of said land for the purpose of paying the residue of the purchase-money. The order was procured and C. became the purchaser of the land, to whom a deed was executed. The widow of G. was not a party to the last mentioned proceedings and had no notice thereof.</p> <p>Held, on the above facts, that the widow of G., under section 30, 1 B. S. 1876, p. 413, is entitled to one-ninth of the land and C. to the remainder.</p> <p>Held, also, that the statute mentioned does not abrogate the vendor’s lien, but cuts down slightly the amount of land against which it may be enforced, in case of the purchaser’s death leaving a portion of the purchase-money unpaid, and the land is sold as provided for in said statute.</p>

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

<p>Trespassing Animals.- — Adjoining Proprietors. — Partition Fence, Agreement 'to Maintain.- — Statute of Frauds.— Consideration. — Landlord and Tenant.- — Pleading.—To a complaint seeking to recover damages done by trespassing animals, the defendant answered that the field broken into adjoined the defendant’s enclosure ; that the fence through which said animals broke was a partition fence ; that said partition fence, by agreement between the defendant and the plaintiff’s lessor, was divided into two parts, one part of which said lessor was to build and keep in repair, in consideration that the defendant should build and keep in repair the other part, each portion to be so maintained as to protect the parties as adjoining land-owners ; that the defendant had maintained and kept in repair his portion, but that said lessor had not built a good and sufficient fence and had not kept it in repair, and that the injury complained of was caused by said cattle breaking through that portion of said fence which the plaintiff’s ltssor agreed to maintain.</p> <p>Held, that under section 15, 1 B. S. 1876, p. 496, the contract set out in the answer is valid and made upon a good consideration, and the answer is sufficient. *</p> <p>Held', also, that such contract, not being alleged to be in writing, must be presumed to be parol, but it is not impaired by any provision of the statute of frauds.</p> <p>Held, also, that the plaintiff, as tenant, was bound to the same extent as his landlord to maintain the fence.</p>

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

<p>Corporation. — Subscription of Stock to Preliminary Articles. — Contract.— Estoppel. — A subscription of stock to preliminary articles of association, not purporting to be a contract with an existing corporation, does not estop the subscriber to afterward deny the existence of the corporation, in a suit upon the subscription.</p> <p>Same. — JSul Tiel Corporation. — Admission.—In such case, under an issue of mil tiel corporation, it devolves upon the plaintiff to show that the corporate organization has been perfected ; but an agreement upon the trial, and for the purposes thereof, “ that fifty per centum of the assessment of the defendant’s subscription to the capital stock of said company hadbeen paid, and that the assessments and calls for all the balance, in five different instalments often per centum each, have been duly and legally made, in accordance with the by-laws of skid company, and the laws of the State of Indiana, the last of which assessments was made more than one year ago ¡ and that defendants were duly notified thereof, and a demand duly made upon them by the proper authority that they pay their said assessments, which they promised to do, hut have not done,” involves a clear admission of the full and complete organization of the corporation, and of the existence of every fact necessary to such organization.</p> <p>Same. — Interest upon Calls. — The statute requires the capital stock to be paid into the treasury of a corporation within eighteen months from the incorporation of the same; and, in a suit to recover a subscription to such stock, it is not error to allow interest upon the calls from the time they should have been paid.</p> <p>Supreme Court.. — Rehearing.—Practice.—It is too late, in a petition for a rehearing of a cause in the Supreme Court, to call in question for the first time the sufficiency of the complaint.</p>

<p>Damages —Injury to Property by Adjacent Mill. — Estoppel.—License.—The fact tliat, at the time A. was engaged in the erection of agrist-miil and machinery seventy-five feet from B.’s house, the latter stood by, and, .without objection, encouraged, advised, directed, assisted in and consented to the erection of said mill and machinery, will not estop him to afterward maintain an action to recover damages for injuries to his property, and his enjoy ment thereof as a home, resulting from the erection and operation of said mill, nor can a license to commit such injuries he implied from such conduct on the part of B., unless he knew or could have foreseen that such injuries would necessarily result from the erection and operation of said mill.</p> <p>Same. — Evidence.-—-Upon the trial of such cause, the testimony of a witness for the defendant, that, for two and one-half years last past, said witness had lived within forty feet of a planing mill, and within one hundred feet of another mill, in each of which an engine of the same manufacture and power was used, and that the steam therefrom had never dampened or wet his dwelling-house or clothing, or affected the health of his family, or interfered with the comfortable enjoyment of his property, would be incompetent and irrelevant.</p> <p>Supreme Court. — Record must show Error, — Practice.—When an appellant asks of the Supreme Court the reversal of a judgment, on account of an alleged error therein, the record of the cause, filed in said court, must clearly show the existence of the error, without the aid of any statement of matter foreign to the record.</p>

<p>Promissory Note. — Liability of Assignor of Non-Negotiahle Paper. — Measure of Damages. — Evidence.—Where the assignee of a promissory note, not negotiable by the law merchant, can not collect the amount thereof from the maker, the consideration which moved from the assignor for whatever he received for the note thereby fails, and he is then liable for the value which he received from the assignee for that consideration, with interest and costs of suit against the maker. The amount of the note is prima facie evidence that that was the price paid for the assignment; but this will not prevent the assignor from showing that the real price he received was less than the face of the note.</p> <p>Harmless Error. — Practice.—There is no error in sustaining a demurrer to special paragraphs of reply, when all the evidence which could be offered thereunder is admissible under the general denial.</p>

<p>Bastardy'. — Evidence.— Witness. — Impeachment.—A question propounded to the relatrix, upon cross-examination, in a bastardy proceeding, as to whether she had stated to O. at a certain time and place, that a person other than the defendant had had intercourse with her, hut not fixing the time of the supposed intercourse at such period as would make it probable that such person was the father of the child, is not competent, as such witness could not he impeached hy contradicting her statements upon matters immaterial to the issue.</p> <p>Same. — Practice.—In such case, a question propounded, upon cross-examination, to the relatrix, as to whether she had stated to O. at a certain time and place, that, if any thing ever happened to her, she intended to lay it on the defendant, as he had plenty of money, is proper to lay a foundation for impeachment ; and, being asked on cross-examination, the defendant was not bound to state to the court what answer he expected to get from the witness.</p> <p>Same. — Character for Truth. — In an impeaching question as to the character for truth and veracity of a witness in the neighborhood in which such witness lives, the word general, preceding character, is an essential requisite.</p> <p>Same. — Moral Character. — Under the statute, the general moral character of a witness maybe given in evidence in all cases affecting his credibility. The common-law practice requires that such character must relate to the time the witness is testifying and to the neighborhood where he resides ; and the better practice in such case is to first ask the impeaching witness as to his knowledge of that character, and, second, as to whether it is good or bad.</p> <p>Same. — Harmless Error. — Where an objection is sustained to a question put to a witness, and another question, covering the same ground, is asked and answered, there is no available error in the ruling upon the first question.</p>

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

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

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

<p>Criminal Law. — Assault with Intent to Kill. — “ Feloniously ” equivalent to “ Unlawfully.” — Affidavit and Information. — Where an assault with intent to kill is charged, in an affidavit and information to have been made “ feloniously," it is not necessary to allege that It was made “ unlawfully,” as the former word, in that connection, includes, and is the equivalent of, the latter.</p> <p>Same. — Criminal Pleading — It is sufficient to charge such offence in the language of the statute creating and defining it.</p> <p>Sam®. — Jurisdictional Facts. — Where the information for such a felony alleges that the defendant‘' is now in custody of the sheriff of said county to answer said charge, and the grand jury of said court and county is not now in session,” it states jurisdictional facts sufficient to bring the case within the first clause of the act of March 29th, 1879, Acts 1879, p. 148, providing what felonies may he prosecuted by affidavit and information.</p> <p>Same. — Instruction.—Supreme Court. — Practice.—Where the evidence is not in the record, the Supreme Court can not hold erroneous an instruction which tells the jury, in a prosecution for assault with intent to kill, that the intent constitutes the gist of the crime, and that, “in determining the intent of the defendant to commit the felony, it is proper for you to consider the acts done, the words spoken and the instrument used by the defendant in making the assault. If a deadly weapon was used, the intent may be inferred by you.”</p> <p>Same. — Refusal to give Instruction. — Presumption.—When the evidence is not in the record, the refusal of the court to give an instruction to the jury will be presumed to have been correct.</p>

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

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

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

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

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

<p>Contract. — Promise to Pay Debt of Another. — Statute of Frauds. — Promissory Note. — Assignment for Benefit of Creditors. — B. was indebted to A., and executed to him his promissory note for the amount. Before the maturity of the note, B. made an assignment of his property to 0„ for the benefit of his creditors. Soon afterward B. made a compromise with his creditors, by which it was agreed that D. should take the property so assigned to C., and upon certain specified terms pay the debts of B , including the no.te held by A. ’ Thereupon the property, consisting of a large quantity of merchandise, notes and accounts, was turned over to D„ who went into possession thereof under said agreement.</p> <p>Held, that the promise of D. is not within the statute of frauds, and that A. may maintain a suit thereon for the amount of his claim.</p>

<p>Marion Superior Court. — Appeal from. — Assignment of Error. — Practice. — Supreme Court. — Upon an appeal from the Marion Superior Court to the Supremo Court, the assignment of error in the latter court, to present any question, must be predicated solely upon the order or judgment of the court below at general term.</p>

<p>Bastardy. — Pleading.—Practice.—Where the complaint under oath in a a bastardy proceeding is made in the name of the prosecuting witness alone, and not in the name of the State upon her relation, but the case is docketed “The State of Indiana, on relation of,” etc., “against,” etc, “Complaint for bastardy,” and the proceedings conducted in the name of the State throughout, the provisions of section 1,2 and 3 of thebastardy act, 2 B. S. 1876, p. 654, are substantially complied with, and the complaint is sufficient on demurrer.</p> <p>Same. — Sufficiency of Evidence to Sustain Verdict. — Where the prosecuting witness in a bastardy proceeding testifies positively to the time and place of begetting the child, that the defendant begat the child, and that it was begotten in a particular room, and other witnesses corroborate her statements, by testifying that the parties were together in that room, at that time, and alone, the evidence is sufficient to sustain a verdict for the plaintiff, no evidence being offered for the defence.</p>

<p>Promissory Note. — Assignment.—Non-Residence of Maker. — Attachment.— Where the maker of a promissory note becomes a non-resident of the State after, an assignment of the note and before its maturity, and is a non-resident at the time of its maturity, the assignee may recover directly from the assignor, even if the maker had returned temporarily to the State after the maturity of the note and before the bringing of the suit, and at the time of such temporary return had property in his possession which might have been attached by the assignee of the note</p>

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

<p>Covenant. — Conveyance of Land in Another State.' — Law of Place. — In 1862, F. conveyed certain land situate in Minnesota to K., by a deed in the form prescribed by the statute of Indiana. Afterward K conveyed the land to P., by a deed in the old form, with all the usual covenants. Both deeds were executed and delivered in Indiana, where all the parties resided. H. had owned the land and mortgaged it to D., in 1857; the latter subsequently foreclosing his mortgage and becoming the purchaser of the land, of which he took possession.</p> <p>Held, that, as P. can maintain an action against F. only upon some covenant running with the land, and as, in determining whether a deed contains such a covenant, the lex rei sitos governs, said P. has no right of action against P.</p>

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

<p>Contract. — Fraudulent Representations. — Pleading ■ — In an action upon a contract, a counter-claim by the defendant, seeking affirmative relief upon the ground of fraudulent representations whereby he was induced ■ to enter into the contract, must, to -be good, allege that the representations were false; that they were made with a fraudulent purpose ; that they were believed to be true by the defendant ; that he was thereby induced to enter into the contract; and that the fraud was effected.</p> <p>Same-' — •Rescission of Contract. — The party against whom rescission is sought must he in fault; both parties must he placed in statu quo; the party asking rescission must return or tender what he has received .under the contract, and rescission must he promptly sought.</p>

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

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

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

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

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

<p>Contract. — Lease.—Promissory Note. — Failure of Consideration. — Estoppel. — Waiver of Damages. — Pleading.— Action hy O. against the maker, on a promissory note executed by A. to B., and assigned to C. Answer by A., by way of counter-claim, setting up a written contract by which B. leased to A. certain land, for a term of five years, for an annual rent of $1,400 ;1 that notes were given by A. for the yearly instalments of rent, and that the note sued on was' the third of the series ; that, by the contract, B. agreed, but failed, to enclose the land with a good and substantial fence ; that A. had paid the first two of said notes, hut that the rental value of the land was greatly decreased by the failure of B. to construct such fence. Two paragraphs of reply were filed: First, that before A. entered upon the land B. had enclosed it with what he intended for such a fence as provided for ; that A: took possession of the land with a full knowledge of the character of the fence, and used said land, and paid the first two notes given for yearly rent, and is estopped from claiming any failure of consideration ; Second, that B. employed A. to construct said fence enclosing said land, and furnished the materials for constructing a good and substantial fence ; that A. informed B. that he had constructed such a fence, and took possession of the land under said contract, etc.</p> <p>Held, that both paragraphs of reply set up facts showing an acceptance by A., as sufficient, of the work alleged to have been done by the payee of the note, and a waiver of any claim for damages on account of any supposed deficiency in said work.</p> <p>Same —Evidence.■—Occupancy of Land. — Acceptance.—Under the above contract, the mere occupancy of the land by A. would not be sufficient to show an acceptance by him of the work done by B. as a full compliance with the contract, but it would be a circumstance tending to show such acceptance, and proper to be considered by the jury in connection with other evidence.</p> <p>Same. — Parol Evidence.— Written Agreement. — The lease, in such ease, being silent as to what or how much fencing would he necessary to inclose the land in the manner contemplated by the parties, it was not error to permit B. to testify that he and A. went over the land, before the lease . was executed, and agreed as to what fences would have to be built.</p> <p>Same. — Question for Jury. — In such case, it was for the jury to determine what would constitute a good and substantial enclosure of the land.</p> <p>Same.— Construction of Contract ■ — Admission against Interest. — Each party must be held to the construction of a contract which his own conduct has placed upon it, when such conduct operates as an admission against his interests.</p> <p>Same. — Explaining Written Contract by Parol Evidence — It is not a general rule of law that oral evidence may be considered by a jury to explain a written contract. That can only he done in a special and limited class of cases.</p> <p>Practice. — Affidavit for New Trial. — Bill of Exceptions — Affidavits in support of a motion for a new trial are not a part of such motion, but only evidence in support thereof, and can only be made part of the record, on ppeal to the Supreme Court, by a bill of exceptions.</p> <p>Supreme Court.— Weight of Evidence. — Where there is evidence tending to sustain a verdict, the Supreme Court will not disturb it.</p> <p>Instructions. — For instructions at length see opinion.</p>

<p>Costs. — Reduction of Judgment on Appeal from Justice of Peace to Circuit Court. — Pleading.—Practice—Where a defendant appeals from the judgment of a justice of the peace to the circuit court and therein reduces the judgment more than five dollars, he is entitled under sec. 70, 2 R. S. 1876, p. 627, to recover his costs in such court ; and the fact that such defendant is permitted to amend his set-off, in the circuit court, by adding a bill of particulars, does not affect the case.</p>

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

<p>Cities. — Street Assessments. — Railroad.—The track of a railroad, which borders on a street is properly assessable for its due proportion of the cost of improvement of such street under an ordinance of the city.</p> <p>Same. — Lien of Assessment. — Description in Estimate. — Surveying.—A lien for street improvements attaches only where there is a sufficient description of the property in the estimate which constitutes the assessment ; and where the description in the estimate made by the engineer, taken in connection with the ordinance providing for the improvement and the eon- ■ tract awarded under such ordinance, is such as would enable a person somewhat acquainted with surveying to find and identify the land, it is sufficient to create the statutory lien.</p>

<p>Bastardy. — Civil Action. — Complaint.—A prosecution for bastardy is essentially a civil suit, and the complaint before the justice of the peace will be sufficient, if it will inform the defendant of the nature of the cause of action, and is so explicit that a judgment thereon could be used as a bar to another suit for the same cause, especially when the sufficiency of such complaint is questioned, for the first time, in the Supreme Court.</p> <p>Same. — Trial without Answer or Issue.— Practice. — It is not error to try a bastardy case without any answer filed or issue joined therein, as no provision is made by the statute regulating such cases for the filing of any answer or the joinder of any issue by the defendant ; and under section 34, 2 R. S. 187G, p. 612, all matters of defence in such cases, except the statute of limitations, set-off and matter in abatement, may be given in evidence without plea.</p> <p>Same. — Misconduct of Juror. — New Trial.— Weight of Evidence. — Supreme Court. — Where a motion for a new trial in a bastardy suit alleges as a cause therefor the misconduct of one of the jurors, in falsely declaring that he had not formed or expressed an opinion as to the guilt of the defendant, and the court below hears evidence touching such misconduct, its conclusion will not be disturbed by the Supreme Court- on the weight of the evidence.</p> <p>Same. — Guardian ad Litem, in Bastardy Suit. — Practice.—An objection to the trial and judgment, upon the ground that no guardian ad litem had been appointed for an infant defendant in a bastardy suit, can not be made for the first time in the Supreme Court.</p> <p>Same.— Weight of Evidence. — Practice.—A verdict will not be disturbed by the Supreme Court when there is evidence tending to establish every material fact necessary to be proved in order to sustain such verdict.</p>

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

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

<p>Promissory Note. — Reference to in Complaint. — Identification.—"Whore a complaint on a promissory note refers to such note as “herewith filed,” and such a note as the one described is actually filed with and accompanies the complaint, it is sufficiently identified.</p> <p>Same. — Averment that Note is Unpaid. — Demurrer.—Pleading.—A complaint on a promissory note must contain an averment, either in terms or equivalent words, that the note remains unpaid, or it will be insufficient uport demurrer for want of facts.</p> <p>Same. — Amendment.—Supreme Court. — Practice.—A complaint, bad upon demurrer for want of facts, can not be deemed amended in the Supreme Court.</p> <p>Same. — Judgment founded on bad Complaint. — A judgment founded upon a bad complaint, not cured by the verdict, can not be maintained</p>

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