Volume 69 — Indiana Reports

<p>Fraudulent Representations. — ■Promise to be Performed in Future. — Representations, to be fraudulent, must be made concerning existing facts; and promises made to be performed in the future, although fraudulently-made and afterward broken, do not constitute fraud.</p> <p>Same. — False Representations of Law not Fraud. — -Fraud can not be predicated upon representations of the law, however false they may be, and whether they are suppressions of truth or representations of falsehood. Every person is bound to know the law, and not to be deceived by its sup- . prossion or false representation.</p> <p>Rescission or Contract. — Money paid, or personal property delivered, or real estate conveyed, under a void contract, or a contract which can not be enforced, may be recovered back or .compensation had therefor, and the contract rescinded, even against the representatives of one of the parties thereto, when the rights of others have not intervened.</p> <p>Action to Recover Real Estate. — Equitable Title. — Right of Possession. —A plaintiff may recover real property upon an equitable title, when he has the right of possession.</p>

<p>Contract— Demand. — Pleading.—In an action upon the balance of an account stated, with an agreement that said balance should be paid in work to be ordered after a certain date, the complaint is bad on demurrer if it does not aver a demand or order for the work as stipulated in the agreement.</p> <p>Same. — Failure of Consideration. — Forged Notes. — Practice.—Pleading.—In an action upon a written agreement to pay a balance of an account stated in work if ordered after a certain date, upon which account there are credits, an answer showing that a part of the credits were given for promissory notes purporting to have been executed by good parties, but which notes proved to be forgeries, is good as showing a failure of consideration of the agreement to the extent of the amount of the notes ; and in such case it would not be necessary to bring suit on the notes against the parties purporting to have executed them, before setting up the above defence, as the question of the genuineness of such notes could be determined as well under the above answer as in an original suit thereon.</p> <p>Same. — Foundation of Defence. — Pleading.—In such a case it was not necessary to make copies of the alleged invalid notes part of the answer, as such answer was not founded upon them, but upon the alleged partial failure of the consideration of the instrument sued upon.</p> <p>Same. — Variance.—Amendment—Supreme Court. — Practice.-—If there was any variance between the notes mentioned in the answer in such case and those offered in evidence, as to amount, it might have been obviated by an amendment, and, in the Supreme Court, under section 580 of the code, the amendment will be deemed to have been made.</p> <p>Supreme Court.— Weight of Evidence. — Practice.—The Supreme Court will not disturb a verdict or finding on the evidence where it is conflicting.</p>

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

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

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

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

<p>Taxes. — Collection of from Tenant. — Right of Tenant to recover from. Owner Amount Collected. — Husband and Wife. — Lease.—Statute Construed. — Under the provisions of section 244 of tlie act providing for the assessment and collection of taxes, 1 K. S. 1876, p. 126, the tenant or occupant of real estate, from whom the taxes thereon shall have been collected, may recover, by action against the owner of such real estate, the amount ■ which such owner ought to have paid, whether such occupant or tenant has possession of the real estate under a contract made with such owner or with some third person. Hence, in such case, where S. is in possession of real estate as the tenant of H., under a written lease, he has a good cause ‘ of action against the real estate and the wife of H., the latter being the owner thereof, to recover the amount of taxes collected from him as tenant.</p> <p>Same. — Tenancy of Real Estate may be proved by Parol Evidence,— The fact of the tenancy or occupancy of real estate is a fact which exisfs independently of any written lease which the tenant may hold, and, as such, may be shown by parol evidence.</p> <p>Practice. — Bill of Exceptions. —Supreme Court. — Where it is apparent on the face of a bill of exceptions, that it does not contain all the evidence introduced on the trial, the Supreme Court will not reverse the judgment below on any question as to the weight or sufficiency of the evidence. Same. — Appeal.—Notice of. — Parties.—Only the party against whom a judgment has been rendered has the right to appeal therefrom ; it is not necessary, therefore, either that a codefendant, against whom no judgment was rendered, should be made a party to the' appeal, or that notice thereof should be served upon him.</p> <p>Same. — Pleading—Demurrer.—Section 50 of the practice act, 2 R. S. 1876, p. 56, specifies six causes of demurrer to a complaint, and provides that for no other cause shall a demurrer be sustained, and that, unless the demurrer distinctly specifies and numbers the grounds of objection, it shall be overruled. Under section 67 of the same act, 2 R. S. 1876, p. 66, the defendant may demur to a reply for the same causes specified for demux-ring to a complaint. Where, therefore, on appeal to the Supreme Court, the demurrer to a paragraph of reply is not in the record, such court can not say that the court below erred in overruling such demurrer, even though it appeax-s that some one or more of the statutory causes might be well assigned to such reply, as it can not know that the demurrer distinctly specified the grounds of objection.</p> <p>Same. — Presumption.—Where the record does not affirmatively show that ■ the decisions of the court below are erroneous, all the presumptions are in favor of the correctness of those decisions.</p>

<p>Constarle. — Removal of from County. — Official Bond. — Liability of Sureties. — Although a constable ceases to be a resident of the county in which he holds his office, yet he is still a constable de facto, under color of office, and his official acts are valid ; and for a breach of his official duty which occurs afterward his sureties are liable.</p> <p>Same. — Constable's Right to Office can not be Questioned Collaterally. — Ouster. — The right of a constable to his office can not be questioned collaterally, but only in direct proceedings for that purpose ; and until such proceedings are had, and ho is ousted from his office, or his term expires, his sureties will remain liable for his misfeasance in office.</p>

<p>Set-Oot?. — Judgments.—Equitable and Legal Title. — Although an equitable title to a judgment has been acquired by a stranger prior to a proceeding by the judgment defendant to have it set off against another judgment, yet the legal title will control the equity and authorize the set-off to he made.</p>

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

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

<p>Practice. — Exception.—Supreme Court. — Where the record does not contain an exception to a ruling refusing to admit evidence, the error, if any, is not available in the Supreme Court.</p> <p>Same. — New Trial.- — Evidence not in Record. — Presumption.—Where the evidence is not in the record, the Supreme Court will presume that the court below was right in overruling a motion for a new trial.</p>

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

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

<p>Liquor Law. — Sale without License to be Drank on Premises. — Indictment. —In an indictment under the act of March 17th, 1875, 1 R. S. 1876, p. 869, for selling liquor without a license, to be drank or suffered to be drank on the premises, it is sufficient to allege that the liquor sold was “intoxicating liquor,” as this phrase, under section 2 of the above act, includes spiritous, vinous, malt and all other intoxicating liquors used as a beverage.</p> <p>Same. — Quantity.—:It is not necessary to state in the -indictment the quantity sold, for the selling of intoxicating liquor in such manner constitutes an indictable offence without reference to the quantity which may be sold at any one time.</p> <p>Same. — Evidence.—Intoxicating Qualities. — Under section 2, supra, it is not sufficient that-the evidence merely shows that the liquor sold was beer, but ■ it must also show that it was of the kind possessing intoxicating qualities.</p> <p>Same.— Where Sold. — Possession by Third Person. — Where, in such case, the evidence shows the house where the liquor was drunk to have been at the time in the actual possession and occupancy, and under the immediate control, of a person other than the defendant, with whom the latter lived as a member of his family, without any independent authority over the house, it is not the house of the defendant within the meaning of the statute.</p>

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

<p>Set-Oee. — Judgments.—Assignment— Where G. at the time he obtains a judgment against L. is indebted, to the latter in a sum greater than the amount of such judgment, and where, during the pendency of an action by Tj. to recover such indebtedness, G. assigns his judgment to‘C. who has knowledge of such indebtedness, and subsequently L. obtains judgment against G. thereon, said L. is entitled to have satisfaction of the judgment against him, by having the amount thereof credited on his judgment against G.</p> <p>Same — Equitics.—Law Merchant. — In such case O. took the assignment of the judgment from G. subject to any equities against it, just as he would have taken an assignment of any other evidence of debt not governed by the law merchant.</p>

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

<p>School Law. — Section 28. — Cities and Towns. — All of section 28 of the school law of this State, 1 R. S. 1876, p 788, except the latter part thereof relating to the power of the majority of the voters of a school district over the employment and dismissal of teachers, applies to the school trustees of cities and incorporated towns, as well as to the trustees of school townships.</p> <p>Same. — Contract with Unlicensed Teacher Void. — Ratification.—Statute Construed. — Under said section 28, a contract for the employment of an unlicensed teacher in a common school is void by reason of the statutory inhibition against it, and is not ratified by the subsequent issuance of a license to the teacher.</p>

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

<p>Criminal Law. — Fornication and Adultery must be Open and Notorious.— Under section 21 of the misdemeanor act as amended by the act of March 9th, 1867, 2 B. S. 1876, p. 466, adultery or fornication, to constitute a public offence, must be open and notorious.</p> <p>Same. — Indictment —No Common Law Offences in this Staie-~As there are no common law offences in this State, it is not a public offence for any person to live in adultery or fornication ; and an indictment which charges that the defendant lived in fornication with a named person, but does not charge that such fornication was open and notorious, is insufficient.</p>

<p>Married Woman. — Promissory Note.— Contract. — Executor.—In a complaint by A. against B. and others, it ivas alleged substantially, that in 1865 the plaintiff loaned to B., a married woman, a certain sum of money, for which she, jointly with her husband, executed a promissory note ; that B. agreed with the plaintiff that, if 'she should be unable to pay the money before the death of her father, the loan should be satisfied out of her shar.e of his estate ; that her said father died testate, making the plaintiff and another his executors, and devising to them his real estate, which he charged with the payment of a legacy to B in annual instalments ; that said B., for the purpose of defrauding the plaintiff, had assigned her interest in the estate, to her children, who were made defendants, for the sole consideration of love and affection ; that the first instalment of said legacy was due. Prayer that the claim of B„ and the lien created by the will, on the plaintiff’s lands, be satisfied to the amodnt of the plaintiffs claim against B., and that B.’s said children, as assignees of her claim, be enjoined from suing the plaintiff or his co-executor on said claim, etc. Held, that the contract of B., being that of a mai-ried Avoman and entered into prior to the act of March 25th, 1879, Acts 1879, p. 160, Avas Amid and can not be enforced.</p> <p>Held, also, that the appointment of A. as executor gave him no greater legal’ or equitable rights in the premises than he would have had without such appointment.</p>

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

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

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

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

<p>Parties. — Civil and School Townships. — Mandate.—Demurrer.—Under the law of this Slate, the civil township and the school township are distinct municipal corporations, covering the same territory, but dissimilar in all other respects, except that the trustee of the civil township is ex officio the trustee of the school township. The civil township has not the power to build school-houses or to contract for the building thereof within the township ; and a complaint against the trustee of such township for a mandate, to compel him to build a school-house in a certain district therein, is bad on demurrer. Such a proceeding must be brought, if at all. against the trustee of the school township.</p>

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

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

<p>Pleading. — Fraud.—An averment , of fraud, to have force, must state the facts constituting the fraud.</p> <p>Express Trust. — Power in Trustees to Sell and Convey. — Title of Vendee.— Consideration. — Tinder an express trust, with power to sell and convey, it is not necessary that the trustee should apply to a court to authorize the sale, nor to give bond unless required, for the execution of the trust; nor can the title in the vendee be questioned for want of consideration.</p> <p>Same. — Act of 1875. — The act of February 4th, 1875, 1 E. S. 3876, p. 917, -does not seem to affect express trusts with a power in the trustee to sell and convey.</p>

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

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

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

<p>Criminal Law. — Appeal to Supreme Court, Sow Taken. — Notice.—An appeal in a criminal cause, during term time, is not authorized hy statute, and, though prayed for and granted in open* court, such appeal will not dispense with the notices required hy section 152 of the criminal code, which notices constitute the appeal.</p> <p>Same.— When Transcript must he Filed. — Under section 151 of the criminal code, upon appeal to the Supreme Court, the transcript must he filed therein within thirty days after such appeal is taken.</p>

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

<p>Criminal Law.— Prosecution of Felonies by Affidavit and Information.— Statute Construed,. — Under the first clause of section 1 of the act of March 29th, 1879, Acts 1879, p. 143, felonies may be prosecuted by affidavit and information “when any person is in custody on a charge of felony, and no grand jury is in session.’’ In such case the affidavit and information, in order to justify the prosecution in that mode, must show that the party accused is in custody for the particular felony eharged against him in such affidavit and information.</p> <p>Same. — Motion to Quash. — Practice.—An information founded on a bad affidavit is bad on a motion to quash. So, also, where there is a good affidavit, but the information is bad, the latter will be quashed. The motion to quash need not point out specifically the objections to the affidavit and information.</p>

<p>Conveyance. — Personal Property on Land Conveyed.— Personal property on land does not pass to a purchaser of the land by virtue of the deed.</p> <p>Same. — Reservation of Personal Property. — Question for Jury —In such case, whether there was a resei'vation of the personal property, or whether it was a part of the consideration for the trade, are questions for the jury on the evidence.</p>

<p>Mortgage. — Agreement by Grantee to Pay Debt Secured by. — Subrogation.— Fflreelomre. — Pleading.-—A complaint averred, in substance, that in 1861 the plaintiff was the owner of certain described land in this State; that at said time he executed a mortgage on the same to P., to secure a certain indebtedness set forth in the mortgage ; that in 1864 the plaintiff conveyed said land to W., who subsequently conveyed it to B. who conveyed it to B., each grantee agreeing, as a part of the purchase-money, to pay off and satisfy the indebtedness secured by said mortgage, which agreement was inserted in the several deeds of conveyance, which deeds, together with the mortgage, were made exhibits ; that in 1875 P., the mortgagee, recovered judgment against 'the plaintiff for a certain sum which was a part of the indebtedness secured by the mortgage ; that the plaintiff had paid said judgment and costs, which amounts were due and unpaid. Prayer to be subrogated to the rights of P. under the mortgage, dnd for judgment and decree of foreclosure, etc.</p> <p>Held, that the complaint is sufficient.</p>

<p>Criminal Law. — Carrying Concealed Weapons. — In a prosecution for carrying concealed weapons, the evidence showed that the defendant was watching a watermelon patch, which had been previously depredated, until her father and brother should return from a school meeting to which they had gone ; that she took a revolver from the house with her, carrying it in her hand, in the box in which it had been purchased; that, while at the melon patch, she heard her father and brother coming home and some men following them, threatening to heat her brother ; that she took the revolver from the ground where it had been lying, and, carrying it in her hand, went to her brother’s rescue and succeeded in getting him away from the men ; that the revolver was at no time concealed, unless it was when the defendant folded her arms at the scene of disturbance.</p> <p>Held, that the evidence does not make a ease against the defendant for carrying concealed weapons.</p>

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

<p>Criminal Law. — Definition of Crime or Misdemeanor. — Liquor Law of 1875. — Neither the adjective “ unlawful ” nor the adverb “ unlawfully ” is indispensable in the definition of a crime or misdemeanor-, in this State. When the commission of certain acts is declared to he a misdemeanor', it is thereby declared to be unlawful, for no misdemeanor can he lawful. In this view section 13 of the liquor law of 1875, 1 R. S. 1876, p. 872, is complete in itself and valid.</p>

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

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

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

<p>Criminal Law. — Burglary.—Ownership.—Tenant.—Indictment.— Variance. —-A tenant, who is in the exclusive possession of property under a written lease, is, during the continuance of his term, whether it be for a long or short time, as absolutely the owner as if he had the fee in the property ; and, where an indictment charged the defendant with having burglariously entered the storehouse of D., and the evidence upon the trial showed that, while I). was the owner of the fee of the storehouse so entered. yet the same, at the time of the entry, was in the exclusive possession and occupancy of W. as the lessee and tenant of D., under a written lease, he paying a stipulated rent therefor and using the same to carry on his business as a merchant, the variance between the name of the owner alleged and that proved is fatal.</p> <p>Same. — General Tenancies. — The rule that, where the property burglariously broken into is occupied by a tenant having a definite term, it must be alleged tobe his property and not that of his landlord, applies in this State to property held by a general tenancy, the duration of which is not fixed by contract, as the statute converts such tenancies into tenancies from year to year.</p>

<p>Criminal Law. — Instruction.—Reasonable Doubt. — An instruction to tlic jury in a criminal case, which limits a reasonable doubt to something which is suggested by, or arises from, or springs out of the evidence adduced,' gives too narrow a definition of a reasonable doubt. Such a doubt may arise from a want of evidence as to some fact having a natural connection with the cause. It has reference to that uncertain condition of the mind which may remain after considering what has not been proved as well as that which has.</p> <p>Same. — Common Sense. — After a jury has been instructed that they are the judges of the law as well as the facts, it is error to then instruct them that “ common sense” is their best guide, without limiting this commendation tó so much of the case as has reference to the value and weight of the evidence.</p>

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

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

<p>Constitutional Law. — Liquor Law of 1875. — Section 17 of the liquor law of March 17th, 1875, 1 R. S. 1876, p. 872, providing that, where the house where spiritous liquors are sold is kept in a disorderly manner, it shall be deemed a nuisance and work a forfeiture of license, etc., is constitutional.</p>

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

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

<p>Cities and Towns. — Opening Street. — Injunction.—Pleading.—In a suit to enjoin a city from opening a street through the plaintiff’s land, until the assessment of damages is paid, an answer alleging that the land described in the complaint was, at the time the proceedings to appropriate the same were commenced and for many years prior thereto, an open and public street and highway of said city ; that the only interest the plaintiff had in said land was the ownership of the fee, subject to a perpetual easement of a street and highway over said land ; that the proceedings to appropriate said land were taken on behalf of the city by mistake and in ignorance of the fact that said land was already a part of said street; but not alleging facts showing that the ground appropriated was a street by user, by grant, by dedication or appropriation, or that it was established in any manner known to the law, is insufficient.</p>

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

<p>Will. — Legacy —Ademption.—Where one who has made his will giving a legacy to a child, afterward, during his life, gives a portion to. or makes provision for such child, it will be deemed, even if not so expressed, an ademption or satisfaction of such legacy, if the circumstances indicate that intention, if it is not less than the legacy, if'it is certain and of the same general nature ; but, where there is a great disparity between the gift made inter vivos and such legacy, the amount of the legacy being largely in excess of the amount of the gift, such gift can not be regarded as either a portion or an advancement, within the legal meaning of those terms, which will operate as an ademption or a satisfaction pro tanto of the legacy, unless the testator, in making the gift, declare his'intention, or unless the circumstances clearly indicate such intention, that such gift shall so operate.</p> <p>Same. — Interest on Legacy. — Where a general legacy is given, and no time of payment is specified, it will draw interest after the expiration of one year from the death of the testator.</p> <p>Same. — Revocation.—•Evidence.—Upon the execution of the last will of a testator, a former will executed by him is revoked and becomes invalid and mere waste paper, and is not competent evidence for any purpose.</p> <p>Instruction. — Burden of Proof. — Where, on the pleadings in a cause, the burden of an issue is upon the defendant, it is error for the court, in its ■ instructions to the jury, to cast the burden of such issue upon the plaintiff.</p>

<p>Contract.— Wager on Result of Election. — Acquiescence.—"Where A. sells and delivers to B. an article of personal property, at an agreed price, the payment of which is to be contingent upon the election of a certain candidate at a pending election, the money to be placed in bank to await the result of such election, and B„ instead of depositing the money in bank, as agreed, makes an arrangement with the assistant cashier of the bank, but without the knowledge of said bank, to pay A. the agreed sum upon the election of such candidate, a promissory note being taken by such cashier as collateral security, and A. acquiesces in this arrangement until the result of the election has been publicly announced, it is then too late for him to repudiate his contract upon the ground that the original agreement has not been complied with by B.</p> <p>Same. — Public Policy. — Such an agreement is a wager upon the result of an election and as such is void, as being in contravention of the statute and against public policy.</p> <p>Same. — Executed Wager. — By the delivery of the property to B., and A.’s subsequent acquiescence in the mode of payment for it, the wager becomes an executed one on the part of A., and in such case the law affords no relief. It leaves the parties where it finds them.</p> <p>Same. — Agreement to Pay Certain-Sum in Any Event. — An arrangement by which A. was to receive in any event as much as a certain sum is merely colorable and does not change the real nature of the transaction with referenc° to its character as a wager.</p>

<p>City, — Trustees of Water Works. — Election of. — Statute Construed. — Under the act of March 25th, 1879, Acts 1879, p. 88, “to authorize cities and incorporated towns to construct, maintain and operate water works,” etc., and providing for the establishment, by the common council, of a board of three trustees, and for the election of such trustees by the qualified voters of such city or town, and proscribing their powers and duties, the establishment of such board of trustees is not a necessary prerequisite to the election of those officers by the voters of a city.</p> <p>Same — Notice of Election. — Ignorance of Law. — If the election for such trustees is otherwise regular, the want of any notice thereof, previously given, will not invalidate it. Nor will the ignorance of the people as to the existence of the law providing for the election of such trustees, affect the validity of the election, as they are "bound to take notice of the existence of such law and of the election thereunder.</p> <p>Same. — Trustee's Bond — Duty of Common Council. — Mandate.—Under said act of 1879, supra, it is the duty of the common council to determine; hy an order, the sum in which the trustees shall give bond, and this duty may he enforced hy mandate.</p> <p>Same. — Establishment of Board of Trustees. — Notice.—No notice of a proceeding hy the common council to establish the hoard of trustees of the water works, as provided for in said act, is necessary to give it validity.</p>

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

<p>From tbe M.arion Circuit Court.</p>

<p>Supreme Court.— Weight of Evidence. — Practice.—The Supreme Court will noi disturb a verdict upon the mere weight of conflicting evidence.</p>

<p>Cities. — Presumption as to Incorporation under General Law. — "Where a city is a party to a suit, it will be presumed, nothing appearing to the contrary, that such city is incorporated under the general law of this State for the incorporation of cities.</p> <p>Same. — Marshal Entitled to No Fees. — The marshal of a city incorporated lindor the general law is not entitled to any fees in city or other cases ; and, whore fees have been taxed and collected in his favor, ho has no-right to the money thus collected, and no indebtedness will accrue to him from the city on account of such fees, or on account of the collection and appropriation thereof by the police officers of such city, with its consent.</p> <p>Same. — Official Duties of Marshal. — Salary. — Contract with City for Special Services Void. — If it is any part of the duties of the marshal of a city to “ board and furnish meals to the prisoners of the city,” etc., and to “ kill dogs and bury the carcasses of dead animals found within such city,” it will be presumed that he is fully compensated therefor by his annual salary, as fixed by the common council. If, however, such things are outside of his official duties, and are performed by him “by order of the mayor and authorities ” of the city, and upon a contract, express or implied, with such city, that he shall be compensated therefor, without regard or in addition to his salary, then such contract, under section 52 of the general law for the incorporation of cities, is void.</p> <p>Same. — Action, by Marshal for Salary. — Complaint m,ust Set Out Ordinance-Fixing Same. — Under section 51 of the general law for the incorporation of cities, the salaries of all city officers must he fixed by ordinance by the common council; and, in an action by a city marshal to recover a balance alleged to he due on salary, a copy of the ordinance fixing such salary must bo filed with or set out in the complaint. He can not sue in indebitatus assumpsit, as upon an implied contract, as there is no such contract.</p> <p>Same. — Power of Common Council over Salaries of City Officers. — Reduction of Marshal's Salary. — Under the general law of this State, now in force, for the incorporation of cities, the common council of a city have full power over the salaries of city officers, with no restrictions or limitations on the exercise of such power, except such as are specifically mentioned in the statute. Therefore, such common council, in the exercise of their discretion, have the power to reduce the salary of the city marshal at any time during his period of service.</p>

<p>G-tjakdian. — Application to Sell Real Estate. — Additional Bond. — A bond given by a guardian upon his application to sell real estate of his ward will be good whatever may be the terms of sale afterward legally provided for by the order of the court, as such terms constitute no part of the contract evidenced by the bond.</p> <p>Same. — Changing Terms of Sale. — The cottrt may, in its discretion, alter the terms of the sale after having fixed them, without impairing the obligation of the bond.</p> <p>Same. — Defect in Condition of Bond Cured Try Statute. — Where such bond is not in terms conditioned for “the faithful payment, and accounting for, of all moneys arising from such sale according to law,” as is required by section 18 of the statute relating to guardian and ward, 2 K. S. 1876, p. 595, it is not void, but it is given the same effect by section 5 of said statute as if it contained the proper condition.</p>

<p>Administrator.— •Selling Land of Decedent to Himself. — Avoidance of Sale by Heirs. — If an administrator, by order of court, sell the lands of the deceased, as such administrator, to himself as an 'individual, either directly or indirectly through a third person, he can not holii the title thereto against the heirs of the deceased, if they take the proper steps to avoid it.</p> <p>Same. — Such Sale Constructive Fraud. — The question m such case is not one of fraud in fact, or actual fraud ; such a sale is itself a fraud in law, or constructive fraud, which the law will not uphold, whatever may have been the motive in making it.</p> <p>Same, — Lapse of Time. — Statute of Limitations. — When lapse of time is relied upon as a defence in an action of this kind, it must generally, under our code of procedure, be pleaded and based upon some statute of limitations. Upon general principles, the time elapsed is not material to this case.</p> <p>Instruction. — Assumption of Fact. — An instruction beginning, “ If, at or before the administrator’s sale of the lands in question,” etc., is hypothetical, and not open to the objection that it assumes the administrator’s sale as a fact proved.</p> <p>Same. — A defendant can not complain of an instruction upon the ground that it assumes a certain thing as a fact proved when his case depends upon the existence of such fact.</p> <p>Pleadino.— What Plaintiff is Bound to Prove. — It is not true, as a general rule, that a plaintiff is hound to prove all the allegations in his complaint; hut, when his complaint is denied, he is only hound to prove all the aver, ments therein which are necessary to his recovery.</p>

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

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

<p>Proceedings Supplementary to Execution. — Pleading.—Complaint.— Transcript of Jxidgment. — In proceedings supplementary to execution by a judgment creditor to subject an indebtedness due the .judgment defendant to the payment of the judgment, it is not necessary to make a transcript of such judgment, or any part of it, an exhibit in the case ; and the complaint will not, therefore, be bad because it makes an imperfect transcript of such judgment an exhibit.</p> <p>Same. — “ Property.” — An indebtedness by a promissory note due to a judgment defendant is ‘‘ property,” within the meaning of section 519 of the code, which may be subjected to the payment of the judgment by proceedings supplementary to execution.</p> <p>Practice.- — A party can not complain of the insufficiency of the evidence to establish a matter which was not put in issue by the pleadings.</p>

<p>Criminar Law. — Indictment.—Variance.—The variance "between the word ‘‘prodestant,” as used in an indictment, and the word ‘‘protestant,’’ appearing in the evidence, is immaterial.</p> <p>Corporation. — Election of Ghurch Trustees. — Parol Evidence. — In the absence of any statutory provision that the election of the trustees of a church can only be proved by written evidence, the fact of such election may be proved by parol "evidence</p> <p>Same. — Criminal Law. — Trespass.—In a prosecution for a trespass, alleged in the indictment to have been committed upon property of a church corporation, parol evidence is admissible to show who were the acting trustees of the church, both at the time of the commission of the trespass and at the time of the trial of the cause.</p> <p>Same. — Presumption of Corporate Existence.— When Corporate Existence can not be Attacked Collaterally. — Where an association of persons, under the corporate name of the “Trustees of” etc, have for nearly twenty-five years assumed to act and have acted as a corporation, no person except the State can be heard to call in question the legal corporate existence of such trustees, or their rights, powers and franchises as such corporation. As between such trustees and persono other than the State, it will be presumed that the trustees are a corporation ; and their want of existance as such can not be shown collaterally, in a prosecution for a trespass committed on lands held in the corporate name, and be made an available defence.</p> <p>Same. — “ Person ” — Such a corporation falls within the statutory definition of the term “ person,” as given in section 170 of the criminal code, 2 B. S. 1876, p. 413, and, therefore, within the meaning of the same term as used in the amended section 14 of the misdemeanor act, 2 B. S. 1876, p. 463.</p>

<p>Check —Action, on Dishonor of. — Notice of Non-Payment.- — Delay in Presenting for Payment. — "Where a party draws a cheek on a hank to pay a debt, having no funds in such bank with which to pay the check, or, having funds at the time, withdraws the same before the check is presented for payment, he can not, in an action thereon, avoid his liability either for want of notice of the non-payment of the check, when presented, or because the holder did not promptly present the same for payment.</p>

<p>Criminal Law. — Practice.—Supreme Court. — Evidence.—Where, in a larceny case, the evidence is not in the record, the Supreme Court can not say that certain evidence as to a conversation with and admissions by the defendant was inadmissible.</p> <p>Same. — Indictment.— Variance. — Where an indictment charges the stealing of property belonging to Orange Brookshire, and the proof shows the name of the owner to be Orange S. Brookshire, or Orange Scott Brook-shire, the variance is not material.</p> <p>Same. — Arrest of Judgment, Causes for. — Grand Jury. — Challenge to Array. —Abatement.—A-motion was made to arrest the judgment in a criminal case because (1) the record did not show that the grand jury was drawn in the mode prescribed by law, or that the grand jurors were reputable freeholders and residents of the proper county, and because (2) the judge in vacation had no power to convene the grand jury.</p> <p>Held, that these objections to the grand jury might have been properly raised by challenging the array, or by pleading them in abatement, but they did not afford causes for arresting the judgment.</p>

<p>Liquor Law. — Retailing without License. — Indictment.—Kind of Liquor.— Ail indictment charging the defendant with having sold “ intoxicating liquor ” in a less quantity than a quart, not having a license so to do, hut not specifying by name the particular kind of intoxicating liquor sold, is sufficient.</p> <p>Criminal Law.— Grand Juror. — Qualifications of. — Under the act of March 13th, 1875, 2 It. S. 187G, p. 417, n. 1, “ regulating the number of grand jurors,” etc., and providing “ That a grand jury shall be composed of six reputable freeholders and residents of the county/’ and repealing all conflicting laws, a reputable householder as such, who is not also a reputable freeholder of tho proper county, is not a competent grand juror, either as a member of the .regular panel or as a talesman ; and the fact that such householder is the owner in fee-simple of real estate in another State does not make him competent to serve as a member of the grand jury.</p>

<p>Bill of Exceptions. — Signing of. — Nunc Pro Tunc Entry. — Estoppel.—Time beyond the term having been granted to prepare and file a bill of exceptions, the bill was prepared and filed within time, but was not signed by the judge because be had absented himself so that it could not be presented to him for signature.</p> <p>Meld, that such bill, though subsequently signed by the judge in open court, in the presence and without the objection of the parties, could not be made a part of the record either by a nunc pro tunc entry or in an original proceeding.</p>

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

<p>Practice. — Striking Out Answer.— Harmless Ruling.• — It is harmless to strike out a special paragraph of answer, when there is a general denial already in covering the same ground.</p> <p>Pleading. — Release.— Want of Consideration. — It is a good reply to ft paragraph of answer setting up a release, to allege that such release was given without con<-'deration.</p> <p>Same. — Release of Mortgage. — Failure of Consideration. — In an action to foreclose a mortgage, for judgment on notes secured thereby, and for the cancellation of a release of such mortgage, S., the mortgagor, and H., a subsequent purchaser of the land, jointly answered setting up the release. To this answer a reply was filed, alleging, in substance, that on a certain date there was due the plaintiff, on the notes sued upon, a certain sum of money ; that on said day the defendants paid to the plaintiff a part thereof, leaving a balance due : that said defendants then proposed to the plaintiff that H. would assign to him a promissory note, which it was represented he held on a certain person, and that S. would execute his note to the plaintiff, in a certain sum, with surety, if the plaintiff would enter full satisfaction upon record and release the mortgage ; that they would meet the plaintiff next day at a certain place, and deliver said notes to him, which, when so delivered, were to be received as satisfaction in full of the notes and mortgage sued upon ; that, relying on said agreement, the plaintiff entered satisfaction of record and released the mortgage, which, by the agreement of the parties, was to be binding only upon the delivery of said notes as aforesaid ; that the plaintiff went to the place, at the time agreed upon, for the purpose of receiving said notes; that the defendants did not appear as agreed, but wholly failed to deliver said notes or either of them, and had since failed to deliver said notes, or m pay the amount due plaintiff, although often requested, etc.</p> <p>Held, that the reply is sufficient.</p> <p>New Trial. — Cause for. — Error in giving an instruction is merely cause for a new trial.</p> <p>Same. — Motion for New Trial. — Practice.—A motion for a new trial, which does not set out the written causes therefor, as required by the statute, presents no question.</p>

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

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

<p>Bill of Exceptions. — Evidence.—Dismissal of Action by Default of Plaintiff. — Appearance.—On appeal to the Supreme Court, from a refusal of the circuit court, on affidavits and counter affidavits, to reinstate a cause wherein judgment of default and dismissal had been rendered against the plaintiff on the withdrawal of appearance by his attorneys, the bill of exceptions must contain all of the evidence offered on the trial of the motion to reinstate.</p>

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

<p>Criminal Law. — Compelling Witness to Criminate himself. — Constitutional Law. — Trespass on Lands. — That part of section 14 of the act defining misdemeanors, 2 R. S. 1876, p. 463, providing that “ any person concerned in such trespass ” on lands “ may he compelled to testify against any other person therein concerned,” is in conflict with section 14 of the Bill of Rights of the Constitution of this State, and is therefore void.</p>

<p>Pleading. — Complaint for Damages. — Trespass.—A. complaint for damages resulting from an alleged injury must clearly charge the defendant with the commission of the injury alleged.</p>

<p>Will — Devise for Support of Devisee — Interest.— Conversion.— Setting aside Exec/tor’s Final Report. — By the terms of his will, a testator devised to a married daughter a specified sum of money, “ to be paid to her at such times and in such sums as she may be in need of it; but put it not into the hands of her husband, -as I will it to be kept clear from all his claims.” "</p> <p>Held, in an action by the devisee, against the executor, that, on his conversion of the estate into money, she became entitled to receive of him all of the legacy necessary to supply her reasonable needs ; that he was liable to her for interest received by him thereon ; and that his final settlement' report could be set aside to compel him to account for such interest.</p>

<p>Railroad. — Appropriation to.— Complaint to Enjoin Tax. — Specifications of Objection United in One Paragraph. — Motion to Separate — Practice.—In an action to enjoin the collection of a tax levied as an appropriation to a railroad company, the complaint may set out the proceedings resulting in the levying of such tax, and then, in the same paragraph, state separately each cause of objection to the tax. And then the defendant may demur or plead to each specification of objections, as to separate paragraphs of complaint. Consequently, his motion to cause the complaint to be separated into as many paragraphs as there are such specifications should be overruled.</p> <p>Same. — Answer.—Identity of Notice of Election. — In such action, the answer set out a copy of a notice of said election, and alleged that legal notice had been duly given by publication and posting. It also set out a copy of the county auditor’s certificate that publication had been made, and that he had delivered ten copies of such notice to the sheriff for posting. It also set out the sheriff’s return that he had posted such notices at ten public places in the township, three weeks prior to the election.</p> <p>Held, on demurrer, that'such certificate and return sufficiently identify the notice.</p> <p>Same. — Election by Townships —Board of Canvassers, Who Constitute. — Irregularity. — An election having been held in each of several townships, having only one voting precinct, as to a proposed appropriation to the same railroad, the inspectors of each township afterward met jointly with the auditor and canvassed the vote of each township.</p> <p>Held, that, under section 8 of the act of May 12th, 1869, 1 R. S. 1876, p. 736. the inspector and judges of each township, or some two of them, acting only for their own township, were necessary to constitute the legal board of canvassers of the vote thereof.</p> <p>Held, also, that the fact that the inspectors of the elections held in the other townships aided in canvassing the vote of any such township neither aided nor invalidated such canvass, and that such canvass stood simply as one made by the proper inspector, aided by the county auditor as his clerk.</p> <p>Held, also, that neither the election nor the tax voted and levied were invalidated by such irregular canvass.</p> <p>Same.— Order for Levy.— Uncertainty — An order by the county commissioners, directing the county auditor to levy “one-half” of the amount voted, hut not specifying what per cent, of a levy should be made, is valid. Biddle, J., dissented.</p>

<p>Pleading.— Counter-Claim. — Copy of Contract. — A counter-claim founded upon a contract which is the basis of the complaint may refer to such contract as that “ of which a copy is filed with the complaint,” without setting out an additional copy.</p> <p>Same. — In an action wherein the complaint contained several paragraphs, the defendant filed a paragraph of “ answer, by way of counter-claim as to the matters * set forth in the third paragraph of * complaint, and set-off as to the residue thereof.”'</p> <p>Held a counter-claim.</p> <p>Bill op Exceptions. — Record.—Failure to Set Out Evidence. — A bill of exceptions purporting to contain all the evidence contained a reference to documentary evidence not actually appearing therein ; but, after the signature of the judge, appeared copies of certain documents, accompanied by marginal notes stating the part of the record of the bill of exceptions wherein they should appear.</p> <p>Held, that the bill of exceptions forms no part of the record.</p>

<p>Taxes. — Cities and Towns. — Exemption of Lands from Taxation. — Common School Tax. — Statute Construed. — A tax levied by the school trustees of a town or city, for school purposes, is not a tax for “ general city or town purposes,” within the meaning of section 1 of the act of March 13th, 1877, Acts 1877, Spec. Sess., p. 74, “ exempting certain lands * from taxation for general city or town purposes.”</p> <p>Same. — Injunction.—Payment.-—-Tender.—If part of a tax assessed in such case be legal, that part must be duly paid or tendered before an action enjoining the residue can be maintained.</p>

<p>Instruction. — Replevin.—Demand.—Measure of Damages. — A chattel -which had been sold and paid for, but not delivered, was left by the vendor with a third party to be repaired and then delivered by the latter to the vendee; but the vendor, after having notified such third person not to deliver the chattel to the vendee, sent his employee and removed the same. Replevin for the chattel having been instituted by the vendee’s administratrix, against the vendor and his said employee, and evidence of the foregoing facts, and of the value of the use of the chattel from the date it was so removed, having been given without objection, and the defendants having admitted the making of a demand, but stating no date, the court instructed the jury that the plaintiff, if entitled to' recover, should recover damages from the time of the “ taking.”</p> <p>Held, that the defendants can not complain of the instruction.</p>

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

<p>Bottitty. — Order by County Commissioners. — Complaint.—During the War of the Rebellion a-nd subsequent to a certain call by the President for volunteers, the board of commissioners of a certain county in this State made an order “ that there be paid, out of the county treasury, to each volunteer being a resident of the county,” who might enlist therefrom,“ in the military service of the United States,” under such call, while the quota of the county remained unfilled, a certain sum of money, less sums advanced to his family, on his producing a certificate that he had been duly mustered in. The board subsequently passed an order rescinding the previous order, to take effect at a future day specified, but providing that the rescission should not apply to persons who had, or before such day should have, subscribed “ a contract for enlistment, whether they’’ had “ been mustered ” in at that date or not. A complaint was filed before the board, alleging that the plaintiff, while a resident of that county and before its quota had been filled, had enlisted under such call and been credited to that county.</p> <p>Held, on demurrer, that the complaint was sufficient.</p> <p>'Practice. — Harmless Ruling on Demurrer.— Withdrawal of Answer.- — • Where the answer of general denial is in, the sustaining of a demurrer to an additional paragraph is harmless, if the facts alleged in the latter are admissible in evidence under the former ; and the withdrawal of the general denial, subsequent to the sustaining of the demurrer, does not render that ruling erroneous.</p>

<p>Real Estate, Action to Recover. — Certifying Cause from Justice to Circuit Court. — Jurisdiction.—Pleading.—Equitable Interest Mortgageable.— Lis Pendens. — Sheriff's Sale. — Parties.—In an action’before a justice of tbe peace against L., as the plaintiff’s tenant holding over, to recover possession of real estate, "W. was admitted as a defendant, without objection by the plaintiff, and filed his written answer, verified by affidavit, averring that ho was the owner of the lands described in the complaint and entitled to the possession thereof, and that L. was his tenant, occupying the lands under a lease from him. Thereupon the justice, deeming that the title to the land was put in issue, certified the cause and papers to the circuit court, where W. filed a counter-claim, setting up title to the land in himself, and his right to the possession against both the plaintiff and L. A motion by the plaintiff to remand the cause to the justice was overruled. Issues were formed, and upon the trial the court made a special finding of the facts which was, in substance, as follows: That on September 7th, 1868, one B. became the owner, by assignment, of certificates to the land in controversy, issued by the proper county auditor, upon a previous entry of such lands, under section 7 of the act of March 2d, 1859, 1 R. S. 1876, p. 948 ; that, while the owner of the lands by virtue of such certificates, B. and wife, on August 28th, 1869, mortgaged the same to W., to secure an indebtedness ; that this mortgage was duly recorded ; that, in 1878, W. commenced proceedings to foreclose his mortgage, obtained a judgment on October 30th, 1874, and a decree of foreclosure ; that the lands were sold by the sheriff in December, 1874, and purchased by W., to whom the sheriff issued a certificate, and, in due time, a deed, which was duly recorded; that B., on February 9th, 1874, assigned the certificates to 0., to whom, on the 19th of that month, patents were issued for the lands. by th e State, on the certificates; that the patents were recorded October 24th, 1874 ; that on October 22d,.1874, said O. and wife conveyed said lands by warranty deed to the plaintiff; that this deed was duly recorded ; and that C. was a party defendant to W .!s suit to foreclose his mortgage.</p> <p>Held, that the court did not err in overruling the motion to remand the cause to the justice.</p> <p>Held, also, that, after the cause was certified by the justice to the circuit court, that court was not limited to the jurisdiction of the justice, as in ordinary appeals. It had the case as if it had been originally commenced therein ; and it was not necessary that W. should set up his title in his counter-claim any more particularly than would have been necessary in a complaint to obtain possession of the lands, under section 595 of the code. Held, also, that B. had a mortgageable interest in the lands, that he conveyed to C. only his equity of redemption, which was all the plaintiff took by his deed from 0., that W.’s suit to foreclose his mortgage was a lis pendens to all these persons, and that W. has title to, and is entitled to possession of, the lands.</p> <p>Practice. — Cause for New Trial. — Error in the admission of evidence can be presented only by a motion for a new trial, in which it is assigned as cause.</p> <p>Same. — Special Finding. — Judgment Non Obstante. — A motion for judgment notwithstanding the finding will not lie upon a special finding of facts by the court, which does not contemplate a general verdict.</p>

<p>Sunday. — Promissory Note Executed by Surety on Sunday and Delivered by Principal on Week Day. — In an action on a promissory note, wherein one maker pleaded suretyship and that he had executed the note on Sunday, the plaintiff replied that the note had been delivered to him by the principal on a day other than Sunday, with the assurance that it was binding on both makers ; and that, relying on such representation, and not knowing when it had been executed, he had then and there accepted the note, in good faith, and delivered to the principal the property for which it was executed.</p> <p>Held insufficient, on demurrer.</p>

<p>Constitutional Law. — Exemption from Taxation. — Charitable Purposes ■ — The eighth clause of section 7 of the act of December 21st, 1872, 1872, p. 57, “to provide for a uniform assessment of property,” etc, exempts from taxation, “ The property to the amount of five hundred dollars, of a widow or unmarried female, or of any female minor whose father is deceased, if her whole estate real and personal, not otherwise exempted from taxation does not exceed in value the sum of one thousand dollars.”</p> <p>Held, that said eighth clause of section 7 of said act is unconstitutional and void.</p> <p>Held, also, that such exemption is not for “ charitable purposes,” witbin the meaning of section 1 of article 10 of the constitution of this State.</p>

<p>Mortgage. — Foreclosure of. — Merger.—Redemption.— Vacation of Sheriff’s Sale. — Pleading.—In this action the complaint alleged, in substance, that in 1871 the defendant A. executed to one B. a mortgage on certain real estate, to secure a promissory note given for the purchase-money of said real estate ; that the plaintiffs were the owners of said note by endorsement, etc.; that in 1875 the plaintiffs brought suit against A., as sole defendant, to foreclose said mortgage and collect the note ; that they obtained judgment on said note, for more than eight hundred dollars, and also a decree of foreclosure ; that on February 25th, 1876, said real estate was duly sold by the sheriff' to one of the plaintiffs for twenty-live dollars and a certificate of sale was executed by the sheriff to said plaintiff; that afterward O., a junior incumbrancer, deposited with the clerk of the proper court the amount of said bid, with ten per cent, thereon, thereby satisfying said judgment to that extent ; that the residue of said judgment was unpaid and a prior lien on said real estate ; that certain other defendants, naming them, were junior incumbrancers. Prayer, that the judgment theretofore rendered on said mortgage be decreed a lien on said real estate prior to the liens of said defendants, that they be required to litigate their rights and be limited by these proceedings in the equity of redemption to the statutory period, and that said real estate be declared subject to said balance of said judgment, and be sold to satisfy the same, and that the original judgment and decree be merged in these proceedings.</p> <p>Held, that the complaint is sufficient.</p> <p>Held, also, that the mortgage was not so merged in said judgment of foreclosure, as to defeat the lien thereof.</p> <p>Held, also, the mortgaged premises having been duly redeemed according to law, from the sheriff’s sale thereof, that such sale was vacated and set aside ; and thereafter both the mortgage and the judgment of foreclosure, so far as the mortgaged premises were concerned, stood as if'no sale by the sheriff’ had been made.</p>

<p>Liquor Law. — Sale on Sunday. — Indictment.—An indictment for selling intoxicating liquor on Sunday must, to be sufficient, allege that it was sold to be drank as a beverage.</p>

<p>Supreme Court. — Record.—Transcript.—Marginal Notes. — Names of Par- • ties. — Assignment of Error.- — Rules 1-ancl 19. — The transcript, on appeal to the Supreme Court, must contain marginal notes, as required by Rule 19, and also the names of the parties, as required by Rule 1, or the appeal will be dismissed.</p>

<p>Beyiew of Judgment.— Complaint.■ — Insanity.— Removal of Legal Disability. — Material New Matter. — Diligence.—Delay — Usury. — Statute Construed. — A complaint by a husband and wife, to review a judgment of foreclosure of a mortgage on real estate, was filed five years and three months after the rendition of the judgment, and alleged that, at the time of the execution of the mortgage and certain promissory notes seemed thereby, and at the time of ihe service of summons in the foreclosure suit, the husband was insane ; that such notes included large sums of usurious interest ; and that the husband had not become of sound mind until two years and eight months after the rendition of the judgment.</p> <p>Held, on demurrer, that the complaint showed no error apparent upon the face of the record in the foreclosure suit.</p> <p>Held, also, that the facts alleged do not constitute “ material new matter,” discovered after the trial.</p> <p>Held, also, that, even if the facts alleged constituted ‘‘material new matter,” yet, for want of an averment that they could not have been discovered before the former trial, by the use of reasonable diligence, the complaint is insufficient.</p> <p>Held, also, that the complaint was not filed within time after the husband's restoration to sanity.</p>

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

<p>Demurrer to Evidence. — Practice.—A demurrer to evidence, sotting out in full the oral testimony of witnesses, and making the written portions of the evidence parts of the demurrer by identifying them as in a bill of exceptions, without writing them out in full, is sufficient.</p> <p>Same —Bill of Exceptions. — It is not necessary to the demurrer to present the evidence by a bill of exceptions, but it is not erroneous to do so.</p> <p>Same. — Supreme Court. — Presumption.—Where, upon appeal to the Supreme court, the transcript does not contain all the evidence stated in the demurrer thereto, it will be presumed that the ruling of the court below upon such demurrer was correct.</p> <p>Partition.— Witnesses. — Decedents’ Estates. — In an action for the partition of lands, a defendant to the suit, claiming an interest in the lands sought to be partitioned, from a common ancestor with the plaintiff, is not a competent witness to testify as to matters against the ancestor before his decease, tending to' charge the estate.</p>

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

<p>Pleading.— Uncertainty in, How Reached. — Mere uncertainty in a complaint can not be reached by a demurrer for want of facts, but only by a motion to make more certain. s</p> <p>Same. — Practice.—Harmless Error.— There is no available error in sustaining a demurrer to special paragraphs of answer, when a general denial, which is in at the trial, covers the same ground.</p> <p>Guaranty. — Direct and Collateral. — Notice of Acceptance and Default.— When Necessary to Bind Grnaramor. — "When a guaranty is direct and the thing guaranteed definite in its amount and known to the guarantor at the time he gives his guaranty, neither notice of the acceptance of the guaranty, nor the default of his principal, need be given to the guarantor. But when the guaranty is collateral, and Ihe debt guaranteed yet to be created, the amount of which is uncertain and may be variable, and can not be known to the guarantor at the time he makes the guaranty, notice within a reasonable time to the guarantor by the guarantee, of his acceptanee of the guaranty and of the default of the principal, is necessary, or the guarantor will he discharged.</p> <p>Same.— Collateral Guaranty. — The following guaranty, omitting date and signature, falls within the class where notice of acceptance and default is necessary : “ Gents: Allow me to say to you that any cigars that C. Conover, of Logansport, Ind., may order from you for the next six months, if he fails to pay you for them, I will stand responsible to you for them.”</p>

<p>Foreign Insurance Company. — Promissory JS'ote. — Abatement of Action. —A promissory note executed within this State to a -foréign insurance company, as such', is not void because the company has not complied with the laws of this State, authorizing such companies to do business within the State, but its collection is suspended until such laws have been complied with.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>Evidence. — Contract—Upon the trial of an action to recover for work done and material furnished in building a house, the defendant offered in evidence a writing purporting to be a contract, which was shown to have been drawn up at the request of the plaintiff, but which was not signed by either party.</p> <p>Held, that the paper was not admissible.</p> <p>New Trial. — Newly-Discovered Evidence. — Diligence.—When newly-discovered evidence is relied upon as a cause for a new trial, due diligence in procuring such evidence must he shown, to make it available.</p>

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

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

<p>Seduction.— What Constitutes. — Action for. — If an unmarried man, having by his visits and attentions to an unmarried female gained her affectionsv and confidence, importunes her to sexual intercourse with him, and she; through her confidence in him and love for him, yields to his solicitations, it is seduction, for which, under section 24 of the code, she may maintain an action and recover “such damage as may be assessed in her favor.”</p> <p>Same. — Evidence.—Character of Seduced.--Impeachment. — In an action for seduction, the woman seduced can not be asked on crosg-examination, for the purpose of showing her bad character, whether she had not had criminal intercourse with other men, nor for the purpose of impeaching her if she deny it.</p> <p>Sam».— Damages. — Paternity of Child. — Evidence.—Where, however, a child is born as the result of the alleged seduction, the question whether or not the defendant is the father of such child is proper to be considered in assessing the damages, though nothing can be assessed for its maintenance. Such question must be tested in the same manner as if ■'he prosecution were for bastardy; and it is competent, therefore, to ask \ woman seduced, on cross-examination, for the purpose of showing i paternity of such child, whether she had sexual intercourse with any other person than the defendant, about the time the child was begotten.</p>

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

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

<p>Superior Court. — Appeal to Supreme Court. — Exception.—Practice.—It is not necessary to except to the judgment of a superior court at general term, to appeal therefrom to the Supreme Court.</p> <p>"Waiver. — Appearance after New Trial is Granted. — Where exception is duly taken to the granting of a new trial, the appearance of the party so excepting, on the second trial, does not waive his objections to the granting of such new trial.</p> <p>Negligence. — Death of Child — Action by Parent. — New Trial, for Smallness of Damages. — Statutes Construed. — Under section 784 of the practice act, the_father may maintain an action for damages for the death of his minor child, caused by the wrongful act of the defendant. But section 353 prohibits the granting of a new trial “on, account of the smallness of the damages ” assessed.</p> <p>Superior Court. — Practice.—New Trial Improperly Granted. — Where, in the superior court, a new trial has been improperly granted, at special term, that court may, on appeal to general term, reverse the judgment entered on the second trial, and direct judgment to he entered on the finding or verdict on the first trial.</p>

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

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

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

<p>Promissory Note. — Complaint by Assignee. — Copy of Assignment Unnecessary. — A complaint against the maker, hy an assignee, on a promissory note, is not insufficient on demurrer merely because it does not set out a copy of the assignment.</p> <p>Same. Evidence of Assignment Essential — Where, in such action, the endorsement is not given in evidence, a finding or verdict for the plaintiff can not be upheld.</p>

<p>Check. — Complaint by Payee Against Drawee. — Acceptance.—A complaint by the payee, «gainst the drawee, upon a bank cheek, which does not allege an acceptance thereof, by the drawee, is insufficient. .</p> <p>Special Vebdict.— Venire de Novo. — A special verdict, which covers all the issues formed, is sufficient.</p> <p>Same.— Words Control Marginal Figures: — Uncertainty.—The body of a check was for ‘‘twenty-one and thirty-six in exchange dollars,” while the mai-gin contained the figures “ $2,136.00.”</p> <p>Held, that the figures were controlled and contradicted by the words in the body of the check.</p> <p>Same. — Acceptance.—The fact that the cashier of a bank, upon which a check is drawn, takes the check and places it upon the “ cancelling fork,” does not constitute«uch an acceptance as will prevent him from declining to pay, and z-esurning, the same, upon learning that the di'awer has not sufficient funds, or if the check is not in proper foi'm.</p>

<p>Mortgage. — Defective Description in Decree of Foreclosure. — Jurisdiction. —Presumption.—A mortgage duly describing a tract of land in a certain county in this State was foreclosed in the circuit court of that county, but the judgment did not mention the name of the county and State, in describing such tract, though it was as fully described in the sheriff’s deed as it was in the mortgage.</p> <p>Held, in an action by the judgment defendants, against the purchaser, to quiet title on account of such defective description, that the Supreme Court takes judicial notice of the county within which any particular section, township and range lie; and therefore, as the county within which such suit was brought contains such a section, township and range, and . as the. circuit court is one of general jurisdiction, that the land described in the judgment lies within that county.</p> <p>Same. — Sale to Plaintiff, on his Payment of Costs and Receipting for Amount of Judgment. — Where judgment of foreclosure is rendered upon a mortgage securing both matured and unmatured notes, and the land is ordered to be sold as not divisible, the plaintiff may bid the whole amount due and to become due and costs, and, upon paying the costs and simply receipting for the whole amount of the judgment, the same will constitute a valid payment.</p> <p>Supreme Court.— Certiorari. — Submission.—Notice.—A certiorari may be had after submission, upon due notic°.</p> <p>Same. — Transcript Imports Verity. — The Supreme Court takes the record of a cause as it is certified up, as importing absolute verity, leaving the parties to their right to obtain a certiorari to correct omissions or alterations.</p>

<p>Covenant. — Breach of. — Complaint.—Demurrer.—Practice.—In an action to recover damages for the breach of two or more of the covenants contained in a deed, it is not necessary that the breach of each of such covenants should be stated in a separate paragraph of complaint; and, where several breaches have been stated in a single paragraph of complaint, the sufficiency of each breach may be separately tested by a demurrer thereto, in the same manner and to the same extent as if such breach had been pleaded in a separate paragraph.</p> <p>Same. — Incumbrance.—Evidence.—Where, in alleging a breach of the covenant against incumbrances, the facts alleged show an actual incumbrance on the property at the date of the deed, such breach is sufficient to withstand a demurrer.</p> <p>Same. — Paramount Title. — Where, in an action by the grantee to recover damages for the breach of the covenants contained in a deed, the plaintiff claims to have yielded possession to a paramount title, it is incumbent on him to show, by sufficient evidence, not only that he had yielded the possession of the property to what he supposed to he a paramount title, but that such title was in fact paramount to the title of any one else to such property.</p>

<p>Practice. — Dismissal Without Prejudice. — After hearing the evidence in a cause, the court intimated that there was no evidence to sustain some of the material allegations of the' complaint, whereupon the plaintiff requested the court to make a special finding of the facts, to which the court consented. Afterward, on the same day, and before any further proceedings were announced, the plaintiff filed a written dismissal of his action, and asked leave to dismiss without prejudice, but the court refused to grant such leave. Three days afterward the court announced a special finding, upon which judgment was rendered.</p> <p>Held, that, under section 363 of the practice act, the leave to dismiss should have been granted.</p> <p>Held., also, that, if the court intended its intimation as to the insufficiency of the evidence as an announcement of its finding, such announcement was withdrawn by its subsequent agreement to make a special finding.</p>

<p>Warranty. — Breach of. — Damages.—Question for Jury. — Supreme Court.— The question of the amount of damages resulting from an alleged breach of warranty is one peculiarly for the determination of the jury trying the cause, and the Supreme Court will not disturb their verdict upon such question.</p> <p>Supreme Court. — Presumption.— Where the record does not show that the court below erred in its decision overruling a motion for a new trial, such decision will he presumed by the Supreme Court to he right.</p> <p>Costs. — Taxation of — Counter-Claim.—Set-Off.—Under section 400 of the practice act, 2 R. S. 1876, p. 196, where there are several issues, each party is entitled to recover costs only upon the issues determined in his favor, and where, in an action on a promissory note, on the issues tendered by a counter-claim or set-off, based on an all eged breach of warranty, the plaintiff recovers judgment, he is entitled to recover costs.</p>

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

<p>From the Fountain Circuit Cou^jt.</p>

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

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

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

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

<p>Decedents’ 'Estates. — Action by Heir on Contract to Obtain Title to Land oj Ancestor.— Witness. — In a suit,by an heir, against his co-heirs of a common ancestor, who had died intestate, founded upon an alleged contract with the ancestor, the object of which suit was to obtain title to land of such ancestor, an adverse party who had, previous to the bringing of the suit, assigned to tlie plaintiff a part of the cause of action stated in the complaint, may bo required by the plaintiff, under the last proviso of section 2 of the ‘‘ act defining who shall be competent witnesses,” etc, 2 It. S. 1876, p. 185, to testify as a witness regarding the material facts stated in such complaint.</p> <p>Evidence.— Statements. — Implied Admissions. — Acquiescence.—To affect a party with the statements of others, on the ground of his implied admission of their truth by silence, it is not enough that they wore made in his presence, though they were given in evidence, in a judicial proceeding, where, though a party, he was not at liberty to interpose a denial of them. The circumstances must be not only such as afforded him an opportunity to act or speak, but such also as would properly and naturally call for some action or reply from parties similarly situated.</p>