Volume 70 — Indiana Reports

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

<p>Beal Estate, Action to Becover. — Defences —Harmless Ruling on Demurrer. — All defences, legal and equitable, are admissible in evidence under the general denial, in actions to recover real estate ; and, therefore, the ruling on a demurrer to a special paragraph of answer is not available as error, if the answer of general denial be also pleaded.</p> <p>Verdict. — General and Special.— Venire de Novo. — Where there is both a general and special verdict, error in refusing to strike out the former-is not available, if the latter be sufficient; and in such case a venire de novo should be refused.</p> <p>Same.— Will. — Sale by Guardian, of Ward's Land, after Majority —Adverse Possession. — Estoppel.—A testator, by his last will, devised certain lands to his granddaughter, “to be held in trust for her benefit by J. L. S., until ” she should “ arrive at the age of thirty years, or ” should be married. Such trustee, having duly qualified as her guardian also, and as such having possession and control of the land devised, petitioned for and obtained an order of the proper court for the sale thereof as guardian, and, although she had already arrived at the age of twenty-one years, he duly sold the lands, received the purchase-money therefor, reported the sale to the court, obtained its approval of the sale, secured an order of court to convey the land, conveyed the same accordingly by a deed approved by the court, made report of bis doings as such guardian, accounted to the ward for the whole of her estate, including such purchase-money, and, having settled with her and taken her receipt, was finally discharged by the court. She having brought an action against a grantee of the purchaser at such guardian’s sale, to recover such land, there was a special finding of the foregoing facts, and also that the defendant had been in peaceable adverse possession for seven years, and also that a motion by her to set aside the guardian’s final report had been denied.</p> <p>Held, that the defendant should recover.</p>

<p>Supreme Court.— Weight of-Evidence. — Practice.—The Supreme Court will not disturb a verdict, upon the mere weight of the evidence.</p> <p>Evidence —Attorney.—The testimony of a witness that the plaintiff, in. whose behalf he is testifying, employed him to bring a certain action and authorized .him to employ assistance, goes to prove a fact and not a mere statement or declaration of the plaintiff; nor is the evidence rendered incompetent by the faGt that the witness had not been admitted to practise as an attorney.</p> <p>Same. — Hypothetical Case. — Where there is evidence tending to establish a hypothesis assumed in a question propounded to a witness, this is sufficient to justify the admission of the evidence sought to be elicited by such question, as the jury must determine ultimately whether -the hypothesis is established.</p> <p>Instruction. — Evidence of Agreement. — Where there is no direct evidence in a case establishing an agreement, but there is evidence which, if true, tends to prove such agreement, it is not error for the court to instruct the jury that “ if there was an agreement,” etc., “ then your verdict should be,’’ etc.</p>

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

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

<p>Conversion. — Demand.—One who, at his own request, is entrusted by another with’ a sum of money to be applied to a certain purpose, is liable to the latter therefor, upon his conversion thereof, without a demand.</p> <p>Same.— Voluntary Payment.• — Principal and Agent. — Estoppel,—The rules of law, relating to voluntary payments and principal and agent, do not apply in such case; and the defendant is estopped to deny the plaintiff’s title to such money.</p> <p>New Trial. — Harmless Error. — Evidence.—Error in the admission of harmless evidence is unavailable for a new trial.</p>

<p>Town. — Notice 'of Letting Contract for Street Improvement. — Sunday.— Time. — An advertisement by board of town trustees, for bids for certain proposed street improvements, stated that bids would be received up to a certain hour on the following “Saturday, September 19th,” but, the 19th being Sunday, the bids were opened and the contract let on the 18th.</p> <p>Held, that the notice was sufficient.</p> <p>Supreme Court.— Rehearing. — Failure to Pass on Pleading. — A plaintiff can not complain, as ground for a rehearing, of the failure of the Supreme Court to pass upon the sufficiency of. his own complaint, which has been questioned by the defendant only.</p> <p>Same —Failure to Pass on Cross Error. — Where a cause is reversed upon an error assigned by the appellant, the Supreme Court need not consider a question raised by a cross error.</p>

<p>Partnership. — Promissory Note. — Non Est Factum. — Infancy.— Harmless Ruling. — Dissolution.—In an action against A, and B., as alleged copartners, on a promissory note executed in their allpged copartnership name, B., in one paragraph of answer, pleaded non est factum, under oath; and also, in another paragraph, that, “ during the entire continuance of the partnership,” he was an infant, and that, after attaining his majority, A. had executed the note in 'suit without the knowledge of B.</p> <p>Held, on demurrer to the hitter paragraph, that it is not a plea of infancy, and that, as it amounts only to an argumentative denial of the execution of the note, a fact all'eged in the former paragraph, the sustaining of the demurrer was harmless.</p> <p>Held, also, that, under the allegations of the latter paragraph, there was a dissolution of the copartnership, on B.’s attaining his majority.</p> <p>Same. — Declarations of one not Evidence against another, to Establish Partnership. — The declarations of a member of a firm, made- in the absence of one sought to be charged as a copartner, are wholly incompetent for the purpose of proving that the latter is a member of such firm.</p>

<p>From the M.arion Superior Court.</p>

<p>Review of Judgment. — Complaint.—A complaint to review a judgment . must set out a full and complete record of the pleadings filed, proceedings had and judgment rendered in the cause sought to he reviewed.</p>

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

<p>Life Insurance. — Complaint on Policy by Beneficiary, Against Company and Assignees of Policy. — Estoppel.—In an action by a widow, on a life insurance policy, issued on the life of her husband, for her benefit, against the company which had issued the policy, certain persons were made codefendants, and the complaint alleged that they had possession of, and claimed some interest in, said policy. The prayer of the complaint, as against them, was, that they be compelled to produce the policy and assert their claim, or be forever estopped.</p> <p>Held, on demurrer by the individual defendants, that the complaint was sufficient.</p> <p>Same. — Assignment of Policy by Married Woman. — Plea of Coverture.— Such individual defendants having answered by way of cross complaint, setting up a written assignment of the policy, by the plaintiff and her husband, to them, to secure them for money loaned to her by them, and promising repayment, her plea of coverture at the time of the execution of such assignment was a sufficient answer to the cross complaint.</p> <p>Agreed Case. — Affidavit.-—-Practice.—An agreed statement of facts, unsupported by the affidavit required by section 886 of the practice act, is not an agreed case under that section.</p>

<p>Payment. — Surety’s Payment of Loan to Principal does not entitle Surety to Credit for Payment of prior Debt, with Proceeds of Loan —The fact that a surety pays off a note executed by him and his principal to obtain means ■with which the latter’s debt to a third person had been paid, does not entitle the surety to credit for such payment by the principal.</p>

<p>City.' — Duty of, in Control of Streets. — Liability for Injuries. — Contract.— A city, incorporated under the general law of this State for the incorporation of cities, can not avoid the duty which it owes to the public to keep its streets, alleys and highways in a safe condition for use in the usual manner by travellers, nor escape responsibility to third persons for injuries resulting from its neglect or failure to perform such duty, upon the plea that it had entered into a contiaet with another person for the performance of the work which rendered such use of the street, alley or highway unsafe or dangerous to the travelling public.</p> <p>Same. — Construction of Water Works Through Streets. — Where such a city is engaged in the construction of a system of water-works for municipal purposes, and has entered into a contract with another person for the performance of the work, by the terms of which the exclusive control of such work rests in the eontraetor, such city, notwithstanding the contract, stands charged by law with a duty in the care and control of its streets, in and through which its water-works are in process of construction, to keep such streets in a safe condition for use in the usual manner; and for a breach of such duty, resulting in injury or death t'o a third person, it is liable in damages.</p> <p>Same. — Nuisance.—Negligence.—Breachof Duty. — Contributory Negligence.— The construction of water-works by a city is not a nuisance per se, and neither such city nor its contractor can he held liable in damages for any injury resulting therefrom, unless it can he shown that such injury was caused by some act of negligence of the contractor or his servants, or some breach of duty by the city, and that there had been no contributory negligence on the part of the injured.</p> <p>Same. — Instruction—An instruction to the jury, that, “ As between city and citizens, any thing that endangers the life of a citizen passing along the sidewalk or street of a city, is a nuisance,” is erroneous.</p> <p>Same. — Presumption.—Where, in an action to which a city is a party, the contrary does not appear, it is presumed that such city was incorporated under the general law of this State for the incorporation of cities.</p>

<p>Fraud. — Answer.—In an action on an executory contract, to recover tlie contract price, an answer alleging facts amounting, in substance, to a fraudulent trick or contrivance whereby the defendant's signature was obtained, and also alleging a repudiation of the contract by the defendant before the plaintiff bad been put to any expense, is sufficient on demurrer.</p> <p>Instruction. — Harmless Error. — A party can not complain of an instruction which, though not strictly applicable to the evidence, yet, taken as a whole, does him no injustice.</p>

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

<p>Bastardy. — Trial by Justice, after Escape of Defendant, and by Circuit Court, without Notice, Sammons or Appearance. — Illegal Judgment-of Commitment. — Habeas Corpus —The defendant in a' prosecution for bastardy escaped from the constable who had arrested him, before the warrant had been returned ; whereupon the justice, without any appearance by the defendant tried the cause and certified it up to the circuit court, where, without the issuance of any summons, warrant or notice, and without any ‘ appearance by the defendant, except specially to move to dismiss the cause, the court defaulted the defendant, tried the cause, found the defendant guilty, assessed a recovery for the maintenance of the child, and ordered, that, on failure of the defendant to replevy the judgment, a warrant be issued by the clerk, to the sheriff, for his arrest and commitment.</p> <p>Held, on a special finding of the foregoing facts, made on a petition by the defendant, against the sheriff, for release from commitment on such warrant, that the judgment was unlawful and'the commitment illegal.</p>

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

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

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

<p>Supreme Court. — Refusal to Strike out part of Pleading. — The overruling of a motion to strike out part of a pleading is not available as error, in tbe Supreme Court.</p> <p>Mechanic’s Lien. — Complaint —Parties Defendants to answer as to their Interest. — Subsequent Purchaser • — Demurrer.-—In an action to enforce a mechanic's lien on real estate, wherein a subsequent purchaser thereof at sheriff’s sale is made a defendant to answer as to his interest, the complaint need not show a cause of action against him, as it is his duty, if he would protect his title, to set it up affirmatively ; nor can he demur to the complaint on the ground that it stated no cause of action against the alleged owner of the real estate.</p> <p>Same. — The complaint, in such an action, may be sufficient to authorize a recovery for labor and material furnished, though not to enforce the lien.</p> <p>Same. — Answers to Interrogatories. — Motion for Judgment on. — In an action against the holder of the legal title, and also against a subsequent purchaser at a sheriff’s sale, to enforce a mechanic’s lien for labor done and material furnished-in building a hog-pen, the jury, with their general verdict for the plaintiff, found specially that the building had been occupied, and a bill for the labor and material presented, more than sixty days prior to the filing of the lien for record ; and that, within the sixty days, a chute had been added to the pen, the defendant owner doing the work, and he and the plaintiff jointly furnishing the material.</p> <p>Held, on motion for judgment non obstante, that the special findings are not irreconcilably inconsistent with the general verdict.</p> <p>Bill oe Exceptions. — 3hort-Hand Reporter’s Notes of Evidence. — A bill of exceptions referred to the appointment of a short-hand reporter to take down the evidence, rulings and exceptions, and also referred to such reporter’s certified report of such evidence, etc., but did not state that it contained all the evidence given. Following the signature of the judge, but unsupported by either the signature of the judge or the certificate of the clerk, there were attached such reporter’s notes of the evidence, etc., supported by his certificate that it contained “a fair and impartial report of all the evidence heard on the trial of said cause.”</p> <p>Held, that, neither under section 343 of the practice act nor under section 6 of the act concerning short-hand reporters, 1 B. S. 1876, p. 770, had the evidence been properly made a part of the record.</p>

<p>Lease. — Contract of. — Contemporaneous Oral Contract. — Evidence.-Replevin. —B. took the lease of a sewing machine, from a sewing machine company, for ten dollars cash and subsequent monthly payments, with the right to purchase at any time during the continuance of the lease. I„ an agent of the lessor, subsequently obtained the machine from B , on the pretence of repairing it, but retained possession for alleged non-payment of a part of the purchase-money. In a suit by B., against I., to recover the machine, the defendant put the lease in evidence, and also introduced W., a former agent, who testified to having executed the lease on behalf of the lessor, and delivered the machine to the plaintiff thereunder, being at the time accompanied by one T., who was also in the employ of the lessor. The plaintiff, in rebuttal, testified that she signed the lease at the request of T„ and not of W., and had thereupon proceeded to, and did, purchase the machine of T., according to an arrangement to board the latter, for the amount of the price in excess of the cash payment.</p> <p>Held, that the rebutting evidence is not objectionable as showing inconsistency between the alleged oral contract of purchase with T. and the terms of the lease.</p> <p>Same. — Agency.—Power to sell. — From what maybe Inferred. — In such case, authority in T. to make the sale might reasonably he inferred from the fact, among others, that at the time of the salé, and afterward, he acted in connection with other persons whose power to sell was admitted.</p> <p>Same —Power of Agent. — Rebutting Evidence. — There being evidence by the defendant, that he had allowed a partial credit for T.’s board, evidence by the plaintiff,that she had fully paid the purchase-money by boarding T., was competent, in rebuttal merely-</p> <p>Same. — Rescission of Contract. — Instruction.—In such case, an instruction, assuming to apply solely to the alleged verbal contract with T„ to the effect that, if it was found that T. bad no authority to make such an arrangement for the payment of the machine, the lessor might repudiate the arrangement by repaying the money received on the contract, was not erroneous.</p> <p>Same. — Memoranda on Contract. — Evidence.— "Where a written contract of lease has been read in evidence, all the marks and memoranda thereon, having any reference to any matter in controversy between the parties, are thereby also put in evidence, and the opposite party is entitled to have an endorsement on such lease read to the jury, or he may refer to it as evidence already before them.</p>

<p>Koemee Adjudication. — Breach of Warranty. — Promissory Note. — Pleading. — Where, in an action on one of several promissory notes executed for the purchase-money of a chattel, a breach of warranty is set up as a defence, the same breach is not a defence to a subsequent action on another of such notes; and, if it be again so pleaded, such former adjudication may be replied.</p>

<p>Criminal Law. — Murder in the Commission of Robbery. — Intent.—"Where, in the perpetration of a robbery, the robber takes the life of his victim, he is guilty, under section 2, 2 B. S 1876, p. 423, of murder in the first degree, though there may have been no intent to kill.</p> <p>Same. — New Trial.— Weight of Evidence. — Jury.—The Supreme Court will not disturb the ruling of the court below, overruling a motion by the defendant for a new trial, based upon the alleged declaration of one of the jurors, before the trial, that if ho could get on the jury he would hang the defendant, which was both supported and denied by affidavits.</p>

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

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

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

<p>Lease. — Conveyance of Fee-Simple to Sub-Lessee Terminates Lease.— Action for 'Rent. — A lessee of certain real estate sublet the same to one who subsequently, but before the expiration of the lease, became the owner of the leased premises in fee-simple, by warranty deed from the lessor, and then sued the lessee for rent.</p> <p>Held, that the lease was terminated by the conveyance, and that the action can not be maintained.</p>

<p>Corporation.. — Failure of Directors to Publish Statement of Financial Condition. — Individual Inability of Directors:— Complaint.— Exhibit.— In an action against directors of a corporation alleged to be insolvent and to have been organized under the laws of this State, to hold'them indir vidually liable for a debt of the corporation, on the ground that they had failed to malte and publish an annual statement of its financial condition, as required by statute, 1 K. S. 1876, p. 619, the articles of association form no part of the complaint, though attached' thereto, and if it fails to allege the purpose for which such corporation was organized, it is bad on demurrer.</p> <p>Same. — If such complaint fails to allege that the directors sued constitute at least a majority of such directors, the mere allegation that such defendants had failed to make and publish such annual statement is not sufficient to charge them individually.</p> <p>Samis. — The mariner in which the plaintiff was misled and deceived hy the misconduct of such directors should he clearly alleged in the complaint.</p>

<p>Fraud. — Presumption.—Question for Jury. — Fraud is never presumed, but must be proved ; and in a suit by creditors to set aside judgments rendered upon notes executed bj' an insolvent debtor to the judgment creditor, to secure accommodation endorsers, it is a question of fact for the jury to determine whether or not the acts complained of weie done with a fraudulent intent.</p> <p>Promissory Note. — Right of Maker to Antedate — The maker of a promissory note has the right to antedate it; and where he does so, and makes it payable one day after date, it becomes due one day after the date it bears, without regard to the time of its execution.</p> <p>Same. — Days of Grace —Grace is not allowed upon notes which are not negotiable as inland bills of exchange.</p> <p>Same. — Justice of the Peace —Jurisdiction.—A party who holds several notes, which are due, against the same party, may bring a separate suit, on the same day, before a justice of the peace, on each of such notes; 'and, each of the notes sued upon being within his jurisdiction, the justice may render a separate judgment in each of such suits, though the aggregate amount thereof may.be in excess of his jurisdiction.</p> <p>New Triad. — A cause for a new trial, alleging error in the trial court, “ in the * decision in ” a case decided by the Supreme Court, presents no question for decision.</p>

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

<p>Will. — Action to Contest. — Limitation of. — An action to contest the validity, and set aside the probate, of a will, must be commenced within three years after the will is offered for probate.</p> <p>Same. — Will Attested by only one Witness. — A will, other than a nuncupative will, attested by only one subscribing witness, is invalid.</p> <p>Same —Mistake of Subscribing Witness. — A testator having completed and executed his will, and his wife having endorsed thereon, immediately at its close, her assent to its terms, one of the subscribing witnesses attested both the will and the assent, while the other witness, intending only to attest the will, by mistake attested the assent.</p> <p>Held, that the will was duly attested.</p> <p>New Trial — Causes.—Evidence.—A motion for a new trial; based on the alleged grounds, that the finding was not sustained by sufficient evidence, and is contrary to law, presents only the one question, viz.: Is the finding on the issues sustained by sufficient legal evidence?</p>

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

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

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

<p>Sheriff — -Liability for Failure to Return Execution. — Complaint.—Damages. — Sections 482, 484 and 485 of the practice act have so far changed the common-law rule, ¡is to authorize an execution plaintiff to maintain an action against a sheriff individually, or .against him and his sureties, on his bond, for his failure to return an execution within one hundred and eighty days; but a complaint which merely alleges his failure to return the execution, as the ground for damages, is sufficient to authorize the recovery of nominal damages only, as a greater recovery can be had only upon allegations of fact showing special damages.</p> <p>Same.— Delay in Levying. — Negligence.—Inasmuch as, by section 433 of the practice act, a sheriff has Sixty days after receiving an execution within which to make a levy and an offer to sell, his delay, on account of his duties in relation to prior writs in his hands, for fourteen days after receiving an execution, to levy thesame, doesnot,intheabsenceof a direction or notice to levy at onec, constitute negligence.</p> <p>Practice. — Ruling on Demurrer Rendered ■ Harmless by Admission.— Evidence. — Error in overruling a demurrer questioning the sufficiency of an answer is rendered harmless by an admi-'sion, in an agreed statement of facts, that the allegations of the answer are true.</p>

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

<p>Promissory Mote. — Variance between Copy and Allegations of Complaint. — • Where, in an action on a promissory note, there is a variance, as to the • maturity and attorney’s fees, between the allegations of the complaint and the copy of the note, the latter controls.-</p>

<p>Covenant.— Conveyance of Encumbered Land.— Grantee may pay off Encumbrance. — Action to satisfy Purchase-Money Notes.— Voluntary Payment.— ' Execution. — Satisfaction of, by Levy. — The grantee, by warranty deed, of lands encumbered by the lien of a judgment, may pay off the judgment and hold the amount- thereof as an offset pro tanto, against an unpaid balance of the purchase-money, notwithstanding the fact that, at the time of such payment, an execution issued on such judgment has been levied on other lands subject to such lien. And, if such debt for purchase-money be evidenced by promissory notes, he may maintain an action to have them satisfied.</p> <p>Same.— Contract to Satisfy lAen out of Purchase-Money. — Subsequent Action to Review Judgment. — In such an action for satisfaction, it appeared by the pleadings that there was a written agreement, executed at the time of such conveyance, that the purchase-money should all be paid to a tnird person, as trustee, to be applied in payment of such judgment, should it be affirmed in an action then pending, for a review ; and that, by a subsequent oral modification, the promissory notes in ques-</p> <p>. tion were executed and deposited with such trustee, for such purpose. The defendant answered, alleging that he had subsequently appealed from the judgment in such action for review to the Supreme Court, whore such appeal was then pending.</p> <p>Held, on demurrer, that the answer was insufficient.</p>

<p>Agency. — Revocation.—Death.— Contract to pay Debt barred by Bankruptcy. —Consideration. —Delivery.—Trustee.■—A discharged bankrupt executed an agreement in writing, specifically binding both himself and his executors and administrators to pay to a creditor an indebtedness barred by his discharge, and then entrusted the same to a third person, to he delivered, on the death of the bankrupt, to the creditor, who until then had no knowledge of its existence.</p> <p>Held, tbat the agreement is valid.</p> <p>Held, also, that such third party was the agent or trustee of the creditor. Held, also, that such agency was not revoked by the death of the bankrupt, nor could it have been revoked by him.</p> <p>Held, also, that the delivery to such agent was sufficient.</p>

<p>Married Woman. — Interest of, in Husband’s Lands sold at Sheriffs Sale.— Title relates bach to Sale. — Conveyance.—Partition.—Whore mortgaged premises, sold under a decree of foreclosure, remain unredeemed, and a sheriffs deed therefor is duly executed at the expiration of the year for redemption, the title of the purchaser relates back to the date of the sheriffs sale.; and, if the mortgagor’s wife was not a party to either the mortgage or foreclosure, her title to the one-third, under the act of March 11th, 1875, 1 R. S. 1876, p. 554, relates back to the same date ; and a conveyance thereof, by her and her husband, to a third person, executed subsequent to such sheriff’s sale, but prior to the expiration of the year for redemption, vests title in her grantee, and entitles him to partition upon the expiration of such year.</p>

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

<p>Liquor Law. — License Fees belong to County. — Repeal of Statute. — Pees paid into a county treasury, for licenses to sell intoxicating liquors in that county, granted under the act of March 17th, 1875, 1 R. S. 1876, p.869, belong, not to the permanent common school fund of the State, but to that county, there to be wholly expended for tuition purposes. Said act of 1875 impliedly repealed section 2 of the act of March 6th, 1865, 1 R, S. 1876, p. 778, as to the disposal of such license fees.</p>

<p>Criminal Law.— Verdict. — Acquittal.—Harmless Ruling —A verdict of guilty on a particular count of an indictment, which is silent as to the other counts, is equivalent to an acquittal on such counts ; and therefore an erroneous refusal to quash them is harmless.</p> <p>Same. — Assault, and Assault and Battery, with Intent to Rob. — Duplicity.— Indictment — -The fact that an indictment technically charges both an assault, and an assault and battery, with intent to rob, does not render it bad for duplicity.</p> <p>Same. — Description of Property. — Such an indictment need not describe the particular property which the defendant intended to take.</p> <p>Same. — Evidence.—Time.—Limitation.—Where, on the trial of such prosecution, the evidence fails to show the year in which the alleged crime was committed, or, at least, that it was committed within two years next preceding the commencement of the prosecution, a verdict of guilty can not be upheld.</p>

<p>Pleading. — Answer in Abatement should be Verified. — Demurrer.—Objection Waived by Issue. — An answer in abatement, not verified, is not subject to a demurrer, for tbe failure to verify, but may be struck out on motion ; and, if an issue be formed on such answer, the objection to it for want of verification is waived.</p> <p>Same. — Payment.—The averment in a plea of payment, that the defendant, before the commencement .of the action, fully paid" the amount then demanded by plaintiff’s agent, is not equivalent to an averment that the demand sued upon was fully paid before the suit was brought; andsuchan answer is bad on demurrer. •</p> <p>Same. — Can not be Double.— Counter-Claim. — A single pleading can notperform a double function in the formation of issues in a cause.</p> <p>Same. — Foreign Corporation. — Reply.—Patent Right. — To an answer alleging the plaintiff to be a foreign corporation, and that it had not complied with the law of the State in respect to foreign corporations, a reply, which alleged that the article sold was constructed by authority of letters-patent issued by the United States, and that the plaintiff had a right to sell notwithstanding any law of the State, is bad on demurrer.</p> <p>Query — Does not this case recognize Helm v. First Nat’l Bank, etc., 43 Ind. 167, and Grover & Baker S. M. Co. v. Butler, 53 Ind. 454, as virtually overruled by Fry v. The State, 63 Ind. 552 ?</p>

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

<p>Indians. — Assignmentby Miami, ofhis Annuity,to Creditor. — U.S. Statutes.— Special Finding.-Presiimption.-Garnishment.-iB. an attachment suit against a non-r-esident, wherein garnishment was resorted to,the court found specially that the defendant was a Miami Indian entitled to an annuity from the United States; that the defendant had verbally directed the Indian agent to pay the annuity to the garnishee, in part satisfaction of a debt due from the defendant to the garnishee ; that payment had accordingly been made; and that, subsequent to the giving of such order, but prior to such payment, the writ of garnishment had been issued.</p> <p>Held, as a conclusion of law, that, as the special finding does not show the nature of the consideration of the debt of the defendant to the garnishee, it will not be presumed that such debt was for any of the things mentioned in sections 2103 to 2106 of the Revised Statutes of the United States of 1873-1875 ; and, therefore, such order was valid.</p>

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

<p>Statute oe Limitations. — Complaint to Rescind Conveyance. — Fraud.— Demurrer. — la an action to rescind a contract for the sale of land, and to recover the consideration paid, for alleged fraud, the complaint alleged the making of the contract, and. the perpetration of the fraud, on the 21st day of April, 1870 ; the discovery of the fraud and an offer to rescind, in December, 1877 ; and the bringing of the suit on January 2d, 1878.</p> <p>Held, on demurrer, that, as the complaint did not show that the cause of action was not within any of the exceptions to the statute of limitations, it ' was sufficient in that respect.</p> <p>Same. — Measure of Damages. — The fact that, in such ease, the grantor had parted with chattels constituting the consideration given for the land will not prevent the grantee from bringing his action to rescind, and recovering for the fair vulue of such chattels.</p>

<p>Guaranty. — Absolute.—Notice of Acceptance and Default. — Demand.— A complaint declared upon an instrument executed by the defendant to the plaintiff, and reading, “ I hereby guarantee the payment of six hundred dollars to ’ the plaintiff, “for goods bought by ” B. on certain specified terms, alleging a sale by the plaintiff to B., on the strength of such instrument, and also alleging a failure by action, judgment and execution, to collect of B., who was wholly insolvent.</p> <p>Held, on demurrer, that such guaranty was absolute,and that the defendant was not entitled to either notice of its acceptance by the plaintiff, to notice of the default of B., nor to a demand for payment.</p> <p>Same. — Alteration.—Agreement of Debtor to procure Go-Guarantors.— Notice of. — Answer.—■A verified answer in such action alleged, that the defendant had executed an instrument reading “ We hereby guarantee,” etc., upon the promise of B. to obtain additional guarantors, which he had not done ; and that he had altered the same, before delivery, so that it read “ I hereby guarantee,” etc.</p> <p>Held, on demurrer, that notice of such agreement to procure co-guarantors was necessary, to bind the plaintiff, and that the alteration charged is immaterial.</p>

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

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

<p>Supreme Court. — Record.—New Trial. — Surprise.—Affidavit.—Bill of Exceptions. — Where a motion for a new trial is based upon affidavits alleging “ surprise,” such affidavits must he made part of. the record by a hill of exceptions, to present any question on the motion to the Supreme Court.</p>

<p>Brief. — An appellant’s brief should contain more than a mere abstract of the proceedings below, and a merely general statement, without argument, of his objections to such proceedings.</p>

<p>Bastardy. — Complaint.—Parties.—In a prosecution for bastardy, docketed in the name of the State, on the relation of the prosecutrix, against the defendant, the complaint ran in the name of the relatrix, instead of in the name of the State, on her relation.</p> <p>Reld, on demurrer, that the complaint was not insufficient on that account.</p>

<p>Principal and Surety.— Extension of Time of Payment Indefinitely.— Promissory Note. — An agreement between tbe payee and principal, at the ■ time of the execution of a promissory note due one day after date, that the note might run as long as interest should be paid thereon, and the subsequent payment of matured interest thereon, will not discharge the surety</p>

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

<p>Supreme Court. — Interrogatories to Party, made pari of Record by Bill of Exceptions, or Order of Court. — Interrogatories put by a party to an opposite party, a motion by the latter to have them struck out, the ruling of the court thereon, and the answers thereto, can be made part of the record, on appeal to the Supreme Court, only by a bill of exceptions or by order of the court below.</p> <p>Same. — Harmless Error. — Where the answers to such interrogatories are not given in evidence, error in refusing to strike them out is harmless.</p> <p>Same. — Pleading Struck Out. — How Made Part of Record. — A pleading struck out on motion forms no part of the record on appeal to the Supreme Court, unless made such by order of the court below, or set out in a bill of exceptions.</p> <p>Same. — Refusal to give Instructions Asked. — Record. — Rresmnpiim. — Where the record does not show that the court below did not give ‘‘ the general instructions to the jury,” required by section 324 of the practice act, the Supreme Court will presume that such instructions were given, and, therefore, that the substance of instructions asked and refused was covered by such “general instructions.”</p> <p>Same. — Instruction Asked must be Signed. — Error can not be assigned upon the overruling of a motion for a .new trial, based upon a refusal to give unsigned instructions.</p> <p>Same — Misconduct of Juror. — Affidavit.—Record.—Where a motion for a new trial is based upon alleged misconduct of a juror, it must be sustained by affidavit; and both the motion and affidavit must be made part of the record by bill of exceptions or order of court, to present any question thereon to the Supreme Court. „</p> <p>Conversion. — Instruction.—Lien of Execution. — In an action for the alleged conversion of certain lumber, wherein the! plaintiff claimed by direct purchase from the former owner, and the defendant by virtue of a purchase at a sheriff’s sale on an execution against such former owner, it was proper to instruct the jury, that, if they found from the evidence that the title to any part of the lumber had not passed to the plaintiff before the lien of such execution had attached thereto, then, as to that part, the defendant should recover.</p> <p>Same. — Where, in such case, there was evidence tending to show a former ownership adverse to the defendant’s title, it was the duty of the court to instruct the jury on that point.</p>

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

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

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

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

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

<p>Injunction. — Trial by Jury. — A party to an action to enjoin a sheriff’s sale of land on execution is entitled to a jury trial.</p> <p>Same. — Answer in Bar or Abatement. — Dissolution of Temporary Injunction. —Dismissal of Action. — The filing of verified answers in abatement or in bar does not entitle the defendant to either a dissolution of a temporary injunction or a dismissal of the action.</p> <p>Same.— Grantee of Part of Land Subject to Judgment Lien may Enjoin Sheriff’s Sale until Sale of that Unsold. — A purchaser of a part of land subject to the lien of a simple personal judgment against his grantor, for unpaid purchase-money, may enjoin a sheriff’s salo of that purchased by him until that still held by the debtor is sold, if the latter he sufficient to satisfy the execution.</p> <p>Practice. — Answers to Interrogatories. — Judgment non Obstante. — A judgment «ore obstante will not he rendered on answers to interrogatories, if there he no material antagonism between them and the general verdict,'</p>

<p>Special Constable. — Liability of Justice and his Sureties for Torts of.— Their ■ Rights Against Him. — Principal and Surety. — Where a special constable is appointed by a justice of the peace, under section 110 of the justices’ act, 2 K. S. 1876, p. 638, section 111 of that act imposes upon such justice and his sureties the liability of sureties for such special constable. And'if they be compelled, as such sureties,'to pay a judgment rendered against them for official misconduct of such special constable, they may maintain an action against him, for the sum so paid.</p> <p>Same. — Service of Execution, by Special Constable. — The appointment of a special constable to serve a summons in an action empowers him to also serve an execution upon the judgment rendered therein.</p>

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

<p>Attorney. — Services Rendered by, for Person Charged with Crime. — Allowance to, by Court to which Venue is Changed,. — Payment—Satisfaetion.— An attorney employed by a third person for the defendant in a criminal prosecution first procured a change of venue to another county, where the cause was finally determined and an allowance made by the court, as for a poor person, to be paid by the county where the indictment was found, for the services of such attorney, who, after receiving such allowance, brought suit to recover for his services, which he proved were worth much more than the allowance received by him.</p> <p>Held, that such allowance only covered the value of the services rendered in the county to which the change was taken, and that the plaintiff should recover for the services rendered in the county where the indictment was found, and in the Supreme Court, on appeal.</p>

<p>Juror.— Voter. — Challenge.— Waiver. — The fact that a juror is not a voter of the county must be made to appear before he is-sworn to sit as a juror, or the objection will be waived.</p> <p>Criminal Law. — Murder.—Involuntary Manslaughter. — Reasonable Doubt. —Harmless Instruction. — On the trial of a defendant' indicted, in respective counts, for murder in the first degree and involuntary manslaughter, wherein there was a verdict of guilty on the latter count only, the defendant could not complain of an instruction to the jury, that, if they had a reasonable doubt as to whether the defendant was guilty of murder in the first or second degree, or only of manslaughter, they “ should give the , defendant the benefit of such doubt, aiid convict,” if at all, “ of the lowest degree included in such doubt.”</p> <p>Same. — Assumption of Fact.- — An instruction in such cause was, that it was “ important ” to “ determine whether the alleged assault, or assault and battery, made upon ” the deceased “ by defendant, either alone or in company with others, was an unlawful or a lawful act.”</p> <p>Held, that it did not assume such assault as a fact proved.</p> <p>Same. — Intoxication and Disposition of Deceased. — Such defendant could not complain of an instruction to consider any evidence of the “ deceased’s intoxication, violent and quarrelsome disposition, as justifying defendant in attempting to disarm deceased, in case ” the jury “ should find that defendant did not first assault deceased, and provided, also, that” they <• should find that deceased used, or threatened to use, the pistol not in the necessary and proper defence of his person.”</p> <p>Same. — Trial on Second Indictment after Dismissal of First —The defendant who has obtained a reversal of a judgment convicting him of murder in the first degree, upon a proper indictment, may be tried upon a subsequent indictment, returned after a nolle prosequi has been properly entered on- the first.</p>

<p>Burden oe Proof —Principal and Surety —Extension of Time of Promissory Sote. — In an action on a promissory note, against the makei's, a pi-incipal and his surety, wherein the latter answers an agreement between the plaintiff and principal for an extension of the time of payment, the reply of denial places the burden of proof on the surety.</p> <p>Supreme Court___ Weight of Evidence. — The Supreme Court will not disturb a finding or verdict on the mere weight of the evidence.</p>

<p>Criminal Law.— Weight of Evidence of Expert. — The weight to he given to the opinion of an expert, as evidence, should depend upon the knowledge and skill actually possessed by him, and .not upon that ho professes to have, and is a question for the jury.</p>

<p>Descents. — Interest of Surviving Second Wife Without Children, in Land of Husband, Sold on Execution. — Life-Estate.—Statute Construed. — HInder sections 24 and 27 of the statute of descents, the surviving childless second yife of a deceased husband, who has left children hy a previous wife, is entitled to a life-estate only in one-third of the lands of such husband, acquired hy him during such second marriage, and sold, during his lifetime, on execution issued upon a judgment against him, to which said wife was not a party. Worden, J„ dissented.</p> <p>Same. — Proviso of Section 24. — Although the body of section 24 of the statute of descents treats solely of the descent of the personal property of a deceased husband, the proviso thereof refers exclusively to the descent of his lands, where he has left a childless second wife and children by a previous marriage.</p>

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

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

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

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

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

<p>Railroad. — Appropriation.—Forfeiture of. — Acts of 1872 and 1869. — Section 3 of the act of December 24th, 1872, Acts 1872, p. 56, releases a taxpayer from the payment of a tax voted and levied by a county, under the act of May 12th, 1869, 1 R. S, 1876, p. 736, to aid in the construction of a railroad, where the same had been forfeited by the railroad company. ■</p> <p>■ Same. — Repeal of Statute. — Act of 1873 —Sections 1 and 2 of said act of December 24th, 1872, were, perhaps, repealed by the act of January 30th, 1873, Acts 1873, p. 184.</p> <p>Same. — Act of 1875. — Forfeiture by Failure to Complete Road. — Enjoining Collection of Tax. — Where a railroad company, to which an appropriation to build its road had been duly voted by a county, and placed upon the duplicate more than three years prior to the passage of the act of March 11th, 1875, Acts 1875, Reg. Sess.,p. 121, had failed during all that time either to complete its road, or to obtain further time, such appropriation became forfeited, and the collection of such tax could be enjoined at the suit of a taxpayer.</p>

<p>Summons. — Return Day in Vacation. — Motion to Set Aside. — Irregularity.— An otherwise regular summons was issued in vacation, returnable prior to the meeting of the next term of court, as directed by the praecipe, and was duly served more than ten days prior to its return day.</p> <p>Held, on a motion by the defendant to have such summons and the service thereof set aside, that, under section 37, 2 R. S..1876, p. 19, the motion was properly overruled.</p>

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

<p>Decedents’ Estates. — Claim—Parent and Child. — Care and Support of Parent. — Contract.—Measure of Damages —Time of Payment. — Where parents reside in the family of a son, upon an agreement with him that he shall ho paid for his services in earing for and supporting them, it is not necessary to the validity of such agreement, that the amount to be paid or the time of payment shall be agreed upon ; for, in such case, the law implies an agreement to pay the real value of the services, when they shall have all been rendered. And the fact, that the parent provided in part for his own support, does not destroy the effect of such agreement.</p> <p>Same . — Declaration. — Estoppel.—Where one has a lega/ right to compensation for services in the care and support of his parents, his declaration, after their death, that he would make no charge therefor, does not estop him from afterward setting up a claim for such services.</p>

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

<p>Promissory Note. — Action by Endorsee, Against Maker. — Application to be made Party. — Cross Complaint. — In an action by an endorsee, against the makers, on a promissory note, A. filed an application to be made a party, and also filed a cross complaint against the makers, payee and endorsee, alleging that the note in suit had been assigned to A. by the payee, by delivery merely, and that it had subsequently been surreptitiously taken by the payee and endorsed to the plaintiff. A general denial of this cross complaint was filed by each of the other parties.</p> <p>Held, that the application and cross complaint were sufficient.</p> <p>Same.— Verdict.— Venire de Novo. — A verdict having been found in. such case for A., as against the makers and endorsee, but silent as to the payee, a venire de novo should have been granted to the latter.</p>

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

<p>Arbitrations and Umpirages. — - Common-Law. — Parol Submission.— Award. — Action on. — Irregularity.—The common-law rule, that matters in difference between parties competent to contract may generally bo submitted to arbitration by parol, is recognized as in force in this State ; andan action may be maintained on an award made under such a submission, even though the award be informal.</p>

<p>Pleading. — Partial Answer. — It is a rule of pleading,'tMt each paragraph of an answer must fully answer the entire complaint, or so much thereof as it purports to answer.</p>

<p>Shbuim',s Sale. — Certificate of. — Rights of Assignee. — A sheriff’s certificate of sale of real estate conveys no title, but is simply an obligation upon which title may be obtained, if the land is not redeemed; and an assignee of such certificate takes no more thereunder than his assignor. ,</p> <p>Same. — Action to Recover■ Land Sold on Execution. — Instruction.—Subsequent Purchaser from Judgment Defendant. — In an action to recover real estate, wherein the plaintiff claimed under a sheriff’s deed founded upon a sheriff’s certificate of sale to the execution creditor, assigned by him to the plaintiff, and the defendant claimed title under a conveyance by the judgment defendant subsequent to the rendition of judgment, it was error to instruct the jury that, if the plaintiff had purchased such certificate in good faith, without notice of irregularities in the sheriff’s sale or return and for a valuable consideration, they should find for the plaintiff.</p> <p>Same. — Fraudulent Conveyance — Trust Deed. — Abandonment of Trust. — It was also erroneous to instruct them, that, if the defendant’s title was fraudulent, or merely a trust which had been abandoned, the plaintiff should recover. In such an action the plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of the defendant’s.</p> <p>Same. — Subsequent Purchaser from ■Judgment Plaintiff. — Conveyance.—It was also erroneous to instruct the jury, that the grantees of a judgment plaintiff, under a conveyance by the latter of lands purchased by him at a sale on an execution issued on a judgment in his favor, take no better title than the latter.</p>

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

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

<p>Will. — Construction of. — Distribution of Estate. — Partial Intestacy. — A. died testate, leaving surviving him his widow and several children. His will, after providing for the payment of his debts and the expenses of administration and naming his legatees and the amounts of their respective legacies, and empowering his wife, if sheshould survive him, to make bequests to a certain amount to such persons as she should think proper, and providing for the payment of such bequests bv his own executor, contained the following clause: “And if she” ((he testator’s wife) ‘‘ shall fail or neglect to make such bequests, or if I shall survive her, and there shall remain a surplus of money after the payment of all legacies, debts, expenses, etc., then I direct that such residue shall be distributed to such legatees, heretofore mentioned, as shall be entitled by this will to distribution, in proportion to the several sums to which they may severally be entitled at the time of distribution, as hereinbefore provided.” His wife made her will, disposing of the ambunt named in the will of her husband. Suit by certain heirs, after his death, to compel distribution per stirpes, under the law, of the residue of the estate after payment of debts, expenses, legacies, etc.</p> <p>Held, that it was the intention of the testator, by this plause of his will, that, if there should be such a “ surplus,” it should be distributed in the manner, to -the persons, and in the proportions, specified in the will, and that there was no intestacy as to any part of his estate.</p>

<p>Supreme. Oourt. — Parties to Appeal.- -Appeal by one, in Name of several Co-Parties. — Irregularity.—Notice.—The record, of a cause'in the Supreme Court showed that an appeal had been taken by one only of several codehridants, and an assignment of errors made in the name of all, as coappeljants; that due notice had been given to the plaintiff below, as sole appellee; that, upon the call of the cause for submission, the appellee was called and defaulted, and some of the appellants appeared as such by attorney; “ and that it appearing to the ” Supreme‘‘ Court that the other” appellants had “ been served with notice of said appeal, and proof thereof filed,” they were called, came not, and failed “ to decline to join in said appeal,” whereupon it was “ ordered that they ” should bo regarded as having joined in said appeal.”</p> <p>Held, that, as the appellee had failed to appear and resist the making of such order, and had failed, during the whole of the term, to seek to have said order set aside, he could not afterward take advantage of any irregularity therein, and such co-defendants will be deemed regular co-appellants</p> <p>New Trial, as of Eight. — Action by Wife, to Quiet Title against Husband's Execution Creditors- — Injunction.— Trusts. — Action by a wife, against her husband and his judgment creditors, to vest in her the legal title to certain land conveyed to him, to which she claimed the equitable title by reason of the alleged facts, that he had purchased the land with her means, and had taken the. legal title in his own name without her knowledge or consent She also sought to enjoin the creditors from having the land sold on execution, and to quiet her title against the lien of . their judgments.</p> <p>Held, that, under sections 601,611 and 612, 2 E. S. 1876, either party was entitled to a new trial, as of right, on payment of costs, within the time specified.</p> <p>Same. — Bill of Exceptions — Presumption, as to Payment of Costs. — Evidence. —The bill of exceptions, containing the record of the proceedings in relation to the application for a new trial, in such case, showed that the costs had been paid, but did not show to whom, nor did it contain the evidence of such payment.</p> <p>Held, that it is presumed that such payment was made to the person or persons authorized or entitled to receive the costs; and that it was not necessary to set out the evidence.</p>

<p>Decedents’ Estates. — Executor may Extend Time of Payment. — Agent.— Principal and Surety. — An executor has power, either personally or through an agent, to extend the time of payment of a debt due the estate of his testator.</p> <p>SaMe. — Extension of Time. — Agreement.—Delivery.— Evidence. — •’Where, in an action on a promissory note, a surety alleged an agreement for an extension of time as a defence, evidence by the principal maker that the agent of the executrix of the payee of the note had made a written memorandum of an agreement extending the time of the payment of the note, which the witness had read, hut the exact contents of which he could not recollect, nor whether it was signed or not, and which was not delivered to him, but was retained by such agent, is not sufficient to sustain such defence. Held, also, that such proof did not establish a parol agreement, and failed to prove any valid written agreement for an extension of time.</p> <p>Same. — Execution of Mortgage, to procure Extension. — Inadequacy of Security. — Where, in such action, the answer alleges the execution of mortgage security as the consideration of an alleged extension of time, it is not a sufficient reply to allege that the value of the mortgaged premises was inadequate to fully secure the debt.</p> <p>Supreme Court. — Bill of Exceptions. — Petition for Rehearing. — Where an objection to a hill of exceptions was not referred to by the appellee in his original brief, and is for the first time presented in his petition for a rehearing, it will not then be considered by the Supreme Court. The appellee is as much hound to present in the first instance all the questions relied upon by him as is the appellant, and his failure to do so operates in the same way, against him, upon his application for a rehearing.</p>

<p>Mortgage. — Endorsement, to Different Persons, of Promissory Notes Secured by Second Mortgage. — Payment of First Mortgage. — Application of.- — ■ Set-Off — Notice.—Insolvency.-—-Preach of Covenant. — Conveyance.—A tract of land, encumbered by a mortgage executed by A., the holder of the legal title, to secure the payment of a promissory note also executed by him, was by him sold and conveyed by warranty deed to B., who, to secure payment of the purchase-money, executed to A. two promissory notes, the first of which was for the same amount, and to mature at the same date, as the note secured by the pre-existing mortgage, while the second was for a larger amount, and to mature later. B. also, to secure payment of such notes, executed to A. a mortgage on such land, con-taming a stipulation that, “on failure to pay anyone of said notes at maturity, then all” were to become “due and collectible,” and the mortgage might “be foreclosed accordingly.” A. endorsed the first of such notes to C., and, subsequently, the second to D., each before maturity and for a valuable consideration. C., on the maturity of the first note, and .before the maturity of the second, brought suit on the first v note, and to foreclose such second mortgage against B., the mortgagor» and D., the holder of the second note. In his complaint he alleged the foregoing facts, and also that B. had paid off the pre-existing mortgage with notice of the assignment of such notes to C- and D., and also alleging that A. had long been wholly insolvent. Both of such notes having then matured, B. answered, setting out substantially the same facts alleged in the complaint, hut also alleging that he had paid off the note assigned to D., and seeking to set off the amount of the pre existing debt against the note sued on by C.</p> <p>Held, on demurrer, that the answer is insufficient.</p> <p>Held, also, that, on the assignment of such notes to O. and D., each became a mortgage having priority in the order of their maturity, and both subject to the first mortgage.</p> <p>Held, also, that, under the facts alleged, the amount of the pre-existing mortgage should have been set off against the note held by D., hut could not he set off against that sued on by O.</p> <p>Same. — Order of Assignment of Notes.— Consideration. — An answer by B. in such case, that the second note had been assigned to D., and that 0 subsequently obtained the assignment of the first note, without consideration and with notice of the assignment to D., was insufficient.</p> <p>Querv. — Would these facts be a good defence if pleaded by D.?</p> <p>Same. — Taxes.—Breach of Warranty. — Answer.—Payment.—An answer by B. in such action, alleging the existence of a lien on such land for taxes due from A., hut not alleging that A. had had no personal property out of which they could have been collected, and not alleging that B. had paid such taxes, was insufficient.</p> <p>Supreme Court. — Surplusage.— Harmless Error.— Pleading. — The over- ■ ruling of a motion to strike surplusage out of a pleading is not available as error, in the Supreme Court.</p>

<p>Partnership. — Contract by Retiring Partner to Pay or Secure his Proportion of Losses. — Complaint.—Indemnity.— Uncertainty.- — -Demurrer.— Consideration. — Tender.—L., as principal, and others, as sureties, executed to D., M. and D. an instrument, providing that they, said principal and sureties, “ in consideration of an agreement ° executed to the said L. by D., M. and.D., * agree and guarantee to hold said D., M. and D. harmless and indemnified against all losses and claims which may come against the firms of D., M. & Co. and D, L. & Co, for * one-fourth of all losses sustained by said firms up to this date, and ® for one-fourth * of all losses ” that might be sustained by them in the disposal'of certain property then in their hands, the said L. thereby retiring from said firms. It was also agreed therein that said L. should give to said D., M. and D., “ valid security for the payment of” such one-fourtb of said loss, when the instrument should be surrendered to him. In an action thereon by D., iVI. and D, against L. and his sureties, the complaint alleged the ascertainment and payment of such losses by the plaintiffs, and L.’s failure, on demand, to either repay or secure them.</p> <p>Held, on demurrer, that it sufficiently appears from the instrument in suit, that the plaintiffs were members of said firms.</p> <p>Held, also, that the instrument was executed, prima facie, upon a sufficient consideration.</p> <p>Held, also, that uncertainty can be reached by motion, and not by demurrer.</p> <p>Held, also, that the instrument was a contract for repayment of L.’s share of said losses, and not merely an indemnity.</p> <p>Held, also, that it was not necessary that the complaint should allege a tender to L of the instrument in suit, upon demanding that he give the security agreed.</p> <p>Same —Co-Partner.—Services of, not Ordinarily a Debt from a Partnership. —Evidence.—Set-Off.— Ordinarily, the law implies no obligation upon a partnership to pay a member thereof for his services as such ; but the circumstances may imply an agreement, or there may be an express contract to pay him therefor.</p> <p>Practice. — Discretion of Court, as to Filing Additional Answer. — Under ' section 99, 2 K. S. 1876, p. 82, it is within the discretion of the circuit court to refuse leave to file an additional answer, when the cause is called for trial.</p>

<p>Corporation", — Legal Existence of. — Information.—Quo Warranto. — A proceeding by an information in the nature of a quo warranto is authorized by clause 3, section 749, 2 R. S. 1876, p. 298, “Where any association or number of persons shall act within this State as a corporation, without being legally incorporated.”</p> <p>Railroad. — Appropriation by Township. — Jurisdiction of County Commissioners on the Filing of a Petition. — Organization of Company. — Where a sufficient petition for an appropriation by a township, to aid in the construction of a railroad, has been duly filed before the proper board of county commissioners, under the act of May 12th, 1869, 1 R. S. 1876, p. 736, the filing of the petition calls into exercise the jurisdiction of the ■ board, and authorizes that body to determine every fact necessary to the granting of'the prayer of the petition, including the question as to ' whether or not the railroad company sought to be aided has been duly organized under the laws of this State.</p> <p>Same.' — Judgment of Board on Petition can not be Collaterally Attacked.— Injunction. — Tax.—Axi order by the board of commissioners, in such proceeding, that the prayer of the petition be granted, is, in effect, a decision or judgment in the affirmative as to all the material questions alleged in and presented by the petition, including the due organization of such company, and its right to -receive such aid ; and such decision can not be attacked collaterally in an action by a taxpayer to enjoin the collection of a tax levied to make such appropriation.</p> <p>Same. — Remedy.—Appeal.-—The remedy, against such decision, is by an appeal therefrom.</p> <p>Supreme Court. — Rehearing.—Motion to Dismiss Appeal___Failure to Brief. —A rehearing will not be granted to an appellee, (who, though appearing to the appeal, has failed to file a brief or make an argument,) to allow him, for the first time, to move to dismiss the appeal, or present reasons for affirming the judgment.</p>

<p>Pkactio®. — Special Interrogatories. — Supreme Court — Under section 336, 2 R S. 1876, p. 171, a jury can only be required to answer special interrogatories conditionally upon their finding a general verdict, and then only when so instructed by the court, upon the request of one or both of the parties. The submission of interrogatories to the jury is a judicial act, and .the record ought in some way to show affirmatively that the interrogatories were submitted to the jury In the manner and under the circumstances contemplated by the statute, before any question can he made upon such interrogatories in the Supreme Court..</p>

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

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

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

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

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

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

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

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

<p>Practice. — Dismissal of Action. — A plaintiff may dismiss his action, without prejudice, at any time ‘‘ before the jury retires ” when tried by a jury, or, when tried by the court, “at any time before the finding of the court is announced and language used by the court, after the argument by counsel, in stating that there was alack of evidence necessary to sustain one branch of the plaintiff’s case, can not fairly be construed to be the announcement of Us finding.</p>

<p>Practice. — Interrogatories to Party. — Bill of Exceptions. — Record.—Interrogatories to a party, a motion to strike them out, and the decision of the court thereon, must, to present any question to the Supreme Court, be made part of the record by a hill of exceptions, or in some other legal maimer.</p> <p>Same. — Pleading Struck Out. — A motion to strike out a paragraph of a pleading, the pleading itself, and the ruling of the court thereon, must be sot out in the record by a bill of exceptions, or in some other legal manner, to present any question thereon for the decision of the Supreme Court.</p> <p>Attorney’s Pees.- — •Contract of Indemnity Merely. — A contract for the payment of attorney’s fees is a contract of indemnity, and the holder thereof can not recover thereon any larger sum than will indemnify him ; and, if he has agreed with his attorneys for a smaller fee than that therein stipulated for, such agreement will enure to the benefit of the maker of the contract, and will limit the amount of the holder’s recovery on account of attorney’s fees.</p> <p>Set-Oee. — Character of. — Set-Off not Bad on Demurrer became it does not Answer entire Complaint. — A set-off, strictly speaking, is not a defence in the action in which it is filed, but is a cross action, and must state facts sufficient to constitute, not a defence to the action, but a cause of action against the opposite party. An answer of set-off is, therefore, not open to the objection, on demurrer, that it does not present a complete defence to the cause of action.</p> <p>Vendor and Purchaser.' — False Representations as to Value of Real Estate. — Recoupment,—Set-Off.—Fraud.-—Conclusion of Law.- — The vendee ,, of real estate has no right to rely upon the representations of the vendor merely as to its value, and, if he does so, it is his own fault, and he can not ask to be relieved from the consequences, or to afford him any redress ; nor can such representations be made the basis of a claim for damages in the vendee's favor, and against the vendor, either in an original action or by way of recoupment or set-off; nor will such answer be aided by a concluding averment that there was no consideration for the notes sued on, as that is merely a conclusion of law based on the fact so alleged.</p> <p>Practice. — Assignment of Errors. — Transcript.—Supreme Court —Under section 508, 2 R. S. 1876, p. 244, the assignment of errors on the transcript of the proceedings of the court below constitutes the appellant’s complaint in the Supreme Court, and no questions are presented except such as fairly arise under the errors assigned.</p>

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

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

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

<p>Ei’om the Clinton Circuit Court.</p>

<p>Railroad Tax.— Who Entitled to Funds Arising Therefrom, Forfeited by Railroad Company. — Statute Construed. — Demand.—The fund in the hands of a county treasurer, arising from a tax voted by a township to aid in the construction of a railroad, where the railroad company has forfeited all right to the same, under section 18 of the railroad aid act of May 12th, 1869, 1 R. S. 1876, p. 736, and sections 1 and 2 of the supplemental act of December 24th, 1872, Acts 1872, p. 56, it not having been diverted into the township funds, belongs to the township, unless it has been demanded by the taxpayers of the township within two years after the passage of the act of 1872, or within two years after the forfeiture thereof by the railroad company : and such demand, being matter of defence, need not be negatived in the complaint in an action by a township, against a county, to recover a tax voted by the township</p>

<p>Erom tbe Allen Circuit Court.</p>

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

<p>Appeal Taken too Late. — Supreme Court. — Under the act of March 14th, 1877, Acts 1877, Spec. Sess., p. 59, amending section 561 of the practice act, an appeal to the Supreme Court, taken July 15th, 1879, from a judgment rendered in June, 1878, was too late.</p> <p>Same. — Agreement by Attorney. — An agreement, in such case, by the attorneys of the successful party, in the court below, that the opposite party might take his appeal after the expiration of a year from the rendition of judgment, not made in the manner prescribed by section 772, 2 B. S. 1876, p. 305, is invalid.</p>

<p>PRACTICE. — Sufficiency of Clerk's Certificate to Record on Appeal. — A certificate of the clerk to the record as follows: “ The foregoing is.a full, true and complete copy of all the papers filed, proceedings had and judgment rendered in the above entitled cause in said court, on file and of record in my office,” is sufficient, on motion to dismiss the appeal in the Supreme Court.</p> <p>Same. — Notice of Appeal. — Motion to Dismiss — ■ Where it appears by the record that the appellant’s co-defendants have been duly notified of the appeal, a motion to dismiss the appeal, for the reason that notice has not been given, will not be sustained by the Supreme Court.</p> <p>Same. — Parties to an Action to Foreclose Mortgage. — Where a- party purchases real estate and assumes to pay one-half of certain mortgages thereon, he is a proper party to a suit to foreclose the mortgage, but is not liable to a personal judgment for more than one-half of the mortgage debt.</p>