Volume 71 — Indiana Reports

<p>From the Harrison Circuit Coui't.</p>

<p>Negligence. — Action Against City. — Injury Caused by Obstruction in Street. —Building Bermit. — ■Instruction.—•Proximate Cause. — In an action by the injured party, against a city, to recover damages for injuries caused by the alleged negligence of the city in permitting the obstruction of a public street with building material, which was the means of precipitating the plaintiff from a buggy, while driving along such street in the night time, the court instructed the jury, that when a city “issues abuildingpermit to use and obstruct a street, it is the duty of the corporate authorities to see to it that the persons whom she authorizes to use her streets shall properly guard and protect such obstructions; and, if she negligently fails to perform this duty, she is responsible to one who is injured while properly using such streets, and who is at the time exercising due care.”</p> <p>Held, that the instruction, though not fully connecting the injury with the negligence as the proximate cause, is not erroneous.</p>

<p>City. — Extension of Street. — Proceeding by Common Council and City Commissioners, Appeal from. — Estoppel.-—Answer.—Motion to Strike Out.— Demurrer.— Variance. — Acceptance by Council of Commissioners’ Report — Statute Construed, — Under section 14 of the act of March 17th, 1875,1 E. S. 1876, p. 318, ‘‘ in relation to the laying out,” etc., “ of streets,” etc., 1 by cities, iS and providing for the appointment of commissioners to assess benefits and damages,” etc., a person having an interest in lands affected by a certain proceeding of the common council and city commissioners of a certain city, in relation to the extension of Fifth street, took an appeal to the circuit court, by filing a transcript of such proceedings, as required by such section. By such transcript, it appeared that the common council had adopted a resolution abrogating all proceedings theretofore had in relation to the extension of such street, and also ordering it to be extended from Marion street to Harrison street; that thereafter the city commis sioners met, pursuant to an order of the common council, to consider such extension, and reported that Fifth street had .for several years extended from Marion to Harrison street, that no property would be taken, no one damaged no one benefited, and no change of length, width or direction would be caused by the extension, etc. It also appeared from the transcript, that such report was accepted and adopted by the common council. Such appellant answered, by way of estoppel, alleging, that, within a yearprevious to the proceeding appealed from, a proceeding was had by such city council and commissioners, extending Fifth street from Marion to Harrison street, and awarding a certain sum in damages to such appellant. His answer set out a transcript of such proceeding, showing only a proposed extension of Fifth street from an alley, midway between Marion and Harrison streets, to Harrison street; and that such report had been accepted ” merely, by the common council.</p> <p>Held, that such pleading was authorized by said section, and, therefore, that a motion to strike it out should be overruled.</p> <p>Held, also, that such a motion presented no question as to the sufficiency of the answer.</p> <p>Held, also, on demurrer, that there is a material variance between the aver ments of the answer and the recitals of the transcript it set out, that the latter must control, and that the answer is insufficient.</p> <p>Held, also, that the acceptance by the common council, of the report set out in the answer, was not such as is required by section 8 of such act, to make the action of the commissioners and common council final.</p> <p>Same. — The common council may, under section 23 of said act, refer back to the city commissioners their first report, but is obliged to either accept or reject a second report by such commissioners within twenty-eight days after it is made, and such action is final; hut the statute contains no such provision in relation to its action on the first report.</p> <p>Same. — Court.—Judgment.—Such city commissioners do not constitute a court, nor have their reports the effect of judgments.</p>

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

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

<p>Pabent and Child. — Services rendered by Son and Wife for Father. — CWtraet implied from Circumstances. — Where a son and his wife, even after he has arrived at full age, continue to reside with, and labor for, his father, as a member of his family, there is no implied understanding that he shall compensate the son for the labor of himself and his wife; but an obligation on the parent to compensate the son for such services may be inferred from the circumstances of the case.</p>

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

<p>Principal and Agent. — Sale by Agent.— What Necessary to. Entitle Him, to Commissions. — In order to enable an agent to recover for commissions on the sale of personal property, the sale must have been complete at the time of the commencement of the suit.</p>

<p>Survey and Surveyor —Boundary Lines. — Evidence of. — Statute Construed.— A survey made in accordance with the act of June 17th, 1852,1 R. S. 1876, p. 864, is conclusive evidence in favor of the corners and lines established thereby, unless appealed from as provided therein, andprimafa.de evidence thereof during the time within which an appeal may be taken therefrom. Estoppel —Insufficiency of Evidence to Create.- — See evidence set out in the opinion. 1</p>

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

<p>Guardian — Additional Bond of, on Application to sell Real Estate. — Change of Terms of Sale. — A hond given by a guardian to procure an order of court to sell his ward’s real estate at private sale, which is granted, is not avoided .by a subsequent order changing the sale from a private to a public sale.</p> <p>Same —Answer of Surety. — Set-Off.—Rarent and Child -In a suit upon such a hond, an answer by the surety thereon, by way of set-off, merely alleging that the guardian, who was the father of the ward, had expended certain specified sums of money for the support, etc., of his ward, for which he failed and refused to claim credit, is insufficient on demurrer.</p> <p>Same. — Defect in Condition of Additional Bond. — Such a hond, conditioned merely “ for the faithful discharge of his duties,” is valid and binding under section 5 of the act concerning guardians, etc., 2 B. S. 1876, p. 588, and also under section 790, 2 R. S. 1876, p. 811.</p> <p>Same. — Judgment Against, for Breach of Official Duty, Collectible without Relief.. — By the act of December 21st, 1858, 2 B. S. 1876, p. 188, note 5, a judgment upon a guardian’s bond for breach of official duty must he rendered collectible without benefit of valuation or appraisement laws.</p>

<p>Evidence. — Payment.—Statute of Limitations.— Collateral Security . — Tender, —Action on Account. — Commencement of Action: — In an action on account, for the value of personal property sold and delivered, wherein payment and the statute of limitations of six years were pleaded as answers, the evidence showed that the goods were shipped hy the plaintiffs, to the defendants, per contract, on the 16th day of August, 1870, and were of the value alleged ; that the defendants, on receiving the goods, forwarded to the plaintiffs certain county bonds equalling the amount of the account; that the plaintiffs received the bonds, not as payment, but as an assurance thereof; but the evidence did not show that they wore governed by the law merchant. The record of the cause showed that the action had been commenced on March 22d, 1876, but there was no evidence on that point.</p> <p>Held,, that neither payment, nor the statute of limitations pleaded, were proved.</p> <p>Held, also, it being conceded by the defendant that the bonds were intended only as collateral security, and that they had been declared null and void by the proper court that no return or tender thereof was necessary.</p>

<p>Evidence. — Fraudulent Representations. — Statements by Party, to Third Person, after Consummation of Contract. — In an action for damages for misrepresentations by the defendant, to the plaintiff, of the value and quality of certain lands exchanged by the defendant, with the plaintiff, for certain other lands, wherein the plaintiff had testified that such misrepresentations had been made to him by the defendant, the plaintiff introduced another witness who, over the defendant’s objection, testified that the defendant had made like misrepresentations to the witness, as to the value of such lands, at a time when the several deeds had been signed but not delivered; that the title to the lands to be conveyed by the plaintiff was then yet in the witness’ father; and that the plaintiff then owed witness, who then and there, before such misrepresentations were made, had informed the defendant that he would procure his father to decline to perfect the title, unless payment of his debt was secured. Held, that the evidence was competent, both as a part of the res gestee, and as corroborating the plaintiff’s evidence.</p> <p>Supreme Court.— Weight of Evidence. — "Where there is evidence tending to support the verdict or finding, it will not be disturbed, on its weight, by the Supreme Court.</p>

<p>Criminal Law. — Murder.—Evidence.—Dying Declarations — When Admissible. — On the trial of a defendant indicted for murder, the dying declarations of the deceased are admissible in evidence when it clearly appears, that, at the time they were made, he had no hope whatever of recovery, and was fully persuaded that death was rapidly approaching; nor does the fact that the deceased lingered several days thereafter render such declarations inadmissible.</p> <p>Same. — The facts, that the deceased, at the time such declarations were made, was unable to speak intelligibly, on account of his wound, which was in the mouth, but communicated by signs or by writing, and was able to get out of bed, go to a window and explain the situation when injured, and go back without assistance, are not valid objections to the admissibility of such declarations.</p> <p>Same — Where such declarations are communicated by signs to one, and reduced to writing by another, but afterward read over to and signed by the deceased, who said they were correct, such written statement is competent evidence to go to a jury.</p> <p>Same. — Threats can not be Provedby Dying Declarations. — Previous threats by the defendant against the deceased are not subject to proof by the deceased’s dying declarations; but the admissibility in evidence of the residue of the written statement containing such dying declarations is not destroyed because it contained a clause 'stating such threats, which had been stricken out before it was permitted to be read in evidence. But the defendant would be entitled to have the whole statement read if he so desired.</p> <p>Same. — Declarations of Deceased. — Res Gestee. — Statements made by the deceased, not contemporaneously with, but a few minutes after, the transaction, as to who inflicted the injury, are not admissible as part of the res gestee, and the length of time between the main fact and the statements can not be important, if such time elapsed as to make the statements, having regard to their form and substance, merely narrative.</p> <p>Same.-Evidence.- Witnesses.-Experiments iy. — Expert.'-The question whether the deceased, seated at or near the window through which he was shot, could have seen and recognized the person on the outside who inflicted the wound, is not one of skill or science, but one which it was the province of the jury to determine from the evidence as to the circumstances and condition of things at the house at the time of the transaction; and experiments made by others elsewhere, and the results thereof, and opinions founded thereon, are not competent evidence to prove such question.</p>

<p>Practice. — Complaint.—Supreme Court. — Under section 54, 2 K. S. 1876, p. 59, the sufficiency of a complaint as a whole, but not of separate paragraphs thereof, may he questioned for the first time in the Supreme Court; hut an assignment of error that “the complaint does not state facts sufficient to constitute a cause of action” only calls in question the sufficiency of the complaint as an entirety, and not of each paragraph thereof; and, if any paragraph he sufficient, the error is not well assigned, unless the record shows that the finding and judgment were ' not founded on such paragraph.</p> <p>Same. — Allegations of Complaint. — Inconsistency of.— Waiver. — Objection to inconsistencies in the allegations of a complaint can not he reached hy an assignment of error questioning the sufficiency of the complaint, in the Supreme Court; and, after verdict and judgment in the court below, such objection will he regarded hy the Supreme Court as waived.</p> <p>Same. — Defective Allegations in Pleading, Cuj'ed by Verdict and Judgment. —Mere defective allegations of fact in a pleading can not he reached hy demurrer thereto, for the want of sufficient facts, hut hy motion to make more specific ; such defects are cured hy verdict and judgment, and can not he presented to the Supreme Court hy an assignment of error that the pleading is insufficient.</p> <p>Evidence. — Conspiracy to Defraud. — When there is a combination or conspiracy between two persons to cheat and defraud another, and such conspiracy or common purpose is fairly shown hy other testimony in the case, the declarations of one of the defendants in relation thereto, though made in the absence of the other, are competent evidence against the latter.</p>

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

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

<p>Insurance. — Mortgagee's Interest. — Right to Sue. — Contract.—Where a mortgagee, aa such, procures a policy of insurance to issue upon his interest in the mortgaged property, for the benefit of the mortgagor, on an agreement with him that the sum paid for any loss that might occur should be credited on the mortgage debt, such mortgagor, in case of loss, is the proper party to bring suit against the insurance company, on such policy.</p> <p>Same. — Character of Contract. — In such case the agreement of the mortgagee with the mortgagor is an executed one, so far as the insurance company is concerned.</p> <p>Same. — Subrogation.—Mortgage.—Complaint.—It is not necessary in such action to allege in the complaint an offer by the mortgagee to assign such mortgage or interest therein to the insurance company, by way of subrogation; the right of subrogation existing, if at all, upon the fact of the payment of such claim, without which there could be no such right.</p> <p>Same.— Value of Real Estate after Fire. — Security for Mortgage Debt. — Repair of Buildings Burned. — -Defence.—It is no defence to such action, either to allege that, after such insured buildings were destroyed by-fire, the real estate, upon which they were situate, was ample security for such mortgage debt, or that such buildings had been repaired and rebuilt by the owner and mortgagor, and were as valuable as they were before such fire.</p> <p>Coverture. — Plea by Co-Defendant not Available. — Coverture is a personal defence which a married woman mayor may not plead; but, if not pleaded by her, can not be made available by any of her co-parties.</p> <p>Practice —Pleading must be Complete in Itself. — Bach paragraph of answer must be complete within itself, and the defects therein, if any, can not be supplied by the allegations of another and separate paragraph.</p> <p>Same. — Demurrer to Reply Searches Record. — A demurrer to a reply to an insufficient answer searches the record, and will test the sufficiency thereof; and the sufficiency of such answer is presented by such record in the Supreme Court, without an assignment of cross errors.</p> <p>Same. — Bad Reply good enough for Bad Answer. — It is immaterial whether a reply to an insufficient answer is held to be good or bad, as the ruling of the court thereon can not bo made available error in any event or for any purpose.</p>

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

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

<p>Evidence. — Failure of, to Sustain Verdict. — Attachment.—Landlord and Tenant. — New Trial. — In an action by a landlord to recover possession of certain wheat levied on by a writ of attachment against his tenant, which action resulted in a verdict for the defendant, the evidence showed that such wheat had been erown upon real estate owned by the plaintiff, obtained theretofore by foreclosure, sale and sheriff’s deed against said tenant> who, at the time such wheat was harvested, had placed it as rent due plaintiff in a separate bin in a warehouse, where it remained until levied on by such writ of attachment.</p> <p>Held, that the evidence did not sustain the verdict, and that a new trial should have been granted.</p>

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

<p>Waiver. — Brief.—A failure by counsel to discuss in tbeir brief an assignment of error, in the Supreme Court, must be regarded as a waiver thereof.</p> <p>Mortgage. — School Fund, —Sale by Auditor. — No Redemption Therefrom.— A sale of land by a county auditor, under a school-fund mortgage, is not a sale under a judgment, decree or other judicial proceeding, and the owner of the land sold can not redeem, as a matter of right, from such sale, by the payment of the amount of the bid with interest thereon,</p> <p>Same. — Action to Recover land sold under Mortgage. — Burden of Proof._</p> <p>In an action by a mortgagor to recover land sold by a county auditor and treasurer under a school-fund mortgage, the allegation, that such auditor and treasurer did not comply mth the requirements of the statute in conducting such sale, must he proved by a preponderance of the evidence.</p> <p>Same —Affidavit of Proof of Publication of Notice. — It is not necessary to the validity of such sale, that the affidavit of proof of publication of notice thereof should be subscribed by the affiant.</p> <p>Same. — Offer m Parcels, at Sale —Where, under section 96, 1 B. S. 1876, p. 801, the auditor offers the mortgaged land in parcels, it is not necessary to designate or locate each particular quantity offered.</p>

<p>Criminal Law. — Murder.—Admissions.—Instructions to Jury. — Upon a trial on an indictment for murder, alleging the crime to have been committed by wilfully and maliciously changing a switch upon the track of a railroad, whereby a train of cars was wrecked, resulting in the death of a person thereon, it was admitted by counsel for the defence, among other things, that such death was the immediate result of such wreck, which was caused by some person or persons changing the switch along the track of such railroad at a certain place.</p> <p>Held, that, upon such admission, it is erroneous for the court to instruct the jury that a crime had been committed.</p> <p>Held, also, that the court should not, in its instructions to the jury, assume, much less state in emphatic language, that the crime charged had been committed, the determination of that fact being the exclusive province of the jury.</p>

<p>3?rom the Porter Circuit Court.</p>

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

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

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

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

<p>Practice. — Pleading.—Answer.—Draft.—Extension of Time for Presentment. — Demurrer.—Where the complaint in an action against the drawer of a draft by the payee thereof, upon its dishonor by the drawee, alleges an agreement with the drawer by the payee for an extension of time for the presentation thereof, an answer alleging neglect to present such draft for acceptance and payment within a reasonable time, but not controverting such agreement, is insufficient on demurrer.</p> <p>Same. — Harmless Error. — Supreme Court. — Where all the material facts of an answer might be given in evidence under the general denial, the overruling of a demurrer to such answer is harmless, and not available error for the reversal of the judgment in the Supreme Court.</p> <p>Supreme Court. — Evidence.—Record.—Bill of Exceptions. — Where, on appeal to the Supreme Court, the record does not contain the evidence, and the rulings of the court on the trial are not made part of such record by a bill of exceptions, the judgment of the trial court will not be reversed on account of any supposed error in the admission or rejection of evidence, or of any question in regard to the weight or sufficiency thereof.</p> <p>Instruction. — Presumption.—Record on Appeal. — Supreme Court. — Where the record fails to show that the court did not instruct the jury as required by the fifth clause of section 324, 2 R. S. 1876, p. 167, the Supreme Court will presume that such instructions were given ; and, therefore, that the substance of the instructions asked and refused was covered by such “ general instructions.”</p> <p>Same. — Existence of Fact. — Principal and Agent. — Presumption.—Where agency is a material fact under the issues in a cause, and the instructions of the court to the jury assume such agency as established, the Supreme Court, on appeal, will presume such assumption to have been correct, where the evidence is not in the record.</p>

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

<p>City. — Common Council. — Power of, by Ordinance, io License Private Hospitals, — Meaning of “Hospitals ” in Statute for Incorporation of Cities.— Clause 33 of section 53 of the general law of March 14th, 1867, for the incorporation of cities, 1 K. S. 1876, p. 292, authorizes the common councils of cities incorporated under such law “ to enforce ordinances ® * to erect and establish market-houses, market-places, engine-houses, houses of refuge, pest-houses and hospitals.”</p> <p>Held, that there is nothing in this clause, nor in any other part of such statute, authorizing common councils of cities to enact ordinances to license and regulate the establishment of private hospitals erected within the city limits; the word “hospitals,” in such clause, meaning only public hospitals.</p> <p>Same. — The general power conferred on common councils by section 56 of such statute, “ to make other by laws and ordinances not inconsistent with the laws of this State and necessary to carry out the objects of the corporation,’’ authorizes the enactment of such by-laws and ordinances only as are necessary to the complete exercise of the corporate powers expressly or impliedly granted to cities thereby.</p> <p>Hospital. — Not Nuisance per se. — A hospital is not prima facie or per se a nuisance.</p>

<p>Promissory Note. — Principal and Surety. — Agreement for Extension of Time.' — Proof of. — Complaint, Allegations of. — Inchoate Interest of Married Woman. — Reply. - Practice. — Argumentative Denial. — Harmless Error.— Demurrer. — Sufficiency of Evidence to Sustain Finding. — Suit upon a promissory note, and to foreclose a mortgage given to secure the same, against the makers thereof The wife of A, one of the makers, having died before suit, her heirs were made parties to answer as to their interest in the mortgaged lands, she having joined in the execution of the mortgage. Answer by A. of suretyship and an extension of time by agreement between the payee and principal, for a consideration, without his knowledge or consent. Reply alleging written consent and agreement of A. for said extension, endorsed on note filed with complaint. Answer by such minor heirs, that A., their father, signed such note as surety; that their mother died seized of one-third of the lands described in such mortgage, and that after her death an agreement for an extension of time for the payment of such note was made between the payee and principal thereof, without the consent of A., their father.</p> <p>Held, that it was not necessary for the plaintiff to prove that such heirs claimed any interest in such lands.</p> <p>Held, also, that, to sustain such heirs’ answer, it must be proved that the wife of A. died seized of such real estate, or had some interest therein besides her inchoate right as such wife, which right, not having been perfected by survivorship, ceased at her death.</p> <p>Held, also, that it was sufficient for such complaint to show, as against such heirs, a right to subject such land to sale to pay such note.</p> <p>Held, also, that said reply sufficiently showed the consent of A. to the agreement at the time the extension was given.</p> <p>Held, also, that such reply amounted only to an argumentative denial, and it was harmless error either to sustain or overrule a demurrer thereto, as the facts alleged therein could have been given under the general denial also pleaded.</p> <p>Held, also, that the written agreement signed by A., endorsed on such note, consenting to an extension of the time for the payment thereof, was sufficient evidence to support the finding of the court that such consent was given at the date of such agreement, and the fact that other testimony may have tended to show that such endorsement was made at a different time does not warrant the Supreme Court in overturning such finding '</p> <p>Practice. — Exclusion of Evidence. — Supreme Court —Where an exception is taken to the exclusion of a question asked a witness, it is necessary to state to the court, at the time the objection is made, what is proposed to ba proved by such witness, to render such exclusion available error on appea. to the Supreme Court.</p>

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

<p>Railroad. — Killing Stock.— Complaint. — Allegations of Ownership.. — Demurrer. — In an action under the statute, against a railroad company, for killing stock, the complaint alleged that such company, “ by its locomotive and cars, * * on its railroad,” ran over and killed such stock, etc.</p> <p>Held, on demurrer, that such allegation as to the ownership of such railroad is sufficient, when the objection is made after trial and verdict.</p> <p>Same —■Local Habitation of Company. — It is not material to a recovery in such action, whether the “ local habitation ” of such company was or is within or without State, or was or is a creature of the laws of this or some other State.</p> <p>Same. — Liability of Lessee. — Where a railroad is run and operated by a lessee, not in the name of the company, but in its own name, it is not liar ble, under section 1 of the act of March 4th, 1863, 1 K. S. 1876, p. 751, for stock killed by it before such act was amended by the act of March 14th, 1877, Acts 1877, Spec. Sess., p. 61.</p> <p>Same. — Evidence.—Lease.—In a suit against such lessee, as owner of such road, for stock killed, the record of the lease from the owner of such road to the lessee thereof, is admissible in evidence under the general denial, to prove such ownership.</p> <p>Practice. — Complaint.—Supreme Court. — Assignment of Error — An assignment of error in the Supreme Court, that the complaint does not state facts sufficient to constitute a cause of action, questions the sufficiency of the complaint as an entirety only, and not of each paragraph thereof; and, if the complaint contains one good paragraph, such alleged error will not be available to reverse the judgment, unless the record affirmatively shows that the verdict and judgment were founded in whole or in part upon an insufficient paragraph thereof.</p> <p>Same.— Uncertainty. — Motion to Make Specific. — Uncertainty in a pleading can not be reached by a demurrer for want of facts, after verdict, the proper remedy for such defect being by motion to make such pleading more specific.</p>

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

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

<p>From the La Porte Circuit Court.</p>

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

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

<p>Judgment. — Entry.—Omission of Names of Jury in Finding. — Mistake.— Correction. — Nunc pro tunc Entry. — Criminal Law. — Where, in the record of the finding and judgment in a trial of a criminal case, in the circuit court, the names of the jurors who tried such case were omitted therefrom through mistake, the court has power, upon notice and motion, to correct such record hy a nunc pro tunc entry, though such notice was not given within one year after such trial.</p> <p>Same. — Whenever the record shows that proceedings have been had, or a judgment has been rendered, in any case, of which no proper or sufficient entry has been made by the clerk, it is the duty of the court, upon proper application and notice, to supply such omissions by the requisite nunc pro tunc orders and entries.</p> <p>Same. — Practice.—Presumption.—Supreme Court. — Where errors assigned on appeal are not shown by the record, the Supreme Court will presume in favor of the correctness of the decision of the trial court.</p>

<p>Prom the Miami Circuit Court. '</p>

<p>OoHTRACT. — Child’s Agreement to Maintain Parents. — Consideration.—Improvement of Real Estate. — Measure of Damages. — Evidence.—Tenancy.— Decedents’Estates. — Under a written contract between a father and son, the latter was to “victual, clothe, pay doctor bills, and'keep house and care for,” his parents during their lives, in consideration of the use of the father’s farm and personal property. He was to pay the taxes and make tenantable repairs on the farm; “ but for permanents and betterments, such as building a new house, * ditching, fencing, resetting and with new rails, to be paid for out of the effects of said parents after their decease; the value to be ascertained by two men, * one selected by each of the parties that may be present and interested.” Suit on such contract, against his father’s estate, by the son, after his parents’ death, for improvements made thereunder, and on account for whiskey, tobacco, etc., furnished his father.</p> <p>Held, that the complaint was sufficient, if it apprised the defendants of the nature and character of the items, for which compensation was sought.</p> <p>Held, also, that a “ pickot-fence ” and ditching were permanent improvements.</p> <p>Held, also, that it was proper to charge for cash paid out for “ ditching,” though a recovery could be had of only as much as the ditching was worth.</p> <p>Held, also, that the value of improvements should be determined by their reasonable cost at the time they were made, and not by their value at the close of the tenancy.</p> <p>Held, also, that, by the terms of the contract, the plaintiff was not required to furnish “ whiskey and tobacco ” to his father, and, if furnished, he is entitled to recover the value thereof.</p> <p>Held, also, that evidence of conversations between the plaintiff and defendant, concerning the appraisers of the improvements, was harmless.</p>

<p>Parol License. — Pleading.—Real Estate. Action to Recover. — Description of Land m Answer. — Railroad.—An answer, in an action to recover real estate, alleged that the defendant, a railway company, was granted a license by the plaintiff to construct and operate a railway upon such real estate, under an agreement that the damages thereto would thereafter be settled, and that, acting upon such license, the defendant constructed a railway thereon, and expended large sums of money, of which the defendant had knowledge.</p> <p>Held, that said answer is sufficient on demurrer</p> <p>Held, also, that it was not necessary to allege, to what officer or agent of the company such license was given.</p> <p>Held, also, that the phrase in such answer, “said lands of the plaintiff,” sufficiently described the land covered by the license.</p> <p>Same. — Revocation.—The rule that a naked parol license may be revoked does not extend to cases where the licensee, relying upon the grant, has, with the knowledge of the licensor, expended large sums of money. In such a case, the licensor has no right to revoke such license.</p> <p>Same. — Trespass.—Acts done under a parol license, prior to a revocation thereof, do not constitute trespass.</p> <p>Same. — Licensee, Bights of. — “Where a licensee has a right to the possession of land for a specified purpose, and commits no act which his license does not cover, the owner thereof can not destroy such right.</p> <p>Practice. — Plea m Abatement not Verified. — Demurrer.—Want of verification to a plea in abatement can not be reached by demurrer.</p> <p>Appeal. — Pendency of. — Judgment.—The fact that a defendant has appealed from a judgment does not warrant the plaintiff in instituting another action, pending the appeal, upon the same cause of action as that upon which such judgment was based.</p>

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

<p>N egligence. — Injury to Person. — Complaint.—Railroad.—Demurrer.—As to the sufficiency of a complaint in an action for damages for injuries to the plaintiff, by the negligence of a railroad company, see opinion.</p> <p>Pleading.— Written Instrument. — Demurrer.—Where a pleading is based upon a written instrument, unless the original or a copy thereof is filed therewith, it is insufficient on demurrer.</p> <p>Same. — •Answer —Shipper s Pass. — Demurrer.—Where the complaint in such action alleged that the injuries complained of were received while travelling upon a “ shipper’s pass ” given the plaintiff in consideration of freight paid for the transportation of stock, an answer alleging that such injuries were received while riding “ upon a free pass, without paying any fare,” is insufficient on demurrer.</p> <p>Same. — Receiver.—Plea in Bar or Abatement. — In such action the defendant, a railway company, can not plead either in bar or abatement, that such company was in the hands of a receiver, and that such action was brought without leave of the court in which such receiver was appointed, though by bringing such suit without leave the plaintiff may have been guilty of a contempt.</p> <p>Evidence. — Damages.—Opinion of Witness. — Upon the trial of such cause, it was not competent for the plaintiff to state as evidence his estimate of the amount of damages he had sustained on account of the injuries received; and the Supreme Court can not say that such testimony was harmless, though the jury returned a verdict for a less amount than was estimated by the plaintiff.</p>

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

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

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

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

<p>Executor. — Action by, for Bent on Lease. — Where, by the terms of a will, an executor is charged with the collection of all rents that might accrue from the testator’s real estate, such executor is the proper party in an action to recover for rent which became due after the testator’s death, upon a lease executed during his lifetime.</p>

<p>Evidence. — Testimony of Party as to his Intent. — On the trial of an action in attachment, it is competent for the defendant to testify as a witness in his own behalf, as to his intent in regard to the transaction in question.</p> <p>Witness . — Leading Questions. — Discretion of Court — The permission of leading questions to a witness is much in the discretion of the trial court, and the Supreme Court will not reverse a case upon that ground, unless it appears that there has been a clear abuse of that discretion, whereby the opposite party has been injured.</p> <p>Promise. — Revival of Debts Discharged by Bankruptcy —Instruction.—An instruction, that, to revive a debt discharged by bankruptcy, there must be an express, clear, distinct and unequivocal promise to pay such debt, in contradistinction to a promise implied from an acknowledgment of the justness or existence thereof, and that the mere expression of an intention to pay the debt is not sufficient, is correct.</p>

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

<p>Amended Complaint. — Record.— After filing an amended complaint, the original ceases to bo a part of the record.</p> <p>Pleading. — Cross Complaint. — Answer.—A. pleading can not perform the . double function of an answer and cross complaint.</p> <p>Same. — Answer not Responsive to Entire Complaint. — Counter-Claim.—Real Estate. — Action to Quiet Title. — Tax Lien. — -To a complaint seeking to quiet title to three parcels of real estate, defendant filed a pleading setting up a tax lien upon the undivided three-fourths of three parcels of land, but not alleging the same to be the land or parcels thereof described in the complaint.</p> <p>Held, on demurrer, that as an answer it was bad, because not responsive to the complaint.</p> <p>Held, also, that, viewed as a counter-claim, it was insufficient, because it did not allege “ matter arising out of, or connected with the cause of action,” under section 59 of the code.</p>

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

<p>From the "Washington Circuit Court.</p>

<p>Infancy. — Presumption.—Pleading.—Evidence.—The presumption of infancy is never indulged; it must be alleged and proved.</p> <p>Same. — Review of Judgment — Demurrer.—A complaint to review a judgment is not bad on demurrer for want of facts, if otherwise sufficient, merely because it fails to aver that it was commenced within three j ears after such judgment was rendered, or after the removal of plaintiff’s disabilities.</p> <p>Summons. — Omission of the Seal of a Court. — Effect upon Judgment.— The omission of the seal of a court from a summons, which has been served and returned, does not render a judgment based thereon void, though it may be voidable.</p> <p>Same . — Affixing Seal Subsequently. — The court of its own motion, or upon the motion of any interested party, may, at any time, cause the seal to be affixed; and this will validate the proceeding had ah initio, for all purposes.</p> <p>Bill of Review. — Errors Depending upon Evidence in Former Action. —Motion for New Trial. — Bill of Exceptions. — A bill to review a judgment which specifies certain errors depending upon the evidence in the original action, but showing no motion for a new trial in that action, nor any bill of exceptions, presents no question for this court as to such specifications, where a demurrer is filed and sustained to the bill.</p> <p>Súfreme Court. — Practice.—Brief.— Waiver. — Questions not presented and discussbd in the brief of counsel are regarded as waived in the Supreme Court.</p>

<p>Criminal Law. — Pleading.— Waiver of Arraignment.— Trial Without Issue Erroneous. — Statute Construed. — Presumption.—Supreme Court. — Record.— Case Overruled. — The record of the trial of a criminal cause, on appeal to the Supreme Court, showed that the defendant waived an arraignment, and “ thereupon, the issues being joined, this cause,” etc., but did not contain any written plea, or show the entry of any oral plea by such defendant.</p> <p>Held, that the Supreme Court in such case must presume that no plea whatever was filed, and that such cause was tried without any issue, and therefore that such trial was erroneous.</p> <p>Held, also, that the entry of the clerk upon the order book that the “ issues ” were ‘‘joined,” in the absence of any pleadings showing such issue or issues can not be taken as showing that any issue whatever was joined.</p> <p>Held, also, when the general issue is pleaded, it must, under section 97 of the criminal code, he entered upon the minutes of the court, to become a part of the record. Harman v. The State, 11 Ind. 311, is substantially overruled by Graeter v. The State, 54 Ind. 159, on this point.</p>

<p>Alteration or "Written Instrument. — Promissory Note. — The alteration of a promissory note after delivery, by the payee or bolder thereof, from a note negotiable under the statute merely, to a note payable at a bank in this State, and negotiable as an inland bill of exchange, without the knowledge or consent of the maker of the note, and without his authority, express or implied, is a material alteration which will vitiate and avoid the note, and discharge the maker from liability thereon.</p> <p>Blank Space in Note. — Implied Authority to Payee to Fill.- — -Case Distinguished. — Where a blank space in a note has been left by the maker, unfilled and unerased, at the time of delivery, the payee or holder of such note will have no implied authority from the maker to fill such blank with matter foreign to the apparent purpose for which it had been left. Marshall v. Drescher, 68 Ind. 359, distinguished.</p> <p>Principal and Surety, and Creditor or Obligee —Relative Rights of Each. — Any person bound as surety upon any bond, bill of exchange, promissory note payable at a bank in this State or generally, or any other contract in writing for the payment of money, etc., after the maturity thereof, may require by written notice the creditor or obligee forthwith to institute an action upon the contract; and if the creditor or obligee shall not, within a reasonable time, bring his action upon such contract, and prosecute the same to judgment and execution, the surety will be discharged from all liability thereon.</p> <p>Service op Notice. — Proof of Service. — The surety’s notice to the creditor or obligee must be in writing, and must be served personally by reading and delivering a copy to the creditor or obligee in person, or to some person of proper age at his usual place of residence; and the proof of such service may be made as provided in section 292 of the code.</p> <p>Same. - Statute Construed. — The word “ defendant,” in the fourth clause of said section 292, should be construed to mean “ party,” as the body of said section relates to the proof of service of notice “upon any party.”</p> <p>Reasonable Time. — Where the creditor or obligee did not commence an action upon the written contract, until more than three years after the service of the surety’s written notice, such action was not commenced within a reasonable time, and the surety was discharged from liability.</p>

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

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

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

<p>Evidence. — Sufficiency of, to Sustain Finding —Advancement.—Payment.— In an action by a surviving husband, against the clerk of a circuit court, to recover his deceased wife’s distributive share of the estate of her father, paid to such clerk by the administrators thereof at the time of making their final report, the evidence showed that such share was paid to said clerk by the administrators, for the plaintiff, subject to a question of advancement to be thereafter settled, and that he was directed by them not to pay the same until that question was settled. The final report of such administrators was approved by the court, and they were discharged. The question of advancement had not been settled, nor had any steps been taken to settle it.</p> <p>Held, that the evidence failed to show an absolute payment to the defendant for the use of the plaintiff, and was therefore insufficient to sustain a finding in his favor.</p>

<p>New Trial. — Cumulative Evidence.— What Constitutes. — See opinion.</p> <p>Same. — ■Newly-Discovered Evidence Cumulative. — A. new trial will not be granted for newly-discovered evidence which is merely cumulative oo the evidence adduced on the original trial.</p> <p>Same. — Newly-Discovered Evidence, Contradicting or Impeaching Witness.— A new trial will not be granted for the admission of newly-discovered evidence to contradict or impeach the testimony of a witness on a previous trial, either by showing that the reputation of such witness for truth was bad, or that his testimony on the former trial was false.</p>

<p>Promissory Note —Liability of Maher to Building Association of Which he is not a Member.— Ultra Vires.- — An answer, in a suit upon a promissory note, by the makers, alleging that the plaintiff, a corporation, exceeded its powers in loaning the money, for which such note was given, to one not a member thereof, is no bar to a recovery thereon.</p> <p>Supreme Court.. — Practice —Where a defendant, after issue is joined on a paragraph of answer, flies another paragraph, to wbjch a demurrer is sustained, and, upon refusing to answer further, the court renders judgment against him, such judgment is erroneous; but, where no exception is taken thereto, and no demand is made for a trial on the issue joined, and no motion made to set aside such judgment, such error is not available for the first time in the Supreme Court.</p>

<p>Master and Servant. — Invalid Indenture. — Liability of Master to Servant for Work and Labor. — Pleading.—Infant.—Where a minor has performed work and labor for another under invalid articles of indenture, the performance by the latter of his covenants therein is no bar to a recovery by the former for such service, and, in an action therefor, an answer setting up such articles, and alleging performance of the covenants by the defendant, is insufficient on demurrer.</p> <p>Same . — Ratification of Contract of Indenture. — Case Distinguished. — Por difference1' between this case and that of Rays v. Me Connell, 42 Ind. 285, see opinion.</p> <p>Supreme Court. — New Trial. — Evidence.—Ho question is presented for the decision of the Supreme Court on the overruling of a motion for a new trial, where the evidence adduced upon the trial is not in the record.</p>

<p>Pleading. — Promissory Note. — Patent.—False Representations. — Fraud.— Demurrer. — Damages.- -Defence. — An answer, in an action upon a promissory note given for the right to sell a patented grain screen, alleged that the assignor thereof falsely and fraudulently represented that such screen was of great value; that it would clean wheat rapidly and effectually, and that they could be bought at S. for five dollars; that such representations were false and known to be false; “that the defendant regarded them as true; that said screens were of no value, and would not clean wheat rapidly and effectually, and could not be got at S. for five dollars.”</p> <p>Held, on demurrer, that such answer was insufficient.</p> <p>Held, also, that representations of value do not constitute fraud.</p> <p>Held, also, that the words “ effectually ” and “ rapidly ” wore merely descriptive of the manner in which the machine would do its work, and not affirmations of substantive facts, and therefore were matters of opinion upon which a purchaser can not rely.</p> <p>Held, also, that, to constitute fraud, the representations must be of a material fact; and, as there was no allegation in such answer, that the defendant was injured by the fact that such machines could not be purchased at S. for five dollars, that representation can not be deemed to be of a material fact; fraud without damage can not he a defence.</p> <p>Same. — Case Disapproved —The bare general allegation that an article was worthless, thrown into a plea attempting to set up the defence of fraud, can not make good a plea, which, without it, would be bad. The ease of More-head v. Murray, SI Ind. 418, as to plea of fraud, disapproved.</p> <p>Same. — Where a plea shows that the party got what he contracted for, that he voluntarily, and with knowledge of the thing for which he bargained, deliberately contracted, he can not escape liability upon the single, unsupported allegation,, that what he did get was worthless.</p>

<p>Contract. — Failure of Consideration. — The consideration of a contract or deed is always, as between the immediate parties thereto, open to inquiry, and this inquiry may go to the extent of showing a consideration differ, ent from that expressly stated in the contract or deed.</p> <p>Same. — Answer.—Demurrer.—An. answer which shows a failure of consideration equal to the sum sued for is sufficient on demurrer.</p> <p>Deed. — Fraud.—Pleading.—Where two deeds are executed upon the same consideration, although upon different dates, and the second is made “for the purpose of correcting any errors ’’ in the first, a plea of fraud in reference to the transaction may be predicated by the grantee on facts connected with both deeds.</p> <p>Executoes. — Conveyance with Covenants.- — Where an executor, without authority given him by the will to enter into covenants, conveys with covenants, they will, if obligatory at all, be deemed the personal covenants of the executor.</p> <p>Pleading. — Practice.-—When a pleading is struck out by the court, it ceases to be a part of the record, and can only be brought to the attention of the Supreme Court by incorporation in a bill of exceptions.</p> <p>Conveyance —Acceptance hy Grantee. — Nominal Damages. — -When a deed is accepted, and possession taken, by the purchaser of the land conveyed, the grantee can not resist the payment of the purchase-money on the ground of want of title in the grantor, or recover more than nominal damages on the covenants of the deed, while he retains possession of the land, and has been subjected to no inconvenience or expense by reason of the vendor’s want of title.</p>

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

<p>Supreme Court.— Waiver, by Appearance and Joinder. — Failure to Give Notice of Appeal to Co-Farty. — After an appeal has been duly submitted on call in the Supreme Court, by agreement of parties, and there has been a joinder in error, it is too late for the appellee to move for the dismissal of the appeal on account of the failure of the appellant to give notice to a co-party who has not joined in the appeal, and who had made default in the court below.</p> <p>Promissory Note.' — Extension of Time. — Guaranty.—Joint and Several Contract. — Pleading.—Decedents’ Estates —In an action on a contract signed by A., B. and C., reciting that it was an agreement between A. and D., whereby A., in form “ I agree and promise,” etc., agreed and promised to pay to D„ the holder, whatever amount should remain unpaid out of the estate of the principal, on a promissory note executed by A. as surety only, the complaint alleged the execution of such contract by A., B. and C„ the defendants, in consideration of D.’s agreement to extend the time of payment of such note until the settlement of such estate ; that such estate had been settled as insolvent; that, in a subsequent suit against A., the unpaid' balance on such note had not been collected, because of A.’s insolvency; and that B. and C., on demand, had refused to pay.</p> <p>Held, on demurrer by 0., that the contract was the joint and several contract of A., B. and 0., and that the complaint was sufficient.</p> <p>Same.; — Sufficiency of Complaint. — Where the sufficiency of a complaint i§ tested by demurrer, or assignment of error in the Supreme Court for insufficiency, the facts alleged therein are admitted to be true; and if it state sufficient facts to bar another action for the same cause, a judgment thereon will not be reversed for alleged defects in the complaint, where its sufficiency is called in question for the first time in the Supreme Court. Same. — Principal and Surety'. — Delay After Notice to Sue. — Insolvency of. Principal. — C. answered in such action, admitting the execution of the contract as a» guarantor for A., but alleging that, after the execution of the contract, it became known that such estate was insolvent, and that, though C. had given D. notice, in writing, to institute suit on. the note, against A., who was then solvent, he had failed so to do for more than two years thereafter, during which time A. became insolvent.</p> <p>Held, on demurrer, that the answer was insufficient.</p> <p>Pleading. — Sufficiency.—Bach paragraph of a pleading must be'sufficient within itself, and can not be aided by the averments of other paragraphs.</p>

<p>Husband and Wine. — Coverture of Principal a Defence to Action by Surety who has Paid Joint Judgment Against Both. — -Where, in an action upon a promissory note, executed by A, his wife and B., the fact of suretyship of any of the makers neither appears upon the face of the note, nor is established in a cross action between the defendants, and judgment is rendered thereon, which is paid by B., who, as an alleged surety for his co-defendants, after the death of A., insolvent, sues A.’s wife to recover the sum so paid, the plea of coverture is a good defence to such action.</p>

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

<p>Principal and Agent. — Purchase by Agent from Principal. — Pleading.— A., being the owner and payee of a note secured by mortgage on real estate, transferred the same to B. for collection, upon B.’s written agreement that if the mortgage should be foreclosed, and the property sold to satisfy the note and mortgage, B. would assign the judgment, or convey the property, to A. B. afterward foreclosed the mortgage, and purchased the property at the sale on the decree of foreclosure. In an action by A.’s assignee of the above agreement, against the heirs of B., to compel the defendants to assign the sheriff’s certificate, and the judgment, to plaintiff, and to quiet title in him, defendants answered that B. had, prior to his death, purchased the note and mortgage from A.</p> <p>Held, on demurrer, that the answer was sufficient.</p> <p>Held, also, that the fact that B. had been the agent of A, would not prevent him from becoming a bona fide purchaser thereof from A , and such purchase, if made, would terminate the agency and divest A. and his assignee of all claims to the note and mortgage, if B., when he purchased, had no notice of the assignment to plaintiff of the contract between A. and B.</p> <p>Special Finding. — A statement of facts by the court, not made at the request of either party and not signed by the judge, can not be regarded as a special finding under the statute.</p>

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

<p>Joint Tenants. — Tenants in Common.— One joint tenant or tenant in common may sue his co-tenant for the possession of his share of the land jointly owned or held in common.</p> <p>Decedents' Estates.— Widow's Interest. — Parties to Actions. — Estoppel.— A. died intestate, leaving a widow and children. The widow afterward died testate, devising her entire estate to B. and 0., children of herself and A. Afterward, the administrator of A. filed his petition in the proper court for the sale of the land belonging to A.’s estate, for the payment of debts. All the children and heirs of A., including B. and C., were notified, and appeared to said petition. The court ordered a sale of all the real estate.</p> <p>Held, that the order of sale was void as to the widow’s interest in the real estate sold.</p> <p>Held, also, that B. and 0., having appeared to the petition as heirs of A.</p> <p>only, wore not concluded by the order of sale, as devisees of the widow. Held, also, that the fact that B. and C. received their distributive shares of the proceeds of such sale, as heirs of A., does not estop them to assert title against the purchaser, as devisees of the widow.</p>

<p>Jurisdiction. — Pleading.—Presumption.—If a complaint shows affirmatively, that the court has no jurisdiction of the subject of an action, it is not error to dismiss the proceedings; but, where the court is one of general jurisdiction, the facts which give it jurisdiction of the subject of the action need not affirmatively appear on the face of the complaint. Jurisdiction will he presumed, until the contrary appears.</p> <p>"Will.— Who may Contest. — Practice.—Dismissal as to Part of Plaintiffs.— Any person interested may contest the validity of any will; and, where an action to contest a will is brought by a number of interested parties, and is afterward dismissed as to part of the plaintiffs, the case will stand in all material respects as if it had been originally brought by those who did not dismiss.</p> <p>Same. — Bond filed with Complaint. — Where such an action is dismissed as to part of the plaintiffs, the bond filed with the complaint is not annulled as to the remaining plaintiffs by such dismissal.</p> <p>Trial. — Practice.—Attorney.—Improper Argument to Jury. — New Trial.— Where an attorney, in the closing argument of a case, discusses matters not pertinent to the issues, and in a manner calculated to divert the minds of the jury from the merits of the case, such improper discussion is ground for a new trial; and it is not error to grant a new trial for such cause, though no objection was interposed by opposing counsel.</p>

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

<p>Slander. — Pleading.—Inducement and Colloquium.— Words not Actionable per se. — In an action for slander, a paragraph of the complaint alleged the false and malicious speaking and publishing by the defendant, concerning the plaintiff, of the following words : “ I (said defendant JM. H. meaning) know that O. H. (meaning * * ) is keeping her (meaning plaintiff B. S.), and that I know there were criminal acts between them (meaning the said C. H. and the plaintiff E. S.), and that ~W. 8. (meaning the plaintiff "W. S.,” the husband of E. S.,) “was knowing to it.” Also these words: ‘‘I (meaning the said M. H.) not only believe it, but I know they are criminally guilty (meaning and referring to the plaintiff B. S. and the saidO. H.); I know, and God in Heaven knows, that it is so.” Also these words : “ I (meaning the said defendant M. H.) don’t believe any thing about it; I (meaning the said defendant) know there is criminal intercourse between them (meaning,” etc.) Also these words: “He (meaning and referring to one O. H.) keeps running there (meaning the house where plaintiff then resided,” etc.,) “all the time, and he (meaning said O. H.) don’t go there for any good. He (meaning said C. H.) is keeping her (meaning saidE. S.), andW. S. (meaning the plaintiff W. S.) knows it.” This paragraph further averred, that, by the use of these words and by each set thereof, the defendant intended to charge that the •said E. S. had been guilty of the crime of adultery with the said O. H. Upon demurrers severally to these sets of words,</p> <p>Held, that, though it is usual for the inducement and colloquium to precede the statement of the words alleged to have been spoken, yet it is not material that they should do so. It is sufficient if they be inserted in any portion of the proper paragraph.</p> <p>Held, also, that the words were not actionable per se, but the concluding averments substantially supplied a more formal inducement and colloquium, and rendered all the sets of words sufficient upon demurrer.</p> <p>Same. — •Instruction.—The court instructed the jury as follows: “If you believe from the evidence, that M. H. spoke, at any time within two years of filing the complaint, any of the sets of words stated in the complaint, and spoke them of E. S., or spoke enough of any one of the sets to import that she was guilty of having committed adultery with O. H., you should find for the plaintiff, unless the defendants have proved by a fair preponderance of the evidence, that, before such speaking, said E. S. had committed adultery with said O. H.”</p> <p>Held, that this instruction, in effect, informed the jury that all of the sets of words complained of imported a charge of adultery, against E. S , and were actionable per se, if shown to have been spoken concerning her, and it was therefore erroneous.</p>

<p>Conveyance. — Consideration —Condition Subsequent. — A. and wife conveyed certain real estate to B., “ and his heirs and assigns forever, after the life-estate of the grantors, as well for and in consideration of the natural love and affection ” for B., “ as for the better maintenance and support of him, the said ” A.</p> <p>Held, that the better maintenance of A. was part of the consideration of the conveyance, and not a condition subsequent expressed in the deed, that the grantee should thereafter support and maintain the grantor.</p> <p>Condition Subsequent. — Demand.— Waiver. — -Where the condition subsequent is expressed in a deed, that the grantee will thereafter support and maintain the grantor, a failure by the grantor to demand the performance of the condition by the grantee will be deemed a waiver of his right to claim a forfeiture.</p>

<p>Erom the Boone Circuit Com’t.</p>

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

<p>Parent and Child. — Liability of Corporation for Minor’s Services.— A corporation which knowingly hires and keeps in its employ a minor, in opposition to the parent’s will, is liable to the parent for the reasonable value of such minor's services.</p> <p>Pleading. — DemuPrer.—Proximate Damages. — Where a complaint states facts which constitute a cause of action, though the damages laid may not be such as proximately result ^x>m the act complained of, it is sufficient on demurrer.</p>

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

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

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

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

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

<p>Erom the "Wayne Circuit Court.</p>

<p>Practice. — Verdict.— Venire de Novo. — A motion for & venire de novo will not lie because of an inconsistency or conflict between the answers to interrogatories and a general verdict returned by a jury.</p> <p>Same. — -A motion for a venire de novo is proper where there is some defect, uncertainty or ambiguity upon the face of the verdict, or where there is a failure to assess damages.</p> <p>Same. — Motion for Judgment non Obstante. — Where a party believes himself entitled upon the answers to the interrogatories to a greater sum than that awarded by the general verdict, he should move for judgment upon the answers to interrogatories, for such sum as they show him entitled to recover.</p> <p>Same. — New Trial. — An inconsistency between the general verdict and answers to interrogatories must be presented-by a motion for a new trial.</p> <p>Bile oe Exceptions. — Evidence.—Testimony.—A recital in a bill of exceptions, “ That thereupon the defendant rests, and this was all the testimony given in the case,” is insufficient because the term “ testimony ’’ is not synonymous with the term “ evidence.”</p>

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

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

<p>Supreme Court. — Final v uclgment. — Appeal.—Injunction.—Taxes.—Demurrer. — In an action to enjoin tbe collection of certain taxes, wherein a temporary injunction had been granted, a demurrer to the answer was overruled, whereupon the plaintiff refused to plead further, and the court rendered judgment on the demurrer, that the injunction should he dissolved, and that the defendant recover of the plaintiff his costs.</p> <p>Held, that such judgment was a final judgment from which an appeal to the Supreme Court would lie. Slagle v. Bodmer, 58 Ind. 465, distinguished.</p> <p>Same.- — Bona Fide Indebtedness Deducted from Money at Interest. — rissessment of Taxes. — Under the act of December 21st, 1872, 1 R. S. 1876, p. 72, regulating the assessment of taxes, a taxpayer had the right, in listing his personal property for taxation, to deduct from his “ money at interest, either within or without the State,’’ and “all other amounts,” together constituting the “ total amount of all credits ” owned by him, his bona fide indebtedness, and to list the surplus only for taxation.</p> <p>Same. — Statute Construed. — Mistake.—Section 5i of said act should be so read as to eliminate the word “ or ” where it occurs between the words “ money loaned ” and “ on account of any bond.”</p>

<p>Highway.— Obstruction.— User. — Order of County Board. — The county board ordered the location of a highway, and, over the defendant’s objection, the same was opened through his field, and used by the public for about two months, when the defendant rebuilt his fences, which is the obstruction complained of. Whether there was a highway, depends on the validity of the order therefor, not on the user.</p> <p>Same. — Petition and Notice. — Names.—The order establishing a highway is not void, because, in the petition for the establishment of the way and in the notice, the Christian names of the land-owners are not given, but only initial letters, and the owners of part of the land affected are described as the ‘‘ Bryant heirs.”</p> <p>Same. — Termini.—Description.—That is certain which can be made certain.</p> <p>Same. — County Board. — Jurisdiction.—Collateral Attack. — The county board having assumed jurisdiction, without objection, their procedure in ordering a highway located, however irregular, will be upheld against collateral attack.</p> <p>Same. — Fence.—Notice to Remove. — Supervisor.—When a highway has been once opened and put into use, its validity or existence can not be questioned in a prosecution for obstructing it, on account of any irregularity of the supervisor in opening it, such as failure to give the owners proper notice to remove their fences.</p> <p>Practice. — Demurrer to Evidence. — A demurrer to the evidence waives objections to its admissibility, and admits every reasonable inference of fact which can be drawn therefrom.</p>

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

<p>Will.— Widow’s Right to Five Hundred Dollars m Addition to Provisions by Will. — Decedents’ Estates. — U nder section 43 of the act for the settlement of decedents’ estates, 2 B. S. 1876, p. 507, the widow of a testator is entitled to five hundred dollars in personal property or money out of his estate, in addition to any devise made in her behalf by his will.</p>

<p>Criminal Law —Murder.— Instruction. — Reasonable Doubt. — Reasonable Belief. — On the trial of a defendant, on an indictment for murder, the court instructed the jury, that “Facts and circumstances to be considered against the accused must be proved to be true beyond all reasonable doubt; and those tending in his favor need only be proved by evidence sufficient to cause a reasonable belief of their truth.”</p> <p>Held, that the instruction, both as a whole and as to each branch thereof, was erroneous.</p> <p>Same. — Evidence. —The evidence necessary to raise a reasonable doubt of the defendant’s guilt need not be strong enough to establish a reasonable belief of his innocence.</p> <p>Same. — Applicability of Rule as to Reasonable. Doubt. — The doctrine of reasonable doubts, as a rule, has no proper application to mere matters of subsidiary evidence, taken item by item, but is applicable always to the constituent elements of the crime charged, and to any fact, or group of facts, which may constitute the entire proof concerning any of the constituent or elementary facts.</p> <p>Same —Accessory Before and After. — An accessory before the fact may, but an accessory after the fact can not, be convicted under an indictment for murder.</p> <p>Same. — Presence of Accused at Time and Place of Commission of Crime.— It was error, on such trial, to refuse to instruct the jury, on the request of the defendant, that “ The defendant admits that he was present at the time and place of the homicide; but, although he was present, and even knew .that the offence was being committed, still that constitutes no guilt in law; and, unless the proof goes further, aDd shows beyond a reasonable doubt that he was participating in the homicide before or at the time of its commission,” he is not guilty.</p> <p>Same. — Evidence as to Acts of Accused after Crime. — On the separate trial of a defendant indicted jointly with another for murder, he asked the court to instruct the jury, that “ If the proof failed to show beyond a reasonable doubt that the defendant ” on trial ‘‘ participated in the homicide, then whatever acts he did after its commission by” his co-defendant '« would not establish his guilt.”</p> <p>Held, that the instruction asked was properly refused.</p> <p>Held, that the jury could properly consider hi? acts after the homicide as evidence tending to establish his guilt.</p> <p>Elliott, J„ dissents.</p>

<p>Justice or the Peace. — Pleading.—Parties.—A promissory note payable to the firm name of a partnership is a sufficient complaint, in a suit upon such note against the makers, before a justice of .the peace.</p> <p>Promissory Note. — Pleading.—Practice.—Waiver.—Where, in a suit upon a promissory note, the maker flies a general denial under oath, but afterward, when the note is produced at the trial, admits its execution, such admission is a waiver, of defendant’s right to other and more formal proof of the execution thereof.</p> <p>Bams. — Account.— Waiver. — 'W'b.ei-e, upon settlement of an open account between them, a, promissory note’ is executed by A. to B. for the amount of an agreed balance owing by A. to B., the execution of the note will be regarded as a waiver by the maker of all objections to the mere manner in which the items of account had become chargeable to him.</p> <p>Instructions to Jury. — Practice.-—Presumption.—All the presumptions will be indulged in favor of the correctness of the proceedings of the trial court; and, where the record is silent on the subject, the Supreme Court will presume that the court below instructed the jury according to law.</p> <p>Same. — Where a court refuses to give an instruction asked, for by counsel, and such refusal is assigned for error in this court, and the record does not show whether or not any instructions were given by the court to the jury, the Supreme Court can not say whether such refusal was erroneous or not.</p>

<p>Joint Promisors. — Death of One — Common-Law Rule. — Release.—The common-law rule, that the death of one of two or more joint promisors or obligors discharged at law his .estate from all liability, and the survivor or survivors alone could be sued, has never been a part of the law of this State.</p>

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

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

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

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

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

<p>Construction oe Remedial Statute. — A party who seeks the benefit of a purely statutory remedy must bring his case fairly within' its terms.</p> <p>Same. — Section 672 of the Code. — Section 672, 2 R. S. 1876, p. 276, is remedial, and should receive a fairly liberal and beneficent construction, in aid of the purpose it was designed to accomplish.</p> <p>Principal and Surety. — Notice to Sue. — A written notice by a surety on a note to the holder thereof, directing him to proceed at once to collect the same, .that the principal therein was fully able to pay such note, is a sufficient' notice under section 672 of the code to require such holder “ forthwith to institute an action ” thereon.</p> <p>Same. — Promissory Note. — Answer of Surety. — Demurrer.—To an action upon a joint and several promissory note, the defendant answered that he executed it as surety for B.; that after the maturity of the note, and before the death of B., he gave notice in writing to the plaintiff, that B. was then fully able to pay said note, and directing him to proceed at once to collect tlie same, which he disregarded; hut such answer did not show hut that the death of B. occurred so soon after the service of such notice as to prevent the beginning of an action on such note, and failed to allege that he left in the county or State any estate on which administration, had been or could he granted, or that he ever lived in the State, or could have been sued in any of the courts thereof.</p> <p>Held, that the answer was insufficient on demurrer.</p>

<p>Decedents' Estates. — Might of Widow to Emblements on Messuage — Pleading. — Set-Off.—In an action by an administrator against the wife of his decedent, she answered by way of set-off, alleging the conversion by such administrator of a wheat crop growing, at the death of her husband, upon land‘‘adjacent to the dwelling-house and messuage thereunto appertaining,” but did not allege that she had not had the full benefit of the forty acres to which .she was entitled, nor did it aver that the field on which such wheat grew was a part of the land selected by her under section 28 of the law of descents.</p> <p>Jield, that such answer was insufficient on demurrer.</p> <p>Same. — Presumption.—In such case, it will not be presumed that the administrator appropriated as assets the emblements to which the widow and children were entitled.</p>

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

<p>Law of Descents.— Widow’s Interest. — Prior to 1871 no lien was given by-statute to a widow upon the real estate of her deceased husband, for the amount of the personal estate the statute allowed her to take at its appraised value.</p> <p>Same. — Where, prior to 1871, a widow, who had received but $100 in personalty from the estate of her deceased husband, and who left children surviving her, married again, and with her second husband executed a deed of conveyance of the entire real estate left by her first husband, which was appraised at $300, such deed conveyed no title, for she had acquired no lien on such real estate for the deficiency in the personal estate to which she was entitled; and she was under the statutory disability of a second marriage, and could not alienate her interest held as widow of her first husband.</p>

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

<p>Change oe Venue. — Jurisdiction.—Practice.—Where a court, having original jurisdiction of a criminal cause, grants the defendant a change of venue to another court, the mere order granting such change does not of itself constitute a change of venue. Under the statute, the court to which such change of venue is granted does not acquire jurisdiction until there is filed in the clerk’s office of the same a transcript of the proceedings and orders of the court having original jurisdiction, certified by the clerk and attested by the seal of said court, together with the original papers in the case.</p> <p>Same.— Waiver. — Where the statutory requirements have not all been complied with in perfecting a change of venue in a criminal cause, jurisdiction can not bo acquired by a court to which the venue has been changed, by the waiver or consent of the defendant.</p>

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

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

<p>Weight of Evidence. — Supreme Court. — Bastardy.</p>

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

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