Volume 72 — Indiana Reports

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

<p>Ei'om the Delaware Circuit Court.</p>

<p>Fraudulent Conveyance. — Complaint to Set Aside. — A complaint to set aside an alleged fraudulent convejuitice of real estate by a debtor must aver, that at the time such conveyance was made the debtor did not have sufficient other property, subject to execution, to pay and satisfy all his then existing debts.</p>

<p>Supreme Court. — Evidence.—The Supreme Court will not disturb a. verdict, where the only objection thereto is that it is not sustained by sufficient evidence, if there was evidence fairly tending to support it.</p>

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

<p>Trial by Jury. — Tlie clause of the constitution, providing that in all civil cases the right of trial by jury shall remain inviolate, embraces only such eases as were treated as civil cases in this State when the constitution was adopted.</p> <p>Same. — Proceedings Supplementary to Execution. — In a proceeding supplementary to execution, under section 522 of the code, where issues of fact are formed, such as m ordinary cases are triable by jury, the party demanding it may have a trial by jury.</p>

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

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

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

<p>Railroad Company. — Liability for Injury to Employee Caused by Negligence of Co-Employee.' — A servant of a railroad company employed in repairing tlie track thereof, and one employed in running trains thereon, are engaged in the same general undertaking; and, where the former is injured bjr the negligence of the latter, the company is not liable therefor.</p> <p>Contributory Negligence. — Pleading.—A complaint for injuries sustained by the plaintiff through the fault or negligence of another is bad, if it does not aver that the plaintiff was without fault or negligence contributing to the injury complained of.</p>

<p>Indemnifying Mortgage. — Mortgagee’s Right of Action. — Where a mortgage, given to secure the mortgagee from loss by reason of his having become surety upon a promissory note, executed by one of the mortgagors, contains the stipulation that the mortgagors will “pay the sum of money above secured,’’ a cause of action upon said mortgage accrues to the mortgagee upon failure of the maker to pay the note when it becomes due, without the mortgagee having first paid the note; and he can recover as damages actual compensation for his probable loss.</p> <p>Appearance. — Withdrawal of. — Practice.—Where a party files a demurrer to a complaint, and afterward withdraws his' appearance, the demurrer is also thereby withdrawn; and thereafter such demurrer, and the ruling of the court thereon, constitute -no proper part of the record of the cause.</p>

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

<p>County Auditor. — Publication of Tax List. — Public Policy. — A county auditor, who is also publisher of a newspaper, has no right to publish a, delinquent tax list in his newspaper without precedent request from ■ some one representing the county, and compel payment of the value of the work out of the county treasury.</p> <p>Special Finding. — A special finding must contain all such facts as are-essential to a recovery, and, where the evidence is not in the record, the presumption is that all the facts are stated in the finding. Contract. — Quantum Valebat. — A recovery for the reasonable value of work done, upon a quantum valebat, always presupposes an implied contract.</p> <p>Same. — Public Policy. — Where there are no parties capable of contracting, or where public policy prohibits a contract, there can not he any kind of a contract, either by express agreement or implication.</p>

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

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

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

<p>Review of Judgment. — Verification of Complaint. — Pleading.—In a complaint to review a judgment because of material new matter discovered since it was rendered, the averment of such new matter is sufficient, without the affidavit of the witness by whom it can be proved, if the complaint is verified by the complainant, and such averment may. be proved upon the trial as other material averments of the complaint.</p> <p>Same. — Exhibits.—Pleading.—Practice.—Where the affidavit of the witness by whom it is expected to prove the material new matter, alleged to have been discovered, is filed with a complaint for review, it"will be regarded as a mere exhibit, and not, for any practical purpose, a part of the complaint; and only the averments in the body of the complaint will be considered in judging of the materiality of the newly-discovered evidence.</p> <p>Same. — Diligence.—As to the showing ot due diligence on the part of complainant, in a. complaint for review, in endeavoring to ascertain, at the proper time, the matter claimed to have been then recently discovered, see the opinion.</p> <p>Same. — After Affirmance by Supreme Court. — A complaint to review a judgment for error of law in the proceedings will not lie after the judgment has been affirmed by the Supreme Court; but a complaint to review for material new matter may be prosecuted after the judgment has been aflirméd by the Supreme Court upon appeal involving only supposed errors of law in proceedings below, if the complaint is filed within the prescribed time.</p> <p>New Trial. — Newly-Discovered Evidence. — Affidavit of Witness. — An application for a new trial on the ground of newly-discovered evidence, unlike a complaint for review, must be supported by the affidavit of the witness, by whose testimony it is expected to establish the newly-discovered evidence, filed with and made part of such application.</p>

<p>Parties. — Pleading.—Withdrawal and Disclaimer. — Practice.—Where a parts'- is made a defendant to an action, and afterward appears and files . a disclaimer, and, on leave of the court, without objection of plaintiff, withdraws from the case, the plaintiff, by failing to object at the ■ time, waives his right to afterward complain; when, however, the plaintiff objects at the time, and the court erred in permitting the •defendant to -withdraw and disclaim, the plaintiff’s remedy is by appeal from the judgment rendered in the case.</p> <p>Evidence. — Sufficiency of. — Contract.—As to the sufficiency of the evidence to sustain the finding and judgment, see opinion.</p>

<p>New Trial. — Practice.—Where a court makes a special finding of facts and conclusions of law thereon, it is no cause for a new trial that ‘‘the conclusions of law are wrong.”</p> <p>Evidence. — Practice.—¡The Supreme Court will not disturb the finding of the lower court, on a disputed question of fact, if there is evidence in the record on which the finding can stand.</p> <p>Pleading. — Special Finding. — Practice.—Where a complaint contains two paragraphs, to each of which a demurrer is overruled, and, upon trial of the cause, the court makes a special finding of facts and conclusions of law, and the facts so found correspond with the averments of the second paragraph of the complaint, the ruling of the court upon the demurrer to the first paragraph is immaterial, and the sufficiency of the second paragraph only will be considered by the Supreme Court.</p> <p>Mortgage. — Purchaser bound by Notice of. — A purchaser of land on which there is a mortgage, of which he had notice, is bound by all the information which he would presumably obtain, upon inquiry of the mortgagee in regard to such mortgagee’s claims to a lien on said land.</p> <p>Vendor's Lien. — Pleading.—Decree.—A. vendor’s lien is not an original and absolute charge on the land, but only an equitable right to resort to it in case there be not sufficient personal estate; and while it is not necessary, in an action to enforce such lien, to show that the personal remedy has already been exhausted, a decree directing the sale of the land in the first, instance is erroneous, unless the record shows that the defendant had no personal property subject to execution, out of which the amount of the lien might be made.</p> <p>Same. — Mortgage by Married Woman. — Notes executed by Husband and Wife. — Waiver of Lien. — Where a husband negotiates for the purchase of land, and has it conveyed to his wife, and jointly with her executes notes for part of the purchase-money, which notes are attempted to be secured by a mortgage on the land, executed by the wife only, and such mortgage is taken by the vendor in the belief that it is valid.</p> <p>Held, that the mortgage executed by the wife is void; that the wife’s signature to the notes creates no obligation, and that the husband's relation to the notes is that of sole obligor; but the vendor is still entitled to his equitable lien on the land, and his taking the notes under the circumstances should not be deemed a waiver thereof.</p> <p>Same. — Personal Remedy — in such case the husband is really the contracting party in the purchase of the land, and the vendor, having taken his personal obligation for the unpaid purchase-money, must exhaust his remedy thereon before proceeding to sell the lands under foreclosure of his lien.</p> <p>Same. — Pleading.—Evidence.—Variance.—'Where, in a complaint to enforce such vendor’s lien, it is averred that the husband “ signed said notes, with his said wife, not as surety for their payment, but to show his consent to the execution thereof by his wife,” the notes not being exhibited with the complaint by copy or otherwise, and the 'finding of the court is that the said husband signed such notes as maker, a fatal variance between the allegations and proof is shown, and a personal judgment can not be rendered against said husband on said notes.</p> <p>Same. — Practice.-—Striking out .Averments. — Bill of Exceptions. — Where, in such an action, an averment of the insolvency of the husband is stricken from the complaint, on motion of the opposite party, the plaintiff can not object thereto in the Supreme Court, unless such ruling is made part of the record by a proper bill of exceptions.</p> <p>Promissory Notes. — Execution by Husband and Wife. — A special finding, that notes were given signed'by husband and wife, is equivalent to a finding that the husband executed the notes.</p>

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

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

<p>Promissory Note. —Payable in Bank. — Endorsement before Maturity.— An indorsee of a negotiable promissory note, payable at a bank in this State, in good faith, before maturity and without notice, takes sue., note free from all equities and defences existing between the maker and the payee thereof.</p> <p>Same. — Action by Endorsee against Maker. — Fraud.—Answer.—Pleading.— In an action by the endorsee of such a promissory note against the maker, the answer, after stating matters which would constitute a complete defence to any action on the note by the payee, on account of the procurement thereof by fraud, alleged that the endorsee had knowledge of all such facts at the time such note was endorsed to him.</p> <p>Held, on demurrer, that such endorsee took such note subject to all equities and defences existing between the maker and the payee thereof. Same. — Failure of Consideration. — Fraud.—Evidence.—Burden of Proof.— On the trial of such action, the maker of the note introduced evidence tending to impeach the consideration thereof, and to show the fraudulent manner in which the note had been procured from him as alleged, and then rested.</p> <p>Held, that, upon such proof by the defendant, the burden rested upon the plaintiff to prove that he took such note in ignorance thereof, and that he was a bona fide holder for value.</p> <p>Instruction. — As to instructions in a suit by the endorsee against the maker of a note governed by the law merchant, alleged to have been procured by fraud, see opinion.</p> <p>Practice. — Evidence.—Order of Admission. — Discretion of Court. — A party may introduce his evidence in the order he prefers, subject only to the discretion of the trial court; and, when such court has in its discretion allowed a party to introduce his evidence in the order in which he has offered it, or where the court has required the evidence in regard to some other alleged fact to be first introduced, the ruling in either case would not be available for the reversal of the judgment of such court.</p>

<p>School Trustees. — Power to Execute Promissory Note. — Town.—Corporation. — The board of school trustees of au incorporated town have-power to execute a valid negotiable promissory note, by and in the. name of such trustees, binding upon the school corporation for any debt-contracted for the benefit of its property.</p> <p>Same. — Contract.—Principal and Agent. — Public Agents. — Contracts made by public agents stand upon a different footing from those made by agents of persons or of private corporations.</p> <p>Same. — School Corporation. — A school town or township is a purely pubiic corporation and the trustees thereof public agents.</p> <p>Same. — Promissory Note. — Signature.—Descriptio Persones. — A promissory note, executed upon a consideration moving only to the use and benefit of the school corporation of an incorporated town, and signed bjr the school trustees thereof with their individual names, followed by their official designation, is not the note of the persons whose names are signed thereto,'but the note of such corporation, and’ bidding thereon-</p>

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

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

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

<p>Railkoad. — Killing of Animals. — Pleading.—A complaint against a railroad company for the negligent killing of live-stock, which does not allege that the killing was done without fault or negligence on the part of plaintiff, is not good at common law.</p> <p>Same. — Fencing Track.- — In a complaint against a railroad company, under the statute, for the killing of animals, an allegation that, at the place where the animals entered upon the track, the road was not fenced, is sufficient; if it is not the duty of the company to fence the-road at the place in question, such fact is matter of defence.</p> <p>Same. — Statutory Liability. — Under the statute, it is not the place of the killing, that governs the liability of a railroad company, but the place-of the entry, of the animals upon the track.</p>

<p>Mechanic’s Lien. — Uncertainty of Description in Notice. — Notice of an intention to hold a mechanic’s lien on a “part of lot No.'llO,” and the improvements thereon, in a certain plat of a city named, is inoperative and void for uncertainty in the description of the part on which the lien was claimed.</p> <p>.Same. — Void Description — Pleading.—Such void notice can not be made effective as a lien on some specific portion of such lot by averment, that the notice was intended to apply to such specific part.</p>

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

<p>Decedents’ Estates. — Action to set aside Final Settlement. — Statute of Limitations. — An action to set aside a final settlement of an estate for fraud or mistake must be brought within three years after the final settlement is made, under the statute authorizing such an action, and it does not fall within any of the provisions of the general statute of limitations.</p> <p>Same. — Interest of Plaintiff. — Pleading. — In such action, the plaintiff must show that he had such an interest in the estate as caused him to be injured by the mistake or fraud complained of.</p> <p>Guardian and WArd. — Marriage of Female Ward. — Upon the marriage of a female ward, and the consequent maturity of her claim for a setdement with lier guardian, the fiduciary relation of such guardian ceases, and he becomes simply her debtor for the balance of her means in his hands not accounted for.</p>

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

<p>Promissory Note. — Recourse of Endorsee against Endorser for Loss in Suit by Usury. — Where, in an action by the endorsee against the maker of a promissory note, the latter successfully pleaded usury as to a part thereof, such endorsee may recover from the endorser the loss so sustained.</p> <p>Same. — Notice to Endorser by Endorsee. — Demand.—If, in such action, the endorser is notified of its pendency and of the plea therein, and fails to appeal- or assist, suit may be maintained against him by the endorsee for the loss sustained in such action against the maker of the note, without giving notice of the result thereof to the endorser, and without making any demand of him to pay such loss.</p> <p>Same. — Pleading.—Complaint.—In such suit against tlie endorser, the averment in the complaint, that “said note has long since become due .and is unpaid,” is a sufficient allegation that the amount sued for therein was due and unpaid.</p> <p>Evidence. — Instmction to Find for Plaintiff, when Proper. — Where the evidence clearly makes out a case for the plaintiff, and there is no evidence to contradict it or to establish a defence, it is proper for the court to instruct the jury to find for the plaintiff.</p> <p>Same. — Sufficiency of, to Warrant Court in Directing a Finding. — See opinion.</p>

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

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

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

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

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

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

<p>Evidence. — Expert Testimony. — Relative Value of Mutual Services. — In an action upon an account for services rendered, where there have been mutual dealings between the parties, it is not error to permit a witness familiar with the facts to testify as to the relative value of services and commodities which entered into the mutual account of the parties.</p> <p>Same.— Question for Jury. — Practice.—In such case, the value of such testimony may be tested by cross-examination, so that the jury may properly estimate the weight to which it is entitled as evidence.</p>

<p>Mechanic’s Lien. — Who may have Lien — Persons furnishing material for, or performing labor upon, a building, may have a lien therefor, though furnished not to the owner, hut to his contractor.</p> <p>Same. — Statute Construed. — Notice, Time of Filing, Time of Commencement of Action to Enforce Lien. — By sections 650 and 651 of- the statute, 2 R. S. 1876. p. 268, in regard to the enforcement of mechanics’ liens, one who huilds a complete and entire building for another, whether he furnished the materials or not, may acquire a lien thereon, by filing his notice thereof, within sixty days after the completion of such building, and may bring his action to enforce such lien, at any time within a year from such completion.</p> <p>Same. — One who performs work on, or furnishes materials for, a part only of a building, must file his notice of intention to hold a lien within sixty days from the completion of the work or the furnishing of materials, and must bring his action to enforce the same within a year from the completion of such work or the furnishing of such materials, unless credit therefor be given.</p> <p>Woods, J., dissents.</p>

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

<p>Covenant. — Warranty.—Eviction.— Ouster. — Paramount Title. — Possession. — Nominal Damages.- — The owner of certain real estate died intestate, leaving a widow and a daughter, A. R. The widow afterward intermarried with E., who joined her in a deed conveying an undivided one-half of such real estate to IT. E., subsequently, as guardian of A. R., conveyed to H. the remaining half of such real estate, who executed a mortgage on the whole tract to said F., as guardian, to secure a note given therefor. Afterward H. conveyed said real estate, by warranty. to the plaintiff, subject to said mortgage. Subsequently, A. R. having married caused the same to be sold on decree of foreclosure of said mortgage, and, after the expiration of a year, received a sheriff's . deed therefor, and took possession thereof and evicted the plaintiff therefrom. Suit to recover on the covenants of his deed.</p> <p>Held, that the possession of A. R., under said sheriff’s sale and deed, was not an ouster of the plaintiff under a paramount title, but simply a transfer and continuation of the possession of H. and the plaintiff by the conveyances to them.</p> <p>Held, also, that, while neither of said deeds may have been operative to convey the title intended to be transferred, yet so long as possession is held thereunder, only nominal damages can be awarded for breach of the covenants of the deed.</p>

<p>Practice. — Brief.—Waiver.— Supreme Court., — Questions not discussed' in the brief of counsel will be regarded as waived by the Supreme ■ Court.</p> <p>'Same. — Parties to Action. — How Unincorporated Companies Must Sue. — An unincorporated company must sue in the individual names of its members, and not in the name of such company.</p> <p>Pleading. — Designation of Corporation in Complaint. — Town Trustees.— Where, in the complaint, the plaintiff therein is designated as “The board of school trustees for the town of,” etc., such designation implies that such plaintiff is a corporation, and such complaint is sufficient on demurrer thereto for want of legal capacity to sue.</p> <p>Same . — Estoppel.—A party contracting with a corporation as such is es-topped to deny its corporate existence and its power to sue as a corporation.</p> <p>¡Same. — Contract, Execution of by Town Trustees. — Public Corporation.— Where, in a contract, it is manifest that the parties whose names are signed thereto, were acting as the trustees of a public corporation, although executed in their own names, such contract is not their personal contract, but that of the public corporation of which they are the trustees.</p> <p>Same. — Complaint on Bond and Contract. — Consideration.—Where, in a complaint upon a contract, the bond given to secure its performance filed therewith recited “that the said J. M. shall faithfully comply with the conditions of the foregoing contract,” etc., such contract and bond will be considered as constituting a single instrument, and the consideration for the contract a sufficient consideration for the bond.</p> <p>¡Same. — Assignment of Breaches of Contract and Bond. — Complaint.—Demurrer. — A. stipulation in a contract for the repair of a building, that the contractor is to furnish all the material therefor, must be construed to mean that such contractor is to furnish the same at his own expense; .and a complaint, assigning as breaches of such contract and bond his failure to pay therefor, is sufficient on demurrer.</p>

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

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

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

<p>Pleading. — Demurrer.—Waiver.—Filing' an answer before the court has made a ruling upon a demurrer previously filed, is a waiver thereof.</p> <p>Same. — A party, by amending one paragraph of a pleading, does not waive the exception reserved to a ruling upon a demurrer to another paragraph of the same pleading. ’</p> <p>Same. — A pleading can not perform the double function of an answer and cross complaint.</p> <p>Same. — Cross Complaint. — Where the cancellation of a note and mortgage and the recovery of personal property are sought, a cross complaint seeking to settle title to real estate, to which no claim is made, is not a proper pleading.</p> <p>Venire de Novo. — In an action to cancel a note and mortgage and to recover personal property, the following verdict was returned: “We, the jury, find for the plaintiff, and that the defendant unlawfully detained the property mentioned in the plaintiff’s complaint, and that said property is of the value of three hundred and eighty-four dollars, and we assess the plaintiff’s damages at four hundred dollars for the retention thereof.”</p> <p>Held, that a motion for a venire de novo was correctly overruled. Damages. — To allow, as damages for the detention of property, a sum (exceeding its value is not; in itself, an erroneous assessment.</p>

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

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

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

<p>Duress. — 1Threats to withhold the payment of a debt, or to refuse the performance of a contract, or to do an injury which may at once be redressed by legal process, is not duress.</p> <p>Same. — Who may Plead. — Only those affected by unlawful fear or restraint may plead duress in avoidance of their contracts; sureties can not plead the duress of their principal in discharge of their own liability.</p> <p>Trustee of Express Trust. — Bond.—Uuder the law in force in 1873, the trustee of an express trust might be required to execute a bond for the faithful performance of his duties.</p> <p>Voluntary Bond. — When Binding. — When a bond may be required of a person in an official or fiduciary capacity, he may, with sureties, voluntarily execute such a bond as might be required of him, either in advance of, or without, an order of court requiring one to be given.</p> <p>'Trustee of Express Trust. — Investment of Trust Funds. — An investment of trust funds in any ordinary business enterprise by a trustee oí an express trust, without an order from the proper court, is an abuse of his discretionary control over th,e funds so invested, and involves a breach of his duty as such trustee.</p>

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

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

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

<p>Mandate. — Pleading.—Practice.—Cases Modified. — An alternative writ of mandate, when issued, will he taken as in the nature of a complaint in the cause, and must show not only what is claimed, hut also, in itself or in connection with the complaint, petition or affidavit on-which it issued, the ground on which'the claim is made; and the facts stated must he sufficient in law to entitle the party to the writ. The Board, etc., of Clark Co. v. The State, ex rel., 61 Ind. 75; and The Board, etc., of Boone Co. v.The State, ex rel., 61 Ind. 379, modified on this point.</p> <p>Same. — Practice.—Motion to Quash. — Where a general motion to quash a writ of mandate has been overruled, no mere technical objections to the writ will be considered on appeal-to the Supreme Court, unless it be shown that such objections were distinctly raised in the court below.</p> <p>Same. — Pleading.—Demurrer to Complaint. — A demurrer to a complaint for a writ of mandate raises the question of the sufficiency of the facts-averred in the complaint, or complaint and affidavit combined, but can not be carried to the writ, unless addressed to it in terms or by implication.</p> <p>Same. — Such demurrer admits all facts which are properly" averred, and no question can be raised thereon as to the sufficiency of the verification of the complaint.</p> <p>Pkactice. — Striking out Surplusage in Pleading. — The Supreme Court will not reverse a judgment for error of the court below in refusing to-strike from a pleading immaterial matter or surplusage.</p> <p>Change of Venue. — Costs Paid by County from which it is Taken. — Auditor. — The provision of the statute of 1873, relating to the payment of expenses of changes of venue, which requires the auditor of the county from which the change was taken, to issue his warrant oh the treasurer of the same county for the amount allowed and certified by the court trying the cause, is mandatory, and allows the auditor no discretion;, and where, upon his refusal to thus draw his warrant, an alternative writ of mandate is issued against him to show cause, it is not competent for him to attack the order of the court making the allowance, unless, perhaps, for some cause apparent on the face of the order.</p> <p>Same. — Accounts Between Counties. — Waiver.—When notice is given the board of commissioners of the county from which a change of venue-has been taken, of the application of the commissioners of the bounty to which the change was taken, to have the accounts between the counties, growing out of the change of venue, audited by the court trying the cause, and no objection is then made by said first named board, such board can not be heard to make any objections to said accounts in the Supreme Court.</p>

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

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

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

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

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

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

<p>Prosecuting Attorney of the Allen Criminal Circuit Court.— Term of Office. — Case Distinguished. — The term of office of the prosecuting attorney of the Allen Criminal Circuit Court was anil is for two years under the law, and no longer. Cropsey v. Henderson, 63 Ind. 268, distinguished.</p> <p>Same. — Governor's Commission for Longer Period. — The law fixes the term of the office, and the Governor’s commission for a longer period will not extend it.</p> <p>Criminal Circuit Courts. — Criminal circuit courts are not circuit courts, hut inferior courts, within the meaning of the constitution.</p>

<p>Pleading.— Complaint. - - Sufficiency of, on Motion in Arrest of Judgment.— Bequest. — Agreement.—A complaint, alleging that the defendant is indebted to the plaintiff in a certain sum “for keeping the defendant’s horse, feeding and caring for the same” for a certain time, and that “the keeping and feeding and caring for said horse” were of a certain value per week, with a prayer for recovery, is sufficient, after verdict, on a motion in arrest of judgment. And such complaint also stated facts from \Yhich both a request and an agreement may be inferred. Practice. — Pleading Cured by Verdict. — A verdict will often aid a defective pleading, and pleadings, which would be insufficient- on demurrer, are often held good after verdict.</p> <p>Same. — Not only mere defects of form, but faults affecting substantive facts, are often aided by a verdict.</p> <p>Same. — Complaint.—Presumptions After Verdict. — After verdict, the complaint will be supported by every reasonable legal intendment, if there is nothing in the record to prevent it.</p>

<p>Highway. — Relocation of. — Appeal.—Change of Venue — Practice.—Appeals from the order of a board of commissioners, establishing 'or relocating a highway, are placed, by section 36 of the act concerning county boards, 1 E. S. 1876, p. 357, on the same footing as ordinary civil actions, and a change of venue thereof from .the judge, for cause, " may be granted.</p> <p>Same. — Names of Owners of Lands. — Evidence.—Motion to Dismiss. — If, upon trial of such action, the evidence showed that the names of all the owners, occupants ®r agents of the lands through which the road would pass, were not set forth in the petition, it is a matter of defence and not a cause for dismissing the action.</p> <p>Same. — Trial de Novo on Appeal. — Upon an appeal from an order of a board of commissioners establishing or changing a highway, the cause must be tried de novo; that is, all questions in issue before the commissioners must be again tried in the circuit court.</p> <p>Same. — Remonstrance. —Answer.—Issue.—A remonstrance filed either against the public utility of the proposed highway, or on account of damages, constitutes an answer to the petition, and tenders ah issue which must be examined by the commissioners, and must be again tried, on appeal, in the circuit court.</p> <p>Same. — Where the remonstrance is against the public utility of the road, and on account of damages, two issues are presented, which must be tried by the circuit court on appeal.</p> <p>Same. — Right to Remonstrate. — Public Utility . — Damages.—Waiver.—The right to remonstrate against the utility of a road is not waived by first remonstrating on account of damage.</p> <p>Same. — Parties. Petitioner and Remonstrant. — Practice.—In such case the petitioner ought to be made the plaintiff and the remonstrant the defendant in the circuit court.</p> <p>Same. — Appeal.—Board of Commissioners not Proper Party. — Supreme Court. — The board of commissioners is not, either in the circuit or Supreme Court, a proper or necessary party to an appeal from an order of such board establishing or relocating a public highway.</p>

<p>Statute oe Frauds. — Original Promise. — Case Overruled. — Where A. verbally agrees to. indemnify B. against all loss, if he will enter into a recognizance for the appearance of C., who is under indictment for a felony, such agreement is an original promise, and not within the statute of frauds; and B. may recover from A. upon such verbal agreement whatever loss he may sustain by reason of C.’s forfeiture of the recognizance. Brush v. Carpenter, 6 Ind. 7S, overruled on this point. . Same. — Guaranty.—Indemnity.—There are important differences between, a contract of guaranty and one of indemnity, the former being a collateral undertaking, and the latter an original one.</p> <p>Same. — The rule is, that, if the third party is not liable, then the undertaking is not within the statute.</p> <p>Jurisdiction. — Collateral Attack upon Judgment. — Where a collateral attack is made upon the judgment of a superior court of general jurisdiction, and the record is silent upon the subject, jurisdiction will be-presumed. •</p>

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

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

<p>Judicial Circuits. — Legislature may Create and Limit. — Fortieth Circuit. — The Legislature has the power to create and limit the duration of judicial circuits. The Fortieth Judicial Circuit, consisting of the counties of Steuben and DeKalb, was created by the act of March 21st, 1S79, and expired by limitation of the same act, on the 1st day of October, 1880; and all criminal proceedings of the Steuben Circuit Court thereafter, as part of the Fortieth Judicial Circuit, were. void.</p>

<p>Criminal Law. — Pleading.—Felony.—Prosecution by Affidavit and Information. — Statute Construed. — In a prosecution for a felony, by affidavit and information, under the act of March 29th, 1879, Acts 1879, p. 143, the affidavit must state the facts which give the court authority to 'try the defendant on affidavit and information, and, if it does not, such defect may be reached by a motion in arrest of judgment.</p> <p>Same. — Such statute does not contemplate that the affidavit may state less than is required to be stated in the information.</p> <p>Same. — The facts authorizing- such mode of prosecution should be verified.</p> <p>Same. — Arrest of judgment. — Assignment of Error.— Practice. — Whatever is sufficient to arrest a judgment may be assigned for error on appeal.</p>

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

<p>Appeal. — Amount in Controversy. — Supreme Court. — Dismissal.—Under section 550 of the code, as amended by the act of March 14th, 1877, Acts 1877, Spec. Sess., p. 59, which amendatory act became a law on the 2d day of July, 1S77, an appeal can not be taken to the Supreme Court, in. cases originating before a justice of the peace, where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars.</p>

<p>Life-Estate. — Words of Conveyance. — A conveyance of real estate to A., subject to the condition expressed in the deed, that “B. is to have the privilege of a support off of said lands during his lifetime, without incumbrance,” conveys a life-estate in the land to B., although B. is not named in the deed as a vendee.</p> <p>Deed. — Construction of. — Such deed should be so construed as to carry out the intention of the grantor, and “without encumbrance” was intended to mean without incumbrance of, or impediment to, the rights of said B.</p> <p>Same . — Delivery.—Acceptance.—A delivery of a deed to one of several grantees is a sufficient delivery; and where such deed conveys land to one, subject to the life-estate of another, a claim of title under the deed by the tenant for life implies an acceptance of the conveyance on his part.</p> <p>Waste by Tenant for Life. — Action for Partition. — Where a tenant for life commits actionable waste, he will be liable to all of the remainder-men ; but such claim can not be adjusted in an action for partition of the land, when some of the remainder-men are plaintiffs and others defendants.</p> <p>Same. — Pleading.—In a complaint against a tenant for life for waste, an allegation that he sold and destroyed timber, without some description of the timber sold, or some statement of the attending circumstances, is too indefinite to show waste on the part of such tenant for life.</p> <p>Partition. — Bemainder-Man.—A partition of lands by remainder-men can not be had during the existence of a life-estate therein.</p>

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

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

<p>Promissory Note. — Endorsement.—An endorsement on a promissory-note, “Payable to J. H. for me," is insufficient to transfer the title to such note.</p> <p>New Trial. — Affidavits.—Becord.—Bill of Exceptions. — Supreme Court.— Where affidavits in support of a motion for a new trial are not made a part of the record, either by a bill of exceptions or by an order of the court,, they can not be considered by the Supreme Court.</p> <p>¡Same. — Evidence.—Practice.—Where the evidence is not in the record, no question is presented to the Supreme Court on the overruling of a motion for a new trial.</p> <p>(■Same. —Newly - Discovered Evidence. — Cumulative. —Newly-discovered evidence, which is merely cumulative, is not sufficient cause for a new trial.</p> <p>Brief. — Waiver.—Supreme Court. — Questions not discussed by counsel are regarded as waived in the Supreme Court.</p>

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

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

<p>Failure of Consideration. — Contract.—Guaranty.—Attorney.—Notice.. —Judgment.—A. and another sold and assigned to B. a judgment which they had commenced a suit to revive. A. guaranteed to B. that the judgment was wholly unpaid. Part of the consideration of the sale' was the agreement of B. to pay C., the'attorney of the assignors, his-fee in the pending suit to revive the judgment. In such suit payments, were proved and allowed, reducing the amount due on the judgment to a greater extent than was claimed by C. as a fee therein. Suit by C. against B. to recover for his services under such agreement.</p> <p>Held, that the consideration for the agreement of B. to pay C.’s fee had' failed.</p> <p>Held, also, that A. and his co-assignor, having commenced the suit to* revive such judgment, had notice thereof and were bound thereby.</p>

<p>Promissory Note. — Payment.—Pleading.—Answer to Whole of Complaint. —To a complaint hy an endorser against the maker, to recover for the payment hy him as such endorser of three promissory notes, an answer that, before the commencement of the suit, the defendant “fully paid and satisfied the note herein sued on,” is insufficient, because pleaded to the whole complaint, and setting up matter in bar of but part.</p> <p>Same. — Contract.—To a complaint by an endorser of a promissory note, to recover for money paid by him as such endorser, ah answer that, plaintiff had been fully paid by moneys received from the estate of a deceased maker of the note, rents from a mill belonging to said estate, and other sources, is bad, if it does not aver that such moneys were received by the plaintiff under circumstances which made him indebted • to the estate therefor, and that it had been agreed that such indebtedness of plaintiff to the estate should operate as a payment, pro tanto,. of the money sued for in the complaint.</p> <p>Pleading. — Practice.—Defects in Complaint. — Where a demurrer for want, of sufficient facts has been erroneously overruled, and exception duly reserved, the defect in the pleading demurred to can not be aided by section 580 of the code. 2 B. S. 1876, p. 246.</p>

<p>Courts. — Power of. — Vacating Judgment. — Fraud.—Equity.—The' power and right of courts of equity to set aside judgments procured: by fraud are now unquestioned.</p> <p>Same. — Review of Judgment. — Statute Construed. — The statute concerning . the review of judgments does not restrict the power of the court to set aside judgments to the causes and modes therein specified, to the exclusion of all other causes and modes.</p> <p>Same. — Courts possess other powers than those expressly conferred by statute.</p> <p>Same. — Statutory Construction. — Where the statute prescribes the causes for which a judgment may be set aside, and provides a mode of procedure, it must be followed and obeyed.</p> <p>Same. — Pleading.—Complaint.—Article 28 of Code does not Apply to Cases of Fraud. — Case Disapproved. — Article 28 of the code, Concerning review of judgments, is intended to apply to cases where a re-examination or reconsideration of the proceedings is necessary, and a complaint thereunder, seeking a review, must make.the record of the proceedings sought to be reviewed a part thereof. Such article, however, does not apply to cases where relief is sought on the ground of fraud in obtaining the judgment. In such case it is not necessary to make the record a part of the complaint, nor does the limitation of three years apply to such case. Quick v. Goodwin, 19 Ind. 438, disapproved.</p> <p>Same.— Judgment Obtained by Violation of Compromise. — Fraud. — A judgment obtained in violation of an agreement of compromise, by which an appearance to the action was prevented, is such a fraud as entitles the party against whom judgment is taken to have it vacated and set aside.</p>

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

<p>Criminal Law. — Nuisance.—Disorderly Mouse. — Repeal of Statute. — Section 17 of the liquor law, 1 R. S. 1876. p. 872. repeals section 10 of the misdemeanor act, 2 R. S. 1876, p. 462, entirely, and section 8 of the same act, as far as it is inconsistent therewith.</p> <p>'Same. — Section 17 Construed. — The penalty provided in section 17 does not limit the application of such section to places only where the keeper thereof may have a license to sell intoxicating liquors.</p> <p>•Same. — Misdemeanor.—Indictment.—Information.—Misdemeanors may he prosecuted in the circuit court, either by indictment, or by affidavit and information, and, so far as practicable, the practice in either mode .must be governed by the law applicable to prosecutions on affidavit.</p> <p>Same. — Separate Trial. — Discretion of Court. — It is discretionary with the trial court to allow separate trials to defendants jointly indicted for a misdemeanor.</p> <p>■Same. — Evidence.—Upon a trial on an indictment for maintaining a nuisance, evidence as to the crowds on the sidewalk in front of or near the saloon of the defendants, is admissible.</p> <p>Practice. — Affidavit for Change of Venue. — Record.—Rill of Exceptions.— Where a bill of exceptions recites that “the defendants filed their affidavit and motion for a change of venue from the judge, in the words and figures, to wit,” followed by the statement, “which affidavit and motion are inserted on pages 1 and 5 of this record,” where there appeared an order-book entry of the filing of such motion, and the affidavit in full;</p> <p>■ Held, that such affidavit is not properly a part of the record on appeal.</p> <p>Held, also, that it is only where a paper or document is already a proper part of the record, that the clerk transcribing a bill of exceptions which •requires the embodiment of the paper or document in a “here insert,” ’may refer to the part of the record where the same is already found, Instead of making another copy.</p> <p>Same. — Motion in Arrest. — Form of Judgment. — How to Correct. — Supreme Court. — A motion in arrest of judgment comes before, and does not challenge the form of, the judgment, or the validity of any part thereof. Objection to the form of a judgment should be made in the trial court, and the rulings of the court thereon, with the exceptions thereto, preserved by a bill of exceptions, to present the question in the Supreme Court.</p>

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

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

<p>Principal and Agent. — Contract.—When Accepted as Entirety by Principal. — Remedy.—Where an agent makes a sale without disclosing his principal, the latter may claim the contract as his own and bring any suit thereon which the agent could have maintained if he had made the sale for himself. But, in such case, the principal must take the contract of sale as a whole, as the agent made it. He can not accept the naked sale, and sue for the value, rejecting the special consideration and mode of payment stipulated for. He can have, under the contract, only such remedies as the agent could have had if he had been the principal.</p> <p>Same. — Ratification by Principal. — If the contract of sale by the agent was unauthorized, and the principal is not in some way estopped, he may reclaim the property sold, but, by bringing suit for the value thereof, he thereby affirms the contract of sale.</p> <p>iPromtse. — Statute of Frauds. — Where one promises to pay for an article delivered to another, such promise is an original one, and not within the statute of frauds.</p> <p>Same. — Specific Performance. — Note and Mortgage. — Damages.—Disaffirmance of Contract. — The specific performance of a promise to execute a note and mortgage for the sale of personal property can not be enforced, but for a breach thereof there may be an action for damages; and if such property was fraudulently obtained, upon a promise to ■execute a note and mortgage, the vendor could doubtless disaffirm .the contract and reclaim the property.</p>

<p>New Tkial. —Newly-Discovered Evidence. — Record. —Appeal.—Supreme Court. — Where the evidence given on the trial is not in the record, the Supreme Court can not review the action of the trial court in refusing to grant a new trial for newly-discovered evidence.</p>

<p>Criminal Law. — Assault anil Battery. — Felonious Intent. — Verdict.—Acquittal. — Where, on an indictment for assault and battery with intent to-kill, a verdict was returned, finding the defendant guilty of assault and! battery only, it is equivalent to an express finding that the defendant is not guilty of the felony charged.</p> <p>Same. — Evidence.—Former Conviction. — Once in Jeopardy. — On said trial-the evidence showed that the defendant, prior to the finding of the-indictment, had been arrested, tried, found guilty and fined before a. justice of the peace for the same assault and battery, the injured party-having been subpoenaed as a witness.</p> <p>Held, that the defendant having once been put in jeopardy, the verdict on the trial of said indictment was contrary to law. and a judgment thereon erroneous.</p> <p>Same. — Plea of Former Conviction. — Evidence of a former conviction for the same offence is admissible under the general issue.</p>

<p>Insane Person. — Void and Voidable Acts. — Ratification.—The acts of a person of unsound mind, whose insanity lias not been judicially ascertained, and who is not under guardianship as provided by law, are not absolutely void, but merely voidable, and are subject to ratification or disaffirmance upon the removal of the disability.</p> <p>■Same. — Pleading.—Descriptio Personae. — A complaint by a-guardian of an insane person, to have an act of such person set aside as void, should allege that such person had been duly adjudged to be of unsound mind, and that such guardian had been legally appointed and qualified. The language, UA., guardian of B., a person of unsound mind, complains,etc., is not sufficient, as it leaves to inference the facts that should be distinctly alleged.</p> <p>Same. — Presumption of Fact. — Where an insane person, by his guardian, seeks, by an action, to have the act of such person, in becoming replevin bail on a judgment, set aside because of his alleged unsoundness of mind at the time of such act, and the complaint does not allege that, at the time he thus became replevin bail, his insanity had been judicially ascertained, or that he was then under guardianship, it will be assumed that at that time he had not been judicially found to be of unsound mind, and that he was not under guardianship.</p> <p>Same. — Continuing Disability. — Ratification.—In such case the complaint is not sufficient, if it fails to aver that the alleged unsoundness of mind of the person at the time of the commission of the act sought to be set aside was a continuing disability, or that, upon its removal, such person had not ratified, but disaffirmed, such act.</p> <p>Replevin Bail. — Confession of Judgment. — When a party executes a recognizance of replevin bail for the payment of a judgment at or before the expiration of the time allowed by law for the stay of execution, he thereby confesses judgment in favor of the judgment plaintiff for the amount of such judgment, and from the date of such recognizance he and his property are bound thereby.</p>

<p>Sheriff's Sale.— Title of Purchaser — Redemption.—The title of a purchaser of real estate sold at a sheriff's sale,when perfected, relates back to the date of such sale, and such purchaser has a right of action to recover the rents and profits for the year after such sale, if the property he not redeemed.</p> <p>Assignment for Benefit of Creditors. — Rents and Profits of Real' Estate of Assignor Sold on Execution in Hands of Assignee. — Purchaser • Entitled Thereto. — The owner of real estate sold on execution made an assignment of his property, under the statute, for the benefit of his creditors, and turned the possession of such real estate over to his assignee, who collected the rents therefor during the year allowed for redemption. The owner thereof being insolvent, and such real estate not having been redeemed, suit was brought by the purchaser to recover the funds from the rental of such property in the hands of the assignee. Held, that such rent money must be regarded as being the proceeds of lands which belonged to the purchaser at the time they accrued, and which he could recover in the hands of the assignee.</p> <p>Held, also, that an assignment for the benefit of creditors, under the statute, should not he deemed to create any right in the assignee, or the creditors for whom lie is trustee,which can exclude the equitable claims, of others in their origin antedating the assignment.</p>

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

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

<p>Pleading. — Must Show Title. — Bill of Exchange. — Promissory Note. — The complaint upon a bill of exchangé or promissory note must show a right in the plaintiff to maintain an action thereon.</p> <p>Same. — Insufficient Allegation of Title. — Where the complaint in an action upon a bill of exchange shows that the drawer thereof is deceased, the allegation in such complaint, that the plaintiffs “are his successors in and to his business, and as such are the legal and bona fide holders of the'bill of ¡exchange,” is an insufficient averment of title.</p> <p>Same. — Specific Statement Governs. — A specific statement of title is the one which must govern.</p> <p>Bills of Exchange. — Ownership of. — By merely becoming the successor in business of another, one does not become the owner of bills of exchange of which the other died possessed.</p> <p>Partnership. — Notice of Dissolution. — To whom Due. — The rule, that notice of the dissolution of a partnership must be given to those with whom a firm has previously dealt, does not require actual notice thereof to be given to those with whom the firm has never dealt, although such persons may have acquired a knowledge of the members of such partnership, as the clerks or salesmen of one with whom the firm did have dealings.</p> <p>Same. — Nor does such rule require notice to be given to those who as agents represent the person with whom the firm deals, but only that it be given to the principal.</p>

<p>Former Adjudication. — Pleading.—A plea of former adjudication need not contain a transcript or copy of the judgment therein, and if filed with such plea, it can not be regarded as a part thereof.</p> <p>Same. — When Judgment in Former Suit a Bar. — It is only where the point in issue has been determined in a former suit, that the judgment therein is a bar to a subsequent action; but if the suit is discontinued, or the plaintiff was non-suited, or for any other cause there has been, and could have been, no judgment of the court on the matter in issue, the proceedings are not conclusive.</p> <p>Same. — Point in Issue. — Question of Fact. — Demurrer.—Pleading.—Whether the point in issue was adjudicated is a question of fact, and the court can not, on a demurrer, go beyond a plea, averring that it was adjudicated, to determine that fact.</p>

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

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

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

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

<p>County Commissioners. — Com not Offer Reward for Airest. — Contract.— Ultra Vires. — A board of county commissioners has no power to aid in the arrest, prosecution or conviction of a person charged with the commission of crime, either by an offer of reward or by the employment*of detective or professional skill; and a contract made by such board for such purpose, not entered of record, is ultra vires, and can not be enforced.</p>

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

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

<p>Will. — Probate.—Pleading.—Until a will lias been probated, it can neither operate to vest or establish, nor be used as evidence of, a right claimed thereunder; and a complaint to establish title thereunder must allege that such will has been probated in some county in this State, either as a domestic or foreign will.</p> <p>Same. — A will, when properly probated, is operative from the date of the testator’s death.</p>

<p>Constable. — Action on Bond. — Pleading. — Complaint. — Accessory Averments for full Damages. — Nominal Damages. — Although the complaint in an action on a constable’s bond for failure to collect a judgment on execution is insufficient, as a demand for full damages, for the want of a direct averment that the execution defendant had sufficient property subject to execution to satisfy the same or some part thereof, and for not averring the facts constituting the return thereon of “No property found” a false return, and for not averring the value of the property charged in the complaint to have been improperly set off to the execution defendant as exempt from execution, yet it may, nevertheless, be sufficient for nominal damages, and therefore sufficient on a general demurrer thereto.</p> <p>Same. — Nor can these omitted averments be supplied by the allegation, that, by the delay of such constable, the execution defendant was enabled to and did dispose of all his property subject to execution.</p> <p>Same. — Evidence. — Recovery. — Practice. — The substantial l-ights of a plaintiff can not be held to have been abridged by any ruling of the trial court upon the evidence, however erroneous, when he has, nevertheless, obtained judgment for all his complaint entitled him to recover.</p>

<p>Pleading. — Partial Answer. — Each paragraph of answer must fully answer the entire complaint, or so much thereof as it purports to answer.</p> <p>Receipt. — Parol Evidence. — An ordinary receipt may he explained, controlled, qualified or even contradicted hy parol evidence; and receipts-of judgments on the record stand upon the same footing.</p> <p>Estoppel. — Every estoppel must he certain to every intent, and not he taken hy argument or inference.</p> <p>Same. — Application of. — The doctrine of estoppel can have no application, where everything in relation to the transaction is equally well known, to both parties.</p>

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

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

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

<p>Ditches and Drains. — Assessment of Benefits. — County Commissioners.— Finding. — Collateral Attack. — Statute Construed. — Under the act of March 10th, 1873,1R. S. 1876, p. 41S, concerning ditches and drains, one who is not a member of an association organized under said act can not, on an appeal from the assessment of benefits and injuries, attack the validity of such assessment on the ground that the petition presented to the board of commissioners, asking the appointment of appraisers, was not signed by the requisite number of land-owners; the finding of such hoard, in such case, that a proper petition had been presented; and appraisers appointed thereunder, unappealed from, is final and conclusive, and can not he attacked collaterally. „</p> <p>Same. — Duty of Commissioners. — Petition.—Appraisers.—Insuch case,when the hoard of commissioners have found that a proper petition, properly signed, has been presented, and has made the order for the appointment of appraisers, its jurisdiction therein was at an end.</p> <p>Same. — Appeal.—Although said act of March 10th, 1873, does not in terms provide for an appealfrom the finding and order of the county board on such petition for the appointment of appraisers, yet an appeal may be taken therefrom by “any one aggrieved,” under section 31 of the act in relation to county boards, 1 R. S. 1876, p. 357.</p>

<p>Fraudulent Conveyance. — Grantee. —Notice. — Consideration. —The grantee in a fraudulent conveyance, who has paid a valuable consideration, can not be affected thereby, unless he had notice of the fraudulent purpose of the grantor.</p> <p>Same. — Husband and Wife. — Conveyance.—Inchoate Interest of Wife. — The relinquishment by a wife of her inchoate interest in the lands of her husband is a sufficient consideration to support a conveyance to her of part of the lands of her husband.</p> <p>Same. — Agreement.—An agreement by a husband to convey certain land to his wife in consideration that she would relinquish her inchoate interest in his lands, which she did, is valid though not in writing. Same. — Moral Obligation. — Consideration. — Such agreement is founded on a valuable consideration, and creates a moral obligation, which the husband had a right to discharge.</p> <p>Statute oe Frauds. — Waiver.—Moral Obligation. — Agreement.—In cases where there is an existing moral obligation, the debtor may waive the provisions of the statute of frauds, and execute the agreement although it may be within the statute.</p>

<p>Real Estate, Action to Recover. — Title.—In actions for the recovery of real estate, the plaintiff must recover, if at all, on the strength ' of his own title.</p> <p>Evidence. — Sheriff’s Sale. — Proof Necessary in Action against Party other than Execution Defendant. — In an action by a purchaser at a sheriff’s sale, against the execution defendant, it is sufficient to warrant a recovery to show the judgment, the execution, the sale and sheriff’s deed; but, when it is against a party other than the execution defendant, it must be shown, in addition, that the execution defendant had title in the premises to which the judgment lien attached.</p> <p>•Same. — Proof of Title in Demote Grantors — Proof of title in remote grantors, respectively, is necessary to render the conveyance of a subsequent grantee effectual as evidence of title.</p> <p>Same. — Failure to Admit Evidence, when not Available as Error. — Where the evidence offered and excluded by the trial court would not have supplied a fatal defect in the evidence upon which the plaintiff relied for a recovery, no substantial injury was done by its rejection.</p>

<p>Highway. — Location of. — Public Utility. — Ho person lias the right to open and maintain a highway over the land of another without his consent, where such highway has been found not to be of public utility. Same. — Eminent Domain. — When Invoiced. — The right of eminent domain can only be invoked for the compulsory taking, or the enforced appropriation, of private property, when some public exigency requires the exercise of that sovereign right.</p> <p>Same. — When a highway petitioned for has been found not to be needed for public use. public exigency does not require that it shall be opened and maintained.</p> <p>Same. — Constitutional Law. — So much of section 24 of the act in relation to highways, 1 R. S. 1876, p. 533, as implies that, after a contemplated highway, or a change in a highway, has been found not to be of public utility, itmay nevertheless be opened or made and maintained by the petitioner therefor, at his own expense, is unconstitutional and void.</p>

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

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

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

<p>Guardian and Ward. — Report.—Exceptions.—Pleading.—Practice.— Demurrer. — Where an exception to a guardian’s report charges that six per cent, interest only has been accounted for, and that ten per cent, should be charged, a question of law, and not of fact, is presented thereby, and the exception is not the subject of demurrer.</p> <p>Same. — Step-Father.—Where an exception to a guardian’s report making1 an allowance to a step-father for boarding and clothing the ward avers, “that H. B. is the step-father of” such ward, but fails to aver that he was such step-father at the time he furnished said board andi clothing, it is insufficient on demurrer.</p> <p>Same. — Approval.—When a guardian's report has been approved by the court, it will be presumed that the court has examined and approved the several items, and the report will be treated as prima facie correct.</p> <p>Same. — Step-Father.—Father.—Support of Child. — A father,’ or step-father, may be allowed compensation for the support of a child, in a proper-case. out of said child’s estate.</p> <p>Jury Trial. — A jury trial is nota matter of right in case of exceptions to a guardian’s report, or in the trial of any matter connected with the administration of the trust, except in certain cases provided for-by statute. ;</p>

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

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

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

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

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

<p>Judgment. — Bevieio oj. — Bill of Exceptions. — Where, in attachment proceedings, a third person, upon his verified petition or affidavit that he is the owner of the attached property, is made a party defendant, the order of the court in admitting such party, if erroneous, is not ‘-an error of law appearing in the proceedings and judgment,” unless the verified petition or affidavit, and the ruling of the court thereon, are made a part of the record by bill of exceptions, or order of court, and the judgment is not subject to bill for review.</p> <p>Same. — A bill of review for error of law appearing in the proceedings and judgment can not be sustained unless the errors are such that the Supreme Court could reverse the judgment on appeal.</p>

<p>Judgment Lien. — Existing Equities — Injunction.—The general lien of a judgment creditor upon the lands of his debtor is subject to all equities which existed against such lands in favor of third persons at the time of the recovery of the judgment; and courts will, by injunction, protect the prior equitable interests of such persons against an attempted enforcement of the judgment creditor’s lien by execution and sale.</p> <p>Equitable Lien. — May be Created by Agreement. — An equitable lien for the purpose of securing the payment of money, may be created in favor of one person upon the land of another by express agreement, which may be enforced in equity, although not in form a legal mortgage. Such an agreement raises a trust which binds the estate to which it relates, and all who take title thereto with notice of such trust can be compelled in equity to fulfil it.</p> <p>Water Works Oo. — Assignment of Water Bents to pay for Bepairs to Dam, etc. — Judgment.—Injunction.—Pleading.—Where a water works company, in consideration of the repair of its dam, etc., assigned its water rents to a lessee, and after the commencement of such repairs a ■creditor of the company recovered a judgment, as to the sufficiency of a complaint by said lessee to enjoin the sale on such judgment of the compan3''’s land and water power, see opinion.</p>

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

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

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

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

<p>Bill op Exceptions. — Time of Filing. — Practice.—Becord.—Where time is given in which to file a hill of exceptions, the record must show that it was filed within the time granted.</p>

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