Volume 73 — Indiana Reports

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

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

<p>Liquok Law. — License.— Verdict. — Fine.—Discretion of Jury. — Supreme Court. — The amount oí a line for selling liquor without license is not exceeding the statutory limit, within the discretion of the jury, and the Supreme Court will not disturb a verdict on account of its amount.</p> <p>Same. — Competency of Juror. — Belief.—Prejudice.— Cases Distinguished.— Where, on empanelling' a jury to try a person indicted for violating tlie liquor law, a juror, on examination as to his competency, states. that he has a prejudice against the sale of intoxicating liquors, and believes such business, though legitimate, immoral and improper, hiit thinks he can waive his prejudice so as -to do the accused justice, and try him as freely as he would a person for the violation of any other law, he is not thereby disqualified to sit as a juror on such trial. Reiser v. Lines, 57 Ind. 431, and Swigart v. The State, 67 Ind. 287, distinguished. Worden, J., dissents.</p> <p>Juror.— Competency of, how Determined. — Discretion.—Although a juror, who has expressed an opinion as to the guilt or innocence of the accused, , is incompetent, yet he may be competent, if he can give an unbiased hearing and verdict according to the law and the evidence adduced; and it is left to the sound discretion of the trial court to say whether, for such cause, the juror is disqualified.</p> <p>Same. — A juror's opinion as to the morality of a particular transaction can not be considered in determining his competency to try one accused thereof.</p> <p>Same!— Opinion Concerning Collateral Question. — Supreme Court. — Iiow far enquiry shall be made of a juror concerning his opinion of the morality of any pursuit or business of the accused, and for what opinions in respect thereto he shall be set aside, are matters in the discretion of the trial court, and its decision will not ho overruled by the Supreme Court unless it-is shown that there has been an abuse of that discretion.</p>

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

<p>¡Ditches and Drains. — Appeal from Board of Commissioners. — Statute Construed. — The language of the proviso in section 10 of the drainAge law of 1875, 1 R. S. 1S76, p. 430, “Any party aggrieved may appeal,"’ gives a general right of appeal from orders entered by aboard of commissioners under authority of any section of such drainage law.</p> <p>Same. — Under section 31 of the act in relation to the organization of county boards, 1 R. S. 1876, p. 357, any one aggrieved has a right of appeal from the orders of a board of county commissioners in relation to the establishment of a ditcli under the act of 1875, supra.</p> <p>Statute. — Buie of Construction. — In construing the meaning of a statute, courts must look to the intention of the Legislature, apparent from the entire statute, and not to the particular phraseology or location of clauses.</p> <p>Jurisdiction. — Presumption.—Where a court of general jurisdiction exercises jurisdiction, it will be presumed that it rightfully assunfed and exercised such authority, unless the record affirmatively shows want of jurisdiction.</p> <p>Same. — Supreme Court. — Practice.—Where a court has jurisdiction of the subject-matter, the record, on appeal to the Supreme Court, must not only affirmatively show the error complained of in the method of getting the particular cause in court, but must also show that the irregularity complained of was brought to the attention of the trial court.</p> <p>Party. — Assessment.—Where an assessment is made against land under the drainage law, supra, and the owner is named in such assessment, this is sufficient to make him a party to the proceedings, although not named in the petition asking an order for the construction of the ditch, and to entitle him to an appeal from such proceedings.</p> <p>Same. — JSfame.—Initials—Identity— Objection to the identity, of a person can not be raised for the lirst time in the Supreme Court, on account of the use of the initial letters of proper names in the assessment made by the commissioners in such proceedings.</p> <p>Summons. — Default.—Judgment.—Mecord.—-Where a judgment is rendered by default, unless the record shows that summons was issued and served, tito judgment will be reversed on appeal.</p> <p>Samis. — Appeal in Vacation —Where an appeal is taken in vacation from an order of a board of county commissioners, summons must be issued and served upon the adverse parties thereto.</p> <p>Waiver. — Jurisdiction.—An appearance, to move to have a default set aside upon the ground of want of notice of an appeal from an order of the board of commissioners, does not waive the right to object to the jurisdiction of the court in which such motion is made.</p>

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

<p>Supreme Court. — Credibility of Witnesses. — Presumption.— Verdict. — The Supreme Court can not judge of the credibility of witnesses, and will presume that the verdict is right, where the evidence, though conflicting, tends to support it.</p> <p>Same. — Practice.—There are cases in which trial courts ought to set aside the verdict of juries; but, if they do not discharge such responsibility, the Supreme Court will not review their action.</p> <p>Demand. — When Unnecessary . — Where one disputed his liability to refund the money for which he is sued, no formal demand is necessary.</p> <p>New Trial. — Newly-Discovered Evidence. — Diligence.—Where a new trial is asked on account of newly-discovered evidence, due diligence must be shown to have been used before the trial, and the general statement in the affidavit, that such diligence was used, is not sufficient to overcome the manifest presumptions against its use, arising from all the facts in the case.</p>

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

<p>Criminal Law. — Pleading—Information—Minor.—Billiards.—In a proseeution for permitting a minor to play billiards, the allegation in the information, “which said billiard table he, the said M. H., then and there being the owner of, and then and there having the care, control and management of,” is not a mere recital, but a sufficient averment of the defendant’s ownership, and that he had the care and management of the table upon which the game was alleged to have been played.</p> <p>Same. — Affidavit.—Jurat.—Clerk.—Presumption.—Signature.—The signature, J. S. IT., clerk, attesting the affidavit upon which such information is based, on appeal, will be presumed to be the clerk of the circuit court.</p> <p>Same. — Judicial Knowledge. — The circuit court ex officio takes notice of its officers and their signatures.</p> <p>Same. — Instruction.—A defendant, on the trial of such case, is entitled to have a specific instruction given to the jury, applying to the facts of the particular case as developed by the evidence.</p> <p>Same. — Where one who has the general management and control of a billiard table is present and allows a minor to play thereon, he is liable to a prosecution, although, at the time, he did not have personal control of such table; and an instruction asked by the defendant limiting his liability to a personal care, management and control thereof, was correctly refused.</p>

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

<p>.Practice. — Assignment of Error. — Change of Venue. — New Trial. — Alleged error in granting a change of venue must be assigned as cause for a new trial, to present such question on appeal to the Supreme Court.</p> <p>Instructions. — Equivalent of Material Allegations.” — An instruction, that the plaintiff was entitled to recover,' “unless the defendant has proved, * * * in substance, the allegations in one or more paragraphs of his answer,” is fairly equivalent to saying that, to constitute a defence, it was only necessary to prove the material allegations in some one of the paragraphs of answer, and was, therefore, sufficient.</p> <p>'Save. — Partial Instruction Supplemented by Another. — Where an instruction given states the law correctly as far as it goes, but stops short of the full statement of the law applicable to the particular question involved, and such instruction is supplemented by another covering the point omitted, no error is committed.</p> <p>Pormer Adjudication. — Lis Pendens. — Judgment on Dismissal. — Evidence. — Appeal.—Judgment. Effect of Reversal of. — Collateral Attack. — In an action on a promissory note, record evidence was introduced which showed that a previous suit had been instituted, on the same note, by the plaintiff against the defendants, the makers, M. and W.. wherein M. made default and W. made defence, and that the issue formed therein was submitted to the court for trial, and that, after hearing the evidence, the court took the cause under advisement; that, on the next day, the plaintiff, by leave of court, dismissed such action, without prejudice, and thereupon judgment was rendered against the plaintiff for costs, from which W. had appealed to the Supreme Court.</p> <p>.Held, that such record did not establish the pendency of a previous action on the same note, but showed a final judgment, which was in full force at the time of the trial.</p> <p>.Held, also, that the only effect of such appeal was to stay execution on the judgment, and that, in other respects, the judgment was binding upon the parties to it during the pendency of the appeal.</p> <p>Held, also, that such record evidence did not show a former adjudication of the subject-matter of the subsequent action.</p> <p>Held, also, that it was the duty of the court to construe such record evidence, and that it was not error for the court to instruct the jury that such evidence was not sufficient to prove either a former adjudication or the pendency of a previous action on such note.</p> <p>JHeld, also, that such judgment of dismissal, though made after an announcement, by the court, of its finding, could not be collaterally attacked, and that the fact that it may have been since reversed, does not divest it of the obligatory character it had at the time it was offered in evidence.</p> <p>.Same. — Stay of Proceeding. — Restraining Order. — If, in such action, W. had, either before answering or going into trial, made a proper application for a stay of proceedings until the appeal in the former action had been determined, he would have been entitled thereto; but, after verdict against him, such application was unavailable.</p>

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

<p>Decedents’ Estates. — Vacating Sale. — Increased Offer. — The provision of the statute, that, in sales of real estate made by administrators and guardians, the court may vacate the sale when it appears that a sum exceeding that bid by ten per cent., exclusive of the expense of the sale, can be obtained, applies, by implication, to sales of personalty made under order of the court, and the court may, in the exercise of a sound discretion, refuse to confirm a private sale of personalty when it is shown that such an advance can be obtained.</p> <p>Same. — Confirmation.—Vested Bight. — Where, by the terms of the order authorizing such a sale, the sale is to be reported to the court for confirmation, until such confirmation is had the contract of purchase does not confer a vested right on the purchaser.</p> <p>Same. — Circuit Courts. — Jurisdiction.—Since the abolition of common pleas courts, the circuit courts have original and exclusive jurisdiction of all matters relating to the settlement and distribution of decedents’ estates.</p>

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

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

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

<p>Highways. — Exemption from Labor. — Township Trustee — Exemption from labor on highways, under section 9,1 R. S. 1876, p. S57, is to be determined exclusively by the township trustee, and the ground merely, on which he might exempt a person from road work, is insufficient to" constitute a defence to an action for failure to perform such work.</p> <p>Same. — Hoad Labor.— Commutation. — Jury.—Exemption.—The amount of exemption allowed in eases of judgments founded on contracts can not be considered by the jury in such action, in determining whether the defendant was too poor to pay the commutation for such labor.</p> <p>Appeal. — Amount in Controversy. — Dismissal.—Where the amount incontroversy, exclusive of interest and costs, does not exceed fifty dollars, the appeal will be dismissed in the Supreme Court.</p>

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

<p>Pleading. — Practice.—Beply.—Waiver.—Going to trial without a reply is a waiver thereof; and, upon the trial, the matter of the answer is deemed controverted, as upon a denial.</p> <p>Promissory Note.— Counter-Claim. — Arrest of Judgment. — A. motion in arrest of judgment, by the endorser of a promissory note, in a suit by the holder against the maker and endorser, will not raise any question arising upon a counter-claim, filed by the maker against such endorser.</p>

<p>Practice. — Bill of Exceptions. — When Must he Filed. — Fxtensionof Time.— When a new trial is claimed on the ground that the verdict or finding is not sustained by the evidence, or is contrary to law, the court, at the time of overruling the motion, may give time to prepare bills of exception showing the evidence, but exceptions generally must be taken at the time the decision is made, and must be reduced to writing within the term at which the decision is made, unless the time is extended beyond the term by an order of the court made during the term.</p> <p>.'Same. — Conflicting Evidence. — Where the evidence is conflicting, the Supreme Court will not review the decision of the trial court.</p> <p>Pleading.— Complaint. — Belief. —The relief to which a plaintiff is entitled must he limited to the case made by his complaint.</p>

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

<p>Principal and Surety. — Extension of Time. — Notice of Suretyship. — Tie-lease. — In an action by the" assignee, against tlie several makers, of a promissory note, proof by two of the makers thereof, that they were only sureties for their co-makers, and that such assignee, after the maturity of the note, in consideration of interest paid in advance, agreed with the principal, without their knowledge or consent, to extend the-time of payment for a definite period, will not release such sureties* unless the assignee had notice of such relation between the makers-when such agreement was made.</p> <p>Same. — New Trial. — Newly-Discovered Evidence. — Diligence.—To obtain a new trial on account of newly-discovered evidence, due diligence must be shown in endeavoring to obtain proof, on the first trial, of the facts, sought to be established.</p>

<p>Criminal Law. — False Pretences. — Indictment.—Where an indictment for obtaining money under false pretences states facts which show that the money was obtained by such false representations as would deceive a man of common intelligence, it is sufficient.</p>

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

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

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

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

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

<p>Names. — Parties.—Demurrer.—Supreme Court. — Where, in a complaint, the surname only of a party is given, such defect can not be reached by demurrer for want of facts; nor can objection for such defect be raised, for the first time, in the Supreme Court by an assignment as error of the want of sufficient facts to constitute a cause of action.</p> <p>■Mortgage. — Foreclosure.—Equities of Subsequent Purchasers of Heal Estate. — Where suit is brought for the foreclosure of a mortgage on real estate which, after the execution and record of such mortgage, or with notice thereof, has been encumbered or conveyed in different parcels, at different dates, in favor of or to different persons, and • the junior encumbrancers, or grantees, are defendants to such suit for foreclosure, the different parcels of such real estate, so encumbered or conveyed by the mortgagor before such foreclosure, will be ordered to be sold in such parcels for the payment of the mortgaged debt, in the inverse order of such junior encumbrance or conveyance thereof by the mortgagors.</p> <p>Same. — But, if, at the time of the foreclosure, the original mortgagor owned any part or parcel of the mortgaged property, free from any jun'ior encumbrance thereon, such part or parcel must be ordered to be sold first, for the payment of tire mortgage debt and costs, before any sale can be made of any other part or parcel of the mortgaged premises.</p>

<p>Execution. — Proceedings Supplementary. — Nulla Bona. — By sections 518 and 522 of the code, a return of nulla bona ou an execution against the property of a judgment debtor is sufficient to entitle the judgment plaintiff to prosecute the proceedings supplementary to execution therein provided.</p> <p>Same. — Proceeds of Partition Sale.— The net proceeds of a partition sale, belonging to a judgment debtor, in the hands of the commissioner appointed in the action for partition to sell the real estate, may be reached by a judgment creditor in proceedings supplementary to execution.</p> <p>Same. — Burden of Proof. — The sale of the real estate for the price charged in the complaint being admitted, the burden was on the defendants to show what disposition had been made of the share of the judgment debtor.</p> <p>Same. — Voluntary Assignment of Proceeds. — A voluntary assignment of such proceeds by the debtor is void as against creditors.</p>

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

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

<p>Practice. — Assignment of Error. — Supreme Court. — Complaint.—Under" section 54 of the code, the sufficiency of the complaint, as an entirety, may he called in question for the first time in the Supreme Court hy a proper assignment of error; hut an assignment that either or any paragraph of complaint does not state facts sufficient to constitute a cause of action is insufficient.</p>

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

<p>Pleading. — Description of Personalty. — In an action for tlie recovery of personal property, tlie complaint must describe tlie property claimed, and a description thereof in one paragraph can not be supplied by reference to another paragraph.</p> <p>Same. — Each Paragraph Must he Complete. — Eacli paragraph of a pleading must be complete within itself, and can not he aided or supplied by reference to the allegations of another paragraph.</p> <p>Same. — Replevin.—Ownership.—Possession.—An action for the recovery of personal property is a possessory action, and a mere possessory right may prevail against an absolute legal title where such title and the right to the possession become separated and are held by different parties.</p> <p>Same. — Complaint. — Demurrer. — A complaint in such action, alleging merely that the plaintiff is the owner of certain personal property, and not that ho is entitled to the x>ossession thereof, and containing no allegation that such proxicrly lias been either wrongfully taken or unlawfully detained, is insufficient on demurrer.</p>

<p>Criminal Law . — Appeal by State. — Notice.—Under section 152, 2 R. S. 1876. p. 411, notice of an appeal by the State in a criminal proceeding, served on the defendant in a county other than that wherein the trial occurred, is insufficient.</p>

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

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

<p>Contract. — Breach.—Damages. — Pleading. —Penalty.—JBeal Estate.— Description. — Conveyance.—P. executed a written contract to N., wherein he agreed to convey to him certain described land in Hardin county, 111., if not then disposed of by parties with whom it was left for disposition; and if so, in lieu thereof, to convey to N.*‘one hundred and sixty acres of land in any one of the following counties in the State of Missouri, viz.: * * * Now, should the said P. fail to compty with the above contract, he forfeits the sum of one thousand dollars to the said N.” Suit by N. for breaches of such contract.</p> <p>Held, that such sum was the penalty named to secure a performance of the contract byP., and N. could only recover by showing a failure to perform and a loss resulting.</p> <p>Held, also, that a complaint on such contract, to show a failure of performance in respect to the land in Hardin county, must aver that it had not been disposed of when such contract was executed.</p> <p>Held, also, that the right to demand a conveyance of the land in Missouri could not be enforced, as the contract with reference thereto was invalid for want of a description.</p> <p>Practice. — Demurrer.—Motion in Arrest. — Judgment.—A court does not, by ruling wrongly upon demurrers, preclude itself from afterward ruling rightly upon a motion in arrest of judgment. It is the duty of the court not to permit a judgment upon a complaint so clearly insufficient as to afford no foundation therefor.</p> <p>Same. — Pleading.—Verdict.—A pleading will be sustained after verdict by every reasonable intendment that can be made from the facts pleaded; but the absence of an essential allegation can not be cured thereby.</p>

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

<p>'Will. — Evidence.—Extrinsic evidence is not admissible to alter, detract from or add to the terms of a will; nor is parol evidence admissible to correct a supposed mistake in a will.</p> <p>'Same. — Purchase of Legatee’s Interest. — Agreement.—Parol evidence of an agreement to purchase the interest of a legatee in a testator's estate does not tend to contradict or vary the terms of the will, even though such agreement involves a release from an obligation imposed by the-will upon such purchaser.</p> <p>Same. — Release of Legacy. — A legatee may release another from the payment of the legacy, although payment be expressly charged upon the-land devised to the person charged with its payment.</p>

<p>Peactice. — Answers to Interrogatories. —Verdict.—Judgment Non Obstante. — Bill of Exceptions. — Supreme Court. — Ail exception to the ruling upon a motion for judgment upon answers to special interrogatories, notwithstanding the general verdict, presents such question to the Supreme Court without any hill of exceptions.</p> <p>Negligence. — Bailrohd.—Bate of Speed of Trains. — In an action hy the administrator of a decedent against a railroad company for causing his death at a railroad crossing, hy negligently running a train of cars over such crossing, the rate of speed of such train, in connection with other circumstances, may he considered in determining the question of negligence; hut the rate of speed at which a train can he run with safety to the passengers can not, in itself, ho deemed negligence as against one who is injured thereby at such a crossing.</p> <p>Same. — Contributory Negligence. — Damages.—Where, in such action, it is shown that the deceased, possessed of all his faculties, and knowing the existence and location of the railroad, and presumably familiar with the time of the trains running thereon, approached the railroad crossing in a covered wagon, with no opening except in front, without stopping still at any point to look or listen for an approaching train, and, for a distance of more than forty yards from such crossing, ■ drove his team in a trot, without stopping or looking, until he reached the crossing where he was run over and killed, such conduct is contributory negligence on the part of the deceased, and is sufficient to bar an action by his administrator to recover damages'for his death.</p>

<p>•Official Bond.— Construction. — Undertakings in official bonds, as against the surety, are to be strictly construed.</p> <p>Same. — Liability of Surety. — A surety on an official bond can not be held • bound for a longer period than that limited by his undertaking.</p> <p>Same.— Constable. — Pleading. —Complaint. —Presumption.—A constable appointed ‘‘for the term of one year from the 3d day of March, 1875, until his successor shall be elected and qualified,” gave bond, with surety, accordingly. On the 4th day of October, 1876, an execution was placed in his hands, upon which he collected money, and, for failure to pay over the same, suit was instituted on his bond.</p> <p>Meld, that the complaint therein must show, as against the sureties, that a successor to such constable had not been elected and qualified.</p> <p>Meld, also, that, in the absence of such averment, it will be presumed that a successor had been elected and qualified, and that the official term of such constable had expired, when the execution came into his hands.</p> <p>^Elections. — Judicial Knowledge. — The Supreme Court takes judicial knowledge of the time of holding general elections.</p>

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

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

<p>Practice. — Motion to have Pleading made Specific. — Supreme Court.— Defects and uncertainties in a pleading which states sufficient facts can not be reached by demurrer, but only by a motion to make certain or to supply the defect; and the Supreme Court will not reverse a judgment on account of the refusal of the court to sustain such a motion, unless it be made to appear that the party has, or reasonably maybe presumed to have, suffered harm from such ruling.</p>

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

<p>Promissory Note. — Payable in Bank. — Fraud in procuring Signature.— Innocent Holder. — Where a note is executed payable at a bank in this State, on the false and fraudulent representations of the payee,, tlie maker believing it to be an instrument of a different character, such maker is liable for the amount of such note in the hands of an innocent endorsee, before maturity, and for value.</p> <p>Same. — Pleading.—Answer.—Contract.—A contract can not be confessed and avoided, and also denied, in the same paragraph of answer.</p> <p>Same.— Unverified Answer in Denial. — In an action by an endorsee on a promissory note, where proof of the matters alleged in an answer would not avoid such note in the hands of a bona fide holder, such answer is insufficient on demurrer; and a plea denying the execution of the note, not verified, imposes no other burden on the plaintiff than to produce and give in evidence such note.</p> <p>Same. — Evidence.—Under an unverified answer in denial, evidence that the note in suit is a forgery, or was not executed by the defendant, is inadmissible.</p>

<p>Promissory Note.— Surety. — Failure of Consideration. — Contract.— Where the payee of a note induces another to become surety thereon, by agreeing that he would deliver to the maker a previous note and chattel mortgage for cancellation, so that such surety might indemnify himself by obtaining a first mortgage on the property mortgaged, a failure and refusal to comply with such agreement constitute a failure-of consideration as between such payee and surety.</p> <p>Same. — Payment.—A promissory note not payable at a bank, and not governed by the law merchant, given for a precedent debt, will not oner-, ate, unless by express agreement, as a payment or extinguishment of such debt.</p>

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

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

<p>Instructions. — Practice.—Record.—Supreme Court. — Instructions given by the court of its own motion must be signed by the judge or embodied in a bill of exceptions, to form a part of the record on appeal to the Supreme Court.</p> <p>Same. — Evidence.—Presumption.—Where an instruction asserts a correct proposition of law, the Supreme Court, in the absence of the evidence, will presume such instruction to have been properly given.</p>

<p>Eill or Exceptions. — Record.—Where a bill of exceptions is not filed within the time granted by the court, it is not a part of the record.</p>

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

<p>From tEe St. Joseph Circuit Court.</p>

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

<p>Arbitration and Award. — Statutory Submission. — Judgment on Award. —Buie to Show Cause. — Where a complaint was filed in vacation, accompanied by a written agreement of the parties, providing for the submission of all matters in controversy ‘to the arbitrament and award” of E. and B.. who. in case of disagreement, were to call in a third person, the award so made to be entered as an order and judgment of the court, and said E. and B. took an oath to “hear and examine the matters in controversy, and make a just award,” and afterward reported their award to the court.</p> <p>Held. that, said E. and B.were arbitrators, and not referees merely, and such proceeding was a statutory arbitration, and the award a statutory one.</p> <p>Held, also, that the court could not confirm such award and render judgment thereon until such submission and award had been entered of record, and a rule thereon to show cause had been duly granted and served, as provided in section 13 of the arbitration act; and, until such confirmation, such award remained in fieri, and no valid judgment could be rendered thereon.</p>

<p>Pleading'. — Damages, Direct and Consequential. — False Representation.— Fraud. — Practice.—Demurrer.—In an action for damages, the complaint alleged that the plaintiff was engaged in a business which required him to own and use horses and mules, and at a certain time he was the owner of several horses and mules, of a specified value; that at that time the defendant, for the purpose of inducing the plaintiff to purchase a horse from him, falsely and fraudulently represented that such horse was sound, except a slight distemper; that the plaintiff, believing said false representation to be true, purchased such horse, which at the time had a contagious and deadly disease, of which plaintiff was ignorant; that said horse communicated the disease to the plaintiff’s horses and mules, from which they ultimately died. Prayer for value of .horses and mules, and damages.</p> <p>Meld, that the complaint was sufficient on demurrer, and stated a good cause of action, both for direct and consequential damages.</p> <p>Field, also, that an objection that the allegations of the complaint were too indefinite must be made by motion to make specific, and could not be reached by demurrer.'</p>

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

<p>Receiver. — Notice of Appointment. — Process.—Where the appointment oí a receiver is prayed for as a measure of final relief, the process that brings the defendant into court to answer the complaint is sufficient notice to him of the final relief sought.</p>

<p>Chattel Mortgage. — Bank Stock. — Personal Property. — Lien.—Bank stock is personal property, and may be mortgaged as such.</p> <p>Same. — Interest of Judgment Creditor in. — Execution.—Judgment creditors-have a right to levy on such interest only as the debtor had in the property when the lien attached, and an execution issued subsequent to tile making and recording of a chattel mortgage is merely a lien on the debtor’s equity of redemption.</p> <p>Same. — Foreclosure.—Merger.—A judgment of foreclosure does not merge the lien of the mortgage.</p>

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

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

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

<p>'Pleading. — Negligence.—Railroad.—Injury to Employee. — Evidence.—A ■ ■ .complaint against a railroad company for damages to the person of an employee, charging the negligence by which the plaintiff was injured directly upon the defendant, and not merely upon its employees, is ' sufficient on demurrer; and proof may be given thereunder of any acts or circumstances of negligence, on the part of such defendant, in the running of the locomotive causing the injury.</p> <p>Same. — Practice.—Uncertainty in the allegation of negligence in such complaint is a defect that can not be reached by demurrer, but by ' motion to make specific.</p> <p>Practice. — Demurrer to Evidence. — On a demurrer to the evidence, the court is bound to take as true all the facts which the evidence tended to prove, and such inferences from them as the jury could fairly have drawn, though the jury might not have drawn them.</p> <p>Negligence. — When Railroad Company Liable for Injury to Employee by ■Negligence of Go-Employee; — While a railroad company is not responsible to one employee for an injury resulting from the mere negligence or incompetence of a, co-employee, engaged in the same general undertaking, it is liable, in such case, where the company has been guilty ■:of. negligence in the employment of. or, after notice, continuing in employment, the negligent or incompetent employee, thereby conducing to the injury.</p> <p>- Same. — Question of Law and Pact. — Generally, where the facts of a case are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury, and this is true in that class of cases' where the existence of such facts comes in question, rather than where deductions or inferences are to be made from them; but if, from the facts proven, different minds may draw different conclusions, the case. ■ may be properly left with the jury.</p> <p>Same . — Negligence of Engineer. — Where the engineer of a locomotive places it in the hands of a fireman incompetent to manage it, contrary to the rules of the railroad company in whose employ he is, he is guilty of negligence.</p> <p>Same. — A railroad company is guilty of negligence in permitting its order, forbidding firemen to handle its engines, to be violated by its engineers, and retaining them in its employ, after notice of their practice-of abandoning their engines to the firemen, which practice led to the placing of an engine in the hands of a careless and incompetent fireman, whereby injury to a co-employee occurred.</p> <p>Same. — Notice to Agent. — Notice to Principal. — Notice to the master mechanic of such company, whose duty it ivas to employ and discharge-engineers and firemen, of their practice in violating its orders, is notice-to the company.</p> <p>-Same. — Damages.—Province of Jury. — It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal loss and injuries, and, unless the damages are such, as to induce the belief that the jury must have acted from prejudice, partiality or corruption, their verdict ought not to be disturbed.</p> <p>Practice. — Presumption.—Evidence.—Supreme Court. — If one of two paragraphs of complaint is good, the Supreme Court will presume, on appeal, that the court below, on overruling a demurrer to the evidence, applied the evidence to the good paragraph, and not to the bad parargraph.</p>

<p>Promissory Note. — Construction of. — A promissory note, drawing ten per cent, interest, contained the stipulation that if the makers “should pay the same before it becomes due, which they have the privilege of doing at any time, ten per cent, per annum is to be deducted from tbe amount of said note for the unexpired time thereof.”</p> <p>Held, in an action thereon, that the maker had reserved the right to take up the note at any time by paying the principal sum named in it, together with the interest due at the time of payment, deducting only the ten per cent, interest per annum which would otherwise thereafter accrue upon the note.</p> <p>Held, also, that “the amount of said note” meant the gross sum due upon, it, both principal and interest.</p>

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

<p>Practice. — Motion to Strike out Surplusage. — The Supreme Court will not reverse a ease for an erroneous ruling upon a motion to strike out mere surplusage in a pleading.</p> <p>Same. — Evidence.—New Triad. — In order to make tlie admission of irrelevant testimony available as error on appeal to the Supreme Court, objection thereto should be made at the trial, exception taken to the overruling thereof, and such ruling assigned as cause in the motion for a new trial.</p> <p>Injunction. — Damages.—It is not every injury which will support an action for damages that will entitle the complainant to rélief by injunction.</p> <p>Same. — Nuisance.—A. lawful business may be so conducted as to become a nuisance, but. in order to warraut interference by injunction, the injury must be material and essential.</p> <p>•Same. — Facts Necessary to Warrant. — In an action by an adjoining prop- erty owner, to enjoin the running of a flouring mill, he must show that the acts complained of cause him substantial and essential injury, and that a serious wrong is done.him thereby. There must be the wrongful invasion of a legal right, and the damage resulting must be serious and substantial. Minor inconveniences must be remedied by action for damages, and not by injunction.</p> <p>Same. — Injury to Property. — Enjoyment of. — In such action it is not necessary for the plaintiff to prove both an injury to the property itself and an interference with its enjoyment.- As a general rule, a lawful business will not be enjoined merely because it diminishes the value of adjacent property.</p> <p>Same. — (Ami Action. — Actions for injunctions are ordinary civil actions, • and the rules of evidence therein are not different from those which obtain in civil actions.</p> <p>Same. — Facts Necessary to Authorize Injunction Against Private Nuisance.— Evidence. — Instruction.—In an application for an injunction against maintaining a private nuisance, the facts relied upon ought to be so weighty, so material and so serious and important in character, as to leave no doubt that they create an actionable nuisance. Yet the court ought not to use any expression in its charge to the jury in such case that will induce the belief that the facts constituting the complainant’s cause of action must be proved beyond a doubt.</p> <p>Same. — Locality of Nuisance. — Whether a thing is or is not a nuisance, does not depend upon the notions of persons living in the particular locality ; although a business, in some localities, will be considered a nuisance, which, in another, would not be so considered.</p> <p>Same. — Mills.—Manufactories.—Bights of Adjoining Property Owners.— While courts interfere by injunction, against establishments such as mills and manufactories, with great caution, and only in cases where the facts are weighty and important, and the injury complained of is serious and permanent in character, yet, wherever a mill or factory may be located, whatever its surroundings, property owners of the vicinity have a right to require that it shall be properly managed, conducted with ordinary care and a proper regard for the rights of others, and so that no unnecessary inconvenience or annoyance shall be caused to them.</p>

<p>Pleading. — Complaint.—Variance.—In a suit upon a written instrument, where there is a material variance between the copy filed and the allegations of the complaint, the copy will control.</p> <p>Contract. — Mining Lease. — Construction of. — Where, in a lease for mining coal, the lessees agreed to sink a shaft upon the demised land and to mine coal within one year from the date of said lease, or, in default thereof, to pay the lessor the sum of one hundred dollars per month until such shaft should be put into operation; and further, that they would mine sufficient coal, that the royalty thereon, at twenty-five cents per ton, should amount to the sum of twelve hundred dollars, and in default thereof they agreed to pay said sum, without having so mined, payable in monthly instalments; and it was agreed that all payments of one hundred dollars were to apply on the payments of rent or royalty.</p> <p>Meld, that the first covenant of the lease bound the lessees to sink a shaft, and to mine coal within one year, and, if they made default, they were bound to pay the lessor, in the nature of a penalty, one hundred dollars per month.</p> <p>Meld, also, that, under the second covenant, the lessees were bound to pay one hundred dollars per month, in any event, after they had sunk the shaft and were mining coal, and to pay a royalty of twenty-five cents per ton, but that if the royalty should amount, in the aggregate, to more than twelve hundred dollars, the minimum of one hundred dollars per month should be applied in payment of such aggregate sum.</p> <p>Evidence. — Presumption.—Where the record fails to disclose the object or purpose fo^which excluded evidence is offered, the Supreme Court will presume, in favor of the ruling of the court below, that the evidence was properly excluded.</p>

<p>Promissory Note. — Assignment.—Notice.—The owner by assignment of a promissory note, not governed by the law merchant, holds the same subject to all legal rights of third persons, acquired agaiust the maker on account of indebtedness, before notice of the assignment.</p> <p>Same. — Judicial Sale. — The owner by assignment of a promissory note, not governed by the law merchant, can not disturb the legal rights of a third person, acquired through a properjudicial proceeding against the maker of the note, before notice of the assignment.</p> <p>Foreclosure. — Attachment.—A mortgage may be foreclosed in an attachment proceeding, and a party purchasing the mortgaged land, under such proceeding, holds it discharged of the mortgage.</p> <p>Same. — Evidence.—Second.—In an action to foreclose a mortgage, A., who was made a party defendant, answered, setting up a purchase of the mortgaged land, under certain attachment proceedings against the assignee, in which the maker was garnished; and, on the trial, the record of said attachment and garnishment proceedings was offered in evidence.</p> <p>Held, that the evidence was competent.</p>

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

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

<p>Will. — Contesting Validity of. — Jurisdiction. —Presumption.—Pleading.— Complaint. — While it is necessary, in order to give the court jurisdiction of an action to contest the validity of a will, that the testator must have died in, or left assets in, or assets of the estate must have come ' into, the county where such contest is made, yet, where the court is . one of general jurisdiction, like the circuit court, the facts which give it jurisdiction of the subject of the action need not affirmatively appear on the face of the complaint, and its jurisdiction will be presumed unless the contrary appears.</p> <p>Same. — Legatee.—Where one receives a legacy under a will, he can not contest the validity of the will without restoring the legacy, or bringing the money into court.</p> <p>Same. — Estoppel.—Partition. —Where a devisee under a will joins in a - suit for partition of lands devised by such will, claiming an interest therein as devisee, and is defeated in such suit, he is not thereby es-topped to afterward contest the validity of such will on account of the mental unsoundness of the testator, if, at the time of the proceedings in partition, he had no notice of the mental unsoundness of the testator at the time of the execution of the will.</p>

<p>^Promissory Hote. — Principal and Surety. — Forgery.—When the name of one of two or more obligors in a bond, note or other writing obligatory has been forged, the other eo-obligor, though a surety only, and though he signed in the belief that the forged name was genuine, is neverthe- ' less bound, if the payee or obligee accepted the instrument without notice of the forgery.</p> <p>Same. — Principal and Agent. — Where a creditor sends a note either in blank or filled up, as to the amount thereof, to his debtor, with a request that he get security thereon, the debtor does not thereby become the agent of the creditor for the purpose of procuring such security.</p> <p>Practice.. — Modified Instruction. — Record.—Bill of Exceptions. —Where the words modifying an instruction are excepted to, but the exception is neither signed nor authenticated by court or counsel, the modification is not properly made a part of the record, on appeal to the Supreme Court, without a bill of exceptions.</p>

<p>Partition. — Sale of Property Free from Mortgage and Judgment Liens.— Transfer of Liens to Proceeds of Sale. — In a suit for partition of real estate, the court ordered the property to be sold, and the proceeds of such sale, after payment of costs, be paid into court, subject to the further order of the court and the rights of the mortgage and judgment creditors in and to the same.</p> <p>Held, that such order must be construed to mean that the commissioner should sell the land free from the mortgage and judgment liens, and that such liens should be transferred to and satisfied from the proceeds of snch sale as the court might thereafter direct.</p> <p>Practice. — Questions Reserved. — Statute Construed. — Under sections 347 and 34S of the code, only questions of law decided by the trial court can be reserved for appeal to the Supreme Court.</p> <p>Same. — Bill of Exceptions Must Contain all the Evidence. — The Supreme Court will not reverse a judgment upon any question as to the weight or sufficiency of the evidence, where the bill of exceptions fails to show that it contains all the evidence produced at the trial. ■</p>

<p>Married Woman.— Contract. — Specific Performance. — Beal Estate.— ■ Prior to the act of March 25th, 1S79, concerning married women, Acts. 1S79, p. 160, a married woman could not bind herself in any way by an executory contract for the sale of real estate, and a specific performance thereof can not be enforced against her heirs.</p>

<p>Supreme Court. — Assignment of Error. — Where no objection is made, or exception taken, to a judgment, and no motion is made for the taxation of costs, in the court below, no question in relation thereto can be ■ raised in the Supreme Court.</p> <p>Cities and Towns. — School City. — Order for Employment of Attorneys.— Not Liable when Order Violated. — Ou May 31st, 1S75, the school trustees of a city made an order authorizing the treasurer of such school board to employ attorneys “to prosecute the county auditor for refusing to pay over moneys” belonging to the school fund of such city. In June, 1875, the city council elected other school trustees, who, on June 3d, qualified and entered upon the duties of their office. Ou the same day the attorneys employed by the old board filed a complaint in the circuit court, praying for a mandate against the auditor of the county to compel him to issue his warrant in favor of the treasurer of the old board for the money then in his hands belonging to said school city. The object of tliis suit was to determine who were the legal school trustees. The order of May 31st, for the employment of said attorneys, was never-revoked by the new hoard.</p> <p>Meld, that such order only authorized the employment of said attorneys to prosecute the county auditor for failing to pay over the money due from him to the school city, and not to bring a civil suit to try the question as to who were the legal trustees, and that the school city was not liable for the fees of said attorneys for such services.</p>

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

<p>Pleading. — Promissory Note. — Bankruptcy of Makers. — Endorsers.—In an action by the assignee of a promissory note, not payable in bank, against the endorsers, the complaint alleged that, before its maturity, the makers Avere adjudged bankrupts, in the proper court, and that the matter of their bankruptcy AAas still pending.</p> <p>Held, on demurrer, that such complaint, for want of an averment that there are no assets in the hands of the assignee out of which any part of the note can be paid, is insufficient.</p> <p>Same. — Insolvency of Makers. — Where a paragraph of the complaint sufficiently avers the insolvency of the makers of said note, at and subse.quent to its maturity, but avers nothing as to their bankruptcy, it is necessary to prove, not only that the makers were adjudged bankrupts, but also that no assets came into the hands of the assignee in bankruptcy, sufficient to pay any part of such note.</p>

<p>.Promissory Note. — Pleading.—Exhibit.—Record.—Evidence.—Presumption. — Ruíneme Court. — Where, in an action on a promissory note, the record, on appeal to the Supreme Court, shows that the complaint alleged that the note, and endorsement were filed with the complaint, and copies thereof follow the complaint in such record, it will he presumed that the clerk properly discharged his duty in making up the record, and its recitals, therefore, are prima facie evidence that the note .and endorsement were filed with the complaint. ■</p>

<p>Summons. — When Valid. — -Under section 37, 2 R. S. 1876, p. 49, a summons sufficient, in substance, to impart full information that an action has been instituted against the parties designated therein as defendants, is valid.</p> <p>Same. — Omission of Seal. — Amendment Nunc Pro Tunc. — Judgment.—Under section 37, supra, a summons is not void because not attested by the seal of the court; and such court has the right to order the clerk to affix the seal nunc pro tunc to a summons issued previous to, and returnable at, a former term, after judgment has been entered and after the term has closed.</p> <p>Same.- — Bight to Set Aside Default and Judgment. — ■Sheriff’s Beturn. — Collateral Attach.— In proceedings to obtain'an order for & nunc pro tuna amendment of a summons by affixing the seal of the court after judgment in an action, the light to have a default and judgment set aside can not be litigated; nor can the sheriff's return to the summons in said action be contradicted in such proceedings.</p>

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

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

<p>Promissory Note. — When Governed by Law Merchant. — Statute Construed. — Under section 6,1 R. S. 1876, p. 636, no other notes but those payable in a bank in this State are put upon the footing of bills of exchange, and governed by the law merchant; and a note “payable at the Indiana Banking Company, of Indianapolis, Indiana,” is not payable in or at a bank, or the office, banking house, or place of business of a bank, and is not within the terms of the statute, and is not governed! by the law merchant.</p> <p>Same. — Estoppel.— If the contract of the makers of such note had been with such company, they would be estopped to deny its existence at the time of the contract.</p>

<p>Decedents’Estates. — Property Fraudulently Conveyed. — Bight of Creditor to sue Heirs without Administration of Estate. — A creditor may, in a suit to collect his debt, have a conveyance of property fraudulently conveyed by his debtor set aside, and the property subjected to the payment of his claim, without regard to the claims of other creditors.. But where the original debtor is deceased, and no administration has been had upon his estate, a single creditor, suing for himself aloner can not maintain an action against the heirs, on a promise of the deceased, and to have property fraudulently conveyed subjected to the payment of his claim, but he must proceed through an executor or administrator for the collection of his debt.</p>

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

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

<p>Real Estate. — Action to Recover. — Pleading.—Answer.—Counter-Claim,.— Contract. — Redemption.—•Statute of Frauds. — Case Distinguished. — In an action for the recovery of real estate, A., the defendant, alleged that in March, 1861, he executed to B. a mortgage thereon, which B. in October, 1873, foreclosed, and at the sheriff’s sale became the purchaser, and shortly thereafter took a sheriff’s deed therefor. On the 16th day of December, 1871, the real estate was sold on a judgment against A. and the certificate of purchase assigned to B. On the 1st day of De- ■ cember, 1872. A., with B.’s knowledge and consent, made a verbal contract with C., his brother, for the redemption of the real estate, and, in ■pursuance thereof, C. paid to B. a certain sum for which he assigned ■ the said certificate to C.‘, upon which he afterward obtained a sheriff’s deed. In March, 1876, a similar agreement was made between A. and C., with -the knowledge and consent of B., to redeem from the’ . sale made on the deex-ee of foreclosure, and,| in pursuance thereof, C.. paid B. a certain sum for which he conveyed the property to C.'s son. Afterward C. and his son conveyed the real estate to the plaintiff, “who had sufficient notice and knowledge to put him on inquiry that the conveyances to said C. and son were solely for the use and benefit of the defendant, and were intended to be and were securities only for the repayment of the money advanced by C.” The property, at the time of the agreements and the .various sales and conveyances, was in the possession of A., who claimed title thereto. Prayer for affirmative relief.</p> <p>Held, that such pleading is a counter-claim, and not an answer. It can not be both.</p> <p>Held, also, that a counter-claim must stand as an independent pleading,. and aver facts warranting the relief sought.</p> <p>Held, also, that, at the time the agreements were made,B. was the owner ■ of the real estate.</p> <p>Held, also, that the contract upon which the decree of foreclosure was . rendered having been made before the redemption law of 1861 was in / force, A. had no right to redeem.</p> <p>¡Held, also that such agreements were parol contracts for the purchase of lands and within the statute of frauds.</p> <p>Held, also, that the allegation that A. was in possession of the land, claiming title, is not sufficient to take the case out of the statute. In order to have this effect, it must be shown that the possession was taken under the parol contracts. Tinkler v. Swaynie, 71 Ind. 562, dis- ■ tinguished.</p> <p>Same. — Mortgage. — Agreement. — Foreclosure. — Decree. — Sheriff. — Pre- • sumption. — In such action, a paragraph of answer alleged, that during ■ the pendency of the suit by B. to foreclose two mortgages, one exe- • cuted prior to the redemption law of 1861, and the other subsequently, no rate of interest being specified therein, an agreement was made be- - tween A. and B. whereby judgment was rendered thereon for a certain sum, including the amount due on both mortgages, the judgment to . bear interest at the rate of ten per cent, per annum.</p> <p>Held, that such agreement did not extinguish, or profess to extinguish, the contract upon which the foreclosure suit was founded, and . that such judgment rested upon the mortgages and not upon the agreement.</p> <p>Held, also, that the Supreme Court will presume, in the absence of any showing to the contrary, that the court entered the proper decree upon the mortgages, and that the sale made by the sheriff was in accordance • therewith.</p> <p>Same. — Sheriffs Sale. — Deed.—Redemption.—Where the right of redemp- - tion exists, the execution by the sheriff of a deed to land sold on a de- • cree, before the expiration of the year allowed for redemption, will not . invalidate such sale.</p> <p>Same. — Failure to Execute Certificate. — The failure of the sheriff to exe*cute a certificate to the purchaser will not invalidate a sale of real estate made by him.</p> <p>- Same. — Deed.—Description.—Construction.—It-is not the office of a description in a conveyance to identify the' land, hut to furnish the means of identification; that portion of a deed describing the premises conveyed must be liberally construed.</p> <p>■ Same. — Evidence.—Title under Sheriff's' Sale. — In an action for the possession of real estate by a plaintiff claiming title by purchase at a sheriff's sale under a decree of foreclosure, all he is bound to prove is a valid judgment and. sale.' and the execution of the proper deed; all questions respecting the validity of the mortgage, including the sufficiency of the description, being settled by such decree.</p> <p>Same. — Evidence.—Boundaries.—Possession.—In such action, where the defendant is in possession of the real estate, and makes defence, proof of the boundaries of the land is immaterial.</p>

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

<p>"Will. — Descents.—Heirship.—IF7ie?i Widow of Testator Deemed an Heir.— ^ Limitation. — A widow is to be deemed an heir of her deceased husband as to her inheritance of his lands under the statute of descents; but, when she claims as an heir under his will, the question whether she is such heir or not depends upon the intention of the testator, as gathered from the will alone; and where a will, after providing in terms for such widow during her widowhood, contained the further provision: “I also order that when my beloved wife * * * ceases to be my widow, and my youngest children come of age, all my real estate be-divided equally among all my heirs,” the words “all my heirs” must ne construed as meaning only the children of the testator and theiideseendauts, and not such widow.</p>

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

<p>Mortgage. — Neii-s of Deceased Mortgagor. — Beal Estate. — A mortgage on real estate, made by a decedent in bis lifetime, his wife not joining, i.s good as against his heirs other than the widow, and is good as against her, if given for purchase-money.</p> <p>Same. — Talcing of New Mortgage for Old. — Lien.—The taking of a new note and mortgage, by the mortgagee, for the same debt, upon the same lands, will not discharge the lien of the first mortgage, but the lien thereof will be continued in the new mortgage. But, if the new note and mortgage were taken as a payment and satisfaction of the first, or if they were given in settlement of mutual running accounts, of which the first mortgage debt was only a part, the rule would be otherwise.</p> <p>Same. — Consideration.—Parol Evidence. — The consideration of a mortgage may be shown by parol evidence.</p>

<p>Corporation. — Express Company . — Power to Cause Arrest by Agent.— Liability for Acts of. — An express company- has the power, by proper and lawful modes, to pursue and cause the arrest and punishment of any one who has stolen or embezzled the money or property of the company, or for which it was responsible, and may employ an agent for such purpose; hut for any trespass committed by him in the prosecution of such employment such company is liable.</p> <p>False Imprisonment. — Pleading.— Complaint. — Demurrer.— Practice.— Evidence. — In an action against an express company and others, to recover damages for arrest and imprisonment, an allegation in the complaint that the injury was caused ‘-at the instigation and procurement" of such company, is sufficient on demurrer, and, without a motion to make specific, evidence is admissible tending to show the truth thereof.</p> <p>Same. — Liability of Tortfeasors. — Judgment.-- Contribution. — Verdict.— Venire de Novo. — Practice. —Trespass.—The liability of tortfeasors is not joint, but several. An action may be bad against all or any number of them, and separate actions may be prosecuted at the same time against them therefor, and separate verdicts and judgments obtained, whether for the same or different amounts, though the plaintiff can have but one satisfaction; but, whether the judgment be joint or several, there is no right of contribution which can he enforced as between the defendants, and, where the action is against all, the fact that the verdict is silent as to one is no cause for a venire de novo.</p> <p>Same. — Evidence.—Special Constable.— Warrant. — Malicious Prosecution.— In an action for false imprisonment, evidence of the proceedings before the justice, after the arrest of the plaintiff by a special constable on a warrant directed to any constable of the county, is admissible; Such arrest is illegal, and evidence thereof tended to show false imprisonment only, and not a malicious prosecution.</p> <p>Same. — Habeas Corpus. — In such action evidence of the proceedings on a writ of habeas corpus, by which the plaintiff was discharged from custody. is competent and pertinent.</p> <p>■Same. — Evidence of Character of Plaintiff. — Mitigation of Damages. — Where, in such action, the defendants plead, in mitigation of damages, that they acted in good faith in causing the arrest, and adduce evidence thereunder tending to cast suspicion on the plaintiff’s character, evidence of his general good character, and of his reputation for honesty and integrity, is admissible to rehut the claim of such good faith and belief of his guilt, on the part of the defendants, though not admissible in the first instance, as in cases of malicious prosecution.</p> <p>Same. — Special Damage. — Loss of Employment.— Hearsay Evidence. — Proper evidence by the plaintiff in such a case, of the loss of a situation by reason of the arrest, is admissible; hut evidence of the statements of another to that effect is mere hearsay, and inadmissible as evidence of the fact.</p>

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

<p>Exemption Law. — Resident Householder. — A judgment debtor, after the death of his wife, employed a family to keep house for him and his adopted daughter, who was dependent on him for support. During the daughter’s visit to her natural mother, an execution was levied upon his property which he claimed as exempt therefrom.</p> <p>Held, that he was a resident householder, and entitled to the exemption.</p> <p>Same. — Householder.—A householder is one upon whom rests the duty of supporting the members of his family or household.</p>

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

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

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

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

<p>Practice.— When Interrogatories may be Filed. — Harmless Error. — It is not necessary that interrogatories he filed at the time of filing any specific pleading. They may be filed at any time before the issues in the case are closed. The error, if any. in compelling a party to answer interrogatories is harmless, where such -interrogatories are not offered in evidence.</p> <p>Fraudulent Conveyance. — Complaint.—Value of Property — A. complaint to set aside a fraudulent conveyance of real estate is not insufficient for failure to aver the value of such real estate, but such complaint must show that the defendants had no property subject to execution at the time the action was commenced.</p> <p>Same. — Evidence.— Husband and Wife. — Conspiracy to Defraud Creditors.— Declarations of Husband. — Where a. husband and wife act in concert to defraud the creditors of the husband, the declarations of the latter, made before the common purpose was accomplished, are admissible in evidence against both.</p> <p>Same. — Statements of Wife to Assessor as to Her Property. — In such case the sworn statements of the wife to the assessor, as to her separate property, are properly admissible in evidence, as showing her ability or inability to pay for the real estate conveyed to her.</p> <p>Same. — In such case, the existence of a confidential relationship between the grantor and grantee, and the pendency of an action against the former, are proper circumstances for the jury to consider as indications of fraud.</p> <p>Same. — Consideration.—The rule, that where the grantee has paid a valuable consideration for the conveyance, it can not be adjudged fraudulent, unless the grantee had notice of the fraudulent intent of the grantor, does not apply to cases where no consideration was paid.</p> <p>Same. — Instruction.—Outstanding Title. — An instruction in such case, that the lands claimed by the husband could not be subjected to the payment of his debts, where the wife had purchased an outstanding title, whether such title was paramount or not, was rightly refused.</p> <p>Same. — -Under section 456 of the code, property fraudulently conveyed by a debtor may be sold without appraisement.</p> <p>Instructions. — It is not error for the court to refuse instructions which are correct as abstract propositions of law, but irrelevant to the ease made by the evidence; nor is it error to refuse instructions, where the ■court has fully covered the points in its own instructions.</p>

<p>Practice. — Exception.—Demurrer.—Supreme Court. — Where the record on appeal fails to show any exception to the ruling on a demurrer, questions arising thereon will not be considered by the Supreme Court.</p> <p>Payment. — Application by Creditor. — A creditor has the right to apply a payment to either a note or book account held by him against a debt- or in the absence of any application by such debtor.</p>

<p>Supreme Court. — Appeal.—Practice.—Notice to Co-Party. — Where one of several defendants appeals to the Supreme Court without giving notice thereof to his co-defendants, as required by section 551 of the code, the appeal will be dismissed.</p>

<p>IaQUOrLaw. — License.—Applicant.—Residence.—Statute Construed. — Under section 3 of the act to regulate the sale of intoxicating liquor, 1 R. S. 1S76, p. S69, it is not necessary that an applicant for license should be a resident of the ward, town, township or county in which the place where the liquor is to be sold is situated.</p> <p>:Same. — Description of Premises. — In an application for license to sell liquor, under section 3, supra, a description so reasonably full and certain, of the premises where it is proposed to sell, as to point out the exact location thereof, is sufficient.</p> <p>:Same. — Parties.—Roard of Commissioners. — In such cases, the board of commissioners is not a proper party, on appeal to the circuit court, but where the board voluntarily appeared in that court, and contested such application, it will not. be heard to move for a dismissal of the appeal, in the Supreme Court, on that ground.</p>

<p>Practice. — New Trial. — Becord.—Presump>tion.—Supreme Comt. — Where the written motion and causes for a new trial are not set forth in the record, tlie Supreme Court will presume, on appeal, that such motion was properly overruled.</p> <p>Same . — Judgment.—Objections to the form or substance of a judgment,, in whole or in part, can not be made for the first time in the Supreme Court.</p> <p>Same. — New Trial. — That the finding is not sustained by sufficient evidence, is a proper cause for a new trial, and can not be comxjlained of as error, for the first time, in the Supreme Court.</p> <p>Same. — Proceedings Supplementary to Execution. — Trials, either of law or-of fact, may be had in proceedings supplementary to execution, and" error occurring therein must be saved and presented in and by the record, on appeal to the Supreme Court, in the same manner as in other-civil actions.</p>

<p>Partition. — Objections to Report of Commissioners. — New Trial. — Assignment of Error. — Practice.—Supreme Court. — Rulings on objections filed to the confirmation of the report of commissioners appointed to partition real estate can not be presented to the Supreme Court by an assignment of error on the overruling of a motion for a new trial, but must be presented by an assignment of ei’ror directly on the rulings o' tlie court on such objections, on exceptions to such rulings saved in bill of exceptions. Elliott, .T., dissents.</p> <p>£>ame. — Parties.—Lien-Holders.—Lien-holders on real estate are proper parties in a suit for partition thereof.</p>

<p>Growing Trees. — Parol Contract of Sale. — Beal Estate. — License.—Con- ■ veyance. — Parol Beservation. — Statute of Frauds.--A tree growing upon land constitutes a part thereof, and a parol contract for the sale of such a tree passes no title thereto which can he enforced hy legal proceedings. Such a contract may amount to a license to enter upon the land, cut down and remove the tree, hut the license is one which may he revoked at any time before the tree is cut down; therefore, the reservation hy parol of a growing tree hy the grantor in a conveyance of real estate, hy consent of the grantee, with the right to enter thereon and remove such tree after the conveyance is made, constitutes a mere . license on the part of the grantee to the grantor to enter upon the land to remove the tree, for the revocation of which no action will lie.</p>

<p>Township Trustee. — School Township. — LioMlity for Borrowed Money.— Contract. — Where money is loaned to a township trustee for the purpose of completing a needed and suitable school-house, the trustee not then having funds on hands to finish the same, and the money is applied to such purpose, the school township represented by such trustee and receiving the benefit of said money is liable therefor.</p>

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

<p>Pleading. — Can not he Double. — Answer.—Cross Complaint. — Practice.— . A single pleading can not be both an answer and a cross complaint, but must be classifled according to its averments; and, if a pleading is in all essential respects a cross complaint, objections to it as an answer-raise no question upon it as a cross complaint. -</p> <p>Instruction. - Practice.— Evidence. — Where an instruction gave the law correctly in the abstract, a judgment will not be reversed because of its inapplicability to the evidence, unless such inapplicability was presumably injurious to the party complaining.</p>

<p>Superior Court.— Assignment of Errors. — Practice.—Supreme Court.— Unless error is assigned on the action of the Marion Superior Court at general term, no question is presented to the Supreme Court on appeal.</p>

<p>'Contract. — When Presumed to he Parol. — When a contract is not alleged to be in writing, it will be presumed to be by parol.</p> <p>Promissory Note. — Assignment hy Delivery. — Defences Permitted to Maker. — A note payable in a bank in this State is negotiable as an inland bill of exchange, and where the payee assigns such note by delivery merely, the holder has an equitable title, and the right to sue thereon in his own name, by making the payee a party defendant; but such ■assignment does not cut off any defences which the maker may have as against the payee.</p>

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

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

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

<p>Evom l-lie Clark Circuit Court.</p>

<p>Judgment. — Action on. — A judgment is a debt of record, and an action may be maintained thereon for the recovery of such debt, although the judgment plaintiff therein could enforce its collection by execution issued out of the court in which it ivas rendered.</p> <p>Same. — Costs.—Interest.—A judgment for. costs is a “judgment for money,” within the meaning of the act of March 10th, 1879, concerning interest, etc., Acts 1879, p. 43, and bears interest from the date of the return of the verdict or finding of the court, until the same shall he satisfied, and a judgment plaintiff is entitled to recover for such costs, with interest thereon, in an action upon his judgment.</p> <p>Same. — Entry of Costs in Order Book. — It is not necessary that the entry of a judgment, on the order hook should specify the amount of the costs recovered.</p> <p>Same. — Eee Book. — Record,.—Evidence.—The fee hook of the clerk of the circuit court is a public record, and judgment defendants are bound hy the lawful entries of such clerk against them therein, and it is competent evidence of the amount of costs due the judgment plaintiff in an action on his judgment-.</p> <p>Same. — Eee Bill. — Fees and Salaries. — The provisions of section 39 of the fee and salary act of March 12th, 1875, in relation to actions on fee hills, 1 R. S. 187G, p. 478, are not applicable to a suit upon a judgment, and for the costs recovered therein. Query, whether the fee and salary act of March 31st, 1879, Acts 1879, p. 130, does not repealseetion 39, supra.</p> <p>Same. — Collateral Attack. — Parol Evidence.— Taxation of Costs. — If the costs, or any of the items thereof, were illegal charges against the judgment defendant, he might have had a taxation of the costs, hy a motion for that purpose, in the original cause, hut could not, in an action on the judgment therein, impeach the judgment for costs by parol evidence.</p> <p>Supreme Court. — Weight of Evidence. — Finding.—The Supreme Court will not disturb a finding on the mere weight of evidence, where the evidence tends to support it.</p>

<p>Taqxjor Law. — Sates Without License. — Quantity Sold. — Pleading.—Indictnient. — Information.— Gase Overruled. — Section 12 of the act of March 17th, 1S75, to license tho saleof intoxicating liquor, 1 R. S. 1876, p. 869, creates two distinct offences as to retailing without a license: selling less than a quart at a time, without reference to the place where it is to be drank; and selling in any quantity to be drank or suffered to be drank on tlic premises where sold. And, in a prosecution under the first branch of such section, the indictment or affidavit and information must aver that the quantity sold was less than a quart, unless it is averred that it was sold to be drank on the premises, but in a prosecution under the second branch the quantity sold is immaterial. The State v. Zeitler, 63 Ind. 441, overruled, so far as it is in conflict with this decision.</p>

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

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

<p>Promissory Note. — Forgery.—Principal and Surety. — When the name-of one of two or more obligors in a bond, note or other writing obligatory, has been forged, the other co-obligor, though a surety only, and though he signed in the belief that the forged name was genuine, is nevertheless bound, if the payee or obligee accepted the instrument without notice of the forgery.</p>

<p>.Appeal. — Dismissal.—Amount in Controversy. — Supreme Court. — Justice of the Peace. — Where, in an action originating before a justice of the jreace, no counter-claim or set-off is pleaded, and the xdaintiff is content with the amount of bis recovery, that'amount must be deemed to be the amount in controversy, and where such amount is less.than fifty dollars, an appeal from the judgment rendered therefor, to the Supreme Court, will be dismissed.</p>

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

<p>Husband and Wife. — Injury to Wife. — Witness.—Damages.—-Under section 1 of the act of March 11th, 1867,2 E. S. 1870, p. 132, a wife,is a competent witness in an action by her and husband to recover damages for a personal-injury to herself.</p> <p>Practice. — Evidence.—Objection.—In such action, an objection, at the conclusion of the testimony of a witness, given in narrative form, that the “defendant excepts to all the evidence in reference to damages to clothing,.medical attendance,” etc., is insufficient to reserve any question for the decision of the Supreme Court.</p> <p>Same. — Exception to Exclusion of Evidence. — In order to save an exception to the action of the court in excluding questions ashed a witness, an offer should he made to prove the facts sought to he elicited.</p> <p>Same. — Attorney.—Argument to Jury. — Change of Venue. — The fact that the venue of a canse had been changed is not a proper subject to he mentioned or commented upon by counsel in the argument to the jury.</p> <p>Same. — Objection.—Exception.-—Supreme Court. — An objection, not followed by an exception, is not available on appeal to the Supreme Court.</p> <p>Exemplary Damages. — Assault and Battery. — False Imprisonment. — Exemplary damages can not he awarded where the act which constitutes the cause of action is punishable by a criminal prosecution, as for assault and battery, hut such damages may he recovered in actions brought by persons injured by wrongful restraint or false imprisonment.</p> <p>‘Same. — Excessive Damages. — Verdict of Jury. — Courts should not interfere with the verdict of a jury on the ground of excessive damages, unless such damages are so great as to appear outrageous, or such as to induce the belief that the award was the result of passion or prejudice and not the conclusion of deliberate judgment.</p>

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

<p>Practice. — Withdrawal of Evidence from Jury. — New Trial.— Supreme Court. — Where evidence is permitted, over an objection, to go to the jury, the court reserving the right to withdraw it, which the court afterward does, telling the jury that it was inadmissible, and they should not consider it, a cause for a new trial, alleging the exclusion of such evidence with sufficient particularity to call the attention of the court to the ruling complained of, is sufficient to present the question to the Supreme Court. Nor is it necessary, in such case, that, at the time the exception is taken, a statement of the character or purpose of the evidence should be made.</p> <p>Witness. — Impeachment of. — Contradictory Statements. — Evidence.—While it is necessary, in laying the foundation for impeaching a witness by proof of contradictory statements, that the time, place and persons present shall be given, it is not necessary that the impeaching witness, when called, should be able to swear to the exact date. It is enough if it appear that the impeaching witness is about to speak in reference to the same declaration or conversation to which the attention of the principal witness has been called.</p>

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

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

<p>Appeal. — Amount in Controversy. — Dismissal.—In an action originating before a justice of the peace, where the amount of recovery is less than fifty dollars, with which the plaintiff is content, an appeal therefrom to the Supreme Court, by the defendant, will be dismissed under sec. 550 of the code, as amended by the act of March 14th, 1877, Acts 1877, Spec. Sess., p. 59.</p>

<p>Joint Promissoby Note. — Death of Surety. — Decedents' Estates. — Statute Construed. — Under section 783,2 R. S. 1876, p. 309, the death of a surety on a joint promissory note does not discharge his estate from liability thereon.</p>

<p>".Specific Performance. — Contract to Open Street. — A suit to compel specific performance of a written agreement to open a public street in an addition to a town is not the proper proceeding to remove an obstruction in such street.</p> <p>Same.— Complaint. — Special Injury. — Separate Bight of Action. — The facts and circumstances showing the nature and extent of a special injury, which gives a separate right of action under a contract, ought to be stated in the complaint.</p> <p>Same. — Jurisdiction.—The jurisdiction of a court to compel specific performance of contracts exists only when injury is shown, aud when it appears also that a remedy at law by compensation in damages would not be adequate.</p>

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

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

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