Volume 74 — Indiana Reports

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

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

<p>Fraudulent Conveyance. — Action to /Set Aside. — Grantor and Grantee.— Judgment. — In an action to set aside an alleged fraudulent conveyance, against the grantor and grantee therein, by a judgment creditor of the grantor, a general verdict was returned against both defendants. On motion, a new trial was awarded the grantor and denied the grantee, ¡and, without judgment, the ease was continued. At the subsequent term, the cause as to the grantor was tried by the court, and a finding and judgment rendered in his favor. Over the objection of the grantee, the court rendered a judgment against Mm, upon the verdict of the jury, setting aside such conveyance as fraudulent.</p> <p>Líeld, that such judgment was erroneous.</p>

<p>Criminal Law. — Gaming.—Pleading.—Indictment.—An indictment, averring that the defendant did ukeep his said room and tenement to be used for gaming,” sufficiently charges the offence of keeping a house for gambling, under the first branch of section 29 of the act concerning misdemeanors, 2 R. S. 1876, p. 469; and such indictment is not rendered bad by averring the kind of games played and stating the names of the persons by whom such games were played.</p>

<p>Jurisdiction. — Personal Judgment. — A personal judgment is void, if the court have no jurisdiction of the person.</p> <p>Same. — Domestic Judgments. — Presumption.—Where domestic judgments of courts of general jurisdiction are called in question collaterally, jurisdiction of the person will be presumed, in the absence of proof in the record to the contrary.</p> <p>Same. — Want of Jurisdiction. — Complaint.—Demurrer.—Answer.—If want of jurisdiction be apparent on the face of a complaint, it will be bad on demurrer; but when not apparent it may be shown by answer.</p> <p>Same. — Hoto Acquired. — Jurisdiction of the person can be acquired only by service of process, or by appearance, and on appeal it must be affirmatively shown by the record that the process was duly served, or that the defendant appeared.</p> <p>Cross Complaint. — Notice.—STotiee of a cross complaint must be served on the defendants thereto to give a judgment thereon any validity.</p>

<p>Criminal Law. — Renting Property for Gaming Purposes. — Evidence.—To sustain a prosecution, under section 29 of the act defining misdemeanors, etc., 2 B. S. 1876, p. 469, the State must show, hy sufficient evidence, either direct or circumstantial, that the accused rented the property ,to he used for the purpose of gaming.</p>

<p>Criminal Law. — Prosecution by Affidavit and Information. — In a prosecution by affidavit and information, the affidavit must state that the defendant is in custody on the charge preferred against him, and that the grand jury of the county is not in session.</p>

<p>¡Practice. — Instruction—Record.—Supreme Court. — Where an instruction complained of is set out in the motion for a new trial, but does not otherwise appear in the record, no question with reference thereto is properly presented to the Supreme Court.</p> <p>Chattel Mortgage. — Description.—Property described in a chattel mortgage as ‘-one-third of twenty-two acres of growing wheat, situate,” etc., means the undivided one-third of such wheat, and is a sufficiently particular description.</p> <p>Same. — Demand.—Where a chattel mortgage is duly recorded, no demand for the mortgaged property of a purchaser thereof is necessary before suit to foreclose the same.</p>

<p>Negligence. — Keeping Vicious Animal. — Damages.—Pleading.— Complaint. — The owner or keeper of a vicious dog, knowing it to he such, is liable prima facie in an action for damages, to a person injured thereby ; but he is not liable if the negligence of the party injured contributed to the injury, and the complaint In such action should aver that the plaintiff was without fault.</p>

<p>Streets. — Title of Adjoining Proprietor. — Town Laid out by State. — Indianapolis. — The State, in laying out for its seat of government, upon land donated by the United States for that purpose, the town of Indianapolis, and making and filing maps thereof, as required by law, vested in the town, for the use of the public, such rights to the streets and alleys, and such interest therein, as would have been vested in it if any citizen had been the proprietor of the land and had laid out the-town in the same way; and the grantee in fee simple, in a conveyance by the State through its agent, of a lot by its number, abutting upon a public street in said town, and his assignees, acquired such rights to said street and such interest therein as would be conferred by a like conveyance made by such a citizen proprietor of a town; that is, such grantee and his assignees took the fee, subject to the public use, to the center line of such adjoining street.</p> <p>Same. — Railroad.—Appropriation of Land. — Construction of Charter.— Where the charter of a railroad company provides that, in all cases where the owner of lands necessary for the use and construction of its road “shall refuse to relinquish the same to the corporation, or shall refuse to accept a fair compensation therefor,” it shall be lawful for ■the corporation to enter and take possession of and use such lands, and that the owner of lands, who feels aggrieved or injured by such use thereof, shall make application to a justice of the peace for an appraisement of damages, and that there shall be no recovery by such owner ■unless such an application be made by him within two years, such provisions will be strictly construed as against the owner of land taken, and such limitation will not apply as against the owner of a lot abutting upon a public street of a city, incorporated under the general law for the incorporation of cities, upon his side of which street such railroad company has maintained its track for fifteen years, upon a level with the grade of the street, with the authority of such city, but without the ■consent of the owner of such lot, without having demanded of him a relinquishment of his title to the street, and without having offered him a fair compensation; and, against the railroad company so occupying the street, such adjoining proprietor may have the usual remedies for ■ the protection of rights in real property.</p>

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

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

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

<p>Criminal Law.— Gaming Table.— Indictment.— Evidence. — Variance.— Under an indictment charging the defendant with keeping and exhibiting a pool table for the purposes of gaming, evidence that he kept a, billiard table and not a pool table is a fatal variance.</p> <p>Same. — Statute Construed. — Evidence.—The clause, “for the purpose of wagering,” in section 74,2 E. S. 1876, p. 480, making it a misdemeanor for one to keep a gaming table, means “for the purpose of” (himself) “wagering,” and not for the purpose of permitting others to wager-thereon; and where, in a prosecution under said section, the evidence-fails to show that the defendant kept or exhibited the table for the purpose of wagering thereon, or that he ever did wager thereon, though he permitted others to do so, it is insufficient to warrant a conviction.</p> <p>Same. — A criminal statute will not be extended by construction beyond, what its terms fairly import.</p>

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

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

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

<p>Appearance.— Practice. — Service.—Record.—Where the record shows neither a return of service of summons on a defendant, nor any appearance on liis behalf, the entry, “come again the parties by their counsel,” etc., is not binding upon him.</p> <p>Judgment. — Default.—Record of Service and Return. — Appeal.—Judgment by default can not be affirmed on appeal, unless the record contains a transcript of the summons, and the return of due service thereof; an •express recital in the record, that there was proof of the issue and due service of process, is not sufficient.</p> <p>Pleading. — Guardian’s Additional Bond. — Defects Cured. — A complaint on a guardian’s bond averred that it was given as an additional bond for the sale of real estate, but the bond merely recited that, “If the above bound” defendant, “who is guardian of the person and property of” certain wards, “minor heirs of,’' etc., “then the above obligation is to be void, else to remain in full force.'”</p> <p>Held, on demurrer, that the complaint sufficiently shows that it was given as an additional bond, and that, under section 790 of the code, it was a good bontf for that purpose.</p> <p>Held, also, that, where defects of form and recital appear on the face of a bond, a more particular suggestion of such defects is unnecessary.</p> <p>Same. — Pleading.—Sureties.—Identity of Names and Persons. — In such action, where the only averment of the execution of the bond is, that the •guardian “executed his bond,” and the only showing that the sureties joined in its execution is, that the names recited in the copy of the bond filed with the complaint are identical with the names of the defendants, and the names subscribed thereto either identical, or differing only in that the Christian names are not given in full but abbreviated or by initials, such complaint is insufficient as against such sureties.</p> <p>Same. — General Denial. — Proof.—Under plea of general denial, the guardian in such action could prove that he had “fully performed all the conditions of said bond according to the tenor and legal effect thereof.”</p>

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

<p>Practice. — Evidence.—Bill of Exceptions. — Presumption.—Where a question of law is reserved under section 347 of the code, the hill of exceptions must contain the evidence relating to the points of exception to a refusal of the court to permit certain questions to he asked a witness upon the trial of a cause; and, in the absence of such evidence, the Supreme Court will presume in favor of the ruling of the trial court.</p>

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

<p>Pleading. — Practice.—Demurrer.—A complaint good in part is sufficient on a demurrer to it as an entirety.</p> <p>Same. — Answer.—An answer which purports to answer the entire complaint, but answers only a part, is insufficient on demurrer.</p> <p>Coverture. — A married woman has a right to recover for money paid by her at another’s request, and her coverture is no defence to an action by her seeking such recovery.</p> <p>Husband and Wipe. — Wife’s Services. — A husband can.make a valid gift of his wife’s services to her, for which she can maintain an action.</p> <p>Same. — When Wife Competent Witness. — Where the wife is the owner in 'iher own right of the cause of action, her husband is only a nominal ’¡plaintiff, and she is a competent witness under section 1 of the act of March 11th, 1867,2 R. S. 1876, p. 132.</p>

<p>Replevin Bail. — Execution.—Judgment.—Levy.—Justice of the Peace.— Where the replevin bail upon a judgment rendered by a justice of the peace procures the issuance of an execution on such judgment, within, the time allowed by law for the stay thereof, without the affidavit and notice required by section 94, 2 R. S. 1876, p. 635, such execution is unauthorized, and the constable may return it without mating a levy.</p> <p>Same. — Sight to Control Execution. — A replevin bail has no right to direct, or control an execution issued on a judgment after the expiration of the-stay of execution thereon, without having first paid off the judgment-</p>

<p>Criminal Law. — Grime Committed by Convict while in Penitentiary. — Jurisdiction.— Sentence Adjudged. — Where a prisoner, while undergoing imprisonment in the penitentiary for a term of years, commits a criminal offence, the circuit court of the county where such offence is committed has jurisdiction to try him therefor, and may adjudge that he be imprisoned for a term extending beyond the term for which he was already sentenced, or for life, or may adjudge that he suffer death. And,where the term of imprisonment adjudged is for life, it will commence on the day of conviction and sentence, and runs concurrently with the term of the previous sentence.</p> <p>Same. — Term of Imprisonment. — Several Convictions. — The courts of this State have no authority to adjudge, on several convictions, that one term of imprisonment shall commence at the expiration of another.</p>

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

<p>Promissory Note. — School Township. — Complaint.—A complaint upon-a note of a township, averring that it was executed for an indebtedness against the school township, and showing that the articles for which it was given were “dissected maps of the United States,” makes it sufficiently apparent that it was the intention of the parties to bind the school, and not the civil, township.</p> <p>Pleading. — Answer.—Demurrer.—Harmless Error. — Where all the evidence which might be given in support of paragraphs of answer is admissible under other paragraphs, demurrers are not improperly sustained to them.</p> <p>■Consignment. — Railroad.—Delivery at Station. — Where maps had been purchased by a township trustee, their delivery at the railroad station, with notice to him, after the time agreed, vested their ownership in the school township, subject only to his right to refuse to receive them, for sufficient reason, and relieved the railroad company of any further obligation to the consignor.</p> <p>^Rescission oe Contract. — Township Ti-ustee. — Notice.—Where a trustee who has executed a note in the name of his school township, in advance of the delivery of maps purchased, desires to rescind the contract, on account of delay in performance, it is incumbent on him to notify the consignors of such intention, to return the maps, or do some other act disaffirming the contract.</p>

<p>Criminal Law. — Affidavit and Information. — Constitutional Law. — The act approved March 29th, 1879, Acts 1879, p. 143, “in relation to prosecutions of felonies by affidavit and information,in certain eases,” is general and of uniform operation throughout the State, and is constitutional.</p> <p>Same. — Defendant’s Personal Bight. — Jurisdiction.—The provision in section 2, that “any person charged with a felony shall have the right to demand that he be prosecuted by affidavit and information witlioutdelay,” gives a personal right which he may exercise if he elect so to do, but the court’s jurisdiction does not depend upon his exercise or non-exercise thereof.</p>

<p>Criminal Law. — Indictment.—Intoxication.—Public Place. — Under section 11 of the act of March 17th, 1875,1 R. S. 1876, p. 872, prescribing a penalty for intoxication in certain eases, an indictment alleging that the defendant was found intoxicated “in a public street, highway and sidewalk,” charges that the offence was committed in a public place.</p> <p>Same. — Highway.—Case Overruled. — A public highway is a public place. Williams v. The State, 64 Ind. 553, overruled.</p> <p>Same. — Street.—A street is a public highway, and prima facie a public street is a public place.</p>

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

<p>Interrogatories. — Conflict of Answers with General Verdict. — Where there is a direct and irreconcilable conflict between the general verdict and the answers to interrogatories, the latter will prevail against the former.</p> <p>'Same. — When Single Answer to Interrogatories will Prevail Against General Verdict. — Where interrogatories cover the whole ease, and taken together sustain the general verdict, parties can not single out one of a series of answers and ask judgment upon that alone as against the general verdict, unless such answer is upon a vital point and distinct from and independent of other answers, and so in conflict with .the general verdict as not to be reconcilable with it upon any reasonable hypothesis consistent with the issues.</p> <p>Infanct. — -Contract.—Ratification.—Where a minor, in conjunction with a person of full age, retains possession of leased premises, under a contract therefor, ten months after attaining his majority, he thereby ratifies such contract.</p> <p>Same. — Wrong ful Detention. — Infancy is not a defence to an action for the wrongful detention of property.</p> <p>"Landlord and Tenant. — Notice to Quit. — Evidence.—In an action to recover the possession of real estate, where the evidence shows a tenancy for a time certain, no notice to quit is required.</p>

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

<p>Practice. — Harmless Error. — Cross Complaint. — Demurrer.—'Where there is no substantial difference between tbe question presented in two paragraphs of a cross complaint, it is harmless error to sustain a demurrer to one of them.</p> <p>■ Same. — Special Finding. — Where a fact is not referred to in the special finding, no question is reserved in regard thereto by an exception to the conclusions of law from the facts found.</p> <p>■’Conveyance. — Disaffirmance.—Voidable Deed. — A voidable deed may be disaffirmed by entry on the land, by a written notice of disaffirmance, by a subsequent conveyance, or by any other equally emphatic act, declaratory of an intention to disaffirm.</p> <p>■ Same. — Act of Disaffirmance. — It is the act of disaffirming which destroys a voidable deed, and not the proceedings which may be taken to give force and effect to the disaffirmance after it has been made.</p> <p>; Same. — Possession Not Necessary to Disaffirm. — It is not necessary that the grantor in a voidable deed should be in a position to recover the possession of the land conveyed, when the disaffirmance of the deed is made.</p> <p>¡'Same. — Insufficient Excuse for Failure to Disaffirm. — The possession of real estate by a widow, under right of dower, is no excuse for the failure of a minor heir, to whom the fee belongs, to disaffirm a deed made .thereto within a reasonable time after arriving at full age.</p>

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

<p>County Commissioners. — County Work. —Gravel Boad. — Statute Construed. — When the commissioners of a county take charge of the construction or improvement of a free gravel road, such construction or improvement becomes at once a county work, within the meaning of the act of March 14th, 1877. Acts 1877, Spec. Sess., p. 29.</p> <p>Same. — Bond.—Contract.—When any work is placed in charge of the commissioners as a county work, they are required to take a bond which •shall guarantee the faithful performance and execution of the work, and that the contractor shall promptly pay all debts incurred by him in the prosecution of such work, including labor, material furnished, and for boarding the laborers.</p> <p>Same. — Title of Act. — Boarding Laborers. — The subject-matter and gen- ■ eral character of the act of March 14th, 1877, are fairly expressed in the title, and it comprehends the provision for the payment of persons boarding laborers.</p> <p>Same. — Jurisdiction.—Until the commissioners of a county have acquired jurisdiction over a gravel or other similar road, and ordered either its •construction or improvement, they are wholly without authority either to let a contract for work upon such a road, or to take bond.</p> <p>Pleading. — Complaint.—Fatal Omission. — A failure to aver that the commissioners had ordered either the construction or improvement of a .gravel road is a fatal omission from a paragraph of complaint on a bond taken under the provisions of said aet of March 14th, 1877.</p>

<p>_ Practice. — Supreme Court. — Complaint.—Assignment of Error. — If one paragraph of a complaint he good, an assignment that the complaint does not state facts sufficient to constitute a cause of action will he unavailing.</p> <p>Same. — Commencement of Action. — Impetration.—The general rule is, that an action is not commenced until the impetration of the writ.</p> <p>Same. — Presumption.—Where the record does not show the issuing of any writ, nor an objection in the court below to the time of bringing the ac- ' tion, the Supreme Court will presume that the action was commenced when appearance was made and answer filed.</p> <p>Pleading. — Complaint.—Presumption.—Evidence.—Defects Aided by Finding. — Many defects which a demurrer would reach are aided by a verdict or the finding of the court, and where there are sufficient general facts stated in the complaint to show that the omissions were such as might have been supplied by the evidence, they will be presumed, on appeal, to have been so supplied.</p> <p>Same. — Common School. — Township Authorities. — Waiver.—A teacher of a common school is entitled to compensation, if the failure to actually conduct the school each day of the term was caused by the wrongful act or omission of the township authorities; and where the evidence shows that a strict performance of the conditions has been prevented or waived by such act or omission, a recovery can not be defeated by such failure.</p>

<p>'■Cities and Towns. — City Treasurer. — Compensation. — Statute Construed. — Taxes.—The act of March 11th, 1875, Acts 1875, Beg. Sess.,*p. 118, legalizing the assessment and collection of municipal taxes, was not designed to, nor did it in any way, change the law concerning the ^salary, compensation, fees or emoluments of city treasurers.</p> <p>Same. — Salary of Gity Treasurer.— Statute Construed.— Taxes. — School* Commissioners. —By section 51 of the act for the incorporation of cities,. 1 B. S. 1876,13. 267, city treasurers are to be paid for general services a salary to be accurately determined and fixed on some certain basis-■ by the city council. It may be a percentage on the taxes levied, but it' can not be on the taxes collected during the year; nor are city treasurers entitled, in addition to such salary, to a percentage of the taxes ■ collected by them, assessed by the city board of school commissioners,. by the provisions of the act of March 3d, 1871,1 B. S. 1876, p. 817, im relation to schools in cities of thirty thousand or more inhabitants.</p> <p>Same. — Salaries of City Officers. — There is no authority in said act of March. 3d, 1871, for a city or its officers to charge any part of the salaries of its-officers named in section 51, supra, against the taxes collected for the-city school corporation.</p> <p>Same. — Fees and Charges for Collecting Taxes. — Distress and Sale. — The. fees and charges allowed a city treasurer for the collection of taxes by distress and sale, by section 44 of the act for the incorporation of cities, are such only as are allowed constables on an execution sale, and do not include the percentage allowed county treasurers for similar services,,, and such fees and charges are collectible out of the property of the tax- • payer in each case, and can be deducted from the amount of the tax, interest and penalty only in case the sum realized is insufficient to-pay both.</p> <p>SAME. — Presumption.—Complaint.—Demurrer.—Upon a demurrer to a. complaint in an action by the board of school commissioners of a city, against the city treasurer, to recover school tax levied by them and-' claimed by such treasurer as fees and charges for collections made by distress and sale, it will be presumed that such officer levied on property sufficient to pay all thatwas due, including his own fees and charges.. From the Marion Superior Court.</p>

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

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

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

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

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

<p>Prosecuting ATTOTmm:. — Thirty-fifth and Fortieth Judicial Circuits.— Statute Construed. — Waiver.—Noble, DeKalb and Steuben counties composed the Thirty-fifth Judicial Circuit prior to March 21st, 1879, the judge and prosecutor both residing in Noble. In 1878 the relator, a resident of Steuben, was elected prosecuting attorney of said circuit, for the two years commencing October 28th, 1879. By the act of March 21st, 1879, it Avas provided that, on and after its passage, Steuben and DeKalb should constitute the Fortieth Judicial Circuit until October 1st, 1880, when they wore again to become a part of the Thirty-fifth Circuit, and that the prosecutor-elect of the Thirty-fifth Circuit should -be the prosecutor of the Fortieth on and after his term commenced. Under said act, the relator Avas appointed prosecutor of the Fortieth Circuit, and seived in that capacity till October 28th, 1879,AAdien he qualified under his election, and continued to serve and designate himself •as prosecutor of the Fortieth Circuit till October 1st, 1880, and after that date so styled and signed himself, and received his compensation. At the October election, 1880, the defendant was elected prosecutor of the Thirty-fifth Circuit, but received no commission till February, 1881, when he qualified and entered upon the duties of his office.</p> <p>Held, that said act created a neAV circuit, in Avhich the office of prosecutor was vacant, AA'hich the Governor had a right to fill.</p> <p>Held, also, that, by force of said statute, the relator, on qualifying imder his election, became the prosecutor of the Fortieth Circuit so long as it lasted, and thereafter of the Thirty-fifth Circuit until October 28th, 1881, when the defendant’s term will commence.</p> <p>Held, also, that the fact that the relator wrongly claimed to be, and designated himself as, the prosecutor of the Fortieth Circuit, after it ceased to exist, constituted no waiver of his title by election and statute to the office of prosecutor of the Thirty-fifth Circuit.</p> <p>Information. — Prosecuting Attorney Sis Own Belator. — The prosecuting attorney may prosecute an action upon his own relation against a person who unlawfully intrudes into the office of prosecuting attorney.</p>

<p>Statute of Limitations. — Auditor of County. — Congressional Township School Fund. — Loan to Himself. — Bond.— Sureties. — Where the auditor of a county dr-ew a warrant in his own favor for one thousand dollars, as a pretended loan from the congressional township school fund, and received the money, a cause of action at once accrued on his bond, and a suit thereon, commenced more than three years thereafter, is barred by section 211 of the code.</p> <p>i Same. — County Commissioners. — Concealment.—The right of action does ' not depend upon a knowledge of the facts by the county commission■ers, but upon the existence of the facts themselves. If the facts constituted a breach of the bond, the statute commenced to run, not when the breach was discovered, but when it occurred.</p> <p>. .Same. — Failure to Discover-. — Silence of Party Liable. — A failure to dis- \ cover a cause of action does not, like its concealment, suspend the statute; and the mere silence of the party liable is not enough, but something must be done tending to prevent discovery.</p> <p>Auditor of County. — Not, Trustee of Congressional Township School Fund. — The auditor of the county is not a trustee of the congressional township school fund.</p> <p>Same. — Void Loan. — A loan of one thousand dollars, made by the auditor of a county to himself, is void, although all the requirements of the statute have been observed.</p>

<p>Oriminai. Law. — Felony. — Affidavit and Information. — Statute Construed. — In a prosecution for felony, under section 1 of the act of March 29th, 1S79, Acts 1S79, p. 143, the averments in the information, “that an indictment was found hy the grand jury and quashed, and that said grand jury is not now in session,” are insufficient, under either the first or second clause of said section.</p>

<p>"Will. — Widow’s Election. — Statute of Descents. — Sections 27 and 41 of the statute of descents, IB. S. 1876, p. 408, taken together, mean that when a substantial provision is made for the widow by the will of her late husband, she can not, in the absence of a plainly expressed intention to the contrary, take both under the will and under the statute. In such event, she has the option simply of taking under the one or the other, as she may prefer. Armstrong v. Berreman, 13 Ind. 422, distinguished.</p> <p>Same. — Relinquishment of Claim. — Real Estate. — A widow’s election to take under the will operates as a relinquishment of all other claims to the testator's real estate.</p> <p>Pleading. — Written Instrument not Foundation of Action or Defence. — A party is not required to file with his pleadings an instrument in writing which is to be used merely as evidence at the trial and does not constitute the foundation of his action or defence.</p>

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

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

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

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

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

<p>Practice. — New Trial. — Record.—Matters assigned as causes for a new-trial, and set out in the motion therefor, can not he taken as true statements, if they appear nowhere else in the record.</p> <p>Same. — Bill of Exceptions. — Special Instructions. — Oral Instructions. — Alleged erroneous action of the trial court in refusing to instruct the jury specially as asked, and in modifying the several instructions asked without putting the modifications in writing, and in instructing the' jury orally, must he shown in the record either hy a bill of exceptions- or in some other manner authorized hy law.</p>

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

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

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

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

<p>Erom the- Ohio Circuit Court.</p>

<p>Replevin Bail. — Entry of. — Affidavit.—Confession of Judgment. — Section. 385, 2 R. S. 1870, p. 190, in relation to the confession of judgment, does not require any affidavit in connection with the contract and entry of replevin bail. Such bail undertakes for the payment of the debt of another, which is already in judgment, excluding inquiry concerning its validity or the amount due thereon.</p> <p>Same. — Attestation of, by Clerk. — Where the entry of replevin bail on a judgment rendered in the circuit court was not formally approved or attested by the clerk thereof, such entry is not, for that reason, invalid or of less legal effect than if there had been such formal approval. Same. — .Presumption.—Statute Construed.— Section 421, 2 R. S. 1S76, p. 202, does not in terms require an attestation or formal approval by the clerk of the entry of the recognizance of'replevin bail; and, in the-absence of an unequivocal showing that the entry was made without his knowledge and approval, the existence of the entry upon the judgment docket of the court is sufficient proof of his approval.</p> <p>Same.- — Foreclosure.—Execution Against Beplevin Bail, where there is no Personal Judgment. — Clerk may Issue.- — Where a judgment of foreclosure is rendered without any personal judgment, and an entry of replevin bail is written and signed immediately following the decree, the clerk may, after the sale of the mortgaged premises, issue an execution against the property of the replevin bail for any balance remaining unsatisfied of such decree, without any order of the court therefor.</p>

<p>Payments. — Appropriation of, by Creditor. — A creditor can not, at his discretion, appropriate payments made by his debtor, alter a controversy has arisen concerning them.</p> <p>Same. — Appropriation of, by Court. — Payments thus made will be'applied by the court according to the recognized rules of law governing the application of unappropriated pigments.</p>

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

<p>Alien. — Escheat.—Information.—Counter-Claim.—An information by the prosecuting attorney, under section 761, 2 E. S. 1876, p. 301, may be made the subject of an original action or of a counter-claim by the State, and when it is filed as a counter-claim under section 365, 2 E. S. 1876, p. 185, and the original action is dismissed, the defendant shall have the right to proceed to a trial.</p> <p>Same. — Intestate —Entry without Information Found. — Where an alien dies intestate, owning real estate, leaving no one in possession and no known heirs, the State has title at once, and may enter and take possession without information found; otherwise she must first establish her title-by information.</p> <p>Same. — Taxes after Escheat. — After the legal title to the land of an alien has become vested in the State by escheat on his death without inheritable blood, any assessment of taxes upon the land, or its sale for delinquent taxes, is void.</p> <p>Same. — Limitation of Action. — A counter-claim filed by the State within two years after the passage of the act of December 21st, 1872,1 R. S. 1876, p. 72, is not barred by section 250 thereof.</p> <p>Same. — Evidence.—Estoppel in, Fais. — An estoppel in pais against the State-from asserting her title to escheated land is not made out by the assessment of taxes thereon, its sale and conveyance for delinquent taxes, and the assessment and collection of taxes from the purchaser at the tax sale.</p> <p>Same. — Estoppel by Peed. — An auditor’s deed made in consummation of a sale for taxes can not bar the assertion by the State of any claim or right to the land sold.</p> <p>Same. — Taxes.—Merger.—Illegal Sale. — The State’s claim for taxes is merged in the ownership in fee acquired by escheat, a sale for such taxes is illegal, and a purchaser is entitled to repayment of his bid and all subsequent taxes paid, and has a remedy for lasting and valuable improvements.</p> <p>Same. — Query.—Can the State be estopped by the conduct of public ministerial officers?</p>

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

<p>Decedents’ Estates. — Supreme Court. — Appeal.—Motion to Dismiss.— Waiver. — A motion to dismiss an appeal under sections 189 and 190, 2 B. S. 1S76, p. 557, because no bond was filed as required, comes too late when made two years after the ease had been submitted by agreement, and briefs upon the merits filed by each party, and must be considered as waived.</p> <p>Practice.— General Verdict. — Answers to Interrogatories. — A motion for judgment on the facts found, notwithstanding the general verdict, is properly overruled,where the answers are not inconsistent with the general verdict, or where the facts found are immaterial without a further finding, or do not appear in the pleadings. ■</p> <p>•Same. — Venire de Novo. — A venire de novo is not the proper method to raise the question of the sufficiency of an answer to an interrogatory; but the party should object to receiving the verdict until the question has been properly answered, and, if his objection be overruled, should save his exception to that ruling.</p> <p>Evidence. — Former Trial. — In a second action and trial, it is not competent for a witness to testify in a general way on what theory the suit was first prosecuted, and upon what intimations of the court the case was dismissed.</p> <p>Same. — Admissions of Attorney. — Query.—Can an attorney, in the absence of his client, make an admission of fact which would be binding on the client except for the purposes of the pendiug case?</p> <p>Same. — In an action against a decedent's estate, on a note given by the testator in his lifetime, testimony as to the fact and time of his sending a sum of money to the payee is competent and relevant, it being proper to be considered in determining whether the note was given as compensation for services and acts of kindness to the deceased.</p> <p>Promissory Note. — Consideration.—Gifts interVivos and Causa Mortis.— Testamentary Disposition. — The desire of a testator to rectify an inequality in the provisions of his will is not a sufficient consideration to ■support a note given for that purpose only. Mallett v. Page, 8 Ind. 364, criticised and explained.</p> <p>‘Same. — Executed and Executory Contracts. — While natural*love and affection is a good consideration for a deed or any executed contract as between the parties thereto,, it is not so for an executory contract.</p>

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

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

<p>Partition. — Title Gained Thereby. — Partition of lands gives the parties, to it no new title to the parts allotted to them in severalty; but they respectively continue to hold the land by the former title merely divested of the title of their co-tenants.</p> <p>Same. — Judgment.—Estoppel.—Widow.—Descents.—A judgment in partition between a widow and her children, which allots to her in fee simple a part of the lands of which her husband died seized, to hold •‘free from any and all claim or demand whatever" of the children of said husband by her, operates only upon existing rights, and will not estop such children from claiming the estate which they would afterwards inherit upon her death, under section 18 of the act concerning descents, 1 B. S. 1876, p. 411.</p> <p>Same. — Conveyance during subsequent Coverture, of Lands Derived from Deceased Husband. — Descent.—A widow with children, to whom is allotted by partition her share in severalty of the lands of her deceased husband, who was the father of such children, can not, during a subsequent. marriage, convey the land so allotted to her; and upon her death during coverture such lands will descend, under sec. 18 of the act regulating descents, to the children of the marriage by which she obtained title.</p> <p>Estoppel in Pais and by Deed. — A -woman, having a child by a former marriage and holding real estate in virtue of that marriage, during a i subsequent coverture, attempted to convey the land in fee simple, for a i' valuable consideration, by deed with full covenants, in which her husband joined. The child, being fully informed of her rights, consented ■to the conveyance, and upon reaching full age, the mother still being alive, she executed to the purchaser her own deed of quitclaim, without covenants, for the purpose of signifying her consent to her mother's conveyance, and for the purpose of conveying all her present or expectant estate in the land, and of releasing it from any claim or demand by her; and, after her mother's death, she received from her stepfather the amount of the purchase-money which had not been expended by her mother, and which she accepted with knowledge of the source from which it was derived.</p> <p>-Held, that such child was not estopped to set up her title by descent from her mother and to maintain an action for possession of the land.</p>

<p>Practice. — Supreme Court. — Transcript, How Corrected. — A transcript in the Supreme Court, if defective, can only be corrected by a certiorari.</p> <p>Same. — Appeal.—Secord.—Complaint.—Answer. — Unless the record on appeal contains a copy of the complaint, the Supreme Court can not determine the sufficiency of an answer thereto.</p>

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

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

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

<p>Guardian and Ward. — Gtistody . — Education.—Support.—When Duty to> Keep Ward Employed. — A guardian is entitled to the custody of his-wards, and it is his duty fro provide for their education; and when of limited fortune, and able to earn their support, it is his duty to keep' them so employed rather than to allow them to remain in idleness or’ expend their limited patrimony.</p> <p>Contract. — Evidence.—Member of Family. — Insufficiency of Evidence to-Sustain Finding. — Upon a trial, in an action to recover for work and labor, the evidence showed that the plaintiff, while under guardianship, went to live with the defendant, her uncle, under an agreement made with him by her guardian that she should live with him as a member of his family, and be boarded, clothed and educated by him; that nothing was said about wages or pay; that under this agreement she continued to live with the family until her majority, and until her marriage, eight years thereafter, never asking or demanding wages or pay for her services, the defendant providing for her support and treating her substantially as a member of his family; that, from the time of' her majority until shortly before her marriage, she had loaned her money to her uncle, he paying her interest therefor, and thatupon settlement with him she had allowed him a certain sum for clothing furnished her..</p> <p>FLeld, that the evidence was insufficient to entitle the plaintiff to recover.</p>

<p>Real Estate. — When Deed Absolute Treated as Mortgage. — Security.—A deed of realty, though absolute on its face, will be treated in equity as a mortgage only, if the purpose of its execution was to secure the payment or discharge of an existing debt or liability.</p> <p>Same. — Possession Constructive Notice. — As a general proposition, the possession of real estate is constructive notice to all the world of the rights of the party in possession.</p> <p>Same. — Exception to Buie. — Grantor's Possession after Conveyance. — The fact that a grantor remains in possession of his land after conveying it away by a deed absolute on its face is not constructive notice to purchasers of a judgment against the grantee, of the grantor’s right to have his deed treated as a mortgage.</p> <p>Same. — Innocent Purchasers of Judgment against Grantee. — Superior Bight.— Purchasers of a judgment against a grantee which, by the records, appears to have become a lien on land conveyed by a deed absolute on its face, having expended their money upon the faith of that appearance, paying the full amount thereof in ignorance and without notice of the fact that the deed was only a security, or claimed as such, acquire a right superior to the right of the grantor acquired by a re-conveyance of the lands and by actual continued occupation thereof.</p>

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

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

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

<p>Criminal Law. — Burglary.—Indictment.—Corporation.—Railroad Company.— Presumption. — Where an indictment for burglary charges that the offence was committed by a burglarious entrance into the office of a railroad company, therein designated, it is not necessary to also aver that such company was a corporation, partnership or stock company. In such case corporate existence will be implied.</p> <p>Same. — Evidence.—Be Facto Corporation. — It is not error in such case to permit a witness to state that such railroad company was a corporation; it is sufficient to prove that such company was known and acting as a corporation.</p>

<p>■Decedents’Estates. — Attachment of Administrator. — Practice.—Pleading. —A right to a trial hy jury, “in all cases where there is an issue of fact,” under section 188, 2 B. S. 1876, p. 556, implies the right in an administrator to put a case against him, under section 22 or section 1G1 of the act concerning the settlement of decedents’ estates, in shape for trial hy ■ special pleas, or by answer in denial, tendering or forming issues of fact to he tried as such.</p> <p>.Same. — Section 161, 2 B. S. 1876, p. 549, strictly construed, does not apply to the ease of one who has been removed from his trust and is no longer an executor or administrator, hut may, perhaps, he construed in connection with section 30, 2 B. S. 1876, p. 504.</p> <p>.Same. — Answer of Accomplished Wrong. — An answer, showing that whatever wrong had been done was fully accomplished before the defendant’s removal from his trust, that since his removal he has not had the balance due the estate in his possession or control, has not concealed it, and has no power to restore it, nor means with which to secure its restoration, constitutes a good and complete defence against procedure under section 161, 2 B. S. 1876, p. 549.</p> <p>•Same. — Intent of the Law. — The object of the law under consideration was to effect a discovery and restoration, but not to punish for what could not he compensated.</p>

<p>Practice. — Promissory Note. — Alteration.'—Interest.—Collateral Facts.— Evidence. — Argument.—Where notes in payment for a threshing machine were to he written “with 10 per cent, interest,” and the question before the jury was whether or not the note sued on had been altered after its execution by inserting the figures “10” between “with” and “percent, interest,” making the note draw' ten instead of six per cent, interest, the trial court did not err in holding that an agent’s promise to pay defendants for time lost while waiting for the machine was immaterial, nor in requiring their counsel to refrain from commenting upon it in argument. The rule is that collateral facts should be excluded. The agent's promise to pay the defendants for lost time ivas purely collateral to the fact in issue, and was therefore immaterial.</p>

<p>Appeal Bond. — Approval by Cleric. — Consent of Plaintiffs by Attorney.— Mutual Waiver. — Superior Court. — Where a superior court in special term fixed the penalty and time of filing of an appeal bond, leaving the approval of the surety to the clerk, and the bond, with the written consent of plaintiffs by attorney endorsed thereon, was approved by the clerk, the defendants, in a suit on the bond, can not dispute the authority of the attorney whose act they have ratified, but the parties must be held to have mutually waived any approval by the court and to have made the bond just as effective as if the statute had • been conformed to with technical accuracy.</p> <p>Pleading.— Complaint. — Assignment of Error. — Intendments in Favor of Pleader. — Practice.—Where a complaint has not been tested by demurrer, and its sufficiency was first brought in question by assignment of error in the general term of a superior court, it must be tested by the rule which is applied to motions in arrest of judgment, and, instead of indulging presumptions against the pleader, all reasonable intendments should be allowed in his favor.</p> <p>'Same. — Defects Cured by Verdict. — Where the statement of the plaintiff's cause of action, and that only, is defective or inaccurate, the defect is cured by a general verdict in his favor.</p> <p>Same. — Conclusion of Law. — Bond.—Supersedeas.—Verdict.—An averment in a complaint not tested by demurrer, “that-said appeal bond operated as a supersedeas in said cause," though, strictly speaking, a mere statement of a legal conclusion, should be regarded as bringing in issue and admitting proof of such facts, if any, as would make the bond have that effect, and after verdict for the plaintiff it must be presumed that such proof was made, if it was legally possible to make it under proper averment.</p> <p>Superior Court. — Conditions of Appeal Bond.— Waiver. — Measure of Becovenj. — Granting that the conditions of a bond in ease of appeal from special to general term of the Superior court must be directed by the court, the parties may waive that requirement and themselves name ■ the conditions as well as the sureties, and,within the penalty of the bond agreed upon, the amount due on the judgment appealed from is the measure of the recovery which may be had, and this without averment or proof that the judgment defendants have become insolvent.</p> <p>Same. — Practice.—General Finding . — Later Special Finding not Available.— A general finding remaining in the record will support the judgment of the court, notwithstanding a special finding and conclusions of law rendered ten days or more thereafter, which purported to be done at the request of appellants made at the commencement of the trial.</p>

<p>From the Miami Cü'cuít Court.</p>

<p>Practice. — Endorsement on Complaint Fixing Return Day of Summons.— Statute Construed. — Attorney.—Where, under section 315 of the code, as amended by the act of March 6th, 1877, Acts 1877, Beg. Sess., p. 105, the endorsement upon a complaint directing the clerk to issue a summons, and fixing the day of the term upon which the defendant shall appear, is signed ‘-W. & T., Att’ys,” who had signed and filed the complaint, such endorsement is sufficient to authorize the clerk to issue a summons for the defendant to appear and answer the complaint on the day named.</p>

<p>Liquor Law. — “Barter and Sell.” — The averment ill an indictment for the unlawful sale of liquor, that the defendant did “unlawfully barter and sell” certain intoxicating liquor, for the price of ten cents, imports-a sale and not a barter.</p> <p>Same. — ¿'ale.—A sale implies the transfer of property for money, though time may be given for payment.</p> <p>Same. — Sale to Minor. — Insufficiency of Evidence. — Variance.—On the trial of a defendant indicted for selling intoxicating liquor to a minor, evidence that the minor in payment therefor gave the defendant two pool-checks, worth five cents each, which had been sold by the defendant at five cents each, to be taken up in beer, does not show a sale, and constitutes a material variance.</p>

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

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

<p>Landlord and Tenant. — Notice to Quit, when Unnecessary. — Notice to quit is never necessary unless tbe relation of landlord and tenant subsists; and where one in possession repudiates the relation of tenant to his landlord, or of vendee to his vendor, if he enters under a contract of purchase and sets up a hostile claim to title, no demand of possession or inotice to quit is necessary before suit.</p>

<p>Cities and Towns. — Notice to Councilman of Defects in Street or Bridge.— Under the statutes of this State, notice to a councilman of a city, of the dangerous condition of a street or bridge within the city, is notice to the city. Elliott, J., dissents.</p> <p>Same. — Agents.—Notice.—In this State, for the purpose of receiving notice, councilmen of a city are at all times the agents of the city.</p> <p>Same., — Continuance of Defective Condition of Bridge. — Presumption of Notice. — Notice to a city of the defective condition of a bridge therein will be presumed from the continuance of such condition a sufficient length of time for the officers of such city to have had an opportunity to learn of such defect.</p> <p>Same. — Diligence in Making Repairs. — A city is responsible only for reasonable diligence to repair defects in its streets or bridges, or to prevent accidents therefrom after such defects are known, but where, on failure, after notice in due time to have made repairs of such defects,, an injury occurs therefrom, the city is liable.</p> <p>Same. — Measure of Damages. — Loss of Business. — Evidence.—In an action; by a physician against a city, to recover damages for a personal injury received on account of a defective bridge, proof of his professional earnings before and after the injury is admissible in evidence under a. special allegation of damages on account of loss of business, not as a basis or measure of damages, but as aiding the jury in estimating the compensation to be awarded.</p> <p>Same. — Instruction.—Assumption of Fact. — An instruction that, “If the bridge in question, being within the city, was defective,” etc., does not. assume that the bridge was within the city.</p>

<p>Assigned Debt, Action on. — Debt must be a Tangible and well identified Cause of Action. — Sale by Sheriff on Execution. — Assignment.— Sections 438 and 439, 2 It. S. 1876, p. 208, construed together, mean that the debt, or thing in action, which may he given up by an execution defendant and levied upon and sold by the sheriff and assigned and delivered by him, must be some tangible and well identified cause of action, upon which suit may be brought by the purchaser in the-same manner as might have been done by the execution defendant, and capable of being assigned and delivered to the purchaser, such as a paper writing signed by some third person, a duly itemized account, or other chose hi action described upon or by some paper.</p> <p>Same. — Complaint.—Insufficient Description of Claim. — Account.—A complaint upon an assigned debt for “about eight hundred dollars,’’ which gives no bill of particulars of the claim, or itemized statement or description of the account, or of the nature of the demand, is insufficient.</p> <p>. Same. — Plaintiff’s inability to obtain a better description or identification of the demand is a misfortune, for which averments that the execution defendant and all the defendants refuse to give him. an itemized statement or bill of particulars, although often requested so to do, suggest no adequate remedy.</p> <p>•Same. — Sheriff’s Assignment. — The sheriff’s assignment of a debt, or thing in action, sold on execution, is not the foundation of an action brought upon the claim and does not become a part of the complaint by being filed with it, and the facts recited therein can not be considered in aid of the averments of the complaint.</p>

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

<p>Ditches and Drains. — Notice.—Under section 2 of tlie act of March 9th, 1S75, p. 97, notice of the pendency of a petition to establish a ditch must be published for four consecutive weeks, and notice published ior one day less than that time is irregular and voidable.</p> <p>Same. — Finding of Commissioners. — ■Collateral Attack. — Whether there was- or was not sufficient notice, is a jurisdictional question to be determined' by the commissioners, and their finding can not be collaterally attacked, unless the record affirmatively shows that no notice whatever was given.</p> <p>Same. — Injunction.—Estoppel.—One who stands by and sees the construction of a ditch without objecting, is estopped from afterward suing out an injunction on the ground that proper notice of the letting of the contract was not given.</p> <p>Same. — Breach of Contract. — The mere fact that a contract has not been. performed according to its terms is not ground for an injnuction.</p> <p>Same. — Bond of Contractor. — Surety.—An engineer of a ditch may become surety on the bond of the contractor, as such surety does not thereby become interested in the contract within the meaning of section 12 of the act, supra.</p>

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

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

<p>Decedents’ Estates. — Suits by Administrators. — Appeal.—Practice.—Supreme Court.— Cases Distinguished. — Appeals to the Supreme Court in suits by executors and administrators, authorized by sections 4 and 21 of (She civil code, are regulated by, and must conform to, the requirements of the code on the subject of appeals, and are not governed by sections 189 and 190 of the act providing for the settlement of decedents’ estates. Seward v. Clark, 67 lnd. 2S9, and Bell v. Mousset, 71 Ind. 347, distinguished.</p>

<p>Pleading. — Complaint. —Promissory Note. — Payee's Indorsement. — Indorsers. Consideration. — Where a complaint against the makers and indorsers of a promissory note contains an averment that the indorsement of the latter was made “on said day and at the same time of the making and delivery of said note,” it is manifest that, even if the payee's indorsement appear first, and he is bound as the first indorser, the names oi the other indorsers were on the paper when received by the plaintiff, and that the instrument imported a consideration against them all, and no special averment of a consideration was necessary.</p> <p>Practice. — Instructions not Signed by Judge. — Bill of Exceptions. — Order of Court. — Where there is no bill of exceptions, nor order of the court, whereby instructions to the jury are made a part of the record, and they are not signed by the judge, they are not properly in the record.</p> <p>Same. — Evidence.—Promissory Note. — Discharge of Surety by New Writing-—Burden of Proof. — Production of Writing. — Proof of Contents. — One who sets up a defence, whereby he claims a release from one writing by reason of the execution of another, does not shift the burden of proof on the subject until he shall have produced the new writing on. which he relies, or, having shown a good excuse for not producing it, shall have proved its contents.</p> <p>Same. — Release of Surety. — Extension of Time. — Where one seeks release from a promissory note for the reason that the plaintiff took a note payable in bank m payment of interest thereon, in advance, and thereby created an implied agreement to extend the time of its payment, the interest note is the best evidence of its own contents, and where, being present and sufficiently identified and its execution proved, it was not offered in evidence, the Supreme Court can not say that parol evidence of its terms was improperly excluded, or that a verdict against the defendant ought to have been different.</p> <p>Same. — Judicial Discretion. — Recalling Witness. — It is a matter of judicial, discretion, whether a witness once discharged from the witness stand may be recalled by the party who first called him.</p> <p>Same. — Repetition of Testimony. — To exclude a mere repetition of testimony is not an available error.</p>

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

<p>Special Finding. — Practice.— Verdict. — Where the special finding of the facts is inconsistent with the general verdict, the former will control the latter, and the court must give judgment accordingly.</p> <p>Negligence. — Employer and Employee. — Agreement as to Itislcs. — An employee, when he enters the service of an employer, impliedly agrees to assume all risks ordinarily and naturally incident to tlie particular service; and the employer impliedly agrees that he will not subject the employee, through fraud, negligence or malice, to greater risks than those which fairly and properly belong to the particular service in which the employee is to be engaged.</p> <p>SAME. — Obligation of Employer to Employee. - The employer's obligation is not to supply the employee with absolutely safe machinery, or with anjr particular kind of machinery, but to use ordinary and reasonable care not to subject the employee to extraordinary or unreasonable danger.</p> <p>Same. — Master and Servant.— Correlative Duties. — Machinery Used. — Injury to Servant. — When a master employs a servant to do a particular ' kind of work with particular kind of implements and machinery, the master does not agree that they are free from danger in their use, but that they are sound and fit for the purpose intended, so far as ordinary care and prudence can discover, and that he will use ordinary care and prudence in keeping them in such condition and fitness; and the servant agrees that he will use such implements and machinery with care and prudence; and if, under such conditions and circumstances, harm •or injury come to the servant in the use of such machinery, it must be ranked among the accidents, the risk of which the servant must be deemed to have assumed when he entered into such service.</p> <p>Same, — Improved Machinery. — Case Criticised. — Neither companies nor individuals are bound, as between themselves and their servants, to discard and throw away their implements or machinery upon the discovery of every new invention which may be thought or claimed to be better than those they have in use; but, if they take ordinary care and exercise ordinary prudence to keep their implements or machinery in sound repair, so that harm does not result to the servant for want of such sound condition of the implements or machinery used, then such individuals or companies will not be responsible to servants for injuries which may occur to them in the use of such implements or machinery. The St. Louis, etc., R. W. Co. v. Valirius, 56 Ind. 511, criticised.</p> <p>Same. — Sailroad Company. — Injury to Employee. — Brakeman.— Special Finding. — In an action against a railroad company by a brakeman for an injury received while engaged in coupling cars, by his foot being caught in a dangerously constructed frog at a switch on the line of the road, the jury found specially that the switches and frogs of the road were in the same condition during all the time the plaintiff was in the employ •of the defendant, and that they were of the same kind as those used on the principal railroads in the country; that plaintiff had f nil opportunity to acquire a knowledge of the condition of all the switches and frogs in the road; that he did not use airy care to ascertain the condition of the frogs and switches at the place where the injury occurred; that while walking on the track behind a moving ear, his foot was caught in ■one of the frogs; that the printed rules of the company forbid brakemen to go between the cars in motion to couple them, and forbid coupling by hand in all cases where a stick could be used; that, in eonsider.ation of employment by defendant, the plaintiff agreed to obey said rules; that, under the circumstances, the plaintiff used proper care to avoid injury to himself.</p> <p>Meld, that the defendant was not liable.</p>

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

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

<p>Replevin Bail. — Attestation by Justice. — An entry of replevin bail om a judgment rendered by a justice of the peace is not void because it, was not attested by the justice.</p> <p>Same. — Delay in Issuing Execution does not Pelease. — Mere delay in issuing execution will not release a replevin hail.</p> <p>Same. — Entry After Judgment had Ceased to be Bepleviable. — Execution.— The entry of replevin bail, after a judgment has ceased to be repleviable, either upon the docket of a justice of the peace or upon the record of the judgment in the circuit court, does not constitute a judgment upon which an execution can be issued.</p> <p>Judgment. — Process and Service. — Becord.—Default.—It is necessary to the validity of a judgment by default against a defendant in an action, that the record should affirmatively show that process had been duly .served the required length of time before the default was taken.</p>

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

<p>Change op Venue. — Affidavit. — Statute Construed. — Under the third! clause of section 207 of the code, as amended by the act of March 5th,, 1S77, Acts 1877, Reg. Sess., p. 103. the affidavit of the defendant for a change of venue must specifically set forth the defence. The general! statement therein, “that the affiant has a good and meritorious doXence to said action, as set forth in his answer,” is insufficient.</p> <p>JURY. — Sight to Poll. — Question Asked. — Verdict.—The right to poll the jury, in civil actions, is expressly conferred hy statute, hut it must he restricted to the single question to each juror, “Is this your verdict?” and not “Is this your verdict, and are you still satisfied with it?”</p> <p>Evidence.— Witness. — Value of Services.- — It is competent for a witness to state the value of another’s services, where he has knowledge of the matter in controversy, and is acquainted with the value of services such as those rendered.</p>

<p>Assignment op Error. — Sufficiency of Complaint.— Separate Paragraphs* —Practice.—Supreme Court. —Motion.—The sufficiency of a complaint, as a whole, may be assigned as error in the Supreme Court, and so the-sufficiency of each paragraph be brought under review, but separate* assignments on the respective paragraphs severally can not be made. An assignment of error, to be good, must be such, if true, as to require the reversal of the judgment; but. if any paragraph of a complaint is good, the sufficiency of other paragraphs can not be questioned, either by a motion in arrest or by an assignment of error that it docs not state facts sufficient.</p> <p>Same. — The assignment of errors is, in effect, the appellant’s complaint, in the Supreme Court, and, like the paragraphs of a complaint, each separate specification of error must in itself state a sufficient cause fon reversing the judgment.</p> <p>Contract.— Correction of. —Mutual Mistake.— Complaint.— Verdict. — ; Whei-e the complaint upon a contract alleges a mutual mistake as to-the terms thereof, and shows by its averments exactly what figures the parties agreed upon and intended to have inserted instead of those written therein, it is good on demurrer, and certainly sufficient after verdict.. Same. — Conditional Promissory Note. — Demand.—No demand is necessary before suit, upon a promissory note executed payable on condition that the maker should be unable to show that he had forwarded to the payee a certain sum on account of revenue taxes collected by the maker as deputy of the payee.</p> <p>Practice. — Answers to Interrogatories. — Where the answers to interrogatories show that the jury found for the plaintiff upon a good paragraph, of complaint, the Supreme Court will not consider the sufficiency of the-other paragraphs thereof.</p> <p>Same. — Identical Paragraphs of Complaint. — Refusal to compel Election.— Harmless Error.— No available error is committed by the refusal of the-trial court to compel a plaintiff to elect between two paragraphs of his complaint, though they be word for word the same, and admitted to-be for the same cause of action.</p>

<p>Foreclosure. — Senior and Junior Mortgages. — The rights of a junior incumbrancer are in no wise affected by the foreclosure of a senior mortgage. unless he is made a party to the foreclosure proceeding.</p> <p>Same. — Bedemption Money.— Terms of Mortgage.— Whole Mortgage Debt must be Paid. — The amount of redemption money to which a purchaser at a sale upon foreclosure of a senior mortgage is entitled depends on the terms of the mortgage, and not on the foreclosure judgment, nor on the amount he paid at the sheriff’s sale. Junior incumbrancers can not redeem by paying the sum of the purchase-money, with interest, but they must pay the whole mortgage debt.</p> <p>Same. — Damages.—Attorney's Fees.- — Offer to Bedeem. — Where a mortgage provides for attorney’s fees, if suit be brought by reason of the default of the mortgagor, they become a part of the damages which the mortgagee is entitled to recover, and an incident of the principal debt; and whether such suit be brought on the notes alone, or on the notes and mortgage, his right to recover attorney's fees accrues, and they become a part of the mortgage debt, and junior mortgagees are bound to include the amount of such fees in their offer to redeem.</p> <p>•Same. — Insurance Premiums. — Where it is a part of the contract of a mortgagor, and a condition of the mortgage, that he shall keep the premises insured in a certain sum for the benefit of the mortgagee, charges for premiums paid by him for such insurance, which the mortgagor has neglected to obtain, are allowable as a part of the redemption money.</p> <p>.■Same. — Costs.—Junior incumbrancers are not required to pay the costs of the foreclosure suit of their senior incumbrancer as a part of the redemption money.</p> <p>Same. — Mortgagee in Possession.— Bental Value. — Necessary Bepairs.— A mortgagee in possession is chargeable with the rental value of the property, and, on a redemption thereof, he is entitled to be reimbursed for all necessary repairs made on tbe mortgaged premises.</p> <p>Estoppel. — Necessary Element.— Knowledge of Legal Bights.— A paragraph of answer charging in effect only an agreement of senior and junior incumbrancers, that they would not hid against each other at their respective sales, without alleging that any facts were known to the plaintiff that were not also known to the defendant, discloses no-element of an estoppel by conduct against a plaintiff, to maintain an. action for redemption. One party is as much bound as the other to a knowledge of their respective legal rights.</p> <p>Pleading. — Cross Complaint for Foreclosure. — Demurrer.—A cross complaint seeking a foreclosure of a mortgage is insufficient upon demurrer, when neither the mortgage nor a copy is filed therewith.</p>

<p>School Trustee. — Vacancy.—Appointee can Hold until Successor is Elected.- — Cities and Towns. — A school trustee, appointed to fill a vacancy in the office of school trustee of a city, under the act of March 12th, 1875, Acts 1875, Reg. Sess., p. 135, is entitled, hy force of the third section of the fifteenth article of the constitution of the State, to hold such office until a successor is elected and qualified.</p> <p>Same. — Election.— Term of Office. — Statute Construed. — By section 1 of said act, supra, it was intended to create in each town and city of the State a board of school trustees, composed of three members, one to be elected and take his office each year, and each to hold office for three years; but, in so far as said section prescribes the time when the election shall be held, it is directory only.</p> <p>Same. — Election to be Held Annually in June, but Valid Election may be Held on Subsequent Day. — Case Distinguished. — Under such section, successive annual elections for a school trustee should he held at the first regular meeting of the council in June; but this does not limit the power of the common council of a city to elect only on such day, and a valid election may be had upon a subsequent day. The State, ex rel. Dickerson, v. Harrison, 67 Ind. 71, distinguished.</p>

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

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

<p>Practice. — Supreme Court. — Overruling Motion to Strike Out. — A judgment will not be reversed on account of overruling a motion to strike out parts of a pleading.</p> <p>Same. — Sustaining Motion to Strike Out. — An error in sustaining a motion-to strike out can not be cured in the introduction of the testimony, and, when properly in the record, ought to be considered.</p> <p>Same. — Bill of Exceptions. — Matter struck out of a pleading on motion can be put into the record again only by being copied into a bill of exceptions.</p> <p>Same. — Partition.—Action on Bond of Commissioner Appointed to Sell.— Bents and Profits. — Evidence.—On the trial of- an action by heirs upon the bond of a commissioner appointed to sell real estate in a proceeding for partition, plaintiffs can not, while suing for the purchase-money and interest, claim, and give evidence of, the rents and profits which have accrued after the sale.</p> <p>Brief. — Waiver.—An error assigned, but not discussed or referred to by appellant’s counsel, is waived.</p>

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

<p>_ „ Beau Estate. — Sale for Unpaid Taxes.- — Action to Becover and Quiet Title.— Statute of Limitation. — An action brought in 1870 to recover possession of real estate sold for taxes in 1866, and to quiet the title, was too late under section 250 of the act of December 21st. 1872,1 R. S. 1876, p. 127.</p> <p>Same. — Where Time Allowed had Expired. — A reasonable time must be allowed for instituting suit as to causes of action existing at the passage of such a law; and where the whole time allowed by the statute had expired before its passage, tbe statute did not apply until the time allowed by it had run.</p> <p>Same. —Legal Disabilities. — Non-Besidence.—State.—United States. — The' phrase “other legal disabilities,” in the proviso of section 250, supra, does not embrace non-residence in the State, but, so far as it refers to absence, means “out of the United States.” 2 R. S. 1876, p. 313, sec. 797.</p> <p>Same. — Valid or Void Sale for Taxes. — Statute of Limitations Good Pleain Bar. — Whether a tax sale was valid or void, a plea of the statute of limitations is a good defence to an action to quiet title, and, if sustained by the evidence, bars a recovery of possession, and the title of the party so barred can not be quieted.</p> <p>Same. — Evidence.—Title.—Possession of Grantor. — In an action to recover real estate, the plaintiff recovers on the strength of his own title, and not on the weakness of the defendant’s title, and he must trace his title-to the United States, or to a grantor in possession.</p>

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

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

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

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

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

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

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

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

<p>Bill or Exchange. — Promissory Note. — Contract of Endorsement. — Parol' Evidence not Admissible to. Contradict or Vary. — Presumption.—An endorsement of a promissory note or bill of exchange, regularly following that of the payee, constitutes a certain and defined contract, with a. legal force and meaning as complete and certain as if all the conditions • and stipulations of the contract had been written out at full length,, and parol evidence is inadmissible to modify or contradict such a contract of endorsement; but the endorsement of a note or bill not previously endorsed, or not endorsed at all by the payee, is an irregular-proceeding, and the contract created by it is not one of fixed and definite legal import.</p> <p>Same. — Exceptions to Pule as to Admission of Parol Evidence. — While it is the general rule that a contract of endorsement regularly following: that of the payee can not be varied or contradicted by parol evidence,, yet such evidence is admissible to show that the endorsement was for the purpose of creating a trust; that it was for collection merely; that the instrument was endorsed as collateral security, or delivered as an. escrow, or endorsed to an agent for a particular purpose.</p> <p>Pleading. — Must State Pacts. — A bare general statement, thrown into, the body of a pleading setting forth specific facts, can not control the-pleading and make good what would otherwise be insufficient; the-substantive traversable facts are to be looked to in determining its sufficiency, and not mere conclusions.</p>

<p>^Practice. — Motion to Suppress Depositions. — Sow Made Part of Record.— A motion to suppress depositions and the ruling of the court thereon must be made a part of the record hy hill of exceptions or order of court, to properly constitute a part of the record on appeal.</p> <p>'■Same. — Pleading Struck Out. — Soxo Made Part of Record. — Where a pleading, or any part thereof, has been struck out or rejected, it will not thereafter constitute a part of the record on appeal, unless made so hy hill of exceptions or order of court.</p> <p>Same.— New Trial. — Assignment of Causes. — Supreme Court. — Where-matters constituting proper causes for a new trial are not assigned' as such in a motion therefor, their assignment as error on appeal presents no question for the decision of the Supreme Court.</p> <p>Same. — Assignment of Error.— Verdict. — An assignment of error, that the court erred in rendering judgment on the verdict, does not question the correctness of the verdict, and presents no question for the decision of the Supreme Court.</p> <p>Same. — Judgment.—Objections to Form. — Objections to the form or substance of a judgment can not be presented for the first time in the Supreme Court.</p> <p>Beal Estate, Action to Becover. — Pleading.—Complaint.—The omission of the word -‘unlawfully,” in a complaint for the recovery of real estate, does not render it bad on demurrer thereto for want of facts, if its equivalent in meaning is used therein; and the allegations, that the-plaintiffs were entitled to the possession of the real" estate, and that the ■ defendants kept them out of it, without right, are sufficient.</p> <p>Same. — Mistake in Title Papers Corrected.— Quieting Title. — Pleading.— Practice. — Motion to Strike Out. — Demurrer.—In an action to recover the ■ possession of real estate and to quiet title thereto, the plaintiff may. as an incident to such action, under section 71 of the code, 2 B. S. 1876, p. 70, have a mistake in his title papers corrected in such suit, and if the complaint states a good cause of action for the recovery of the real estate and for quieting title thereto, a demurrer will not lie, even though the allegations thereof in regard to the alleged mistake in the deed were defective and insufficient; an objection to the complaint for such cause ■ can be reached either by a motion to strike out or to make more specific the allegations in regard to the alleged mistake.</p> <p>Practice. — Instructions.— When not Part of Record. — Motion for New Trial. —Supreme Court. — Instructions, whether given or refused, can not be-made a part of the record by setting them out or copying them in the • motion for a new trial, as a cause therefor. A recital in the motion for ■ a new trial, that instructions asked for had been refused by the court, can not be taken as true by the Supreme Court, unless the truth thereof be properly shown by the record.</p> <p>Same. — Instructions Refused. — Presumption.—Record.—Where the instruc- ■ tions of the court, given upon its own motion, are not made a part of the record, and are not found in the transcript, the Supreme Court will presume that other instructions asked for were properly refused by the - trial court.</p> <p>Supreme Court. — Objection to Evidence — Practice.—Where the record' fails to show the ground of objection to the admission of evidence, the-Supreme Court will not consider the question of the admissibility of' the evidence, nor the objections made thereto in the Supreme Court.</p> <p>Taxes. — Evidence.—Tax Deed. — Personalty Should he First Exhausted.— Testimony oj Auditor of County. — Where a tax deed fails to show that the personal property of the delinquent had heen exhausted before the sale of his real estate, or that he had no such property, suoh deed is not admissible as evidence of title until such facts are shown aliunde; and the testimony of the auditor of the county where such real estate is situate, “that the records in his office showed that there was no personal property assessed” to the delinquent in but one of two years in which the taxes on the real estate became delinquent, is insufficient to prove the facts necessary to entitle the deed to be admitted in evidence.</p>

<p>'.School Fund Mortgage. — Sale of Land by Auditor. — Becorded Deed Must be Tendered to Purchaser. — A suit for the purchase-money of land sold by a county auditor, under a school fund mortgage, can not be maintained without a tender of the deed for the property, not absolute, but conditioned upon payment therefor, and recorded as required by section 99 of the act in relation to common schools, 1R. S. 1876, p. 778.</p>

<p>Liquor Law. — License.—Town.—Prior to 1879, incorporated towns, in this State, had no authority to regulate and license the sale of intoxicating liquors.</p>

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

<p>'Criminal Law. — Practice.—Instructions.— Venue. — An instruction, in a . trial of a criminal case, is not fatally defective because it does not inform the jury in terms that they must be satisfied that the alleged crime was committed in the county named in the indictment. The phrases “as charged” and “as alleged,” used in said instruction, informed the jury that they must be satisfied that the crime was committed at the place charged in the indictment.</p> <p>Same. — Absence of Evidence. — Presumption.—Without the evidence in the record, the Supreme Court can not judge of the applicability of instructions, or know that they were or were not pertinent to the evidence, and in such condition of the record will assume that the trial court did right. . Error will not be presumed, but must be affirmatively shown.</p> <p>Same. — Purity of lieagents. — Chemical Analysis.— Question for Jury.— When certain reagents are shown to have been employed in a chemical analysis to be used in evidence, the question of the purity or impurity of such reagents is one for the jury, and a presumption of their impurity can not he indulged in favor of the innocence of the defendant.</p>

<p>Pleading. — Co-Sureties.—Contribution.—Insolvency of Principal. — In an action by one surety against another for contribution, it is not necessary to either aver in the complaint or prove on the trial that the principal is insolvent.</p>

<p>Costs. — Motion to Pe-Tax. — Pleading.— Complaint.— Demurrer. — MonexR Voluntarily Paid. — Where a complaint, considered as a motion to re-tax costs, shows that there was no claim pending in relation to the' j costs, that they had all been paid, and that the clerk was not claiming-anything more as due, it is insufficient on demurrer; and where suehi complaint fails to show that the payment of costs was made- by the plaintiffs therein, and that it was not paid voluntarily, it is insufficient.as sc complaint to recover back the alleged illegal costs.</p>

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

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