Volume 75 — Indiana Reports

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

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

<p>Real Estate. — Action to Quiet Title. — Sale for Taxes. — Adjudication.— Answer. — In an action to quiet title to real estate, an answer, in substance, alleging that the plaintiff’s title was by purchase at a tax sale in 1870, for taxes of 186S and 1S69, that no deed was executed to him until 1878, that, in an action instituted by him in 1876, against the then owners of the land, judgment was rendered annulling and setting aside the sale to him and declaring the taxes a Hen thereon, and ordering its sale to pay them, that afterward so much of said judgment as declared the taxes a lien was set aside and vacated, and the title was adjudged to be in said owners, and that the defendants answering are the owners by grant from them, shows that the rights of the parties were finally settled and determined by the judgments pleaded, and contains a good defence, on demurrer.</p> <p>Same.— Tax Title. — Lien for Taxes. — Statute Construed. — Section 257 of the tax law of December 21st, 1872,1 R. S. 1876, p. 129, does not apply to cases where there has been an adjudication, but declares a rule by which courts are to measure the rights of the parties when the cause comes up for judgment.</p> <p>Same. — Evidence.—Sale and Purchase. — Voluntary Payment. — Where one claims to hold a lien for taxes paid upon the lands of another, he must show that the lands were sold for taxes, and were purchased by him at such sale. Mere voluntary payment is not enough to entitle him to a lien.</p>

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

<p>Practice. — Motion for New Trial. — Rulings Assigned as Causes. — Exceptions. — A motion for a new trial “because of error of law” is too general in its terms. The particular rulings to which exceptions were taken, and because of which a new trial is asked, must be specified in the motion.</p> <p>•Same. — Construction of Contract. — Province of Court. — It is the province of the court to construe a contract given in evidence, and, if asked, to instruct the jury accordingly.</p> <p>Mortgage. — Payment in Sawing Logs. — Log Measure or Board Measure.— Satisfaction. — Evidence.—Contract Construed. —Reversal and New Tidal Granted. — Where a mortgagor agreed, in writing, to, pay the mortgage debt in sawing lumber, at specified rates per one hundred feet for walnut and oak and other logs, and, upon trial of an issue as to its satisfaction, wherein the.principal matter of controversy was whether the contract provided for log measure or board measure, and the jury, construing the contract as providing for log measure, found the mortgage to be satisfied. On appeal,</p> <p>Held, that the Supreme Court, in the absence of any evidence of construction by the lower court, construes the obligation to mean that the price stipulated was for lumber sawed and prepared for the market, and that the verdict of the jury was not sustained by sufficient evidence, they having adopted a false basis in their estimate of the'amount paid on the mortgage.</p> <p>Same. — The terms of such obligation, in the absence of evidence that any deception was practiced upon the mortgagor, or that he did not or could not read it, or that it was not drawn in strict conformity with the understanding and purpose of the parties, are conclusive.</p>

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

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

<p>Decedents’ Estates. — Will.—Executor.--Suit on Bond for Failure to Pay Legacy. — The proper person to pay a legacy is the executor, or the administrator with the will annexed, and for a failure to pay it he may be sued on his bond. A suit for such failure may be maintained without any previous order of court that the legacy be paid, and without the previous removal of the officer.</p> <p>Same. — Pleading.—Complaint.—Necessary Averments. — A complaint by.a legatee against residuary legatees, to recover a legacy, which avers neither that the estate of the testator has been finally settled, nor that the executor or the administrator with the will annexed has been discharged, fails to show a cause of action, upon the demurrer of plaintiff to an answer thereto.</p> <p>Same. — Answer.—Demurrer.—Search for Error. — A demurrer to an answer will search the record and reach back to the complaint, and if the complaint fail to show’a sufficient cause of action, it should be sustained as to it, and not as to the answer.</p>

<p>Slander. — Pleading.—Averments.—Where the complaint in an action for slander averred that the defendant spoke “of and concerning the plaintiff” the following false and defamatory words: “I saw Lee Jones (meaning plaintiff),” etc., it is not necessary to further aver that the plaintiff was known by such name.</p> <p>Same. — Complaint.—Demurrer.—Practice.—Where, in such action, the complaint charges two sets of slanderous words, if either is sufficient, a demurrer to the complaint for want of facts should be overruled.</p> <p>Same. — Actionable Words.- — Words charging the plaintiff with being a whore are actionable per se.</p> <p>Same. — Statement of Witness Privileged. — Presumption of Privilege, Sow Overcome. — All statements of a witness, as a general rule, are absolutely privileged; and those that are not are presumptively so, and before a witness can be held liable for statements made in a judicial proceeding, this presumption must be overcome by showing affirmatively that such statements were false and malicious.</p> <p>■Same. — When Statement of Witness Privileged. — Evidence. — Malice.— Where, in an action for slander, it is shown that the defendant was subpoenaed as a witness in a cause, testified upon the trial, and as a witness made the statement complained of, and it is not shown that the statement was impertinent and immaterial, or that it was not responsive, or that he wandered from the case to gratuitously make the state-, ment, or that it was not relevant or not made in the faithful discharge of his duty as a witness, under these circumstances such statement is absolutely privileged; but, if it were not, it would be presumed to be, and, before a recovery could be had, malice in making the statement , must be shown.</p> <p>Same. — Privileged Statements of Witness Can not be Used Against him. — A statement made by the defendant after he had testified as a witness in . a case, not actionable standing alone, and not proving any set of words declared upon in such action, can not be aided by a statement made by him as a witness which is privileged, so as to make such former statement slanderous.</p> <p>Practice.— Verdict. — Evidence.—Failure of Proof. — Supreme Court. — The rule, that the Supreme Court will not disturb a verdict when there is any evidence tending to support it, has no application to a case where there is an entire failure of proof.</p>

<p>‘Criminal Law. — Disturbing Religious Meeting. — Affidavit.—Statute Construed. — An affidavit in a prosecution for disturbing a religious meeting, under the act of March 3d, 1859, 2 It. S. 1S7(>, p. 472, must allege, and it must be proved upon the trial, that the meeting disturbed was a collection of inhabitants of this State.</p> <p>.Same. — Evidence.—Verdict.-—Where, on the trial in such a prosecution, no evidence was offered either proving or tending to prove that the ■ meeting was composed of inhabitants of this State, either in whole or in part, a verdict of conviction is not sustained by sufficient evidence.</p>

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

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

<p>Promissory Notes. — Pleading.—Answer.—Beal Estate. — Mortgage.—Release. — Fraud.—Notice.—An answer by the makers of promissory notes, that they were given for balance of purchase-money of real estate; that by a decree of foreclosure it had been ordered that they pay the amount in suit to a mortgagee for prior purchase-money; that before the sale and conveyance to them the mortgagor had, by fraud, procured a release from the mortgagee, of which fraud they had no knowledge at the time of their cash payment of purchase-money and of their acceptance of the-conveyance; that notice of the foreclosure suit was given by them to-the plaintiffs; that their vendor was and still is insolvent; and that the plaintiffs had notice of the rights of the mortgagee before the notes-were assigned to them by the mortgagor, is insufficient on demurrer.</p> <p>Same. — Notice of Sriit. — •Makers of Notes Must Defend. — Judgment.—Such notice by the defendants to the holders of notes does not make them parties; and the judgment is not binding upon them, although they may have caused an appeal in the defendants’ names to be taken therefrom to the Supreme Court, and prosecuted to affirmance. The makers of the-notes must defend and maintain them.</p> <p>Same. — Release Obtained by Fraud. — As between the parties thereto, a-mortgage exists in full force, unaffected by a release which has been obtained by fraud from the mortgagee by the mortgagor.</p> <p>Same . — Innocent Purchasers. — Mortgage Lien. — Fraud. — Innocent purchasers of land take it discharged of a mortgage lien which has been released, although the release may have been obtained by fraud.</p> <p>Same. — Notice Before Payment Sufficient. — Notice before actual payment of all the purchase-money is equivalent to notice before the contract,, and when there has been partial payment the purchaser will be affected, pro tanto, as to the residue.</p> <p>Same. — Presumption.—Notice of the fraud being admitted, in the absence of any averment that the conveyance to the defendants contained covenants of warranty, or that their vendor exhibited the release to them, or that they knew it had been obtained, or that they relied upon it, or that he practiced any fraud upon them, or that he made any statement or representation to them as to his title, the.Supreme Court must presume that they took the land subject to the unpaid purchase-money, secured by the mortgage, and not as innocent purchasers, and hold that their answer contains no defence.</p>

<p>Decedents’ Estates. — Contract.—Administrator.—Pleading.—Demurrer* —Where a complaint alleges that an administrator contracted in his individual capacity, it will be held, upon demurrer, that the contract binds him individually, although it appears that the subject-matter of the contract grew out of matters connected with the estate represented by him.</p> <p>Same. — Consideration Accruing After Death of Intestate. — Where an administrator enters into a contract upon a consideration accruing subsequent to the death of his intestate, it is deemed his individual contract.</p> <p>Same. — Statute of Frauds. — A contract by an administrator, founded upom a consideration accruing after the death of his intestate, is not within the statute of frauds, although it may relate to, and be connected with, matters growing out of the administration of the estate.</p> <p>Statute op Frauds. — The mere passing of a new and independent consideration, from the promisee to the promisor, does not take the case-out of the operation of the statute of frauds.</p> <p>Practice. — Objection to Bvidence. — Appeal.—Where parol evidence is-admitted on the trial, and no objection is there made, the question of its competency can not be presented on appeal.</p> <p>Same. — Demand.—Breach of Contract. — No demand is necessary where there is a complete breach of a promise to pay money, for the defendant is in default without a request.</p>

<p>HEAL Estate. — Tenants in Common. — Bents and Profits. — Tax Title.— Statute of Limitation. — Adverse Possession. — Where one tenant in common applied the rents and profits of the common property to the purchase of an outstanding tax certificate, and on such certificate procured a deed to himself, and by such deed claimed to he the owner of the interest of Ms co-tenant, or to have such color of title that he could invoke the protection of'the statute of limitations applicable to tax sales, a demurrer to a paragraph of answer, pleading such statute, was correctly sustained.</p> <p>Same. — In such case, no adverse title was procured, but the purchase must be deemed to have been made for the benefit of both.</p> <p>Same. — Partition.—Evidence.—On trial of an action for partition, in such case, an answer that the plaintiff’s claim of title was by deed, executed while the defendant was in adverse possession under a tax deed, is not sustained by evidence, that when plaintiff received his deed the premises were vacant, apparently not in possession of any one, the fences were down, the house vacant and doorless, and the defendant had removed from the State. •</p> <p>¡Same. — Tax Sale of Peal Estate of Owners of Personal Property. — Where, on the trial of such action, there was no recital in the tax deed, nor proof aliunde, that the owners of the land had not suffieientfpersonal property to satisfy the taxes for which the land was sold, a good adverse title wag not shown in the purchasing tenant.</p>

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

<p>Married Woman. — Judgment.—Collateral Attach. — Where, in an action to foreclose a mortgage, it appears in the complaint that one of the defendants is a married woman, it is error to permit a personal judgment to be taken against her; but such judgment is not void, nor can it be collaterally attacked.</p> <p>'Judgment. — Debt not Due. — A personal judgment rendered for a debt not due is clearly erroneous, but not absolutely void.</p> <p>■Query. — Whether it has not sufficient legal force to withstand collateral attack.</p> <p>Sheriff. — Execution, When Justifies Levy. — An execution addressed to a sheriff, in all respects regular, reciting a judgment recovered in a court of record having jurisdiction, justifies the sheriff in seizing the property of the judgment debtor subject to execution, for the purpose of satisfying the judgment and costs.</p> <p>¡Same. — It is lawful for a sheriff to levy upon the personal property of a married woman by virtue of an execution, in all respects regular, issued upon a personal judgment rendered against her; and in an action by her against the sheriff, to replevy property so levied, where no demand is alleged or proved, and in the absence of any showing that the property was unlawfully detained by him, she can not recover.</p>

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

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

<p>Replevin. — Trespassing Animals. — Enclosed Land. — Lawful Fence. — An action of replevin will lie to recover cattle seized and held for the payr ment of damages done by them to crops upon enclosed land, if the fence through which they broke was not a lawful fence.</p> <p>Same. — Evidence.—Supreme Court. — If, in such case, the evidence is conflicting as to whether it was a lawful fence, and the lower court finds for the plaintiff, the Supreme Court will regard the fact established, that the fence was not a lawful fence, within the meaning of sections 1 and 2, 1 R. S. 1876, p. 495.</p> <p>Sam:e. — Practice.—Bemedy.—If the fence is not a lawful one, the taker-up has no right to detain such cattle, and the owner can not be deprived of any remedy he may have, simply because the taker-up claims them as trespassing animals.</p> <p>Same. — Act of 1877 Construed. — Board of Commissioners. — The act of March 12th, 1877, Acts 1877, Spec. Sess., p. 42, authorizes an action to be maintained against the owner of all trespassing animals, whether the fence is a lawful one or not, unless the animals are authorized to run at large by an order of the board of commissioners, in which case the fence must be lawful to maintain the action.</p> <p>Same. — In such ease, it is immaterial whether the order was passed before or after the said act of 1877 took effect.</p>

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

<p>Composition Bond.. — Surety.-—Change of Terms. — Belease.—If a creditor holding a composition bond, by an agreement with the debtor, for a valuable consideration, without the knowledge or consent of the surety, materially change the terms of the contract of indebtedness, he thereby releases the surety.</p> <p>Same. — Action on Composition. — ¡-Creditor's Election. — If the debtor per- ■ forms his part of a composition agreement, no action will lie for the original debt; if not, the creditor has his action on the original debt, and also on the composition agreement for any damages he may have sustained. He may elect to rely upon the composition agreement alone, or, if not complied with by the debtor, enforce payment of the original debt.</p> <p>Same. — A composition is an agreement between a debtor and his creditor for payment of a less sum, at a time fixed, than the debt, according to its terms.</p>

<p>Practice. — Default Set Aside. — Trial Granted. — Finding and Judgment in Favor of Defaulting Party. — Former Judgment not Beinstated for Technical Defect. — Where a defendant appeared by attorney and filed a sworn plea, but failed to appear on the day set for trial, and his attorney withdrew his appearance and permitted judgment to be entered by default, and within four days thereafter defendant appeared and-had the default set aside, and upon trial of the action prevailed, the Supreme Court can not say that the trial court erred in granting the trial for the excuse given by the defendant, nor will it, on a technical defect in the showing, order the original judgment reinstated.</p> <p>Same. — Instruction. — Statement of True Issue. — Where an instruction, taken in connection with others given, fairly and clearly stated the true, if not the technical, issue between the parties, it will not be regarded by the Supreme Court as error.</p> <p>Same. — Distinction.—Assuming Facts. — Corroborating Evidence in Support of Witness. — Weight of Evidence. — Province of Jury. — An instruction which states that there is a conflict in the evidence, and undertakes to give a summary of the testimony, is calculated to produce an impression on the mincis of the jury unjust to one party or the other; and if it affirm, or even assume, that credit must be given to the witness who is best, or apparently best, supported by corroborating evidence, without the qualification that they are the exclusive judges of the weight of evidence, the credibility of the witnesses, and the inferences of fact to be drawn from the proofs, it is erroneous.</p>

<p>Pleading. — Answers of Payment and Satisfaction by Exchange. — Reply to one Paragraph by Reference to Another. — A reply to a paragraph of answer pleading payment, which refers for facts to a third paragraph of answer pleading satisfaction by an exchange, is bad on demurrer. The answer can not thus be made a part of the reply.</p> <p>Same. — Exchange not Payment. — Such paragraph of reply, even aided by the averments of the answer referred to, is bad, as an exchange of one piece of property for another is not a payment; nor would a reply that such exchange had been made through fraud practiced upon the plaintiff by the defendants be good to an answer alleging payment.</p> <p>Payment. — Debt to be Paid. — Exchange.—In all cases of payment there must be a debt to be paid. In the exchange of property no debt is ' created; one thing is given for another.</p>

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

<p>Bastardy. — Compromise, Evidence of. — To entitle a defendant in a bastardy proceeding to give in evidence an agreement of compromise, it must be pleaded.</p> <p>Same. — Death of Child. — The death of a bastard child does not of itself require a dismissal of the suit.</p> <p>Same. — Becovenj.—The recovery in bastardy proceedings is allowed, not for the benefit of the mother, but for that of the child.</p> <p>Same. — Bight of Minor Belatrix to Dismiss Proceedings. — Compromise.— Approval of Court. — The act of March 13th, 1875, Acts 1875, Spec. Sess., p. 16. does not confer upon a minor relatrix in a bastardy proceeding the unrestricted right to compromise and dismiss the proceeding, but authorizes the court to examine into compromises made with infants, and to approve or reject them; and a defendant in such proceeding has no right to demand that the written statement of such a relatrix, that she had compromised with him, and desired the prosecution to'be dismissed, should be placed of record, without any investigation by the court.</p> <p>Practice. — Exclusion, of Evidence. — Supreme Court. — New Trial. — No question upon the exclusion of evidence can be presented in the Supreme Court unless assigned as one of the reasons in the motion for a new trial.</p>

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

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

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

<p>Cities and Towns. — Members of Board of Health. — Physician.—Small-Pox. —Vaccination.—City Ordinances Construed. — City ordinances requiring the board of health to have persons vaccinated as a protection against small-pox do not thereby impose upon the board; or its members, the duty to do, but only to provide for the doing of, such services as may be required of physicians.</p> <p>Same. — Contract of Board with Member Void. — Statute Construed. — A member of the board of health of a city, appointed under authority of section 4S, is an officer within the terms of section 52 of the act of March 14th, 1867, for the incorporation of cities, 1 R. S-1876, pp. 267,286 and 288, and can not be interested in any contract by which any indebtedness is created against the city.</p> <p>Same. — An employment by a board of health of a city of one of its members to vaccinate pupils in a public school is a void contract, and creates no liability against the city.</p> <p>Same. — Voluntary Services. — Quantum Meruit. — In such case, the services rendered by a physician, who is a member of the board! of health, are voluntary, and confer upon the city no value or benefit which could have been rejected, and by keeping which the city ratifies the contract and becomes liable upon a quantum meruit, or a quantum valebat.</p> <p>Same. — Agency of Public Officers. — Buying.—Hiring Himself. — An officer of a city can not as agent contract with himself personally, buying what he is employed to sell, or hiring himself to do a service which he is employed to procure to be done.</p>

<p>Practice. — Another Action Pending. — Motion to Dismiss. — Suit for Posses* sion. — Foreclosure of Mortgage on Personalty. — In an action by a mortgagee to recover possession of personal property, a motion by the purchaser of the property to dismiss, because another action was pending against the defendant and others fob the foreclosure of the mortgage, was correctly overruled.</p> <p>Same. — Bight of Mortgagee to Possession. — Answer in Abatement. — In such case, the pendency of the action to foreclose would not deprive the mortgagee of his right to possession. The question could be raised only by an answer in abatement.</p> <p>Lien. — Mortgage.—Appointment of Beceiver. —The appointment of a receiver does not, as a rule, affect or divest an existing lien, but is made subject to such rights and liens as had been previously acquired.</p> <p>Same. — Partnership.—Sale.—A sale of mortgaged property by a receiver appointed in a suit between partners for a settlement of partnership business, if reported to and confirmed by the court, gives the purchaser so much interest in the property only as the firm had, and does not divest or affect the paramount mortgage lien of a stranger to the record.</p> <p>Practice. — Actions in Bern. — Actions in Personam. — Notice.—In proceedings strictly in rem, the seizure of property in controversy is notice tc every one, and the whole world are deemed parties to, and bound by. such proceedings. In proceedings partly in rem and partly in personam, he who holds a paramount adverse title, unless a party to the proceedings, is not bound by them.</p> <p>Estoppel. — Presence of Agent at Peceiver’s Sale. — The fact that an agent of the mortgagee was present at a receiver’s sale of the mortgaged property, and stood by and witnessed the sale without disclosing the mortgagee's title, and without objection, the record showing that the mortgagee was not a party to the proceeding and had a paramount title, and not showing that any agent authorized to waive or sacrifice his rights was present at the sale, does not estop the mortgagee to object to such sale.</p>

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

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

<p>Statute of Limitations. — Subsequent Disability. — The rule is, that when the statute of limitations has once begun to run, no disability subsequently arising will arrest its progress.</p> <p>Same. — Statute Construed. — Section 215 of the code, 2 R. S. 1876, p. 126, only provides for cases where the plaintiff is under legal disabilities when his cause of action accrues, and authorizes him to bring his action within two years after the disability is removed.</p> <p>Same. — Beply.—Imprisonment.—Legal Disability. — In an action for damages for an assault and battery, the reply to an answer of the statute of limitations, alleged that, shortly after the commission of the injury, and while plaintiff was suffering therefrom, and confined to his room from the effects thereof, and unable to institute a suit therefor, the defendant, conspiring with others, procured, on a criminal charge, the indictment, conviction and incarceration of the plaintiff in the State’s prison; that, deducting the time of said imprisonment, the action was commenced within two years after the removal of the disability occasioned by his imprisonment.</p> <p>Held, that the reply was insufficient on demurrer.</p>

<p>Practice. — Appeal from Justice of the Peace. — Change of Venue. — Costs.— Where, in an action appealed from a justice of the peace by defendants, a change of venue from the county was granted to plaintiff, a motion by defendants to tax to the plaintiff all the costs accrued in the cause up to the time of granting the change, under the provisions of the justices’ act on that subject, 2 B. S. 1876, p. 612, sec. 29, was properly overruled.</p> <p>Same. — In such case, upon the costs of the change being paid or replevied, the change should be granted.</p> <p>Same.' — Pleading.— Written Instrument. — Repugnancy .-Demurrer.- — A statement in a pleading inconsistent with the legal effect of a written instrument made a part of such pleading is no cause for demurrer.</p> <p>Same. — Two Contracts of Same Substance. — First Mergedin Second. — Where two contracts are made part of a pleading, and the one last made embraces the entire substance of the one first made, the first contract will be regarded as merged in the second, and the fact that the merged contract is set forth in the pleading, and treated by the pleader as subsisting. and the real contract treated as a mere recital of the first, does not render the pleading bad on demurrer.</p>

<p>Practice. — Default.—Motion to Believe from Judgment. — Excusable Neglect, When, not Shown. — A motion to set aside a default and relieve from a judgment, under section 99, 2 B. S. 1876, p. 82, showing by affidavits that the default was taken November 6th, 1878, and that, on the fourth and fifth days of that month, the party and counsel had answers ready to be filed on call of the cause, but making no reference to the sixth, when the default was entered and the judgment was rendered, does not make a case of “excusable neglect.”</p> <p>Same. — Amendment of Complaint After Default and Judgment. — In such case, after default and judgment on a statutory arbitration bond, it was error for the court to permit the plaintiffs to amend their complaint by inserting the amount for which the award was confirmed and judgment thereon rendered.</p> <p>Same . — Defaulted Defendant. — Damages.—Bight to Trial and Exceptions.— A defaulted defendant can not controvert anything except damages. He may demand a trial by jury, cross-examine plaintiff’s witnesses, introduce evidence in mitigation, ask instructions as to the measure of damages, move for a new trial, and reserve exceptions.</p> <p>Same. — Statutory Arbitration Bond. —Pleading.—Complaint.—Necessary Averments. — An action on a statutory arbitration bond can not be maintained until the award has been properly confirmed. In such an action, it must be averred that, in a proper proceeding for that purpose, the award of the arbitrators has been confirmed by the judgment of the proper court.</p>

<p>From the Henry Circuit Court.</p> <p>W. R. Hough and W. March, for appellants.</p>

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

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

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

<p>Contract. — Sale and Conveyance of Real Estate. — Failure of Consideration. —Rescission.—Specific Performance. — Reconveyance.—Vendor’s Lien. —Complaint.—Pleading . — A complaint in five paragraphs, alleging, in various forms, the sale and conveyance of real estate, to be paid for in notes of good and responsible men, unknown to plaintiff, and living remote from him, but represented by defendant to be ready to pay on demand, and the failure of consideration, in that the notes were worthless, praying a rescission of the contract, or specific performance, or a reconveyance, or a judgment enforcing the vendor’s lien, although its language and statements be not very plain or concise, contains the substance of a cause of action, and its paragraphs are sufficient on demurrer.</p> <p>Same. — Assessment Lists. — Evidence.—Officer.—Assessment lists, made out and arranged under the direction of a public officer, in pursuance of a duty enjoined by law, are competént- evidence as tending to show the amount of property owned by the assessed.</p> <p>Same. — Certificate of Assessment by Auditor. — Practice.—New Trial. — On the trial of such action, it was error for the court to admit in evidence certified copies of the tax assessment list of the maker of each of such notes, returned under sections 127,129 and 130,1 R. S. 1876, pp. 104, 105, certified by the auditor of the county, merely as “a true copy of the assessment,” etc., of each of the makers of the notes.</p> <p>Evidence.— Tax Assessment List. — How Certified. — To render a copy of a tax assessment list, returned under sections 127,129 and 130, competent and admissible as legal evidence, under section 2S3, 2 R. S. 1876, p. 150, • it must be certified by the auditor, as keeper of said instrument, to be “a true and complete copy” thereof.</p> <p>Same. — Documentary Evidence. — Authentication.—Bequirement of Statute.— Where a statute prescribes the mode of authentication of records, instruments, etc., no other mode will do.</p>

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

<p>Trespass. — -Highway.—Locus in Quo. — Dedication to Public Uses. — Bail-road Company. — Assent of Owner. — Street of City. — Grade of Bailroad.— Erection of Bridge. — Evidence.—In an action against a township trustee for trespass, in entering plaintiff’s close and cutting down fence-posts thereon, a dedication of the locus in qtto to-public uses was proved by-evidence showing that a railroad company, to secure a lower grade for its road across a street forming the north boundary of a city, was to furnish a strip of plaintiff's ground for a street-crossing further north, at surface grade, and entered into negotiations with plaintiff, and agreed, not in writing, upon a price; that the company took possession of the old street-crossing, and its engineer, assisted by plaintiff, surveyed the line of the new road; that a new bridge was necessitated by the change of highway, and was constructed; and that plaintiff resided in immediate proximity to the premises occupied, and had knowledge of the use of his land for the highway as changed from the time ■it commenced, although plaintiff never received payment for his land from the company or the county. Woods, J., dissents.</p> <p>Highway. — Dedication.—Bight of Public. — Assent of Owner to Use of Land. —Public Accommodation and Private Bights.■ — The right of the public to a highway does not rest upon a grant by deed, nor upon a twenty years’ possession, but upon the use of the land, with the assent of the owner, for such length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment.</p> <p>Same. — Estoppel.— Vendor’s Claim Against Public. — After public rights have intervened, the owner of land used asa highway with his assent is estopped thereby, and can not enforce a vendor’s claim against the public.</p>

<p>Practice. —Pleading not Subscribed. — Demurrer.—Form.—Substanee.— Motion to Deject or Strike Out. — Every pleading, in a ^court of record, •must be subscribed by the party or his attorney; but an objection to a 'pleading, that it is not thus subscribed, can not be reached by a demurrer for the want of sufficient facts. Such an objection goes to the form, and not the substance, and can be reached only by a motion to reject or strike out the pleading.</p> <p>Same. — Blanks in Pleading. — Motion to Make More Certain and Specific.— An objection to a pleading, on account of blanks, can not be reached ■by demurrer, but by a motion for an order requiring the party to make his pleading more certain and specific.</p> <p>Same. — Written Instrument Part of Pleading. — The statement in a pleading founded upon a written instrument, “a copy of which is filed herewith,” is sufficient to make the copy following the pleading a part thereof.</p> <p>Same. — Variance.—Copy Controls. — In such a case, if there is a variance between the description of the instrument and the copy therewith filed, the copy controls, and will be presumed to be right until the contrary appears.</p> <p>Same. — Deed.—Bond.—Dates of Two Instruments.- — When Execution Presumed.— Date of Acknowledgment.— Where a deed was dated July 20th, 1861, and a bond for reconveyance was dated July 30th, 1861, and both were acknowledged July 31st, 1861, it may fairly be assumed that the final execution of the two instruments by delivery were concurrent acts, and both consummated on the day of the date of the acknowledgments thereof.</p> <p>Same. — Venire de Novo. — Verdict.—Plaintiffs or Defendants. — Cross Complaint. — Original Complaint. — A party plaintiff is not entitled to a venire ■ de novo because the general verdict is: “We, the jury, find for the defendants on the plaintiff’s complaint, and for the defendants on the cross complaint.” Technically, defendants filing a cross complaint, are plaintiffs therein; but there is no impropriety in designating them as defendants, to distinguish them from the plaintiffs in the original complaint.</p> <p>Same. — Evidence.—Title Bond Acknowledged and Becorded. — A title bond . duly acknowledged before the recorder, and recorded, was properly admitted to record, and the record of the bond was competent evidence to prove its contents.</p> <p>Mortgage. — Heed and Title Bond. — A deed and a title bond' fox reconveyance may constitute, in legal effect, a mortgage.</p> <p>Same. — Payment.—Weight of Evidence. — Supreme Court. — A verdict, finding that a deed was in legal effect a mortgage, and that the mortgage debt has been fully paid, will not be disturbed by the Supreme Court on the .mere weight of evidence not entirely clear and satis- • factory.</p>

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

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

<p>Partnership. — Husband and Wife. — Replevin.—Evidence.—In an action by a wife against a constable to replevy goods levied upon as the property of the husband, on a judgment against him, the evidence showed that the husband had entered into a partnership business upon money furnished him by his wife, and that the debt for which the levy was made was created during the partnership; that the wife furnished .no money during the partnership; hut, a short time before the levying of the execution, she had purchased the partner’s interest, and that she had since purchased the goods levied on, with her own funds; that the husband had the entire control and management of the business after his wife's purchase of the partner’s interest, and had an equal interest with his wife in the business.</p> <p>Held, that the wife could not recover the goods as her individual property.</p>

<p>Cities and Towns. — Grading Public Street — Consequential Damages.— Appropriation. — Constitutional Law. — Consequential damages, resulting from the grading of a public street, do not constitute a taking or appropriation of property, within the meaning of the constitution.</p> <p>Same. — Authorized Improvement. — Seasonable Care. — Injury to Property of Adjacent Proprietors. — Where an improvement of a street in a city is one which the city'- has authority to make, and reasonable care is used in doing the work, no liability attaches, although injury may be done to the property of adjacent proprietors.</p> <p>Pleading. — Actionable Negligence. — Negligence or no negligence must be determined from the facts pleaded, not from the presence or absence of general epithets.</p> <p>Surface-Water. — Municipal Corporations. — A municipal corporation has no right to collect surface-water in an artificial channel, and pour it in a bodj^ upon the adjacent land of another.</p> <p>Same. — Cities and Towns. — Public Highways. — Embankments and Outlets. —A city may divert surface-water from the public highways, and, to do so, may build embankments or enlarge outlets.</p> <p>Same. — Dominion Over Highways. — A municipal corporation is entitled to exercise dominion over the public highways, and is not liable for so exercising this right as to change or divert the flow of surface-water.</p> <p>Same. — Watercourse.—A natural watercourse is a stream of water flowing in a certain direction, through a defined channel, with bed and banks. The channel may sometimes be dry, but there must be substantial indications of the existence of a stream, ordinarily a moving body of water.</p> <p>Same. —Savines. —Ravines, through which surface-water runs in times when there are heavy rainfalls, are not natural watercourses.</p> <p>Same..— Obstruction of Natural Watercourse.- — Liability.-—If a natural . watercourse is wrongfully obstructed, there is a plain liability.</p> <p>Same. — Ploro Upon Lots Belov) Adjacent Streets.— City . — Damages.—If surface-water flow upon a lot because of its being below the level of adjacent streets or lots, the owner can not recover damages from the city;</p> <p>SAME. — Municipal Corporations. — Legislative Power. — Ministerial Acts.— Negligent Performance. — A municipal corporation is not liable for the exercise of a legislative power, but is liable for the negligent performance of ministerial acts.</p> <p>Same.. — Collecting and Flowing of Surface-Water. — Collecting surface-water into one channel, and causing it to flow upon another’s land, is an actionable injury, being a ministerial and not a legislative or judicial act.</p> <p>Same. — Defect of Plan. — For a defect in the mere plan or system of removing surface-water from a street, there is no liability so long as the ministerial work of carrying into effect the plan is not undertaken.</p> <p>Same.— Pleading. — Action Against City for Damages. — Complaint. — A paragraph of complaint against a city, which alleges with reasonable certainty, that the municipal authorities did, by the improvement of a street, collect in one channel the surface-water falling upon divers streets, and flow it against an insufficient culvert, and thus unlawfully cast the water in a body upon the private property of the plaintiff, contains facts sufficient to constitute a cause of action.</p> <p>Same. — Insufficient Evidence. — On trial of such an action, the court did right in directing a verdict for the defendant, where the evidence showed that plaintiff had suffered no material damage from overflow before the city enlarged the culverts and drains complained of; that, before such action of the city, the natural tendency of the surface-water was to flow by without damage; and that his property is at the foot of '‘high hills,” where intimes of rain the water comes down the ravine in “immense quantities.”'</p> <p>Practice. — Verdict.—Court May Direct. — There are cases where the court may rightfully direct a verdict.</p> <p>Same. — Verdict Against Law and Evidence. — A judge is not bound to submit a question to a jury, where their verdict, if contrary to his views of the evidence and its legal effect, would be certainly set aside as clearly against the law and the evidence.</p> <p>Same. — Courts interfere only in eases where it is manifest that there is no evidence upon which a verdict could legally rest.</p> <p>Same. — Exception.—Leave to State in Writing. — An exception must be reduced to writing when taken, or leave must be obtained to afterward state it in writing.</p> <p>Same. — A plaintiff can not state one cause of action and recover upon another.</p>

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

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

<p>Mortgage. — Foreclosure. —Purchase-Money. —False Bepresentations.— Verdict. — Damages for Mortgagor. — Application of. — Notes Due and Not Due. — Where, in an action to foreclose a mortgage to secure notes for purchase-money due and to become due, a verdict was returned for plaintiff aud damages allowed defendant on answers of false representations and set-off, and the court, on plaintiff’s motion, without objection, looked behind the verdict to ascertain how much was, and how much was not, due, and applied all, or nearly all, of defendant’s damages to the notes not due, the judgment was erroneous.</p> <p>Same. — Application of Credits. — In such case, the defendant had a right to apply the damages found due to him; and. if the application devolved upon the court, it should have applied the amount to the discharge of the amount due the plaintiff.</p> <p>Credits, Application op. — General Payments. — General payments are always applied on sums due, rather than sums not due.</p>

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

<p>Pleading. — Answer.—Replevin.—Fraudulent Transfer of Personal Property. — Execution.—Fraud.—In an action for the recovery of personal property, a paragraph of answer averred that the property was fraudulently transferred to the plaintiff, for the purpose of defeating the collection of a judgment against the former owners thereof, and that the defendants have possession of the property hy virtue of a writ of execution issued on such judgment.</p> <p>Held, that the real defence presented hy the answer is property in a third person, and, as evidence thereof was admissible under the general denial pleaded, no error was committed in striking out the answer.</p> <p>Held, also, that the plaintiff could ouly recover upon the strength of his own title, and, if that grew out of fraud and collusion between him and his vendors, his action must fail.</p>

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

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

<p>Decedents’ Estates. — Fraudulent Mortgage. — Action to Set Aside. — The administrator of a decedent’s estate can maintain an action to set aside a mortgage of personal property, and an assignment of a certificate of purchase of real estate, fraudulently obtained from the decedent, where such property is necessary for the payment of the debts of the estate.</p> <p>■Same. — Pleading.—Complaint.—Prepayment.—Where, in such action, the complaint does not show that any consideration was paid to the decedent for the mortgage or assignment, an averment of repayment is not necessary to the sufficiency of the complaint.</p>

<p>Landlord and Tenant. — Action for Bent After Fxpiration of Term of Lease. — Surrender of Premises. — Payment of One Month's Bent.■ — Where a tenant occupying premises under a lease for five years, the rent being payable at the end of each month, held over, and, on the third day of the month beyond the term, notified the landlord in writing, that he would surrender such premises at the expiration of the month, and paid that month’s rent, leaving the keys thereof on a table in the landlord’s office, he did not thereby effect a surrender of the premises, and is liable in an action for rent accruing thereafter.</p> <p>'Same. — Tenancy From Year to Year. — By voluntarily remaining in possession beyond the term of the lease, the tenant gave the landlord the option of treating him as tenant for another year, upon the same terms of payment as had before prevailed, and the acceptance of the money tendered with the keys of the building does not affect the question.</p> <p>Same.'-Acceptance of Bent.-~Wh.exe rent is unconditionally due, the landlord may accept Hie money and reject the keys of the building.</p>

<p>Husband and Wife. — Partnership of Wife in Business with Another.— Pleading. — Complaint.—Answer.-—Demurrer.-—In an action (accruing before 1879), by a married woman and lier husband, against the executor of her deceased partner in business, for the value of a life insurance policy assigned to her by the deceased for his board and her attention to their partnership business in his absence, an answer, that plaintiff, at the time the partnership agreement was made, was and ever since had been a married woman, the wife of her co-plaintiff, living with him, as his wife, constitutes no defence.</p> <p>Same. — -Coverture no Defence. — -Wife's Earnings. — The earnings of the wife during the marriage belong to her husband, and, in the absence of an averment that he gave them to his wife, or that she was carrying on business with her separate property, he had a right to bring suit therefor, malting the wife a co-plaintiff, as the meritorious cause of action. To such an action the coverture of the wife is no defence.</p> <p>Same. — Set-Off.—Former Adjudication. — Answer of Discharge and Satisfac tion. — Former Credit of Demand. — In such action, an answer of coverture and that the partnership business had been settled, that the wife bought the interest of her partner, the testator giving in part payment a note of her husband and another; and that in a suit on the note the husband pleaded as a set-off the identical services, boarding and claim mentioned in the complaint, and was allowed and received a credit therefor on his note, in full discharge and satisfaction of the demand sued on, contains a good defence.</p> <p>Same. — Plea of Payment. — In such action, an answer that “the claim set up in the plaintiffs’ complaint had been fully paid before the commencement of this suit,” was a good defence.</p> <p>Pleading. — Plea of Payment. — A plea of payment need not allege the amount paid, nor the date of payment, nor the person to whom the payment was made.</p>

<p>Guardian and Ward. — Bemoval.—Insufficient Cause. — Special Verdict. —Evidence.—Where, on trial of a petition for the removal of a guardian, a clause of the special verdict was that “Said guardian has managed the estate of said wards for their best interests, except he has failed to provide suitable homes, and to attend properly to the school education of said wards,” and judgment was rendered removing the defendant from his trust as guardian, the Supreme Court, being satisfied from the evidence that he had done as well as he could under the circumstances, in the way of furnishing homes for his wards, and in attending properly to their education, reversed the judgment.</p>

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

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

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

<p>Promissory Note. — Sureties.—Agreement with Principal. — Extension of Time for Payment. — Demurrer to Evidence of Sureties Defendants. — Valid and Binding Contract, — Discharge.—Where, upon trial of an action upon a promissory note, dated July 5th, 1871, payable in one year, with interest at ten per cent, after maturity until paid, two defendants gave evidence tending to prove- a plea that they executed the note as sureties only, which the payee knew, and that the time for payment had been extended by an agreement between the payee and the principal debtor, without their consent, and the plaintiff’s demurrer to defendants’ evidence was overruled, the Supreme Court, being satisfied from the evidence that a valid and binding contract for an extension of time had been made, without the consent of the sureties and upon an executed consideration, affirmed the judgment.</p> <p>Same. — Interest at Ten Per Cent. Contracted for. — Interest Paid at Twelve Per Cent in Advance. — In such case, evidence that the note included interest for one year in advance at ten (or twelve) per cent., that, in July, 1873, interest at ten per cent, for the year then past, and fifty dollars additional for one year’s forbearance, was paid, that, in July, 1874, and July, 1875, each, a like payment was made, and forbearance contracted for, all without the consent of the sureties, shows a valid and binding contract for an extension of time,which operated to release the sureties, and sustained their plea.</p> <p>Same. — Recoupment.— Usurious Interest.- — Laioful'Interest.—The rule of recoupment is to credit the amount of the payment of usurious interest at the date of payment, thus paying the accumulated lawful interest, or cutting down the priucipal-</p> <p>Same. — Consideration for Extension. — Thu payment of usurious interest, for a time already elapsed, on a note or other obligation to pay money, constitutes a good consideration for an agreement to extend the time of payment, though under the law the debtor or his sureties, if they choose, may recoup the amount so paid.</p> <p>Same. — Taint of Usury. — Borrower may. but Lender may Not, Plead Usury. ■ — Voidable Contract. — The borrower may set up usury for the purpose of avoiding a contract tainted with it, but the lender can not. Such a contract is not absolutely void, but voidable only on account of the usurious taint, and that not at the option of the lender, but of the debtor.</p> <p>Same. — Rescission and Recoupment. — Restoration by Creditor will not Avoid Contract for Extension. — The right of rescission and recoupment- is personal to the debtor, his heirs, representatives or sureties. The creditor who has received the usury has no light to restore it or credit it on the debt, and thereby release himself from his engagement to give time, especially after the stipulated time has gone by, on the ground that his agreement was without sufficient consideration.</p> <p>Practice.- — Pleading.—Demurrer to Evidence.- — Pleading Definite and Unequivocal. — Proof Indefinite and Equivocal. — A pleading must be definite and unequivocal, but the proof necessary to support the plea, especially upon a demurrer to the evidence, may be both equivocal and indefinite, and yet be deemed sufficient.</p>

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

<p>Practice. — Writ of Mandate. — How Obtained. — A writ of mandate is properly obtained upon a motion in open court, founded upon an affidavit or petition sworn to and filed.</p> <p>Same. — Alternative Writ, How Served and Returned.■ — An alternative writ of mandate is served by delivering tlie writ itself to the party, and the sheriff’s return of service is made upon a certified copy of the writ.</p> <p>Same. — Demurrer to Complaint. — A demurrer to the complaint or petition, or affidavit, and the order or writ issued thereon, raises the question of the sufficiency of the cause of action.</p> <p>Same. — Answers Equivalent to Return. — Demurrer.—Reply.—In such case, answers to a complaint may be regarded as constituting substantially a return to the writ, and may be demurred or replied to.</p> <p>Mandate.— Township Trustee. — Supervisor of Highways. — A complaint, affidavit or petition, on the relation of a supervisor of highways, against the trustee of the township, alleging that the relator had allowed a laborer for work done, and had given him an order for its payment, and that said trustee, on demand, refused to pay said order out of moneys in his hands applicable to its payment, contains facts sufficient to warrant the issuing of an alternative writ, and, on proper proof, to warrant a judgment that a peremptory writ of mandamus issue against the defendant, commanding him to pay said order from the road tax in his hands.</p> <p>Same. — Practice.—Summons.—A summons is not necessary in a proceeding for mandate. The alternative writ is the proper process.</p>

<p>Husband and Wipe. — Parent and Child. — Divorce.—Custody of Child.— Habeas Corpus. — Evidence.—Upon the trial of an application by a divorced wife for a writ of habeas corpus against her divorced husband, and her verified complaint for the custody of their child, evidence that the child was five years old, weighing hut a little over thirty pounds, and was not a hearty hoy, sufficiently sustains a finding of the trial judge in favor of the mother, and a judgment that the care, custody and control of the child he given to her.</p> <p>Same. — In such case, the mother, unless an unfit person, ought to have the care, custody, and control of the child.</p>

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

<p>Promissory Note. — Contract. — Reference to Conditions in Other Writings. — Pleading.—Complaint.—Copy.—A complaint upon a promissory note or other written obligation, “payable according to the conditions” in other written instruments, forming a part of the contract, must set out not only a copy of the note or obligation sued on, but also copies of the instruments referred to.</p>

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

<p>Chattel Mortgage. — Execution.— Sale of Property. — Where mortgaged goods and chattels have been levied upon by an officer, under an execution against the mortgagor, such officer will be entitled, as against the mortgagee, to the possession of such property for the purpose of selling the same subject to the mortgage.</p> <p>Same. — Purchase by Mortgagee at Sale Under Mortgage. — Title of Purchaser. —Levy and Sale. — When, by the agreement of the mortgagor and mortgagee, and in accordance with the stipulations of the mortgage, the personal property therein described is sold at public auction to pay the mortgage debt, and the mortgagee, bona fide, becomes the purchaser thereof, he takes an absolute title thereto, freed from the lien of the mortgage; and the bare fact that, after his purchase, he left the property with the mortgagor, to be cared for by him, would not subject them to levy and sale as the property of the mortgagor.</p>

<p>Township Trustee. — Authority to Boirow Money. — School Corporation. —While a township trustee has no authority to borrow money for the use of the school corporation, yet, for money borrowed and actually used for the benefit of the township, in a legitimate way, the township may be liable.</p> <p>Same. — Liability of Township. — Complaint.—A paragraph of complaint, in an action against a school township for money borrowed by the township trustee, which shows that the money was used for the purpose of paying corporate indebtedness, is sufficient, the liability arising not from the act of the trustee in borrowing the money and giving a nóte, but from the obtaining of the money and its application to the township’s lawful uses.</p>

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

<p>Township Trustee. — Promissory Note. — Corporation.—Contract.—Where of the township funds, the consideration moved to the township, and it appears the note was intended'to impose an obligation upon the township, the contract should be regarded as that of the corporation, and not that of the officer whose name is signed to it. a promissory note, set forth in the complaint in an action thereon against a school township, appears upon its face to be the note of the corporation, that is, it is signed by the township trustee, as trustee, is payable out</p> <p>Same.- — Authority to Boirow Money. — School Law. — Statute Construed.— Case Distinguished. — Under .the provisions of the school law, 1 R. S. 1876, p. 778, a township trustee has no authority to borrow money for the use of the school township. Bicknell v. Widner School Township, 73 Ind. 501, distinguished.</p> <p>Same. — Promissory Note. — Complaint.—A township trustee has no authority to borrow money for the use of his school township, but where money is thus borrowed, and actually and rightfully expended for the benefit of the school corporation, it isliable therefor; and a complaint in an action on a promissory note executed by a township trustee for money so borrowed, which fails to allege that the money was expended for the benefit of the school corporation, is insufficient.</p> <p>Corporations. — Bight to Borrow Money. — As a general rule, a corporation, either public or private, has an implied power to borrow money for objects expressly authorized by the statute by which it was created and endowed with corporate powers and privileges, but, if such power is expressly or by implication denied by such statute, then no such power exists.</p>

<p>Highway. — Pleading. —Bemonstt'ance. — A remonstrance or objections filed to the vacation of a highway, which fails to show that any of the remonstrants were freeholders of the county, or that they resided along the highway proposed to be vacated, was properly struck out on motion.</p> <p>Practice. — General Finding. — Facts Proved. — A general finding for the plaintiff' is a finding that every fact necessary to a recovery by him is proved.</p> <p>Same.. — New Trial. — Becord.—Supreme Oourt. — Wo question is presented to the Supreme Oourt by the ruling on the motion for a new trial, where neither the evidence nor the instructions, nor any decision made by the court during the trial, are in the record.</p>

<p>Appeal. — Amount in Controversy. — Dismissal.—Appeals to tlie Supreme Court from judgments in actions originating before justices of the peace, where the amount in controversy is less than fifty dollars, will be dismissed.</p>

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

<p>Promissory Note. — Contract of Assignor. — The contract of an assignor of a promissory note, negotiable under the statute, but not governed by the law merchant, is a warranty that the maker is liable on the note and able to pay it.</p> <p>Judgment. — Sierger.—A cause of action in suit is merged in the judgment rendered thereon.</p> <p>Same. — Promissory Note. — After judgment upon a promissory note, it can not be endorsed or assigned.</p> <p>Same. — Assignment.—Liability of Endorsers of Note to Assignee of Judgment. — Statute Construed. — The mere assignment of the judgment obtained by an assignee, against the makers, of a promissory note, negotiable under the statute, does not transfer to the assignee of such judgment the cause of action, theretofore existing, against the endorsers, upon their endorsement to the assignee of the note on which the judgment was rendered. The cause of action to pursue remote endorsers, under the statute, 1 B. S. 1876, p. 635, is given to the assignee of the note itself, and not to the assignee of the judgment on the note.</p>

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

<p>Partition. — Pleading. — Complaint. — Practice. — Finding. — Supreme Court. — Objections to a complaint for partition of real .estate .for failing to state specifically the title of the parties to the land, and that they held the same as tenants in common, made for the first time in. the Supreme Court, are not available to reverse the judgment below, where the finding of the court was that the parties were the owners in fee and tenants in common of such land.</p> <p>Same. — Defects Cured by Evidence and Finding. — Such defects are of that character which might have been, and doubtless were, supplied by the evidence, and cured by the finding of the court.</p> <p>Practice. — Pleading.—Cross Complaint. — Issue.—After trial without objection, although no answer was filed to a cross complaint, it will be regarded on appeal as if an answer in denial had been filed.</p> <p>Same. — Cross Complaint. — Appearance. —Service.—Default.— Judgment.— It is only where one of two or more defendants, after personal service, makes default in the original action, and another defendant files a cross complaint, setting up new matter not apparent in the original complaint, that the defaulting defendant must be served with process, issued on such cross complaint, before any judgment by default can be rendered against him thereon.</p>

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

<p>Decedents’ Estates. — Executor or Administrator. — Bight to Sue. — Generally, the executor or administrator of a decedent alone can maintain an action for tlie recovery of a debt due or owing to such decedent at his death.</p> <p>Same. — Intestate —No Debts and No Administration. — Ears May Sue. — Heirs at law of an intestate may sue where such intestate left no debts to he paid, and there was no administration.</p> <p>Same. — Widow as Sole Heir —Promissory Note Acquired by Descent. — An intestate’s widow, being his sole heir, may sue upon a promissory note payable to him, which came to her by descent.</p>

<p>Beal Estate. — Conveyance to Husband and Wife. — Right of Survivor.— Right of Heir. — A conveyance of land to a woman and her husband tó be held by her as her own property, the husband having the possession during his lifetime and possession to return to her if she survive him, vested in her the title in fee subject to his life-estate, if he survived.</p> <p>Same. — Deed Construed. — Joint Tenancy not Created. — By the terms of such a deed a joint tenancy by entireties was not vested in the husband and wife.</p> <p>Same. — Death of Wife Before Husband. — Descent of Two-thirds to Heir. — ? Upon the death of the wife before the husband, two-thirds of the estate at once descended to their son and only heir, and was not liable to be assets for the payment of the husband’s debts; and the husband became seized in fee of the other one-third.</p> <p>Kame. — Decree of Sale. — Confirmation.—Mistakes.—Action to Quiet Title by Heir. — A decree of sale of such two-thirds for the payment of such debts, and a decree confirming the sale, were mistakes within the meaning of section 177, 2 B. S. 1876, p. 554, and the infant heir would be entitled to have them annulled and set aside, and his title quieted.</p> <p>Same. — Deeds of Administrator and Purchaser Annulled. — Partition.— In such case, the deed of the administrator and the deed of the purchaser to his grantee ought also to be set aside and annulled as to such two-thirds, and partition made.</p> <p>Practice. — Infant Plaintiff. — An action to correct a mistake in a decree, set aside a deed, quiet title and for partition may be commenced by an infant.</p> <p>Same. — Age of Plaintiff. — Complaint.—Answer.—Unless the age of the plaintiff is stated in the complaint, or in an answer setting it forth, the record does not present the question of his infancy and incapacity to sue.</p> <p>Same —Party Demurring Presumed in Court — Supreme Court. — Where both the judge of the trial court, and the person demurring to a complaint, thought he was a party to the action, the Supreme Court will presume that he was and is properly in court.</p> <p>Construction. — Deed.—Premises.—Habendum.—In construing the terms of a deed, both the premises and the habendum must be considered. The office of the habendum is to determine what estate or interest is granted. It may often qualify the premises, but may not contradict the estate so granted.</p>

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

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

<p>Pleamng. — Complaint.—Objection Cured by Verdict. — Motion in Arrest of Judgment. — Breach of Promise to Marry. — Consideration.—Mutual Promise. — After verdict upon the trial of a complaint for breach of promise to marry, an objection that the complaint, in stating the mutual promises of tire parties, alleged that the defendant’s promise was made in consideration that the plaintiff would promise to marry him, and not that she did promise, was cured by the verdict, and came too late on motion in arrest of judgment.</p> <p>Practice. — Trial without Answer. — Presumption of Issue Joined. — Supreme CourtsWhere the record fails to show that issue was joined by answer of the defendant, the Supreme Court will consider the case as if an answer in denial had been filed.</p> <p>Same. — Breach of Promise to Marry. — Evidence of Illicit Intercourse Inadmissible. — On trial of an action for breach of a promise to marry, where the complaint contained no allegations of illicit intercourse between the parties, and no answer was filed, evidence of such illicit intercourse was inadmissible to prove a promise to marry, or enhance the damages, or for any other purpose.</p>

<p>Practice. — Summons.—ReturnDay.—How TenDays’ Seniceis Counted.-r-Statute Construed. — Under section 315 of the civil code, as amended by the act of March 6th, 1877, Acts 1877, p. 105, the ten days’ service of a summons on a defendant is counted by excluding the day of service and including the return day. Service on the 9th day of June for the 19th was good ten days’ service.</p> <p>Same. — Setting Aside Default. — Excusable Neglect. — Where court met and entered default and judgment at 8 o’clock in the morning of the return day, and, by affidavit submitted the same day, the defendants showed that they lived eleven miles distant, had no public conveyance, travelled by private conveyance, reached the court-house at 9 o’clock, and employed counsel, and set forth therein a good and legal defence to the whole of plaintiff’s claim, the trial court erred in overruling their motion to set aside the default and permit them to answer the complaint. Such neglect may well be regarded as excusable neglect, under section 99, 2 R. S. 1876, p. 82.</p> <p>Same. — Promissory Note. — Defence.—Alteration.—In such case, being an action on promissory notes, a defence that, since the execution by the defendants of the notes sued on, the notes had been materially altered, and that they never executed them as they appeared, constituted a good defence.</p>

<p>Railroad. — Killing Stock. — Burden of Proof . — In an action against a railroad company for killing stock upon the track of its road, at a place where the road was not fenced, the burden of proof that the road was not fenced at the place of the killing, or at the place of the entry of the animals upon the track, is on the plaintiff; but that it was not the company’s duty to' fence at such place, was matter of defence.</p> <p>Same. — Evidence.—Fence.—Street.—Whore, in such case, the evidence shows that the stock was killed between two streets of a city, on the track of the defendant’s railroad, not fenced, where a fence might have been built without interfering with any street or alley, or with the customary operations of the road, the company is liable.</p>

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

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

<p>Township Trustee. — Action on Bond. — Civil and School Township.— Pleading. — Practice.—Amendment.—Misjoinder of Causes of Action.— Where the original complaint in an action by a township trustee against his predecessor in office, upon his bond, sought only to recover money due the civil township, the subsequent filing of an additional paragraph of complaint, seeking to also recover money alleged to be due the school township, is a proper amendment, and does not amount to a misjoinder of separate causes of action.</p> <p>Same. — Beport.—Surety Not Bound Thereby. — In such action the reformation of the report of the alleged defaulting trustee is not necessary to enable the sureties on his bond to avail themselves of any error therein prejudicial to their rights as such sureties.</p>

<p>Partition. — Mortgage.—Deformation and Foreclosure. — In a proceeding-for partition, a mortgagee defendant may by counter-claim procure the reformation of his mortgage and a foreclosure.</p> <p>Same. — Answer of Judgment on Note no Defence. — In such case, an answer that a judgment on the note secured by the mortgage is in full force' constitutes no defence, to bar foreclosure.</p> <p>Same. — Incorrect Description of Lands Intended to be Mortgaged. — -When an incorrect description of lands intended to be mortgaged is carried into, the judgment, order of sale, notice and sheriff’s deed, such proceedings can not be corrected, either at the instance of the mortgagee or the purchaser at such sale.</p> <p>Same. — Correction by Deforming and Foreclosing Mortgage. — Such mistake may be corrected by reforming the mortgage and foreclosing it as re- ' formed. Sogers v. Abbott, 37 Ind. 138; Miller v. Kolb, 47 Ind. 220; and. Angle v. Speer, 6G Ind. 48S, distinguished.</p> <p>Mortgage. — Mutual Mistake. — Merger.—Des Ad judicata. — Judgment not a Bar. — Where a mortgage, by mutual mistake, contained an erroneous description of the land intended to be mortgaged, and the subsequent proceedings, including the sheriff’s deed, contained the same mistake, the mortgage was not thereby so merged in the judgment as to make the question of description one of res adjudicata; but the mortgage-may be foreclosed notwithstanding such judgment.</p> <p>Same. — Proceeding Nugatory. — In such case, the whole proceeding is in- ; fec’ted by the original mistake, and is baseless, unsubstantial and nugatory, and is no obstacle to the reformation and foreclosure of the’; mortgage.</p> <p>Practice. — Pleading.—Bad, Paragraph of Answer. — Overruling Demurrer Substantial Error. — Judgment Must Appear to be not on Bad Paragraph.— Overruling a demurrer to a bad jiaragraph of answer adjudges that proof of the facts is sufficient to bar the action, and is substantial error, when it does not affirmatively appear that the judgment was not rendered on the paragraph in question.</p>

<p>Injunction. — Good-Will.—Obligation not to Engage in Business Sold or Aid. Others. — Breach.—Remedy.—Where P. sold his business to B. and C., and obligated himself to them, or either of them, never again to engage in the business in L., or to aid, encourage, or advise others so engaged, and 0., having sold all his interest in the contract to B., engaged in the business in L., and was aided, encouraged and advised by P., adequate damages can not be estimated for the breach of such covenant, and consequently injunction was B.’s proper remedy against bothP. and C., the one from giving, and the other from receiving, the aid.</p> <p>Same. — In such case, the business being packing and selling ice, a finding that ice was packed by C. with the aid of P., but not for the purpose of selling in L., would not entitle B. to judgment.</p> <p>Same. — Leasing Premises. — Preference.—In such case, a lease of his ice-houses to C. by P. would not be such a breach of his covenant to give B. and G. the preference, as to entitle B. to an injunction, O. not being under any obligation to keep out of the ice business on his own account.</p> <p>Same. — Exclusion from Possession. — Forcible Entry and Detainer. — If, in such case, P., colluding with C., broke in and violently excluded B. from possession, an action for forcible entry and detainer would have afforded B. appropriate and prompt relief.</p> <p>Same. — Refusal to Accept Renewal of Lease. — Waiver of Preference. — In such case, if B. refused to accept a renewal of his lease, at a price named, his consent was not necessary to the legality of a lease thereafter made, on the same terms, to another, notwithstanding his right of preference.</p>

<p>Beprevin. — Nominal Damages. — In an action for the recovery of personal property under section 128 of the code, where it is shown that the property was wrongfully taken and unlawfully detained, the plaintiff is entitled to recover nominal damages without proof-of actual damages.</p> <p>Same. — Proof of Detention of Property. — It is not necessary, in order to-maintain such action, for the plaintiff to prove that the property was-detained by the defendant in the county where the actio’n is brought. Such proof, if necessary in any case, is only required where the immediate possession of the property is demanded.</p> <p>Same. — Demand.—Where it is alleged and proved that the property was unlawfully taken and unlawfully detained, no demand before suit is necessary.</p>

<p>Trust and Trustee. — Trustee of Express Trust. — Bond. — Sureties.— Where, under the provisions of the act concerning trusts and powers, 1 R. S. 1876, p. 915, a bond might be required of a trustee of an express trust, and a bond is executed by the trustee, with sureties, with the approval of the county clerk, conditioned for the faithful performance of the duties of the trust, such bond is valid and binding upon the trustee and his sureties.</p> <p>Same. — Action on Bond. — Penalty.-—Damages.—Where a bond required the trustee to put the trust fund -at interest, and annually pay the accrued interest to the beneficiary, in an action on the bond by the beneficiary to recover the accrued interest on the trust fund, which had been converted and squandered by the trustee, it is error to assess a penalty of ten per cent, on the amount found due.</p>

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

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

<p>Criminal Law. — Indictment.—Name.—Presumption.—Affidavit and Information. — The law presumes every man to have a Christian name, unless the contrary appears, and, in an indictment or information against him, that name, as well as his surname, must he stated in full, unless some reason is shown for'not so stating it; and a failure to state it, or a reason for not stating it, may he taken advantage of on motion to-quash;.hut the court, on motion to quash or in arrest of judgment in a prosecution of a defendant under the name of “Ben,” will presume that it was his true and full Christian name.</p> <p>Same. — Discretion of Court to Appoint Attorney for Poor Person. — County Commissioners. — A person prosecuted for crime and unahle to employ counsel for his defence is not entitled to have such counsel assigned him as he may choose, and the court in its discretion may decline to assign him the counsel he may desire, and assign him other counsel, and its action therein can not he error, unless there is, in the particular circumstances, an abuse of discretion; and where county commissioners have employed attorneys to defend poor persons charged with crime, though it may he they have no such authority, yet that is no reason why the court may not appoint an attorney thus employed.</p>

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

<p>Personal Property. — Action to Recover Possession. — Bill of Sale. — Demand. — Evidence.—A demand for possession of personal property claimed under a bill of sale is sufficiently proved by evidence of the agent making the demand, and of the defendant that it was his first knowledge 6f plaintiff’s claim of ownership before action brought to recover its possession.</p> <p>.Same. — Bill of Sale. — Consideration.—Instruction.—Gift.—On trial of an action to recover possession of such personal property, an instruction, asked and refused, that, “If the jury shall find that the bill of sale was made without any actual consideration as between them, the plaintiff is not entitled to recover the possession of the property described in the bill of sale,” was not fully correct. In such case, if the bill of sale was without consideration, evidence having been introduced tending to show a perfect gift, by delivery of possession under it, to the plaintiff, an action would lie to recover possession.</p> <p>Same. — Consideration.—Payment.—In such case, an instruction, assuming that the price mentioned in the bill of sale was the true consideration, was wrong, and correctly refused. It was competent to show a different consideration, and that it had been paid before the making of the bill of sale.</p> <p>Same. — Agreement of Mortgagor to Permit Foreclosure. — An agreement by the plaintiff, who was a mortgagor of land, to permit a foreclosure of the mortgage, and the accomplishment of such foreclosure, constitute a sufficient consideration to support the bill of sale in suit made by the-defendant, who was the mortgagee, to the plaintiff.</p> <p>Same. — In such ease, the mortgagor had the right, by payment, to prevent a foreclosure; and, having yielded that right and the right of redemption, the plaintiff, in effect, agreed that the title should pass to the mortgagee as if a deed had been bargained for and made.</p> <p>Same. — Valid Sale ichile Under Levy. — The owner of property under the levy of executions may sell it, and, when they are satisfied, the sale, if otherwise valid, is good against the world.</p> <p>Practice. — Instruction.—Bight of Possession and of Property. — A party desiring a more accurate statement of the issue than that made in an instruction must move for it at the time, and, failing to do so, can not be heard to complain of it on appeal; and where the right of possession is practically the right of property, an instruction that the ownership is the question in issue, is not erroneous.</p> <p>Same. — Evidence of Ownership. — Tax Schedules. — Where the schedule of each claimant, returned for taxation after a sale bill was made, had been admitted in evidence without objection, one including and the other not showing the property claimed, it was noi error for the court to exclude a return by the latter the next year, to prove that he then included it with his property.</p> <p>Same. — Declarations of a party are provable against, but not for, him. He can not manufacture evidence for himself in that way.</p>

<p>Contributory Negligence. — Pleading. — Complaint. — Bailroad.— In an action against a railroad company for injuries to plaintiff’s intestate, caused by his falling into a culvert constructed by the defendant under its track in a public street of a city, and by defendant negligently permitted to remain open and uncovered, a complaint which avers that the intestate, “while exercising due and reasonable care and without his fault or negligence on his part,” fell into and through the opening in the culvert, sufficiently alleges that he was not guilty of contributory negligence.</p> <p>Same. — Highway.—Knowledge of Defect. — jReasonable Care. — Knowledge-of the existence of a dangerous defect in a highway makes it incumbent on the traveller to use care and caution proportionate .to the danger which he knows lies in his way; but knowledge will not overcome an explicit averment of reasonable care and prudence.</p> <p>Same. — Evidence.—Where, on the trial of such action, the evidence: showed that the intestate lived near the culvert and was familiar with its character and location, and no evidence was given to show that he. was free from contributory negligence, there is an utter failure of proof..</p> <p>Same. — Presumption.—There is no presumption that one who claims damages for injuries caused by the negligence of another was himself free: from fault.</p>

<p>Real Estate. — Purchase-Money.—Payment with Money to he Borrowed.— Pleading. — Complaint.—Demurrer.—Where C. agreed with M., December 2Gth, 1877, to pay him or his creditors the piirchase-money of land “as soon as the money can be procured by making a loan on said C.’s land,” the complaint of M., alleging his tender of a deed April 19th, 1878, the failure of C. to pay, and that it was possible for him to have obtained a loan, through loan agents' named, by mortgaging his real estate, and agreeing to pay ten per cent, interest, is sufficient on demurrer to put C. on his defence.</p> <p>Same. — Seasonable Time. — In such case, the plaintiff gave the defendant a reasonable time before tendering his deed.</p> <p>.Same. — Query.—Did not the defendant unconditionally bind himself to-procure a loan within a reasonable time?</p>

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

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

<p>Practice. — Bill of Exceptions. — Affidavit.—Becord.—An affidavit for a continuance can only he made a part of the record by a bill of exceptions, and a bill of exceptions can only incorporate an instrument by reference when the instrument referred to is already properly in the record. It is not necessary to copy an instrument in the bill of exceptions, when it is already properly in the record; but when it is not properly a part of the record, although copied therein by the clerk, it must be set forth in the bill of exceptions as the statute requires.</p> <p>Criminal Law. — Practice.—Exceptions.—Bill of Exceptions. — Statute Construed. — A bill of exceptions, by section 120 of the code, as amended by the act of March 2d, 1S77, Acts 1S77, p. 100, must be presented and filed either during the trial or within such time as the court may allow, not exceeding sixty days from the day judgment is entered. Exceptions, however, must be taken during the trial, but time may be allowed within the sixty days for embodying them in a proper bill.</p> <p>Same.— Witness.— Opinion. — Non-Expert.—Iinsoundness of Mind. — Evidence. — In criminal prosecutions a non-expert witness must always state the facts upon which he bases his opinion as to the mental capacity of the ■defendant, and it must also appear that he has some knowledge of the acts and conduct of the defendant, to entitle his opinion to be admitted as evidence.</p> <p>Same. — Duty of Court. — Jury.—In such case, it is the duty of the court to decide whether such knowledge is shown, and such facts stated, as will entitle the witness to express an opinion, but what weight the opinion shall have is a question of fact for the jury.</p> <p>Same. — Bight of Court to Question Witness. — A court has the right to question a witness, and no error is committed thereby unless the questions are in themselves objectionable, or are so asked as to improperly influence the jury.</p> <p>Same. — Instructions.—Where all the instructions, taken together, state the law applicable to the case fully and correctly, the fact that a single clause standing alone fails to do this, can not be made available to reverse the judgment.</p> <p>Same. — A single instruction entirely correct and relevant can not be declared erroneous because it does not gather up and group together all the various elements of the case.</p> <p>Same.— DrunJcenness. — Incest.—Voluntary drunkenness can neither excuse nor palliate the crime of incest.</p> <p>Same. — Instruction.—Upon trial of a defendant charged with incest, it is not error for the court-to state to 'the jury that a man with ordinary capacity and will power, unimpaired by disease, is bound to restrain his lustful passions.</p> <p>Same. — Indictment.—Instruction.—Evidence.—Jury.—Where, in such action, the indictment charged the offence to have been committed at a specified date, but all the evidence, as well for the State as for t¡he defendant, was directed to another and later date, reference in an instruction to the mental condition of the defendant, whose defence was unsoundness of mind, at the date named in the indictment,would not likely mislead the jury.</p> <p>Same. — ’“Reasonable Doubt.” — An omission by the trial court, in its instructions, to define the term “reasonable doubt,” unless asked to do so by the defendant, will not entitle him to a reversal of the judgment.</p>

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

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

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

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

<p>Sheriff’s Sale. — Purchaser.—Judgment.—Execution.—Notice of Irregularities. — The pnrchaser at a sheriff’s sale of real estate is required to show a valid judgment and execution, and is chargeable with notice of the character and contents of the judgment and execution under which he claims, and of the discrepancies between them, if any exist.</p> <p>Same. — This rule applies alike to all purchasers at such sale, whether judgment plaintiff, who is affected with constructive notice of all irregularities, or a stranger to the writ, who ordinarily can be affected only by actual notice.</p> <p>Same. — Assignee of Certificate. — The assignee of the certificate of sale is- . in no better position than his assignor.</p> <p>Same. — Appraisement.—A sheriff’s sale of real estate is voidable, if not void,. if made without appraisement, when the judgment does not so direct..</p> <p>Same. — Sale in Solido of Land Susceptible of Division. — A sale of real estate on execution, as an entirety, which is susceptible of division! and of sale in parcels sufficient to satisfy the execution, is voidable,, and'may be set aside.</p> <p>Same. — Bight of Holder of Junior Lien to Set Aside. — Mortgage.—Trustee of Express Trust. — The assignees and holders in trust of a mortgage of real estate, the lien of which is junior to that of the judgment on which such real estate was sold on execution, have such an interest as entitles-them to bring an action to set aside such sale, and, as trustees of an express trust, may sue in their own names.</p> <p>Practice. — Pleading.—Exhibits.—Exhibits filed with a pleading, which-are not the basis thereof, constitute no part of the pleading, and cart not add to, or detract from, the force of its averments.</p>

<p>Bailroad. — Speed of Trains.— Velocity Practiced with Consent of Community no Criterion. — Instruction.—On trial of an action against a railroad company for injuries to the plaintiff, while riding as a passenger in a car of defendant’s train, which was thrown from the track by a broken rail, or the breaking of a rail, an instruction undertaking to define a safe rate of speed by its comparison with the velocity '‘practiced before, with the tacit consent of the community, and without accident,” assumed a false criterion, and was erroneous.</p> <p>Same. — Broken Bail. — Presumption.—Instruction.—Burden of Proof. — On such trial, it was error to instruct that “There is no presumption that the rail was broken before this train reached it, and, if the plaintiff claims that it was, the burden of proof is upon him.”</p> <p>Same. — Negligence.—In such case, a prima facie presumption of negligence arises against the railroad company, to be overcome by proof.</p> <p>Same. — The usual practice for a considerable period would tend to prove what speed on a road is possible, with reasonable safety.</p> <p>Same. — Query.—When a rail has been cracked, or broken, by a passing train, is not the company guilty of negligence in not causing it to be examined and repaired before the passage of another train?</p>

<p>Constitutional Daw. — Criminal Law. — Fines and Forfeitures. — Judgments Replevied Before April loth, 1881. — Imprisonment.—Habeas Corpus. — Statute Construed. — The act of April 15th, 1881, Acts 18S1, p. 560, providing for the collection of judgments for fines and forfeitures, by the issuance of an execution, and the imprisonment of the defendant upon the expiration of the stay secured to him by the entry of replevin bail, so far as it relates to judgments replevied before that date, is unconstitutional, and a writ of habeas corpus will lie to release a defendant so imprisoned.</p> <p>Same. — Reply to Return. — Demurrer.—Departure.—A reply to the return to-such writ, alleging the issue and levy of an execution on real estate of the replevin bail, the sheriff’s neglect to return the same, that such bail, for six months after becoming so, and for sixty days after the issue of such execution, was the owner of other property, real and personal, to the value of riiore than one thousand dollars, on which the judgment is a lien, is a departure from the petition, and insufficient on demurrer.</p> <p>Same. — Jeopardy.—Providing for the enforcement of an existing judgment, is not creating a second jeopardy, in violation of section 14 of the Bill of Rights, 1 R. S. 1876. p. 23.</p> <p>Same. — Punishment Increased. — A punishment may be lessened, but not increased, by a statute enacted after the commission of an offence.</p> <p>Same. — Payment.—Replevin Bail.' — Statute Construed. — Under the criminal code of 1852,2 R. S. 1876, p. 407, the entry of replevin bail, as well as payment, terminated the power to imprison under a judgment of conviction.</p> <p>Same. — Bx Post Facto Law. — Contracts.—Replevin Bail. — Constitution.— The 1st and 2d sections of the act of April 15th, 1881, Acts 1881, p. 560, do not conflict with section 14, but conflict with section 24 of the Bill of Rights, and are void so far as they attempt to restore a right to imprison where that right had been fully terminated by the entry of replevin bail.</p> <p>Same. — Query.—What effect has the statute on judgments rendered before, but replevied after, that date?</p>

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

<p>Decedents’ Estates. — Will-—Legacy.—Direction to Invest.^-Bank Stock-—A direction in a will that a legacy be put at interest must be strictly followed; and, in such ease, bank stock is not a proper investment.</p> <p>Same. — Final Deport. •— Legatee’s Exceptions. — Evidence. — Unsupported Finding. — Upon exceptions by a legatee to a final settlement report of an administrator with the will annexed, evidence that,without an order of court, and without the knowledge of the legatee, he invested the • legacy in bank stock, in his own name,which depreciated in value, causing a loss of a portion of the trust fund, and that he had paid the legatee the part only which remained after deducting the loss, was insufficient to justify a finding and judgment confirming his report and discharging him from his trust as to the objecting legatee.</p> <p>Same. — Administrator’s Profit and Loss. — In such case, the administrator, having had opportunity of profit in the rise in value of the bank stock, can not cast the loss upon the trust estate, but must suffer it himself.</p> <p>Same. — Settlement.—Contract.—Performance.—In such case, where the evidence shows that the parties made, and in part executed, a settlement on an agreed basis, the legatee has a right to enforce full performance.</p>

<p>Replevin Bail. — Failure of Justice to Attest Entry. — Damages.—The failure of a justice of the peace to attest the entry of replevin bail does not relieve the bail from liability, and such failure of the justice is not such a breach of his official bond as would authorize the recovery of substantial damages.</p> <p>Same. — Nominal Damages. — Supreme Court. — The Supreme Court will not reverse a judgment where the sole question is as to the right to recover purely nominal damages.</p>

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

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

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

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

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

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

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

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