Volume 76 — Indiana Reports

<p>Pleading. — Answer.—Reply.—A reply, or answer, to a pleading must respond to the entire pleading, or part thereof, to which it purports to he addressed, or it will he bad on demurrer for want of sufficient facts.</p> <p>Same. — Cross Complaint. — Co-Partnership.—FraudulentConduct.—Reply of Final Settlement. — Limited Denial. — Where the gravamen of the cause of action stated in a cross complaint is alleged fraudulent and illegal conduct and acts of plaintiff in procuring a final settlement of co-partnership dealings, a reply of full and final settlement with knowledge • thereof does not constitute a good defence, on demurrer, to all the matters of fact relied upon in the cross complaint, and is not aided by a limited denial, in conclusion, of “all the allegations of the answer and cross complaint not herein specially replied to.”</p>

<p>Promissory Note.— Decedents' Estates. — Devastavit.—Administrator as Payee. — A note executed and made payable to an administrator, for a debt due the estate, is property of the estate, and his transfer of it without consideration is a devastavit or wasting of the assets of the estate. Thomasson v. Brown, 43 Ind. 203, distinguished.</p> <p>Same. — Answer.—Devastavit.—Knowledge of Bolder. — An answer to a complaint on a promissory note, that it belonged to the estate of a deceased person, and that the plaintiff received it of the administrator, with full knowledge of the fact, and without consideration, contains a good defence.</p> <p>Same. — Meal Party in Interest. — Such an answer shows that the plaintiff is not the real party in interest, and, for that reason, is good.</p> <p>Same. — The question of the sufficiency of such answer does not turn upon the administrator’s capacity to endorse, hut upon the circumstances at, tending the endorsement.</p>

<p>Decedents’ Estates. — Note and Mortgage of Decedent. — Decree of Foreclosure and Payment. — Action on Note by Endorsee. — Administrator Not Party to Foreclosure. — Defence.—An administrator’s answer to a complaint on his decedent’s note, secured by mortgage, that, in an action ■ by an endorsee W., against the heirs of his intestate and the mortgagee only, without notice to the administrator, judgment for its amount was rendered and foreclosure decreed, and that, by request of the heirs, he paid the judgment to W. to remove the cloud thereof from the land, and that, pending the foreclosure proceedings, W. endorsed the note to the plaintiff, then and since a non-resident, but having notice of the proceedings, constituted a defence, without an averment that the administrator did not have notice of the assignment of the note to plaintiff.</p> <p>Same. — Merger.—Payment.—Demurrer.—In such case, an answer that the note was still the property of W., that there was no consideration for the assignment to plaintiff, and that the note had been merged in the judgment and paid, although a commingling of several supposed defences, may be regarded, on demurrer, as a general answer of payment.</p> <p>Bill of Exceptions. — Nuntington Circuit Court. — March Term, 1877.— A bill of exceptions filed April 20th, 1877, was not filed on or before the twentieth judicial day of the term of the Huntington Circuit Court, which began March 19th, 1877.</p>

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

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

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

<p>Voluntary Assignment. — Omission of Property of Trifling Value. — An insolvent debtor’s assignment of his property, under section 1,1 R. S. 1876, p. 142, is not fraudulent and void because of the unintentional omission of portions of the debtor’s proiierty of trifling value, if it embraces substantially all of the debtor’s property.</p> <p>Same. — General Assignment. — All assignments under such statute must be general.</p> <p>Same. — Supplemental Assignment. — The filing of a “supplemental assignment,” containing property unintentionally omitted from the original assignment, does not carry forward the date of its taking effect.</p> <p>Replevin. —Pleading.—Assignee. — Complaint. — Bight of Possession.— Proof — In replevin, an assignee need not allege in his complaint that he is the owner of the goods, “as assignee.” He may aver his title generally, and prove such facts as show a general or special property and right of possession.</p>

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

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

<p>Evidence. — Bill of Exceptions. — Omission of Writing. — Where documentary evidence is omitted from the record, the page left for it remaining blank, the concluding statement, “This was all the evidence given in the cause,” is manifestly untrue, and must be disregarded. In such case, the sufficiency of the evidence, or alleged errors in instructions, can not be considered.</p> <p>Same. — A question which can be determined as well without as with the entire evidence may properly be considered by the Supreme Court.</p> <p>Same. — Misrepresentations and Fraud. — Caveat Emptor. — One who has purchased the lease and appointments of a hotel may not, in proof of an answer alleging deceit as to their value, give evidence of the bad condition of the wall paper in rooms inspected at the time of purchase.</p> <p>Same. — Admissions.—After a purchaser of hotel property had made considerable additions to the equipment of the hotel, his admissions of its receipts, profits and financial prosperity then are not competent to> show that representations made to him when he purchased were not false.</p> <p>Practice. — General Verdict. — Special Finding. — Bejected Interrogatory.— Where a general verdict is sustained by the' special finding, and an affirmative answer to a rejected interrogatory could not have controlled the general verdict, no error was committed by the refusal of the court to submit it to the jury.</p>

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

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

<p>Supreme Court. — Appeal.—In an action originating before a justice of the peace, where the facts stated in the complaint affirmatively show that the amount in controversy does not exceed fifty dollars, an appeal to the Supreme Court will be dismissed, notwithstanding the amount laid in the prayer of the complaint.</p>

<p>Personalty. — Lien.—Judgment.—Execution.—A judgment is not a lien upon personalty, but the issuing of an execution binds personalty.</p> <p>Same. — Mortgage.—A purchaser at an execution sale of personal property mortgaged after the judgment was taken, but before execution was issued, buys it subject to the mortgage.</p> <p>Practice. — Supreme Court. — Assignment of Error. — New Trial. — That the trial court erred in mailing special findings of facts contrary to the evidence, is not a proper assignment of error, but ground for a new trial.</p> <p>Pleading. — Bad Answer. — Bad, Jteply. — A bad reply is good enough for a bad answer, on demurrer.</p> <p>Admission. — Estoppel.—Interest in Property Mortgaged. — If one intending to take a mortgage of personal property ask another if he claims any interest in it, and he answers, “I do not,” such admission is sufficient evidence, in a subsequent controversy between them, to justify a finding that he had no interest, and the question of estoppel would not be material.</p>

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

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

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

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

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

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

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

<p>Evidence. — Witness.—Decedents' Estates. — Mortgage.—Heirs of Intestate Mortgagor. — Beceipts for Payments. — On trial of an action against the heirs of an intestate, to foreclose a mortgage given hy him in his lifetime to secure a note, it appearing from the evidence that the note was lost, and that the endorsements of payments on the mortgage were made hy the mortgagor, and a receipt, “I, O. B. A., acknowledge the receipt of |350, this January the 11th, 1866,” signed by him, having been admitted in evidence, the mortgagee was not competent, under section 2, 2 R. S. 1876, p. 133, to testify that it was given for two payments, one December 26th, 1865, for $50, and the other January 6th, 1S66, for $300, endorsed on the mortgage hy the intestate, and given in evidence hy the plaintiff.</p> <p>Same. — In such case, evidence as to a note of the decedent for $170, made, to the plaintiff, and filed as a claim against the mortgagor’s estate, did not tend to prove the disputed payments, and was rightly excluded.</p> <p>Same. — Weight of Evidence. — Supreme Court. — The Supreme Court will not disturb a verdict on the weight or conflict of evidence.</p> <p>Same. — Objections to Evidence. — Practice.—Presumption.—Where evidence is admitted over objection, the grounds of the objection must be made to appear to render it available; but, where evidence has been excluded, the ground is immaterial, and the action of the trial court is presumed to have been right, the contrary not appearing.</p>

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

<p>Bill op Exceptions. — Practice.—Supreme Court. — Where the record entries do not show the grounds of objections to the rulings upon motions for a change of venue and to dismiss an appeal from a justice, sfuch motions not being in the bill of exceptions, nor ordered by the court to be made a part of the record, and the grounds of objections not appearing in the record on appeal, no question is properly presented on such rulings for the decision of the Supreme Court.</p>

<p>Promissory Note. — Action for Full Amount. — Part Payment of Amount in Default. — After action brought upon a note given to a building association, such note being wholly due because of default in payment of interest, association fines and dues, no payment of a part or all of the amount in default, in the absence of an agreement, would have the effect to render the note not due.</p> <p>Same. — Evidence.—Conflicting Testimony as to Terms of Agreement. — On trial of such action, the testimony of the parties as to the terms of such an agreement being in conflict, the Supreme Court can not say that the trial court erred in finding that they had not been complied with.</p>

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

<p>Beal Estate, Action to Becover. — Pleading.—Answer.—Disclaimer.— In an action to recover real estate described in the complaint as bounded on the west by the eastern boundary line of a town, an answer that the defendant was not in possession of any part of said land lying east of said line, and disclaiming title thereto, but averring that plaintiff had no title to any of the land lying west of said boundary line, did not respond to the allegation in the complaint that he unlawfully kept plaintiff out of possession thereof, and created, if any, a defective issue.</p> <p>Same. — Location of Boundary. — Evidence— In such case, plaintiff’s right to possession being conceded by the disclaimer, the location of the eastern boundary of the town was not a question in controversy, and evidence relative thereto was immaterial.</p> <p>Same. — Nominal Damages. — In such case, under section 610, 2 R. S. 1876, p. 254, proof of actual pecuniary damages is not necessary to entitle one to nominal damages for an invasion of his right to possession of real estate, and one dollar is not excessive.</p> <p>Same. — Judgment.—A judgment will not be reversed because of a very small excess of nominal damages.</p> <p>Same. — Exemplary Damages. — In such action, one who recovers is entitled to recover for the use and occupation of the premises for a period not exceeding six years, and, in cases of wanton aggression, exemplary-damages may be awarded.</p>

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

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

<p>Beceipt. — Parol Evidence. — A receipt is not conclusive, but may be explained or contradicted by parol evidence.</p> <p>Guardian and Ward. — Partial Beports. — Collateral Attack. — Ex parte orders and partial reports, in relation to the duties of guardians, are considered as interlocutory, and are only prima facie correct, subject to revision at any time before final settlement, but they can not be collaterally attacked.</p> <p>Same. — Final Beport Conclusive as to Payment of Claims. — Fraud.—Mistake. — A guardian’s final report,when approved, is conclusive as to the payment of a claim embraced therein, and can not be collaterally attacked ; nor can it be directly attacked, unless within the statute of limitations, for fraud or mistake.</p>

<p>Taxes. — Lien of. — S&1& fov. — ShGvifs >So.lo. — Tcndov. MovtcjttQG. Plco.di1ig —Under section 170 of the assessment law, all property, real and personal, is liable for all taxes, penalties, interest and costs charged against the owner, and no partial payment thereof will discharge or release any portion of such property, notwithstanding any sale or tranfer of the same; and a purchaser of real estate at sheriff’s sale in pursuance of a decree of foreclosure of a mortgage can not enjoin the treasurer of the county from selling such real estate, for delinquent taxes, which were a lien on such real estate when in the hands of the original mortgagor, until all taxes rightfully a lien on the same1 are fully tendered or paid, notwithstanding the original mortgagor may have personal and. other property in such county, sufficient to fully satisfy such delinquency, and a complaint to enjoin the collection of such taxes is insufficient on demurrer without an allegation that such taxes have been fully tendered or paid.</p>

<p>Divorce. — Cruel and Inhuman Treatment of Wife. — Adultery.—Evidence.— On trial of a wife’s petition for divorce, evidence that the husband falsely charged her with adultery, and published the charge to her neighbors, sustains a finding of cruel and inhuman treatment.</p> <p>Same. — Proof of Good Character. — On such trial, the court did not err in permitting her to prove her good character in making out her case in chief.</p> <p>Same. — Excessive Alimony. — Where the husband’s estate was worth $7,000, and consisted largely of a farm of 120 acres, an allowance of $4,000 without provision for the maintenance and education of their infant child committed to her custody, was excessive by $1,500.</p> <p>Same. — Custody of Child. — A finding in favor of the wife is sufficient to authorize an award to her of the custody of a child, eight years old, unless an abuse of judicial discretion affirmatively appear.</p>

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

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

<p>Husband and Wine. — Wife's Property. — Execution.—Evidence.—Fraud'. —In an action by a debtor’s wife, to recover possession of personal property, seized by virtue of an execution on a judgment against him, evidence that the property was by him transferred through a trustee to her after she had, by mortgage of her land, obtained for his use, in paying debts, a large loan, and when he was the owner of a large amount of property, apparently sufficient to pay all his debts, shows a transaction bearing on its face no marks of fraud as against his creditors, and does not sustain a verdict against her.</p> <p>Same. — Sale.—The character of a sale or transfer of property by a debtor must be judged by the circumstances existing at the time, and not by subsequent events having no actual connection with the transaction.</p>

<p>New Trial. — Cause.—Verdict.—Finding of Court. — Where the jury trying a cause, in the face of uncontradieted evidence, return a verdict contrary thereto, such verdict will he set aside, and a new trial granted. The rule is the same as to the finding of the court.</p>

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

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

<p>Bill oe Exceptions. — Evidence.—Practice.—Supreme Court. — A MU of exceptions, to present any question to the Supreme Court, upon the competency of evidence admitted, must show that objections were made to its introduction, and also show the grounds of the objections.</p> <p>Same. — Certificate of Judge. — A certificate of the trial judge, that the foregoing is “a true, full and complete exhibit of all the evidence given in the said cause,” is not a sufficient authentication of what purported to be a bill of exceptions.</p> <p>Same. — Becord.—Where the record shows that the evidence is not all in the bill of exceptions, it is insufficient to present any question upon the sufficiency of the evidence to sustain the verdict, notwithstanding the general recital in the bill to the contrary.</p> <p>Same. — Written Instrument. — In order that written instruments shall constitute a part of the bill of exceptions, they must either be copied into it at full length before it is signed by the judge, or appropriately referred to, and the proper place for insertion designated by the words “here insert.”</p>

<p>Special Verdict., — Fact not Found. — Burden of Proof. — Answer.—Practice. — It is not a valid objection to a special verdict, that it does not find either way upon an allegation of a special answer, as only the facts proved need be stated; and all issues not determined by the facts found must be regarded as not sustained by the party having the burden of proof.</p> <p>Same. — New Trial. — If there was proof of a fact not found, the remedy is by a motion for a new trial.</p> <p>Same. — Venire de Novo. — If a verdict, instead of a fact found, states only matter of evidence in relation to it, the remedy is by a motion for a venire de novo.</p>

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

<p>Promissory ST ote. — Practice.—Parties.—Payee.—Assignor.—The payee named in a promissory note, who did not accept it, is not an assignor, and is not a necessary party defendant to an action by the actual payee of the note, under section 6, 2 B. S. 1876, p. 35.</p> <p>Same. — A complaint on a promissory note, alleging that it was drawn and signed for the purpose of being delivered to the payee, but, he not having accepted it, the makers delivered it to the plaintiff, and accepted his money therefor, shows facts equivalent to an averment that they made their note to him, by the name of the payee.</p> <p>Bill op Exceptions. — Practice.—Exceptions,when Taken. — After the term at which exceptions were taken, under section 343, 2 B. S. 1876, p. 176, it was too late for the court to extend the time for filing a bill of exceptions. Time could not be given at a subsequent term in rendering judgment on the verdict.</p>

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

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

<p>Benevolent Association. — Action for Benefits. — Contract.—Pleading.— Complaint. — In an action by a member of a benevolent association for benefits alleged to be due him on account of sickness, the allegation that “it is a rule of said association that every member in good standing * * * shall be entitled to” a certain sum per week, is insufficient to show a binding legal obligation on the part of the association to pay its members such sum; such a rule has not the binding force of a contract between the corporation and its members.</p> <p>Same. — In such action a paragraph of a complaint, alleging that, by a by-law of such association, “every member in good standing when sick * * * is entitled,” etc., is insufficient for failing to allege that such by-law was in force at the time of plaintiff’s sickness.</p>

<p>Beceiver. — Appointment of. — Practice.—Appeal.—An appeal from an order of the court for the appointment of a receiver during the pen* „ dency of an action must he taken within ten days from the time such order was made.</p>

<p>Husband and Wife. — Conveyance.—Creditors of Husband — Fraud.—Evidence. — On trial of an action, by a judgment creditor of a husband, to set aside a conveyance by him to his wife as fraudulent against creditors, evidence that, by receiving her separate property for many years and appropriating it to his uses, he became her debtor in a sum equal to the value of the land; that, although he conveyed it to her for the purpose of placing it beyond the reach of plaintiff and his other creditors, she had no knowledge of such purpose, and did not participate in it, and did not know of his indebtedness to the plaintiff, sustains a finding in her favor.</p> <p>Same. — Legacy.—Common Law — Where, in 1841,-a husband received a legacy left to his wife, not in right of his marriage, but as the money of his wife, and upon an agreement to holdit for her, it became a valid claim in her favor, which it was his right and duty to discharge.</p> <p>Same. — Wife's Separate Property. — Will.—Where a testator died in 1849, leaving a bequest to his daughter, “and to no other person,” and providing that “her receipt for the same shall be conclusive evidence of its payment,” such legacy became the separate property of the daughter, beyond her husband’s control; and his appropriation of it to his own use raises an implied promise to repay it.</p> <p>'Same. — Consideration.—Conflicting Evidence. — Supreme Court. — The trial court having found that the consideration in a conveyance from a husband to his wife was adequate, the Supreme Court can not, upon conflicting evidence, say it is not.</p> <p>Same. — Innocent Purchaser.- — In such case, the wife, being ignorant of the existence of her husband’s indebtedness to plaintiffs, must be regarded as an innocent purchaser for a valuable consideration.</p> <p>Same. — Wife as Preferred Creditor. — If a wife be a creditor of her husband, he may prefer her to other creditors,' by giving her money or property, at a fair price, in discharge and payment of her claim.</p> <p>Same. — Statute of Limitations. — Estoppel.—A husband may pay an honest debt to his wife, however stale and ancient it may appear to other creditors. He is not compelled, by law, to resort to the statute of limitations as a defence, nor can others insist upon it for him, nor is sheestopped to receive payment of the debt.</p> <p>Same. — Direct Conveyance. — A direct conveyance from a husband to his-wife, in discharge of an honest and ascertained debt from him to her for her money, appropriated by him to his own uses, will be sustained; and upheld.</p>

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

<p>Trust and Trustee. — Conveyance.—Husband and Wife. — Trust Property can not be Sold on Judgment Against Trustee.■ — Injunction.—Where a husband and wife convey land to a person without other consideration than his promise to immediately reconvey it to the wife, such person will hold the land in trust for the wife, and his prior judgment creditors can not, after he has reconveyed the land to the wife in pursuance of his promise, sell it as his property under executions issued on their judgments; and injunction will lie to prevent such a sale.</p> <p>Same . — Equity.—Constructive Trust. — Paro l Evidence. — In such case, equity creates a constructive trust not within the statute of frauds, which may he established by parol evidence.</p>

<p>Official Bond. — Acknowledgment of Execution. — Justices of the Peace.— The official bond of a justice of the peace is not invalid on account of' the failure of the principal and sureties therein to acknowledge its execution, as required by the act of 1SS5,1 B.S. 1876,p. 195, where suehi bond is accepted and approved without the acknowledgment.</p>

<p>Slander. — Pleading.—Complaint.—Words Actionable Per Se. — In an action for slander, where the words charged to have been spoken are actionable per se, it is not necessary that the complaint should name the persons, in whose presence and hearing they were spoken.</p> <p>Practice. — Instruction.—Failure to Give.— Waiver. — A party can not be heard to complain, on appeal, of the failure of the trial court, on request, to instruct on a particular point, unless an instruction covering such omission was asked, and its refusal properly excepted to; otherwise any objection to such omission is waived.</p> <p>Same. — Evidence.—I# is not error tp permit the plaintiff to testify to matters in rebuttal, where the defendant has been allowed to give testimony tending to show the plaintiffs guilt of the charges made, in mitigation of damages.</p> <p>Same. — New Trial. — Newly-Discovered Evidence.- — Affidavit.—An affidavit in support of defendant’s motion for a new trial, on the ground of newly-discovered evidence, to be available on appeal, must be made a part of the record by bill of exceptions.</p> <p>Dama&es. — Where the words charged in the complaint, in an action for slander, are actionable per se, the amount of damages is exclusively within the sound discretion of the jury.</p>

<p>•Contract. — Practice.—Verdict.—Evidence.—A., being the general agent of a foreign corporation, appointed B. a local agent, under a written contract providing that B. should sell goods on credit only to persons •owning a certain amount of property or furnishing satisfactory security, and holding B. personally liable for sales made otherwise. Complaint against B., alleging a breach of this contract on his part and seeking to enforce payment of a debt created contrary to said provisions; B. answered that the sale was made and unsecured notes taken, by the order and direction of A., under which evidence was given tending to prove it; verdict and judgment for defendant.</p> <p>Meld, that, as there was evidence to support the verdict, the judgment will not be disturbed by the Supreme Court.</p>

<p>Promissory Note. — Application of Bank Deposits of Maker to Payment.— Discharge of Sureties. — Deposits not Collateral Security or Held in Trust by Bank for Sureties. — Check.—In an action by a bank upon a promissory note, the sureties answered, alleging that the note was given for money borrowed from the bank by their principal, and tl at they were ■sureties only therein, which the bank knew at the time the note was executed; that, prior to its maturity, the principal consented and directed the bank to allow and pay the note, after its maturity, out of his general deposits therein; that, after its maturity, the bank had, of the funds of the- principal on deposit, more than sufficient to pay the note and interest; that the bank failed to apply the funds of the principal so deposited in payment of the note, but, subsequent to its maturity, suffered the principal to check his funds out of the bank. Wherefore they claim that they are released,</p> <p>Meld, on demurrer, that the answer was insufficient.</p> <p>Meld, also, that the failure of (he bank to apply to the payment of the note the money which the principal had on general deposit in the bank at and after the maturity of the note did not discharge the sureties.</p> <p>Meld, also, that the bank had a right to apply the money which the principal had on general deposit, after the maturity of the note, to its payment, with or without the consent or direction of the principal; but that the cheeks subsequently drawn by him were a withdrawal of his previous 'directions upon the subject.</p> <p>Held, also, that it was competent for the bank and the depositor to make any disposition of the deposits, before their actual application, which they might see proper.</p> <p>Held, also, that the debt due from the bank to the principal on his deposit account was neither collateral security in its hands to the debt due on the note to the bank, nor were such deposits held by the bank ■ as trust funds for the sureties on the note.</p>

<p>Judgment. — Default.—Setting Aside. — Excusable Neglect. — On a motion, under section 99 of the code, to set aside a default, it may be shown,t in excuse for not appearing to the action, that the officer did not read or give a copy of the summons to the defendant, but told him it was. a subpoena for him as a witness in a case pending in another court and county than the one from which the summons issued, and that the defendant did not know or learn the truth; or that, though returned duly served upon him, he had no knowledge of the service of the summons, nor of the action, until after judgment was rendered against him.</p> <p>Summons. — Personal service of a summons maybe had either by reading to and in the hearing of the party to be served, or by leaving a copy at his last and usual place of residence.</p> <p>Same. — Sheriff’s Return. — How far Conclusive. — In respect to the jurisdiction of the defendant’s person, the return of service is conclusive,, but it does not estop the defendant from showing, for the' purpose of setting aside the default and being admitted to plead, that he was ignorant of the service and of the fact that the action was pending.</p> <p>Same. — Garnishment.—Notice to Garnishee. — From the day of the service of the summons, the garnishee is accountable to the plaintiff in the ac-* tion, and can not, for the purpose of escaping such liability, dispute either the return of service or his knowledge of it.</p> <p>Same. — Defence.—The complaint or motion to set aside a judgment, and to be allowed to plead, must show a good defence to the action; and, if the defence claimed by a garnishee originated after the date of the service of the summons, as returned, it will not avail him, though he was ignorant of the garnishment, when he acquired his alleged defence.</p>

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

<p>Constitutional Law. — The act of March 29th, 1879, Acts 1879, p. 143, in relation to prosecutions of felonies by affidavit and information, is neither local nor special, within the sense and meaning of the constitution, hut is of general and uniform operation.</p>

<p>Trespass. — Highway.—Dedication.—Obstructions.—Answer.—Demurrer.— la an action for trespass in tearing down and removing portions of' a fence enclosing land, an answer, that the ground was for twenty (or fifty) years past a public liighway, dedicated to and used by the public as such, that plaintiffs entered upon it and built a fence across it, thereby obstructing it, and that the defendants, as citizens and residents of the township, entered upon it and tore down so much of the fences as obstructed the highway, and did no more thereby than, was necessary to remove the obstructions, is insufficient on demurrer.</p> <p>Same. — Marshal.—In such action, a further answer, that the ground was; an alley in an incorporated town, that the fence obstructed public travel thereon, and that defendants, as marshal and deputy marshal of the town, by an order of the board of councilmen of said town, removed the fences, contains no defence on demurrer.</p> <p>Same. — Abatement of Nuisance. — An individual, suffering no inconvenience, by the obstruction of a highway, can not right the supposed wrongs of the public to et armis; but the public must proceed by its proper officers to remove the obstruction or punish the party erecting it.</p> <p>.‘Same. — Towns.—Street Commissioner. — Marshal.—Under the ninth clause of section 22,1 R. S. 1876, p. 878, the marshal may he, hut the street commissioner is, an appropriate officer to execute orders of the hoard of trustees of a town. Under the general law for the incorporation of towns, there can be no such body as a board of councilmen.</p> <p>;Same. — Evidence.—Easement. — On trial of such action, the evidence showing that plaintiffs, as trustees of a church, were the owners in fee of the real estate over which the easement of the alleged highway was claimed, and that it was apart of the church-yard, between a turnpike in front and the end of a street abutting on a cemetery behind the church, it was error for the court to reject evidence that a board fence across the alleged alley was erected for the purpose of closing up the way and to enable the church to hold her property.</p> <p>;Samb. — Intention.—When the character of a transaction depends upon the intent with which it was done, a party may testify as to what his intention was. The City of Columbus v. Dahn, 36 Ind. 330, distinguished.</p> <p>Same. — Intention to Dedicate. — The intention to dedicate or not to dedicate, on the part of the owner of land, is aprime element in determining whether there has in fact been a dedication. In such case, evidence of obstructions by fencing up the way, and of the payment of money by occupants of adjoining land, for its use as a private way, is admissible to rebut evidence of its dedication to public uses as a highway.</p> <p>Same. — Statute of Frauds. — The statute of frauds has no application to an executed contract for the use of such ground as a private way.</p> <p>Pkactice. — Answer.—Demurrer.—Special Finding. — Harmless Error. — A plaintiff cannot complain of the overruling of his demurrer to a paragraph of answer, where the special finding is clearly based on other paragraphs, and expressly states that there was no evidence in support of essential allegations therein.</p>

<p>Liquor Law. — Sale to Minor. — Evidence.—Verdict.—Upon the trial of a defendant indicted for selling intoxicating liquor to a minor, the only evidence given was that of the prosecuting witness, who testified that he was, at the time of the trial, over twenty and under twenty-one years of age; that he had bought and drank whisky in the saloon kept by the defendant; that he never bought any from the defendant, or in his presence, and, on cross-examination, said he meant to tell the jury that he did not remember that the defendant had ever sold him a drink of whisky, or that he had ever bought a drink of whisky in defendant’s house, or in his presence, with his knowledge or consent;</p> <p>Held, that the evidence was insufficient to sustain a verdict of conviction.</p>

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

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

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

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

<p>Mortgage. — Foreclosure.—Party.—The mere fact,thata junior mortgagee; is a party to a suit to foreclose a senior mortgage, does not estop him from afterward foreclosing his mortgage.</p> <p>Same. — Decree, Effect of. — A decree may har the equity of redemption of' a junior mortgagee, but it does not preclude him from subsequently-maintaining an action to foreclose.</p> <p>Same. — Decree, Construction of. — A decree which adjudges that one lien is not inferior to another places them upon an equality as to seniority.</p> <p>Same. — Junior Mortgagee. — Defence to Senior Mortgage. — A junior mortgagee has a right to defeat the lien of a senior mortgage by showing •that it was executed without consideration.</p> <p>Same. — Notes Secured by SameMortgage. — Consideration.—Estoppel.—The holder of one of two notes secured by the same mortgage is not es-topped from contesting the validity of the other note, where the notes-are executed to different persons, and upon different considerations.</p> <p>Same. —Former Adjudication. — A decree that two mortgages are of equal rank concludes the parties from afterward litigating that question.</p> <p>Same. — Decree of Foreclosure. — Sale.—Where a decree of foreclosure expressly protects the rights of another mortgagee, they are not affected by a sale upon the decree.</p> <p>Same. — Compensation for Improvements. — Where a decree of foreclosure upon which a sale is made provides that the rights of another mortgagee shall not be thereby impaired, the purchaser at a sale upon such, decree can not compel such mortgagee to make compensation for improvements made by him while in possession under such sale.</p>

<p>Negligence. — Gities and Towns. — Street.—Evidence.—Pleading.—Complaint. — Where a complaint for personal injury, received in falling into an excavation along the sidewalk, contained an averment that the plaintiff was without fault or negligence, the mere fact that he was blind is not conclusive evidence of his negligence in venturing on the sidewalk; and the averment, that the plaintiff was “without fault,” has a technical significance, and admits proof of any facts tending to show its truth, and forms an exception to the rule of pleading, which requires the statement of facts, instead of conclusions.</p> <p>‘.Same. — Contributory Negligence. — Wilful Injury. — Contributory negligence is a good defence to any injury caused by mere negligence of whatever character; and it only ceases to be a defence when the injury is shown to have been wilfully committed.</p> <p>•Same. — Instruction.—Where a complaint does not charge wilful injury, it is error to instruct the jury that if “the negligence of the defendant is so gross as to imply a disregard for consequences, or a willingness to inflict the injury, the plaintiff may recover,” though guilty of contributory negligence.</p>

<p>Promissory Mote. — Fraudulent Perversion of. — Principal and Surety.— Pelease of Surety. — Where a note is executed by one as the surety for another, upon an agreement between the principal and the payee, which is communicated to the surety at or before his execution of the note,, that it shall be applied to a specified purpose, and the principal and payee, without the knowledge or consent of the surety, afterward apply such note to another and different purpose, such perversion ox-misapplication of the note will release the surety from liability thereon, and constitute a good defence in his behalf to a suit on such note-by the payee or his representatives.</p> <p>Same. — Material Alteration. — Where, after the execution of a note by one-as the surety for another, it is left in the hands of the principal for-delivery to the payee, and, before or at the time of such delivery, such note is materially altered by the principal or by the payee, or by both, without the knowledge or consent of the surety, such alteration will discharge and release the surety from any liability on the note, in the-hands of the payee or his representatives. And, in such a case, it is-immaterial whether the alteration of the note is effected by erasure,, or by intei’lineation, or by an endorsement on the note, or whether the-alteration enlarges or reduces the amount of the note; as, in either case, the altered note is not the note of the surety, and is not binding,on him.</p>

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

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

<p>Evidence. — Assault and Battery. — Damages.—Declarations.—Bes Gestee.— In an action for damages for injuries received from an assault and battery, what was said by the parties during the altercation is admissible in evidence as part of the res gestee; and all the words and acts of the parties should go to the jury, and not detached words or sentences.</p> <p>Same. — Witness.—Bystander.—The declarations of a bystander at such altercation, made during its progress, if they are necessary to a full understanding of the character of the act under investigation, are a part of the res gestee, and are admissible in evidence.</p> <p>Sele-Deeence.— Buie in Civil Actions. — Where one acts upon appearances of actual and immediate danger, and sincerely believes that he is in danger of suffering great bodily harm, he can not be held liable in damages for injuries resulting from acts done by him in the proper and reasonable defence of his person. The rule of self-defence being the same in civil actions as in criminal prosecutions, what would justify one who is assailed by another, in repelling., the assault by force, will shield him from damages in civil proceedings. ,-</p>

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

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

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

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

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

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

<p>Appeal from Mayor or Justice. — Appeal Bond. — Appellant's Instructions. — In criminal causes before a mayor or justice of the peace, the defendant’s appeal bond, although filed in time, will not constitute an appeal, where, at the time of filing such bond, the defendant instructs the mayor or justice to delay the filing of the transcript in the circuit court until further orders from him.' In such a case,where the transcript shows the defendant’s further orders were not given within thirty days-next after the trial, the appeal may be dismissed.</p>

<p>PromissorySote. — Payee.—Failure of Consideration. — Parol Evidence. — A promissory note contains only the contract of the maher, and proof hy parol of the payee’s part of the contract is not contradicting the terms of the note; and, in an action thereon, a want or failure of consideration can he pleaded as a defence thereto, and proved hy parol evidence.</p>

<p>Seamdbk. — Evidence.—Variance.— Time. — It is not necessary to prove--, that the slanderous words were uttered on the particular day named in the complaint. Medaugh v. Wright, 27 Ind. 137, distinguished.</p> <p>Same. — Evidence in Mitigation. — The defendant had accused the plaintiff' of forging a receipt, against a mortgage, for $600, and offered to prove in mitigation that the plaintiff had said that the foreclosure of the mortgage would ruin him, claiming that this would tend to show that defendant acted in good faith in accusing the plaintiff of forging the receipt.</p> <p>Held, that, ii not too remote for admission at all, there was no error in excluding the evidence as offered, because it was not proposed to show that the defendant knew of the declaration at the time he made the accusation.</p>

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

<p>Landlord andTenant. — Lease.—Holding Over. — Election,—Apartywho is in possession of premises under a lease to hold them for three years, with the privilege of holding them five years upon the same terms, at his option, and who continues to occupy them after the expiration of three years, thereby elects to hold them for the full term of five years.</p> <p>Same. — Tenancy, Termination of. — Such holding over does not create a tenancy from year to year, and the lessee can not terminate it at the expiration of the fourth year, so as to avoid the payment of rent for the fifth year. Thiebaud v. The First Nat’l Bank, 42 Ind. 212, distinguished.</p>

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

<p>Gravel Road. — Assessment.—View of Land. — Statute Construed. — Under section 3 of the act of 1869, authorizing assessments for gravel road purposes, Acts 1869, Spec. Sess., p. 73, it is the duty of the assessors to make an examination of the lands, upon which it is proposed to lay the tax, from such points of observation as will enable them to accurately ascertain the location of said lands and in what manner the proposed road will affect each separate tract.</p> <p>Same. — Failure to View or List Land. — Injunction.—The failure to list or to view all the land within the prescribed limits of the proposed gravel road will avoid the assessment; but when it is shown that a small parcel of land, belonging to a township and used for school purposes, was not listed against the township, but was listed in the name of another person, such error is not sufficient to avoid the entire assessment or to authorize an injunction restraining its collection.</p> <p>Same. — ^Lssmors.—Presumption.—Burden of Proof. — Where, in an action to enjoin the collection of gravel road assessments, the report of the assessors showed that they had viewed and listed all the lands within the limits of the proposed road, the burden of showing the contrary devolved upon the complainants, the presumption being that such officers had correctly discharged their duties.</p> <p>Injunction. — Where an ordinary legal remedy is provided which will afford just and adequate relief, the extraordinary remedy of injunction can not be invoked.</p>

<p>Practice. — Evidence. — Instruction. — Supreme Court. —Presumption.— Where the evidence is not in the record, the court will presume that instructions asked and refused were not applicable to the case made by the evidence.</p> <p>Same. — Befitsal to Instruct in Writing. — If the court, after a proper request to instruct in writing, instructs the jury orally, it is such an error as. will reverse the judgment.</p> <p>Same. — Waiver.—If the court disregard such request and orders a stenographer to take down its oral statements, a failure to object to the mode of preserving the evidence of such charge is no waiver of the request, nor did such mode satisfy the requirements of the statute. If requested, the instructions must be written and must be given as written.</p> <p>Same. — A statement by the court, that instructions have been prepared by a party’s counsel, does not inj ure him ,if such instructions are not read.</p>

<p>Prom the Judge of the Posey Circuit Court.</p>

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

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

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

<p>Composition Agbeement. — Voluntary Assignment. — Beal Estate. — Conveyance for Benefit of Creditors. — Where a grantor, by an ordinary warranty deed, without conditions or limitations therein expressed, conveys land to certain grantees named in the deed, without indicating that the grant is to them as trustees and without any directions therein as to how the property shall be disposed of, but at the same time executes an agreement with the grantees which shows that they take the property as trustees, and as such are to sell it and apply the proceeds thereof to the payment of the grantor’s creditors who may become parties thereto, the transaction must be regarded as a composition agreement between the grantor and his creditors, and not as a voluntary assignment under the statute.</p> <p>Same. — A composition agreement depends for its force upon the mutual agreement of all the contracting parties, but a voluntary assignment is the act of the debtor alone, and is not dependent for its validity upon the consent of the creditors; it being valid without their consent, if made in good faith and in compliance with the statute.</p> <p>Same. — Statute Construed. — The statute providing for voluntary assignments, 1 R. S. 1876, p. 142, was not intended to prevent a debtor from making a contract with his creditors, by which his property is conveyed, to trustees to be disposed of for his benefit as well as his creditors.</p> <p>Same. — Reed.—Delivery.—Escrow.—Estoppel.—The delivery of a deed by one in whose possession it is placed to be delivered only upon condition, before a compliance with the condition, is invalid; such deed passes no title to the grantee, and the grantor may assail and overthrow it. In such ease, the grantor is not estopped to set up the invalidity of the deed, by acting upon the belief that the condition imposed had been complied with before its delivery to the grantee.</p> <p>Estoppel. — Where a party acts in excusable ignorance of a material fact, he is not thereby estopped.</p> <p>Same. — Pleading.—An estoppel must be specially pleaded, and the facts must be stated with fullness and certainty, and so as to constitute a complete bar to the cause of action stated in the complaint.</p> <p>Same. — Answer.—An answer, setting up an estoppel by conduct, must show that the defendant relied upon the plaintiff’s representations or conduct, was influenced thereby, and was ignorant of the truth.</p> <p>Pleading. — Answer, Insufficiency of. — Practice.—An answer insufficient as to a part of the defendants uniting in it, is so as to all.</p> <p>Same. — An answer which neither denies nor avoids the allegations of the complaint is insufficient.</p> <p>Same. — Demurrer.—An answer professing to answer the entire complaint, but answering only a part, is insufficient on demurrer.</p> <p>Deed. — Alteration of. — Fraud.—Defence.—No affirmative defence can be maintained upon a deed which has been fraudulently altered, by the party who made the alteration.</p> <p>Same. — Purchaserin Good Faith. — Representations of Grantor. — Where one purchases in good faith from the grantee who made such alteration, but without knowledge thereof, and acting upon representations of the grantor in the altered deed, he obtains a good title thereunder.</p> <p>Same. — Escrow.—Estoppel.—Secret Directions as to Delivery. — Secret instructions to a depositary as to the delivery of a deed will not avoid the effect of the conduct of the grantor open to the observation of those with whom he deals, and upon which they rely in relation to the delivery of such deed and its effect.</p> <p>Written Instrument.— Contract. — Mistake.—Where parties commit their agreement to writing, the written instrument is considered as correctly expressing all the terms of the contract, unless a mistake therein be shown by the party alleging that the agreement is not properly expressed by the writing.</p> <p>Same. — Agreement between Debtor and Creditors. — If a written agreement between a debtor and his creditors as to the delivery of a deed executed by him for his and their benefit, and in the hands of a depositary, correctly expressed the contract of the parties, the debtor could not render the terms ineffective by instructions privately given such depositary.</p> <p>Same. — Mistake.—Description.—Will.—A mistake in the description of property intended to be conveyed by a deed may be corrected as between tbe original parties. There is a plain distinction between mistakes in wills and mistakes in deeds.</p>

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

<p>Judgment. — Review of. — Judgment taken on Default in Excess of Amount due. — New Trial. — Mistake.—Surprise.—•Statute Constmed. — Complaint. —Practice.—The principal and sureties in a promissory note, against whom judgment thereon had been taken by default, in a complaint against the judgment plaintiffs, alleged that they had made default, believing that credit would be given for all payments made by the principal on the note before suit, but that such credits were not given, and judgment was taken for a sum greatly in excess of what was due thereon; that, being ignorant thereof, they procured replevin bail thereon; that after the expiration of the stay of execution, though believing the judgxnentto havebeenrendered for too large a sum, but having then no means to establish such fact, and for the purpose of saving costs, they paid such judgment under protest; that immediately thereafter they ascertained that the judgment had been rendered for too large an amount, whereupon they demanded a return of the excess from the judgment creditors; prayer for judgment for such excess, or that the default and judgment so rendered be set aside and they be permitted to defend.</p> <p>Held, on demurrer, that the complaint was insufficient for the review of the judgment, no error of law being shown on the face either of the proceedings or of the judgment, no discovery of any new matter alleged, and no record of the original proceedings and judgment having been, filed with the complaint.</p> <p>Held, also, that the complaint was insufficient as an application for a new trial, more than two terms of the court having intervened between the tíme judgment was rendered and the filing of the complaint.</p> <p>Meld, also, that there had been no trial in the cause in which the judgment had been rendered, within the meaning of section 601 of the code. 2 B. S. 1876, p.-252.</p> <p>Meld, also, that the complaint was insufficient as an application for relief against the judgment under section 99 of the code. 2 B. S. 1876, p. 82.</p>

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

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

<p>Writ of Assessment of Damages. — Estoppel.—Voluntary Acceptance.— Where a person, desiring to erect in a watercourse a dam, abutting upon the land of another, etc., under the provisions of the act concerning the assessment of damages, 2 R. S. 1876,- p. 281, has caused the proper proceedings to be instituted, and has within one year, from: the date of judgment, paid to the injured party the amount of damages found due, and the same are voluntarily accepted, the latter isestopped from afterward controverting the rights of the plaintiff as established by the judgment; nor is it material in such case, that the judgment may have been erroneous.</p> <p>Practice. — Supreme Court. — Reversal.—Second Appeal. — If a cause be appealed to the Supreme Court and the judgment reversed-, and the cause remanded to the lower court for a new trial, and a second appeal be taken, it brings up for review and decision nothing but the proceedings subsequent to the reversal; none of the questions which were before the court and decided on the first appeal can be re-heard or re-examined upon a second appeal.</p>

<p>•Criminal Law. — Forcible Detainer. — Affidavit and Information. — Dwelling-House. — Statute Construed. — In a prosecution by affidavit and information, under section 12 of the act concerning misdemeanors, 2 E. S. 1870, p. 462, the charge of the forcible detention of a “dwelling-house” is equivalent to a charge of the forcible detention of the land on which it ■stood, as the word “dwelling-house” embraces the land on which it is situated.</p> <p>Bill of Exceptions. — Practice.—Evidence.—A bill of exceptions purporting to contain all the evidence taken in the cause, but showing that it does not, presents no question as to the sufficiency of the evidence to sustain the verdict.</p> <p>Same. — Written or Documentary Evidence. — Writ of Destitution. — Judicial Notice. — Decord.—Supreme Court. —A bill of exceptions recited ‘.‘that the writ of restitution was then read in evidence, and is in these words and figures,- to wit,” but such writ was not in the bill, nor its appropriate place designated by the words “here insert;” subsequently, upon a writ of certiorari, the clerk certified to the Supreme Court the writ of restitution read in evidence on the trial.</p> <p>Held, that the bill of exceptions did not contain the directions to the clerk required by the statute, and he had no authority to insert therein such writ of restitution.</p> <p>Held, also, that, thus certified, it did not become a part of the record in the Supreme Court.</p> <p>Held, also, that the Supreme Court can not in such case take judicial notice of the contents of such writ of restitution.</p>

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

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

<p>Pleading. — Nominal Party. — Husband and Wife. — In an action against a husband and wife, to enforce a lien against the wife’s real estate, he is a nominal party, and defences pleaded by her are available for him.</p> <p>Same. — Counter-Claim.—General Verdict. — Where, in. such ease, the husband sets up separate defences, and the wife makes a counter-claim for damages, praying a cancellation or satisfaction of the plaintiff’s lien, a general verdict for the defendants is sufficient.</p> <p>Verdict. — Inconsistent Defences. — A general verdict in favor of a defendant, who has pleaded inconsistent defences, is good.</p> <p>Judgment. — Verdict.—Objections to the form or substance of a verdict or judgment can not be made in this court, unless first properly presented to the circuit court.</p> <p>Conflicting Evidence. — Preponderance.—The Supreme Court will not undertake to determine the preponderance of conflicting evidence.</p>

<p>Practice. — Amendment.—Change of Issues. — Be-8wearing Jury. — In an action to compel the execution of a trust in regard to real estate, after the evidence was heard the complaint was dismissed. A counter-claim had been pleaded jointly hy two defendants. After the dismissal of the suit, the counter-claim was dismissed as to one of the defendants, and then, after the court had begun to instruct the jury, and was stating the issues to the jury, the remaining defendant was permitted to amend the counter-claim hy striking out the name of the dismissed defendant and all allegations of title in him. The evidence showed that there had been a conveyance of the real estate to the dismissed defendant hy the one remaining, which was in fact a mortgage, and that it had been paid and the land reconveyed to the remaining defendant.</p> <p>Held, that the amendment did not change the issues so as to require the jury to he re-sworn.</p> <p>Same. — Defendant in Foreclosure Proceeding. — Adverse Possession. — The defendant in a foreclosure proceeding, in possession after sale, does not hold adversely to the purchaser at the foreclosure sale, nor to those claiming under him.</p> <p>Same. — Grantor and Grantee. — The possession of a grantor is not adverse to the grantee, nor to those claiming under him.</p>

<p>Conveyance. — Covenants Running with Land. — Partition Fence. — Basement. — Deed.—Privity of Bstate. — Vendor and Purchaser. — Case Distinguished. — In an action for the recovery of money expended in repairing a partition fence, the defendant answered, alleging that at a certain date A., being the owner of the land now owned by the plaintiff and defendant, conveyed to one B. the land owned by the defendant, which adjoins that of the plaintiff; that the deed of conveyance to B. contained a covenant, “that the said grantors, for themselves, their heirs, assigns, executors and administrators, do hereby agree and covenant, as a part of this conveyance, that they will forever maintain and heep up a good and sufficient fence or wall on the line between them and the said” B.; that the defendant purchased of B. and received from him a warranty deed; that the plaintiff acquired title from A., and that the deeds forming his chain of title all contained full covenants of warranty; that the partition fence named in the complaint is on the line designatedin the deed of A. to B. containing the foregoing covenant.</p> <p>Held, that the answer was sufficient on demurrer.</p> <p>jHeld, also, that the covenant in the deed of A. to B. was not a personal covenant, but one running with the land, and imposed a burden upon it in the hands of A.’s grantees, near or remote. Bloch v. Isham, 28 Ind. 37, and Taylor v. Owen, 2 Blackf. 301, distinguished.</p> <p>Held, also, that there was the requisite privity of estate between the covenantor and covenantee f®r the covenant to operate upon the land now owned by the plaintiff, and that he took it burdened with the covenant of an easement running with the land, in favor of defendant.</p> <p>Same. — Basement.—The grant of a strip of land, and a covenant to main- ' tain a fence thereon, imposed an easement, in favor of the grantee, upon the adjacent lands of the grantor.</p> <p>Same. — Notice Burnished by Deeds. — A purchaser of real estate is bound to take notice only of such conveyances as have been executed by a grantor through whom he derives title, but he is chargeable with knowledge of all information supplied by deeds either of his immediate or remote grantors.</p> <p>Same. — An easement is an interest in land, and where notice thereof is furnished by the deeds of the grantor, his grantee is bound thereby.</p>

<p>Criminal Law. — Public Indecency. — Public Place. — In a prosecution for public indecency, under section 22 of the act defining misdemeanors, 2 R. S. 1876, p. 466, the allegation in the affidavit charging the offence to have been committed in a public place, viz., “a blacksmith shop, * * then and there a public place,” is a sufficient substantive allegation of the public character of the place, on motion to quash. The State v. Sowers, 52 Ind. 311, distinguished.</p> <p>Same. — Instruction.—Private Assembly. — On the trial of such a prosecution, it was error to refuse to instruct the jury that a shop or other building is the private property of its owner, unless he voluntarily use it so as to give the public a right to enter it at will; and the owner of such building may .invite any number of his neighbors into his house or shop, and such assembly would not make such place a public place.</p>

<p>Review Oe Judgment. — Complaint.—Record.—It is sufficient in a complaint for review to set out so much of the record as would be necessary in case of a direct appeal. Irrelevant parts should be omitted.</p> <p>Verdict. — Answers to Interrogatories. — Evidence.—The general verdict must prevail, if reconcilable with the answers to interrogatories upon any state of facts provable under the issues in the case; what was in fact proven, is immaterial.</p> <p>Same. — City.—Defective Street. — Remote and Proximate Cause. — Contributory Fault. — In an action for damages against a city for injury received by falling into a dangerous excavation in a street negligently permitted by the city to remain unguarded, a special finding by the jury “that in the night time, when it was too dark to see the street where the injury occurred, the plaintiff, not being familiar with the locality, made a rapid succession of long steps or leaps, of from six to ten feet each, in crossing the street or road, alighting in the ditch and thereby causing the injury,” is not inconsistent with a general verdict for plaintiff.</p> <p>Same. — Question of Fact. — Whether, upon the facts specially found, the plaintiff was in fault, was a question of fact to be determined in the light of all the circumstances; and the fact is determined by the general verdict in plaintiff’s favor.</p>

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

<p>Trespass. — Be Bonis Asportatis. — Husband and Wife. — Wife’s Torts.— Joint Liability. — Pleading..—Where a husband and wife, and other persons, are sued for the wrongful taking and conversion of plaintiff’s money, the wife’s separate answer, setting up simply her coverture, in bar of the action, is bad on demurrer thereto for the want of sufficient facts. For, in such a case, the husband and wife are jointly liable for the wife’s tort; and the wife’s answer of her coverture will be insufficient, on demurrer, in the absence of an allegation that she committed the alleged tort in company with, or by the order of, her husband.</p> <p>Pleading. — Bad Answer not Cured by Meply. — Harmless Error. — In such a case, the wife’s answer of her coverture merely is not cured by the plaintiff’s reply, that the wife voluntarily, and without the coercion of her husband, committed the alleged tort; and the error of the court, in overruling the demurrer to such bad answer, is not rendered harmless by overruling a demurrer to such reply.</p> <p>Practice. — New Trial. — Supreme Court. — Alleged errors of law, occurring at the trial, will not be considered, nor will any question arising thereunder be decided, by the Supreme Court, where it appears that the supposed errors were not assigned as causes for a new trial, in the motion therefor.</p> <p>Same. — Interrogatories to Jury. — The refusal of the court to require the jury to answer interrogatories, if erroneous, is error of law occurring at the trial, and, as such, must be assigned as cause for a new trial, in the motion therefor; otherwise it will present no question for the decision of the Supreme Court.</p> <p>Supreme Court. — Weight of Evidence. — The verdict and judgment below will not be disturbed by the Supreme Court, on the mere weight of the evidence.</p>

<p>Chattel Mortgage. — State Comity. — A chattel mortgage, executed and recorded in the State where the property is situated, will, if valid under the laws of the place of execution, be enforced by the courts of the State into which the property is afterwards brought by the mortgagor, unless there is some statute to the contrary.</p> <p>Same. — Personal Property. — Lex Situs, Lex Domicilii. — As arule, personal property is governed by the law of the domicile of the owner, and not by the law of the situs of the property; but an assignment of personal property by way of mortgage is an exception to the rule, and the lex situs, and not the lex domicilii, governs chattel mortgages.</p> <p>Same. — When Void as to Attachment Creditors of Mortgagor. — A. chattel mortgage, executed and recorded in another State, on property within this State, the mortgage not having keen recorded in this State, and there never having keen a delivery of the property to the mortgagee, is invalid as against attaching creditors.</p>

<p>Contract. — Inspection of Timber.— Vendor and Vendee. — Evidence.— Where a vendor sold and shipped timber to his vendee, it was competent for the latter to agree to take such timber on the.representations of the former as to the quality and quantity shipped by him, and, in a suit for the value of the timber, evidence tending to prove such agreement is admissible.</p> <p>Practice. — Submission of Interrogatories. — Where, on the trial, a court refuses to submit interrogatories to the jury, if, on appeal, the applicability of such interrogatories to any material portion of the evidence is not made apparent, it will be presumed that the court did not err in. refusing to submit them to the jury.</p>

<p>Evidence. — Account.—Principal and Agent. — In an action, for goods sold and delivered, where the plaintiff introduced evidence tending to show that the defendant had given another authority to purchase goods to carry on defendant’s business, it was competent to prove what direction as to shipment was given by such agent at the time he ordered said goods of the plaintiff.</p> <p>Supreme Court. — Verdict.—Weight of Evidence. — The Supreme Court will not disturb a verdict on the mere weight of the evidence.'</p>

<p>Intoxicating Liquors. — Sale for Medicinal Purposes. — A bona fide sale of intoxicating liquors for medicinal purposes is not a violation of any. of the provisions of the statute regulating the sales of such liquors.</p>

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

<p>Mortgage. — Foreclosure.—Parties.—Joinder of Causes of Action. — Pleading. — Demurrer.—In a suit to foreclose a mortgage on real estate, the grantee of the mortgaged premises, by deed from the mortgagors subsequent'to their execution of the mortgage, is a proper and necessary defendant, and, as such, is properly joined with the mortgagors as defendants; and his separate demurrer to the mortgagee’s complaint, for-the alleged want of facts, presents no question in regard to the alleged misjoinder either of causes of action or of parties.</p> <p>Pleading. — Answer.—An answer, purporting to be in bar of the entire-cause of action, but answering only a part, is bad on demurrer.</p> <p>Same. — Cross Complaint. — Prayer for Relief. — A. cross complaint, which states a cause of action in favor of the defendant, is not insufficient on demurrer for want of facts, merely because it demands more relief than the defendant is entitled to.</p> <p>Mechanic’s Lien.- — Mortgage.—Priority.—Under section 650 of the civil code of 1852, as amended by the act of March 11th, 1867, the lien of mechanics or other persons for work done or materials furnished in the erection or repair of a building relates back to the time when the mechanic or other person began to work thereon, or to furnish materials, therefor, and takes priority over all intervening mortgage or judgment: liens. <</p> <p>Same. — Wife's Inchoate Interest in Husband's Real Estate. — A wife’s inchoate interest is not a lien upon, but is an estate in, the real estates of her husband; and the liens of mechanics or other persons are not entitled to priority oyer the inchoate interest of the wife in her husband’s real estate.</p> <p>Same. — Mortgage.—A wife, her husband joining with her, may mortgage her inchoate interest in her husband’s real estate to secure his debt,- and such mortgage will have priority, as to such inchoate interest, over the liens of mechanics or other persons for the erection or repairs of buildings on such real estate, at the husband’s request.</p> <p>Pleading. — Practice.—Prayer for Belief. — A bad prayer for relief, or a prayer for improper relief, will not vitiate a pleading otherwise sufficient, and a demurrer to a pleading, for the want of facts, will not reach objections to its prayer for relief.</p>

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

<p>County Commissioners. — Appeal, Bight o/. — Under the 31st section of the general law concerning county boards, 1 R. S. 1876, p. 348, there is a right of appeal from any decision of a judicial character, made by the board of commissioners in any proceeding, unless the right is denied.expressly or by necessary implication, and such implication does .not arise from the fact that the decision is declared by the law to be conclusive. Allen v. Hostetter, 16 Ind. 15; The Trustees, etc., v. Manck, 35 Ind. 51; Church v. The Town of Knightstown, 35 Ind. 177; The City of Indianapolis v. Sturm, 39 Ind. 159; Bosley v. Ackelmire, 39 Ind. 536; The Board, etc., v. Smith, 40 Ind. 61; Turner v. Rehm, 43 Ind. 208; The City of Peru v. Bearss, 55 Ind. 576; Windman v. The City of Vincennes, 58 Ind. 480; The Baltimore, etc., R. R. Co. v. The Board, etc., 73 Ind. 213, on this point, overruled.</p> <p>Same. — Town, Incorporation of . — Judicial Decision. — An appeal lies from an order of the board dismissing a petition for the incorporation of a town. The decision in such case is judicial, and not merely administrative or legislative.</p> <p>Same. — Former Order. — Judicial Knowledge. — On the healing of such petition, the hoard can not take judicial cognizance of its own orders or judgment in a different case on the same subject.</p> <p>Same. — Cities and Towns. — Territorial Limits. — The courts can not take judicial cognizance of the exact location or territorial limits of a town or city.</p> <p>Judgments. — Jurisdiction.—Collateral Attack. — The judgments of an. inferior court can not be assailed indirectly on account of errors or irregularities not affecting the jurisdiction.</p> <p>Same. — Appeal.—Circuit Court__Under section 37 of the general law concerning county boards, the circuit court may make a final determination of such proceeding on appeal, and cause the same to be executed, or may send the same down to the board with directions how to proceed, and may enforce compliance by the board.</p>

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

<p>Banks. — Collecting Agents. — Failure of Collecting Bank. — Bight to Collect and Credit After Suspension. — Endorsement.—Insolvency.—Notice.—A., a bank, holding a check drawn in its favor, endorsed it to B., a bank, “for collection for account of” A., and sent it by mail to B., with a letter from the cashier of A., stating, “I enclose for collection and cr., as stated below,” (specifying other checks and drafts sent), which check was by B. placed upon its “collection register,” where all such checks, etc., received for collection only,were entered, and treated by it as the property of the party remitting the same, and no credit given therefor until collected. The cashier of B. endorsed the check for collection, and transmitted it to O., a bank, with authority, by letter, to credit the former with the proceeds when collected. B., on the same day, failed, and was taken possession of by a bank examiner. Two days thereafter, C. received the check, and, by its cashier, presented the check, received payment thereof, and éredited the amount on its books to B., which was, at the time, on account of previous dealings, largely indebted to C. Before the cashier of O. collected the check, he had notice, by newspaper report, of the failure of B., but did not notify the drawee, who had no notice of such failure. Shortly afterward, the bank examiner, who had in his custody the books of B., without the knowledge or consent of A., credited A. and charged C. with the amount of the check on the books of B., the latter bank being, at the time the. check was received, largely indebted to A. Action by A. against C.,. to recover the money collected on the check.</p> <p>Held, that the plaintiff was entitled to recover.'</p> <p>Held, also, that the endorsement of the check to B.by A. did not vest the title to it in B., nor give it any right to the proceeds; and that the letter accompanying it meant simply that B. should collect the money for A. and place it to its credit, and not that B. should treat the check as its own, or credit A. therewith before collection, and that B. received the check merely as the agent of A. for collection, with authority to credit A. when collected.</p> <p>Held, also, that the transaction did not make B. the debtor of A. before the check was collected, nor did it deprive the latter of its right to the check or its proceeds before collection by B.</p> <p>Held, also, that O. must be regarded as the agent of B. in making the collection, and being fully notified, by the endorsement on the check, that B. was not the owner of it, nor entitled to its proceeds, O. had no right to credit the amount thereof to B. upon its indebtedness to O.</p> <p>Held, also, that the newspaper notice of the failure of B. was sufficient to require C. to regulate its action with a view to the rights of A., as affected by such failure.</p> <p>Held, also, that the directions in the letter of the cashier of A. to B., was an authority to mingle the fund with the general funds of the bank,when collected, whereby A. would have become the general creditor thereof, instead of being entitled to the general fund; but the insolvency and suspension of B. operated as a revocation of such authority, and, if it had the authority to collect at all after such suspension, A. was entitled to the specific fund, and C., being the agent of B., had no more power or right to the specific fund than its principal.</p> <p>Held, also, that what was done after the suspension of B., by the direction of the bank examiner, without the knowledge or consent of A., could not injuriously affect its rights.</p> <p>Held, also, that the fact that O. had credited the amount collected on its debt against B., can not discharge it from liability.</p> <p>Principal and Agent. — Bankruptcy of Agent. — Revocation.—The bankruptcy or insolvency of an agent operates as a revocation of his authority; and authority to a bank to place a collection to a customer’s credit when collected, must be considered as revoked by its suspension and failure.</p> <p>Parties. — Right to Sue. — Where one has money in his hands, which rightfully belongs to another, the latter may sue for and recover it.</p> <p>Practice. — Rehearing . — Brief.—Supreme Court. — The granting of a rehearing puts the case in the same condition as if it had not been submitted, and where, on the second submission of a cause, the brief of appellant was on file, the cause will not be dismissed for failure to file ' a brief within sixty days after original submission.</p>

<p>Practice. — Demurrer.—Judgment.—Appeal.—The sustaining of a demurrer to a complaint, without any further action thereon, is not a final judgment from which an appeal lies to the Supreme Court.</p> <p>Decedents’ Estate. — Choses in Action. — So long as a decedent’s estate remains unsettled, and the choses in action are in the hands of the administrator, he is entitled to reduce them to money by suit or otherwise.</p>

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

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

<p>Fraud. — Sale of Personal Property. — Insolvency.—The question as to whether a sale of personal property is fraudulent as to creditors is to be determined from the financial condition of the debtor at the date of the sale; subsequent insolvency does not make the sale invalid.</p> <p>Same. — Question of Fact. — Frjiud, under the statute of this State, is always a question of fact, and a court can not as matter of law adjudge a ■ transaction to be fraudulent.</p> <p>Same. — Possession by Vendor of Property Sold. — Presumption.—The retention by the vendor of the possession of personal property sold is not a conclusive presumption that the sale is invalid as to his creditors, but imposes upon the purchaser the burden of,showing good faith; and if it be shown that a valuable consideration was paid for the property, and that when the sale was made the vendor had sufficient other property to pay ail his debts, the presumption of fraud arising from the retention of possession is overcome.</p> <p>Same. — Evidence.—Where there is no evidence of actual fraud, undisputed evidence of the payment of the purchase-money by the buyer of personal property, supplemented by uncontradicted evidence of the solvency of the seller, prevails against the presumption arising from the fact that there is no change in the possession of the property.</p>

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

<p>JUDGHent. — Jurisdiction.—Injunction.—Pleading.—Demurrer.—A com- . plaint seeking an injunction against the enforcement of a judgment taken by default before a justice of the peace, alleging that there was no service of summons, but that the justice had made the docket entry “March 30th, 1874, summons returned served by reading,” signed by the constable, is insufficient on demurrer, the record in such case affirmatively showing that the justice had jurisdiction.</p> <p>Same. — Summons.—Presumption.—Such docket entry means, that the constable on the day named made the return, and not that he had served the writ on that day, the presumption being that the justice had issued the summons, and that the constable had duly served it, mox-e than three days prior to that day; and such return concludes defendants from averring that there was no service.</p> <p>Same. — Record.—In actions commenced before a justice, it is not necessary to copy the summons in the record.</p> <p>Sams. — Jurisdiction—Collateral Attack. — The determination of the sufficiency of such service by the justice is a fact essential to jurisdiction, and his decision thereon can not be collaterally attacked.</p> <p>Same. — A mex-ely erroneous judgment can not be collaterally attacked, nor its collection restrained by injunction.</p> <p>Execution. — Parties Plaintiffs. —Mistake.—A mistake in reciting the names of parties plaintiffs can not destroy the force of an execution in a case where the judgment is plainly described, and full information of all material matters imparted by the execution.</p>