Volume 77 — Indiana Reports

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

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

<p>Bankruptcy. — Discharge of Sureties on Guardian's Bond. — In an action on a guardian’s bond for a defalcation by the guardian, an answer by the sureties, alleging their release from liability on the bond by a discharge in bankruptcy, is sufficient on demurrer, their liability thereon not being of a fiduciary character, and their obligation being entirely different from that of the guardian.</p>

<p>Negligence. — City.—Sidewalk.—Pleading. — Complaint. — In an action against a city for injuries received on account of a defective sidewalk, the allegation in the complaint, that, in passing a dangerous place near the sidewalk, the plaintiff “accidentally, and without fault on her part, fell over the steep descent,” etc., and was injured, is a sufficient allegation of the plaintiff’s freedom from fault.</p> <p>Same. — Contributory Negligence. — In such case the plaintiff had a legal right to go upon the sidewalk, though there may have been other walks, as convenient and less dangerous, and the mere exercise of that right would not be negligence on her part.</p> <p>Same. — Ownership of Lots Along Sidewalks. — -In such action the plaintiff can not be required to state in the complaint the ownership of the lots along which the accident occurred.</p> <p>Same." ■Liability of City for Injuries on Account of Defective Sidewalk.— Where a defective and unsafe condition of a street or sidewalk in a city is caused by the act or omission of a third person, and the city, after due notice of the defect, fails to have it remedied within a reasonable time, it is as much responsible for an injury caused thereby as if the defect had its origin in the acts of the city itself, through its officers in charge of the streets, or otherwise.</p> <p>Same. — Knowledge.—Instruction.—Upon the trial of such action, it was not error to refuse to instruct the jury, that, if the proof showed that the plaintiff had knowledge, at the time she entered upon the place of danger, of its existence, she must prove that she used more than ordinary care and prudence in passing such place, before she can recover.</p> <p>Same. — Contributory Negligence. — Question of Fact. — Where, asinthis ease, the question of contributory negligence is one of fact to be determined by the jury, an instruction that sought to take from the jury the decision of such question was correctly refused.</p> <p>Same. — Evidence.—Damages.—Husband and Wife. — In an action by a husband and wife, against a city to recover damages for injuries sustained by the wife, in consequence of the defective condition of one of the sidewalks of the city, evidence of the wife’s pain and suffering, on account of the injuries received, is competent to be considered in assessing the damages.</p> <p>Same. — Practice.—Admission.—In such case the defendant, by pleading in bar instead of abatement, admitted the capacity in which the plaintiffs sued, and proof that they were husband and wife was unnecessary. .Same. — Jury. — Interrogatories. — By consenting to the discharge of the jury without objection to answers to interrogatories returned with the verdict, the defendant accepts them as sufficient.</p> <p>Supreme Court.— Witness. — Practice.—A different ground of objection to a question asked a witness, from that made in the trial court, can not be urged in the Supreme Court.</p>

<p>Suretyship. — Complaint.—Cross Complaint. — Civil Action. — New Triall— Change of Venue — The complaint of an alleged surety, under sections 674 and 675 of the code, is not a cross complaint. The proceeding upon it is essentially a civil action, in which, separately from the original case, there may he a new trial or change of venue.</p> <p>Same. — Separate Trial. — Appeal.—Dismissal of Principal Case. — Mes Adjudicata — Costs.—A separate determination of the issue of suretyship is not affected by an appeal from and reversal of the judgment in, and subsequent dismissal of, the principal case. The successful party is entitled to the full benefit of the adjudication oh the question of suretyship, and to his judgment for costs.</p>

<p>Criminal Law. — Murder.—Evidence.—la a criminal prosecution for murder, where the deceased was slain by the defendant with a brick, it is not error to allow the State to prove that a third person, immediately before the homicide, directed the defendant to take a brick and. search for the deceased, if the defendant’s conduct tended to show that he acted upon the suggestion.</p> <p>Same. — Instruction.—Witness.—It is not error to instruct the jury, that they may consider the “integrity or dishonesty of witnesses” in determining their credibility. This maybe done without any other proof than such as the appearance, deportment and testimony of the witnesses themselves furnish.</p> <p>Same. — Manslaughter.—Practice.—Case Distinguished. — In such action, it was not error to instruct the jury that the defendant might be convicted either of “murder in the second degree or of voluntary manslaughter,” where it does not appear that he was not convicted of involuntary manslaughter. Hoss v. The State, 18 Ind. 349, distinguished. Same. — In such case, the instruction was correct as far as it went, and, if the defendant desired it extended, he should have requested it.</p>

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

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

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

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

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

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

<p>Pleading. — Beal Estate. — Vendor and Purchaser. — Breach of Contract to Convey. —Bescission. —Bents.—Diligence. —Demand.—A complaint, showing an agreement of defendant to convey real estate to plaintiff immediately by warranty deed in fee simple, a payment of part of price andnotes executed for remainder,and possession taken and heldby plaintiff until commencement of suit, also further payments on notes for price and of premium on insurance upon building on property before suit; and averring that the defendant has not a good title, and can not, and has refused to convey, though she represented that she had such title when she made agreement; that plaintiff relied on such representation, and, before suing, offered to surrender possession, and demanded repayment of what he had paid on price and on insurance, and a surrender of his notes, is insufficient on demurrer, for a rescission, because it does not offer to account for rents, shows-no excuse for delay in ofering to rescind, and does not show any adverse claim, or that the defendant’s title was not perfect in equity; and is insufficient for breach of contract, because the plaintiff had not offered to perform on his part,, and has not suffered more than nominal damages.</p> <p>Same. — Upon the facts stated, the contract to convey immediately meant. within a reasonable time. A demand was, therefore, necessary.</p> <p>Same. — Presumption.—The presumption against the pleader is, that the notes for purchase-money had become due; and, this being so, an offer to pay was necessary.</p> <p>Same. — Covenant.—Breach.—The allegation that the grantor had no title in fee simple does not show a breach of the covenant of seizin.</p> <p>Same. — Misdescription.—A grantee, who has remained in undisturbed possession, can not defeat an action for purchase-money, nor recover more than nominal damages for breach of warranty for want of title in the. grantor. This applies to cases where the property was misdescribed in the deed.</p> <p>Same. — Correction of Mistake. — Demand.—A complaint to correct a mistake should allege a demand and refusal.</p> <p>Powers. — Execution of. — Where a life-estate, with a power to convey the-fee, is devised to one who sells and conveys in fee, the deed, containing no express reference to the power, conveys, it would seem, only the life-estate of the grantor.</p>

<p>Constitutional Law. — Superior Court of Vanderburgh County. — The jurisdiction of the Superior Court of Vanderburgh county is less than that of the circuit court, and is therefore inferior to the latter. The Legislature has the power to establish such courts.</p> <p>Practice. — Supreme Court. — Change of Venue. — Unless the motion|and affidavit for a change of venue are made a part of the record by a bill of exceptions, the ruling thereon will not be considered by the Supreme Court.</p> <p>Witness. — Husband and Wife. — Divorce.—Evidence.—By the act of March 15th, 1879, Acts 1879, p. 245, the wife is a competent witness in an action by her for a divorce, to testify as to her husband’s habits of intoxication and his treatment of her, and in relation to her conduct as his wife.</p> <p>Practice. — Alimony.—¡Supreme Court. — Unless objection to a verdict on account of excessive alimony is made in the trial court, either as a cause for a new trial or by motion to reduce the amount, such objection will not be considered in the Supreme Court. •</p>

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

<p>^Mechanic’s Lien. — Notice.—One who builds an entire building may acquire a lien thereon by filing his notice within sixty days after the completion of the building; hut, for work or materials for a part only of a building, the notice must be filed within sixty days after the work is done or the materials furnished. Woods, J., dissents.</p>

<p>Pbactice. — Special Finding. — Conclusion of Law. — Bequest.—Signature * of Judge. — The record must show that a special finding and conclusion of law thereon were made at the request of one or both of the parties, and Mgned by the judge, else the finding will be treated as a general one, and the exception to the conclusion will not be available.</p>

<p>Wrongful Conversion of Personal Property. — Execution.—Levy.— The levy of an execution on personal property, without an actual seizure of the property hy the officer, is an invalid levy; hut, if the officer afterward takes possession of the property, thereafter the levy will he legal and valid.</p> <p>Keplevin. — Effect of Judgment in. — Where personal property levied on ' is replevied from the execution creditor and officer hy a third person, and in such replevin suit final judgment is rendered in favor of such creditor and officer for the return of the property levied on, and remains in force, and thereupon the officer seizes and sells the property to satisfy the creditor’s judgment, such third person can not afterwards maintain an action against the creditor and officer for the wrongful taking and conversion of such property.</p>

<p>CSity. — Order for Street Improvement. — Advisory Committee. — Assessments.— The order of a city council for a street improvement must specify the nature and plan of the work in such manner as to afford a basis for letting the contract.</p> <p>Same. — Precept.—Assessment.—An order which does not specify of what wood the blocks shall he made, how they shall be laid, and to what grade, hut leaves these and like particulars to the city engineer, is. insufficient, and will not warrant a precept for the enforcement of an assessment.</p> <p>‘.Same. — Delegation of Power. — Such delegation of the powers and duties of the council to the engineer is not permissible.</p>

<p>Will. — Intention.—Parol Evidence. — The intention of a testator must be gathered from the will itself, and its legal meaning and effect can not be varied by parol evidence.</p> <p>Same. — Mistakes.—Mistakes in a will can not be corrected by courts, except in cases where the mistake is apparent on the face of the will. It can not be done by extrinsic evidence.</p> <p>Same. — Description of Beal Estate. — A., desiring to buy the “northeast quarter of the southeast quarter” of a certain section of land, borrowed from his wife money to pay therefor, agreeing that, if she would loan it to him, he would devise the land to her for life, with remainder to her children, and in pursuance thereof made his will, intending to devise such land to her, but, by mistake, the land was described in the will as-the “northeast quarter of the southwest quarter” of the same section, which tract the testator never owned.</p> <p>Held, that there was no mistake apparent on the face of the will, and that parol evidence is inadmissible to show that the testator intended to describe a different tract from that named in the will.</p> <p>Contract. — Specific Performance. — Statute of Frauds. — Pleading.—Possession. — Where the possession of land is relied upon to take a contract for the conveyance thereof out of the statute of frauds, as a part performance, possession must be taken under such contract and in pursuance of its provisions, and a complaint for specific performance of such contract must so aver.</p> <p>Practice. — Pleading.—Complaint.—A plaintiff can not base his complaint upon one definite theory, and then claim a right to relief upon another.</p>

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

<p>Review of Judgment. — Pleading.—Cross Complaint. — Promissory Note, —Material Alteration. — Mortgage.—Attorneys'1 Fees. — A cross complaint filed by the holder of a junior mortgage, in an action by the mortgagee to review a judgment of foreclosure taken against him by the holder of the prior note and mortgage, alleging that the note secured by such mortgage had, after its execution and without the consent of the makers, been altered by its holder by striking out the words “if suit be instituted,” whereby a conditional promise to pay attorneys’ fees was changed to an absolute promise, that the cross complainant had no knowledge of such alteration until after the judgment of foreclosure,, and could not have discovered it by reasonable diligence, duly verified ■ and alleging that it was filed without delay after the discovery, and praying a review of the judgment, and that it be set aside, and such defence allowed, is sufficient on demurrer.</p> <p>Same. — Note Payable to Order in a Bank. — Alteration.—Discharge of Mortgage. — Payment.—A note payable to order at a bank in this State isprima facie a payment of the debt for which it is given, and a mortgage given to secure such a note, which is the only debt described therein, and they being together but one transaction, is rendered void by a material alteration of the note; whatever discharges the note also discharges the mortgage.</p>

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

<p>Replevin. — Evidence of Detention. — In an action of replevin, it is not necessary that the place where the property is detained be proved by - direct evidence, but it may be inferred from circumstances.</p> <p>Practice. — Instruction.—An instruction given by the court of its own motion must be signed by the judge, or made a part of the record by a bill of exceptions, to be available on appeal.</p>

<p>Negligence. — Pleading.—Complaint Cured by Verdict. — Bailroad Company. — In an action against a railroad company for damages sustained by the burning of a rick of wood piled along its track, alleged to have been set on fire by the locomotive of a passing train, the complaint not having been demurred to, the following charge of negligence is sufficient after verdict: “The defendant’s locomotive emitted sparks Avhich communicated AAdth said Avood and destroyed it, * * through the carelessness of the defendant and her agents and employes, Avithout the fault of the plaintiff.”</p> <p>Same. — Contract of Bale.- — When Title Passes. — The title to wood delivered on the line of a railroad, in pursuance of a contract which required a measurement before acceptance, did not pass before the measurement was made, though unreasonably delayed.</p> <p>Same. — Contributory Negligence. — In such case, the piling of the wood by the plaintiff, with the consent of the defendant, along the line of the railroad where it was more liable to and did take fire, did not constitute contributory negligence on the part of the plaintiff.</p> <p>Same. — Instructions.—Negligence.—Evidence.—Practice.—In such action, it is not error to instruct that negligence is a question of fact to be determined by the jury according to the circumstances of the case. Nor that, in that connection, the jury might consider whether the defendant’s employes were negligent in reporting the imperfect condition of screens on the smoke-stacks of the locomotives. Nor that, if the season when the fire occurred was unusually dry, the defendant was bound to take extra precautions against fire. Worden and Howie, JJ., dissent.</p> <p>Same. — Defects Cured. — An obscure and loosely-worded instruction may be cured by a clear and distinct one, and by an answer to an interrogatory.</p> <p>Same. — Practice.—If instructions on particular or additional points are desired, they must be requested.</p> <p>Same. — Presumption.—Unless the contrary is shown, it will be presumed that such other instructions, beside those in the record, as were necessary to enable the jury to understand the case, were given.</p> <p>Same, — Burden of Proof. — Contributory Fault. — The plaintiff must allege and prove a case without fault on his part; but, as the averment is negative and there is no presumption of such fault, in the absence of anything to show or suggest it, he may recover on proof of the defendant’s negligence, without affirmative proof of his own freedom from fault.</p> <p>Same. — Interrogatories Defused.. — It was not error to refuse to submit to the jury interrogatories which, answered either way, could not by themselves nor with others, have affected the result.</p> <p>'Same. — Evidence.—Practice.—It was not necessary that the proof should show from which engine the fire escaped.</p> <p>Same. — It was competent in the case to show the manner in which the defendant’s engines emitted fire shortly after the time of the fire in question.</p> <p>Same. — Witness.—There was no error in excluding answers to questions to a witness when it was not stated what it was expected to elicit.</p> <p>Same. — Book Entries. — Entries in defendant’s books, though made at the time of the transaction, are not admissible in evidence for it.</p> <p>Same. — Admissions.—Discretion.—It is largely in the discretion of the court whether evidence shall be admitted' out of the strict order of practice.</p>

<p>'Town. — Sidewalk. — Pleading. —Complaint.—In an action by a town against a property owner, to recover for constructing a sidewalk along his lot, under the provisions of the act of 1859, 1 R. S. 1876, p. 895, a complaint showing a general and substantial compliance with the provisions of said act is sufficient on demurrer, and the allegation that the work was “duly completed” is a sufficient averment that the walk was completed in accordance with the specifications of the ordinance.</p> <p>Same. — Ordinance.—Exhibit.—In such action, the ordinance to compel owners of lots to construct sidewalks is not such an instrument as becomes á part of the complaint by filing a copy therewith.</p>

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

<p>Malicious Trespass. — Sufficiency of Affidavit. — Property in Dogs.— Value of Damage Done. — The owner of a clog has such a property therein as that, where one unlawfully and maliciously injures or kills such dog, he may he prosecuted therefor under the criminal law, in relation to malicious injuries. In such case, it is immaterial whether the injury complained of is charged to he to the damage of the property or to the damage of the owner of the property.</p> <p>:Same. — Prejudices of Witness. — Prosecuting Witness Quasi Party to Prosecution; — Evidence. — In such a prosecution, the owner of the property, who may be the instigator of the prosecution, is a quasi party thereto ; and, where a witness has testified in the cause, it is competent for the State, on cross-examination, to ask such witness any questions, where the answers thereto might tend to show his bias or prejudice either for or against the owner of the property and prosecuting witness.</p> <p>Same. — Offence Charged. — Instructions.—Where the affidavit charged that the defendant maliciously, etc., injured the dog, by then and there, etc., shooting and killing said dog. the substance of the charge is the killing, and must be proved beyond a reasonable doubt. In such case, an instruction is erroneous which impliedly tells the jury that they may find the defendant guilty, if the evidence shows, beyond a reasonable doubt, that he maliciously or mischievously either killed or injured the dog.</p>

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

<p>Judgment. — Inferior Court.— Collateral Attack. — The judgment of an inferior court- can not he questioned collaterally, or the proceedings enjoined, on account of errors or irregularities which do not affect the jurisdiction.</p> <p>Same. — Presumption.—Where the court has jurisdiction to proceed, and does proceed, the same presumptions prevail in favor of its action and of the verity of its record as if its powers were general.</p> <p>Injunction. — Public Ditch. — Notice.— Viewers. — Statute Construed. — It is not cause for enjoining the letting of the work pf cutting a ditch, under the act of March 9th, 1875, that the name of the plaintiff, as owner of land to he affected, was not in the published notices of the filing of the petition for the ditch, or that the viewers did not report the cost of cutting the same.</p> <p>Same. — Land-Owners.—Notice.—Collateral Attack. — The statutory requirement, that the notice contain the names of land-owners, is not absolutely mandatory, and the averment that the viewers did not report the cost does not necessarily mean that the record does not show such report, hut only that the report was defective or forged, or like matters which can not he inquired into collaterally.</p> <p>Pleading. — Evidence.—Identity of Names and Persons. — Neither in pleading nor in evidence is identity of names eonel usive of identity of persons.</p> <p>Same. — Averment.—It is not enough to aver in the present tense when the past is meant.</p>

<p>Decedents’ Estates. — Devastavit.—Pleading.—In an action by a creditor of an estate against one who, it was alleged, had wrongfully inter-meddled with the property of such estate, the complaint must affirmatively show that the creditors of such estate are entitled to have the property go into the hands of an administrator.</p> <p>“Same. — Answer.—Bight of Widow. — In such case, an answer, that the property of the estate did not exceed in value $500, and was by the widow •of the decedent, in anticipation of an order setting it off to her, transierred to the defendant for value, is sufficient.</p>

<p>New Trial. — Surprise.—Evidence.—Where a plaintiff is fairly apprised of the character of a defendant’s defence, he can not justly urge that he was surprised by evidence directly sustaining it.</p> <p>¡Same. — Book of Accounts. — Loss of. — Collateral Question. — New Trial.— Where evidence is given, without objection, to prove the items of an account pleaded as a set-off, the witness stating on cross-examination that the book containing the items had been lost, evidence of such loss is a collateral matter, at which the plaintiff can not be said to have been surprised, and for which a. new trial can not be granted. ■</p> <p>Same. — Affidavit.—Declarations.—An affidavit by a plaintiff, in support of a motion for a new trial on account of being misled by statements made to him by the defendant before trial, which gives only the inferences of the plaintiff from the declarations, and not the declarations or statements of the defendant, is insufficient to sustain such motion.</p> <p>Same. — Newly-Discovered Evidence. — Impeaching Witness. — Practice.—Evidence impeaching a witness is not such newly-discovered evidence as will entitle a party to a new trial; nor will a new trial be granted unless the newly-discovered evidence is such as will probably produce a different result upon a second trial.</p> <p>Same. — Admissions After Trial. — Admissions of a defendant made after trial are not newly-discovered evidence entitling the plaintiff to a new trial.</p>

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

<p>■Railroad. — Animals.—Fence.—If stock comes upon a railroad track where it is unfenced, and where it is the duty of the company to maintain a fence, and wanders to and is killed at a place where it is not the duty to fence, the company is liable.</p> <p>.'Same. — Pleading.—Complaint.—In a complaint to recover for stock killed by a locomotive upon a railroad track, an allegation that the track was not fenced where the animal was killed is not necessary.</p> <p>■Same. — Town.—Excuse for Not Fencing. — A railroad company is not excused from fencing its track merely because it is within the limits of a town, unless it be a place where a fence would be unreasonable or improper.</p> <p>Same. — Highway.—Bight of Way. — Town.—Where a railway, on an embankment, and a highway run parallel, with a creek between, and a fence had been maintained between them, the railroad company is not excused from rebuilding and maintaining its fence because it will occupy a part of its right of way, or because the place is within a town.</p> <p>Same. — Failure of Proof . — Material Allegations. — On trial of an action against a railroad company for killing plaintiff’s animal, on its road, with its locomotive, a failure to prove that the defendant was operating the road, and that it ran one of its locomotives thereon against the animal and killed it, as alleged, was a failure to prove two of the material allegations of the complaint.</p> <p>,‘Same. — Appearance and Defence. — Admission.—In such case, the defendant's appearance and defence of the action against it do not constitute an admission of the cause of action, and can not supply a deficiency in .the proof of material allegations.</p>

<p>Husband and Wipe. — Surviving Wife’s Interest in Beal Estate. — Oonveij~ anee. — A surviving wife is not entitled to an interest in lands held by the husband during the marriage, and in the conveyance of which she; did not join, if his seizin was merely instantaneous.</p> <p>Same. — Mortgage.—Seizin.—A., owned land, and desiring B. to obtain for him a loan of $500 from the Sinking Fund, for such purpose, conveyed the land to B., who executed a mortgage for such sum to said fund, and on the same day, without his wife joining him, reconveyed the land to A. After B.’s death his wife claimed one-third in fee of said land.</p> <p>Held, that B.’s seizin was instantaneous, and that his wife was not entitled to any interest in said land.</p>

<p>Trust and Trustees. — Deed.—Construction.—Intention.—A deed, conveying the real estate of the grantor, and transferring his personal property to trustees, for the benefit of creditors, is to be considered as an entirety, and its true meaning gathered from all its provisions, and not from detached clauses, and the intention of the parties, so gathered, carried into effect.</p> <p>Same. — Debtor and Creditor. — Performance of Trust. — Beneficiaries.—Creditors, for whose benefit a trust is created, have an interest therein which can not be divested by the failure of the trustees to execute the trust within a time designated in the deed; courts will not annul such a trust because the trustees have not executed it within the time named, but may direct the removal of the delinquent trustees and appoint others, or compel those appointed to execute their trust. The failure of the trustees to do their duty does not revest title in the grantor, nor divest the rights of the beneficiaries.</p> <p>Same, — Purchase of Trust Property by Trustee. — The purchase of the trust property by a trustee is illegal, and may be set aside, but it is not a cause for impairing the rights of the beneficiaries, the creditors of the person creating the trust.</p> <p>Practice. — Judgment.—Supreme Court. — Obj ections to the form of a judgment can not he made for the first time in the Supreme Court.</p>

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

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

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

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

<p>PRACTICE. — Overruled Demurrer not in liecord. — 'Presumption.—Supreme Court. — When a demurrer has been filed and overruled, and the record does not contain the demurrer, the Supreme Court will presume that it was overruled on account of its own defects, or because it presented some objection to the pleading to which it was not liable.</p> <p>Contract. — Consideration.—Evidence.—The consideration of a written contract is always open to inquiry, and may be shown by parol evidence.</p> <p>Promissory Note. — Failure of Consideration. — Mortgage.—Where anote is given by a mortgagee to one in trust for his mortgagor,payable if either redeem the mortgaged property from a sheriff’s sale, and not otherwise, a failure to redeem works a failure of the consideration of the note.</p> <p>Same. — Sheriff’s Sale. — Bight of Bedemption. — A mortgage creditor’s legal right to redeem from a sheriff’s sale is not a consideration moving to him from his mortgagor, and his redemption will not alone support a note to his mortgagor, payable if either redeem the mortgaged property, and not otherwise.</p>

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

<p>Insurance. — Contract.—Condition.—Waiver.—A condition, that a contract of life insurance shall be void on account of any-misrepresentation in the application, makes the contract voidable only, at the election of the insurer. The condition may be waived even after the death of the insured.' The demand and receipt of premiums or assessments, with knowledge of the facts, will constitute a waiver.</p> <p>Witness. — Physician.—Privileged Communication. — The relation between physician and patient is confidential, and the former may not, to the injury of the latter or his representatives, testify to what he learned of the latter’s ailments, either by examination and observation or by oral communication.</p> <p>Same. — A statement, in an application for insurance, of the name and residence of the family physician of the applicant, does not operate as a consent that such physician may testify concerning the ailments of the insured.</p> <p>Practice. — Quashed Deposition. — Exception.—Semble, that a party, who has failed to save an exception to the quashing of a deposition, can not, by offering to read the deposition on the trial, obtain an available exception; certainly not unless every part of the deposition, offered as a whole, was competent.</p>

<p>Supreme Court. — Verdict.— Weight of Evidence. — Where there is evidence tending to support the verdict, the Supreme Court will not disturb it on the mere weight of the evidence.</p> <p>Same. — Petition for a Rehearing. — Sixty Days. — Where a decision in a canse ' in the Supreme Court was rendered on the 12th of October, and the opinion filed with the clerk on the 13th, a petition for a rehearing filed, on the 13th of December following, will not be considered, as more than, sixty days had elapsed after the determination of the case.</p>

<p>Liquor Law. — Statute Construed. — Constitutional Law. — The act of March 31st, 1879, Acts 1879, p. 201, authorizing towns to license the sale of intoxicating liquors, is not unconstitutional in so far as it affects the rights of dealers who had obtained license to retail intoxicating liquor from the county authorities, under the act of 1875.</p> <p>Same. — License.—A license to retail liquor is neither a contract nor a grant, but a mere permit, and the person who receives it does so with the tacit condition and knowledge that it is, at all times, within the control of the Legislature of the State.</p> <p>Practice. — Admissions.—Admissions made simply for the purposes of a particular trial can not be used against the party upon another and different trial.</p>

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

<p>Practice. — Supreme Court. — New Trial. — Becovenj.—No question can be presented in the Supreme Court as to the amount of the recovery, unless the proper reason is stated in the motion for a new trial.</p> <p>Same.- — General and Special Findings. — The statement of facts in a general finding does not transform it into a special finding.</p> <p>Same. — Invalid Tax Deed. — Lien.—In an action founded on a tax deed which proved invalid, the record not showing the contrary, the Supreme Court will presume that the court below did what the statute, 1 B. S. 1876, pp. 121,129, secs. 211, 256 and 257, authorized it to do.</p> <p>'Same. — Presumption.—AH presumptions are in favor of the .legality and regularity of the proceedings of the trial court; and, in the absence of the evidence, the Supreme Court will presume that the trial court decided correctly upon questions of evidence.</p>

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

<p>Promissory Note. — Maker's Incompetency to Execute. — Subsequent Acknowledgment and Promise. — A person who is incompetent, by reason of a want of understanding, to execute a note, is equally incompetent to authorize another to execute it for him, and his subsequent acknowledgment of the note and promise to pay it are alike of no effect.</p> <p>Same. — Mortgage.—Foreclosure.—Complaint. —Prayer. —Practice.—In a complaint on a note and to foreclose a mortgage, a prayer for judgment on the note, for the foreclosure of the mortgage and for all other proper relief, is sufficient to authorize any relief to which the facts pleaded entitle the plaintiff.</p> <p>Same. — .Decree.—Divisibility of Mortgaged Premises. — In rendering a decree of foreclosure, the court has nothing to do with the question of the divisibility of the mortgaged premises, except where there are several notes secured by the mortgage and some of them are not due.</p> <p>Same. — Costs.—Judgment Less than Fifty Dollars. — Section 633, 2 R. S. 1876; p. 261, and not sec. 397, p. 194, must control the question of costs in judgments for the foreclosure of mortgages, and the plaintiff is entitled to costs, although the recovery is for less than fifty dollars.</p> <p>Practice. — Voluntary Appearance. — Married Woman. — A married woman may appear voluntarily and defend an action against her.</p>

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

<p>Practice. — Pleading.—Complaint.—Verdict.—Heirs.—An omission by heirs, suing on an administrator’s bond, to allege in their complaint; that they are heirs of the intestate, is cured by a verdict in their favor,, when the answer and the evidence fully show the fact.</p> <p>Same. — Venire de Novo. — Needless particularity in a general verdi,ct in showing the items of principal, interest and exemplary damages, which make up the gross amount found for the plaintiffs, is not sufficient ground for a venire de novo.</p> <p>Same. — Evidence.—Decedents' Estates. — Final Deport. — Heirship.—On trial' of such action, the administrator’s final report, showing plaintiffs’names among those of the heirs entitled to the balance for distribution, with his answer of payment, sufficiently proved their heirship.</p> <p>Same. — Admissions.—In such case, reports of the administrator, filed but not acted upon, are competent evidence against him as admissions. Same. — In such case, testimony tending to prove the amount and kinds of property owned by the deceased immediately before his death, which went into the hands of his son, who had lived .with him and was his administrator, was competent to go to the jury.</p> <p>Same. — In such case, testimony of one to whom the deceased had sold land, tending to prove that he had paid the consideration, and that the deed had not been recorded, but had been secreted by the administrator to enable him the better to claim title in himself, and that the consideration had been repaid to him out of the assets of the estate, was competent, and properly admitted.</p>

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

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

<p>Criminal Law. — Statute Construed. — Code of 1881. — Instruction.—Until the criminal code of 1881 went into effect, on the 19th of September, 1881, existing laws upon that subject were .in full force, and pending prosecutions for offences committed thereunder did not abate by the taking effect of that act, but the procedure in such prosecutions is governed by the law of 1881; and the refusal of the court, upon request, after the conclusion of the argument upon the trial in such a prosecution, to instruct the jury in writing, is not error, by the provisions of the sixth clause of sec. 248, Acts 1881, p. 161.</p>

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

<p>Township Aid to Railroad Comp ant. — Powers of County Board in Ordering Eleetions. — Limitations on Such Powers. — Townships are not authorized to raise by taxation for, or to appropriate to, railroad purposes, to exceed two per centum on' the taxables of the township, in any one period of two years. Upon the proper petition of the requisite number of freeholders of the township, the proper county board must order an election to be held in the township, without regard to the number of such elections previously held, unless it appears that the township, within the period of two years preceding, has raised by taxation for, or appropriated to, railroad purposes a sum or sums in excess of two per centum on the taxables of the township.</p> <p>Same. — Petition for Appropriation. — Order of County Board. — The amount of the appropriation asked for must be stated, with reasonable certainty, in the petition; but it is not necessary that this amount should be mentioned in the orders of the county board, made on the petition.</p> <p>Same. — Electioneering Schemes. — Alleged Fraudulent Practices to Obtain Votes for Appropriation. — Where the railroad company named in the petition entered into a written agreement with the officers of another company, organized to huild another railroad into and through the same township, to the effect that, if the latter company should succeed in so building its railroad, it should have the one-half of the appropriation to be voted for, and, if it failed to so build its proposed railroad, then the former company should receive but one-half of said aid, and where there was no concealment of such agreement, but the same was made public through the county newspapers, and by the circulation of hand-bills.</p> <p>Held, that, if such agreement was legal and valid, its circulation through the township could not fraudulently impose upon the voters and taxpayers.</p> <p>Held, also, that, if the agreement was illegal, the voters and tax-payers must be presumed to have known it, and they can not be heard to complain that they were improperly influenced thereby to vote for the appropriation.</p>

<p>Heal Estate, Action to Becover. — Sheriff's Sale. — Judgment.—Payment. — Agreement.—Conveyance.—Title.—Equity.—The plaintiff had a suit pending to foreclose a mortgage on real estate on which A. had a junior lien by judgment. A valid agreement was made between the debtor and W. & S. by which W. & S. undertook to pay the judgment, whereupon the plaintiff dismissed its suit as against A. Execution was issued on A.’s judgment, upon which H. purchased the property, satisfying the judgment, and taking a certificate of purchase, and then W. ■& S. paid him what he had bid, and thereafter he held the certificate ■as their trustee and to indemnify himself as their surety, on another •matter. At the proper time he received a sheriff’s deed, and then, having been released as surety, he conveyed toW., with the consent of S., and W., by deed of quitclaim, conveyed to the appellant. The plain'tiff finally obtained a sheriff’s deed upon sale to satisfy its mortgage, and brought this suit for possession.</p> <p>.72eld, that the transaction between W. & S. and H. was in equity a redemption of the property from the sale upon the judgment, and a payment by them of the judgment, and that the paper title acquired by them, under the circumstances, could not be interposed against the ■plaintiff.</p>

<p>Ei’om the Hancock Circuit Court.</p>

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

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

<p>Arbitration. — Revocation.—The death of a party to an arbitration, after award made, does not revoke the submission.</p> <p>Same. — Submission__A submission to arbitration can not be revoked before award made.</p> <p>Same. — Award.—Confirmation.—Misbehavior of Arbitrator. — Pleading.—An objection to the confirmation of an award, that it was obtained by the partiality and misbehavior of an arbitrator, should specify in what the partiality and misbehavior consisted.</p> <p>Same. — Answer.—Where an answer set forth as particulars of partiality and misbehavior, that one arbitrator’s whole course and manner was one of deep interest in the success of a party, that he argued his cause during the hearing, that, on his own motion, he stopped witnesses of the other party from testifying, that he controlled and consulted alone with one arbitrator and ignored the other, contemptuously insinuating that he was attorney for the other party, they -were material averments and the court erred in striking them from the answer.</p> <p>Same . — Preliminary Proof. — Presumption. — Supreme Court. — After the court has granted a rule against the adverse- party to show cause why judgment shall not be rendered upon an award, the contrary not appearing by the record, the Supreme Court will presume that the necessary preliminary proof was made.</p> <p>Same. — Waiver.—After having appeared and waived service of the rule to show cause and consented to a continuance, it is too late for the adverse party to demand preliminary proof.</p> <p>Same. — Evidence.—Arbitrator's Admission of Prejudice. — Prooí of bias and strong prejudice on the part of an arbitrator, shown by his admission in his sworn statement as a witness, forms a serious objection to the confirmation of an award, and will not sustain a finding in its favor. In such ease, his testimony shows that he was disqualified because not impartial, and will defeat the award.</p>

<p>Decedents’ Estates. — Evidence.—Witness.—Where exceptions are filed to the report of an administrator, a claimant, to whom the administra.tor had paid a claim without allowance by the court, is incompetent to testify as to the justness of the claim or the amount due thereon, under the provisions of the act of March 11th, 1867, 2 B. S. 1876, p. 132.</p>

<p>Nuisance. — Surface-Water.—Levies.—A land-owner may, by levees or other appliances erected on his own premises, prevent the natural flow of surface-water upon the surface of his own lands from those above, and is not liable for injury resulting to the lands above by reason of the consequent accumulation of such water thereon.</p>

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

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

<p>Assignment op Error. — Supreme Court. — The statute requires a specific assignment of errors. That “the judgment was rendered for the appellee, when it should have been for the appellant,” is too general to present any question in the Supreme Court.</p> <p>Same. — That “the verdict was against the law and evidence,” is not a proper specification in an assignment, of error.</p> <p>Same. — That “the court gave instructions numbered —is not a good assignment of error.</p> <p>Negligence. — Pleading. —Bailroad.—A complaint against a railroad company, alleging that the plaintiff contracted with the defendant to deliver wood on the defendant’s track, and accordingly did deliver one hundred and twenty-five cords, of the value, etc., that the defendant cut down grass and weeds on its track and grounds, which, with other inflammable material, it negligently permitted to accumulate at the place, until very dry, when they were set on fire by the passing trains, negligently operated on the road by the defendant, by reason of which the wood was set on fire and consumed, does not sufficiently show that the injury was the result of the defendant’s negligence, and is bad on demurrer.</p> <p>Same. — Contributory Negligence. — Case: Distinguished. — A complaint for destruction of property by the negligence of the defendant, which does not show that there was no contributory negligence on the part of the plaintiff, is bad on demurrer. Indianapolis, etc., B. B. Co. v. Paramore, 31 Ind. 143, distinguished.</p>

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

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

<p>"Corporation. — Contract.—Estoppel.—One who contracts with an association as a corporation is estopped to deny its corporate existence.</p> <p>Mortgage. — Joint Mortgagors. — Foreclosure.—Decree.—Seal Estate, Action to Secover. — If one of two joint mortgagors is surety for the other, and desires a decree requiring that the property of the principal shall be first exhausted, he must take the proper steps for that purpose, the creditor not being required, of his own motion, to do so; and that question can not be litigated in a suit to recover possession of the real estate bought by the purchaser at a sale upon the decree.</p> <p>Sheriff’s Sale. — Deed.—Delay.—Redemption.—A delay of four months after the expiration of the time allowed for redemption, to execute a sheriff’s deed for land sold, can not invalidate the purchaser’s title, and it is doubtful whether any delay would have that effect.</p> <p>Same. — Statute of Frauds. — Presumption.—A sheriff’s sale of real estate is within the statute of frauds, but the return bearing date of the day of sale is a sufficient memorandum in writing, and it will be presumed that it was made at the proper time, until the contrary is shown.</p> <p>Same. — Sale In Solido. — Collateral Attack. — A sale by a sheriff, of a city lot, occupied by two joint defendants as a single lot, with nothing to indicate a division into two parts, the value of the whole not appearing to be in excess of the judgment, is not a nullity, though the defendants each has title in severalty to separate parts of the lot. Semble, that a sheriff’s sale of real estate in solido, which ought to have been sold in separate tracts, is not void, but only voidable, and the sale can only be questioned by a direct proceeding.</p>

<p>From the Vigo Circuit Court. •</p>

<p>Pleading. — Sufficiency of Complaint. — Mistake of Haw. — 'Ordinarily, the rule is, that the courts will afford no relief against mistakes of law. Where, however, the plaintiff’s complaint showed that her mistake as to her legal rights was induced and encouraged by the misrepresentations of the defendant, and was known to and taken advantage of by him, and that he could not, in conscience, retain the benefit acquired through such mistake, such a complaint will state a cause of action sufficient to withstand a demurrer thereto for the want of facts. Elliott, O. J., dissenting.</p>

<p>Partnership. — Beal Estate. — Interest of Partner. — The only interest which a partner has in real estate purchased or held for partnership purposes is in the portion remaining after all partnership liabilities have-been paid.</p> <p>Same. — Conveyance.—One partner may convey real estate 'to the firm of which he is a member, and after a delivery retain possession of the deed.</p> <p>Same. — Delivery.—Acceptance.—Presumption.—In such case, a delivery of the deed to one partner would he a delivery to the partnership and an acceptance may he inferred from circumstances or presumed from the beneficial character of the grant.</p>

<p>Surface-Water. — Damage.— Obstruction of Watei-course.— Upon the boundaries of Ms own land, not interfering with any natural or prescriptive watercourse, the owner may erect such barriers as he deems necessary to keep off surface-water, or overflowing floods, coming from or across adjacent lands; and for any consequent repulsion, turning aside or heaping up of these waters, to the injury of other lands, he will not be responsible.</p> <p>Practice. — Answers to Interrogatories. — Pleading.—Where the answers to interrogatories show that the damages, except one cent, were assessed upon the first and second paragraphs of the complaint, the ease must be decided with reference to those paragraphs alone.</p>

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

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

<p>Cha"1' ~’l Mortgage. —Consideration. — Pre-existing Debt. — A chattel mortgage, given to replace a previous security voluntarily surrendered, tress on a sufficient, if not valuable, consideration.</p> <p>'Same. — Fraud.—Question of Fact. — Whether a mortgage was made with intent to defraud creditors, is made by statute a question of fact.</p> <p>Same. — Mortgagor in Possession. — It can not be said-judicially, therefore, that such was the intent, merely because the mortgagor remained in possession, with leave to sell the property, accounting to the mortgagee for the'proceeds, or even if such accounting were not required. Fraud. — Burden of Proof. — The burden of proving fraud is on the party alleging it.</p> <p>Special Finding. — Presumption.—The presumption is that all material facts which were proved are stated in a special finding.</p>

<p>Lease. — Construction.—Bent.—A written lease of a farm for the term of five years from September 1st, 1874, stipulated for the payment of rent thus: “In consideration of said cleared land, the parties of the second part agree to pay $4.50 per acre, the first payment to be due December 25th, 1875, and the balance yearly thereafter, and to have all the woods-pasture, houses and garden on said farm rent free.”</p> <p>Held, that it should be so construed as to require the payment yearly of the sum named.</p> <p>Same. — A word plainly omitted from a contract by inadvertence will always be supplied to accomplish justice by enforcing the intention of the parties.</p> <p>Pleading. — Variance.—A writing may be pleaded according to its legal effect; and if this be done, though the strict words be otherwise, there is no variance.</p>

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

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

<p>Ditches and Drains. — County Commissioners. — Jurisdiction.—Collateral Attack. — County commissioners have jurisdiction over the subject of the construction of ditches and drains, and their determination of the facts essential to such jurisdiction can not be collaterally attacked.</p> <p>Injunction. — Appeal.—Where there is an adequate remedy by appeal, the extraordinary remedy of injunction can not be invoked.</p> <p>Same. — Where errors occur in the course of a trial, they may be corrected by appeal, but not in a collateral proceeding.</p> <p>Pleading. — Jurisdiction.—A general conclusion in a pleading averring want of jurisdiction, if unsupported by facts, -will not avail, even in cases where the record of the proceeding does not disclose jurisdiction.</p>

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

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

<p>•Chattel Mobtg-age. — Complaint to Becover Possession of Property.— In an action to recover possession of personal property claimed through, a chattel mortgage, a complaint is not sufficient which merely avers that the plaintiff has a chattel mortgage upon the property, as such ■ term does not import an instrument that contains no stipulations authorizing the mortgagor to retain the possession of the property until default is made in the payment of the debt.</p> <p>Same. — Pleading.—Title.—A mortgage is the mere evidence of the plaintiff’s title, and it is not sufficient to aver the evidence of the title, hut. the title itself must he averred hy distinct and traversable averments.</p>

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

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

<p>Replevin Bail. — JRecognizance.—A recognizance of replevin bail upon ■ the docket of a justice of the peace, signed in the absence of the justice, but afterwards, and before the expiration of the stay, acknowledged by the surety before the justice, and then attested by the latter, binds the surety.</p> <p>Review op Judgment. — Pleading.—In an action to review a judgment, where the complaint sets out the complaint in the original cause, the answer thereto, a demurrer to a paragraph of the answer with the ruling thereon, the trial, verdict and judgment, the latter being the logical and legal result of what precedes it, it will be presumed, on demurrer, that this is a full record of the original cause, and a direct averment of that fact is not necessary.</p> <p>Same. — Practice.—In such case, the defendant can not be permitted to amend his pleadings in the original cause.</p> <p>Same. — Judgment on Demurrer. — When a demurrer is overruled to a complaint to review a judgment for an error of law apparent upon the record, and the defendant does not offer to answer, it is not error to render-final judgment of reversal, upon the demurrer, without first entering a rule to answer.</p> <p>Same. — Judgment on Reversal. — An action for review, when successful, does not finally dispose of the original cause; it merely reverses the judgment and leaves the cause to proceed again. A judgment of reversal in the following terms, though informal, is therefore sufficient: “Pinal judgment is rendered for the plaintiffs and the defendant * pay all costs.”</p>

<p>Pleading. — Facts.—Conclusions.—The facts stated in a pleading must determine its sufficiency, and general averments must yield to the particular facts stated.</p> <p>Same. — Forfeited Recognizance. — Warrant.— Exhibits. — Answer.—Instruments which are not the foundation of a pleading should not be made exhibits; and the warrant and return, upon which an offender was arrested, are no part of an answer to a suit upon the recognizance entered into t>y him, and do not aid such pleading or supply material averments.</p> <p>Presumption. — Public Officers. — Until the contrary is shown, public officers are presumed to have done their duty.</p> <p>Special Constable. — Warrant.—Arrest.—Jurisdiction.—A warrant, to justify an arrest by a special constable, must be addressed to him by name; and, unless so addressed, an arrest by him by virtue thereof confers no jurisdiction upon the examining magistrate. .</p> <p>Jurisdiction. — Void Warrant. — Justice of the Peace. — A justice of the peace can not acquire jurisdiction of a person accused of crime upon an illegal arrest made under color of a void warrant.</p> <p>Same. — Recognizance.—A recognizance taken in a case where the court has no jurisdiction canjiot be enforced.</p> <p>Same. — A court of general superior jurisdiction may take a recognizance without, .of its own motion, inquiring into the manner in which the accused person was brought before it.</p> <p>Same. — Estoppel.—Where one, against whom an accusation of a felony had been formally and properly lodged, voluntarily and without objection enters into a recognizance in a court of general jurisdiction, he can not afterwards escape the consequences of a default thereof upon the ground that the officer had illegally arrested him. In such case, the jurisdiction of the court to take the recognizance is in all respects complete and perfect.</p> <p>Collateral Attack. — Judgment.—Jurisdiction. — The judgment of a court upon its own right to take jurisdiction can not be collaterally questioned.</p> <p>Sam.®. — Entry of Recognizance. — As, a rule, an entry of recognizance can not be collaterally impeached.</p>

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

<p>Practice. — General Verdict. — Special Finding. — Presumption. —Judgment must be rendered on the general verdict whenever the special finding of facts can be reconciled therewith on any reasonable hypothesis ; and the inconsistency between the special finding of facts and the general verdict must be such that it can not be reconciled or removed, so that both may stand, before the former will so control the latter that the court will give judgment accordingly. Nothing will be presumed in aid of the special finding of facts; but every reasonable presumption must be indulged in favor of the general verdict.</p> <p>Slander. — Repeating or Speaking Actionable Words. — Malice.—Ordinarily,, malice may be inferred from the speaking or repeating of actionable words; but, if they were spoken on a justifiable occasion, the plaintiff must prove express malice or he can not recover. Where the jury , found specially that the defendant spoke the alleged slanderous words, and that he spoke them in private, in good faith and without malice, there was no such inconsistency between the special findings and the general verdict for the defendant as authorized or required the court to render judgment for the plaintiff on the special findings of the jury, notwithstanding their general verdict.</p>

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

<p>Criminal Law. — Indictment.—Practice.—The sufficiency of an indictment may he questioned for the first time in the Supreme Court.</p> <p>Same. — Assault and Battery. — Assault.—Cases Distinguished. — An indictment, charging that one H., on, etc., at, etc., upon one B., “feloniously, wilfully, purposely and with premeditated malice, in a rude, insolent and angry manner, did make an assault, and did then and there, against and upon the said B., feloniously, wilfully, purposely and with premeditated malice, shoot a pistol, loaded with gunpowder and leaden ball, which he, the said H., then and there held in his hands, with intent then and there, him, the said B., feloniously, wilfully, purposely and with premeditated malice, to kill and murder,” contains a good charge of assault and battery, but not of an assault. McCulley v. The State, 62 Ind. 428, and Howard, v. The State, 67 Ind. 401, distinguished.</p> <p>.Same. — Self-Defence.—Instruction.—It is error to instruct the jury that a party can not use a deadly weapon in his defence upon the appearance or apprehension of danger merely, where the danger is not actual and substantial; even though it be said in connection with a proper state- . ment of the law of self-defence, given in a preceding part of the same instruction.</p>

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

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

<p>Justice op the Beach. — Pleading.—Sufficiency of Complaint. — In civil suits originating lief ore justices of the peace, if the plaintiff’s complaint state such facts as will inform the defendant of the nature of the action, and he so explicit that a judgment thereon will har another suit for the same cause, it will he sufficient, even on a demurrer thereto for the want of facts.</p> <p>Practice. — Bill of Exceptions. — Evidence.—Testimony.—When a hill of exceptions concludes with the statement, “this was all the testimony given in the cause,” and the hill shows on its face that it does not contain all the evidence given in the case, it will present no question which depends for its decision upon the evidence.</p> <p>Mabion Supeeiob Couet. — General and Special Terms. — Appeals to Supreme Court. — Assignment of Error. — An appeal will not lie from any judgment or decision of the Marion Superior Court, at special term, directly to the Supreme Court, hut only to the former court in general term, frorp whose order, decision or judgment alone an appeal may he taken to the Supreme Court. On such latter appeal, the only proper assignment of error is, that the court in general term had erred in its judgment, affirming or reversing, as the case might he, the judgment •of the court at special term.</p>

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

<p>Bill op Exchange. — Presentment.—Acceptor.—In an action by an endorser against the acceptor of a bill of exchange, it is not necessary for the complaint to allege that the bill was presented for payment.</p> <p>Same. — Accommodation Acceptor. — Innocent Holder. — Burden of Proof.— Consideration. — Where one, not deceived or defrauded, voluntarily accepts a bill of exchange for the accommodation of another, he can not impose upon the indorsee the burden of showing that he became such indorsee in good faith, for value and before maturity. Harbison v. The State Bank, 28 Ind. 133, distinguished. Nor can he shift the burden upon the endorsee by proving that he received no consideration for his acceptance; he must, also, show that there was no consideration between the endorsee who sues and his immediate endorser.</p>

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

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

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

<p>Review oe Judgment. — New Matter. — School Law. — Auditor’s Sale.— ’ Diligence. — Pleading.—Demurrer.—In a complaint to review a judgment for the recovery of real estate, it was alleged that the judgment plaintiff claimed through a sale and conveyance of the county auditor for a balance due on a mortgage made by the judgment defendant for purchase-money, the land being township school land, and that, since the judgment was rendered, he has discovered new matter, in this, that the> auditor’s sale was made without notice, etc.</p> <p>Held, that this was not new matter, but new evidence in contradiction of the recital in the auditor’s deed; and, if this were otherwise, no diligence is shown, the matter being easily accessible.</p> <p>Same. — Ejectment.—The bringing of an action in ejectment against the defendant put him upon instant inquiry into the validity of the sale under which the plaintiff claimed title.</p> <p>Same. —Practice__Equity. —Equity affords relief from a judgment at law, on account of the discovery of new matter, only upon a showing of due diligence before the trial; and the rule is the same under the code.</p> <p>Pbactice. — Detmvmer.—A demurrer admits only what is well pleaded.</p>

<p>Appeal. — Notice.—Parties.—Practice.—Parties to an action need not be notified of an appeal unless they are parties to the judgment from which the appeal is taken.</p> <p>Practice. — Bill of'Exceptions. — Evidence.—Where the bill of exceptions recites that “the above was all the evidence that was introduced on the trial,” it is sufficient.</p> <p>Fraudulent Conveyance. — Statements of Grantor. — Evidence.—Conspiracy. — Statements made by a grantor after he has parted with his title, tending to impeach his grantee’s title, are inadmissible, as a general rule; but, if a conspiracy to defraud the creditors of the grantor is. first shown to exist, the statements are admissible.</p>

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

<p>Replevin. — Bond.—Justice of the Peace. — It is no defence to an action upon a replevin bond, given in proceedings before a justice, that the penalty of such bond was not double the value of the property sought to be recovered.</p> <p>Same. — Becitals.—Estoppel.—In such case, where the penalty is fixed at double the recited value of the property, the obligors are estopped to allege and prove that a sufficient penalty was not provided.</p>

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

<p>Railroad . — Killing Stoclc. — Fence.—Public Duty. — The owner of stock killed upon a railroad is permitted to recover from the railroad company, because the recovery will tend to secure the discharge of a public duty, imposed by law, to fence its road.</p> <p>Same. — Pelease.—Cattle-Guards.—Damages.—An obligation, in aid of the construction of a railroad, to grant the right of way through the owner’s land, “the company putting in six cattle-guards as its only obligation,” does not bind him to fence the road, and is not a release of damages' for stock killed on the land. The company can not avail itself of such an obligation as an exemption from the statutory liability.</p>

<p>Railroad Company. —Freight Trains. — Passengers.—A railroad company is not required by law to carry passengers, as a common carrier, on its trains for the transportation of freight; but such company may agree to carry passengers on its freight trains, on such reasonable terms and conditions as it may prescribe.</p> <p>Same . — Pleading.—Sufficiency of Complaint. — In such a case, if suit be brought against the company to recover damages for its refusal to carry a passenger on a freight train, in accordance with its agreement, the plaintiff must allege a strict compliance or attempted compliance, on his part, with the terms and conditions imposed by such company; otherwise his complaint will be insufficient.</p>

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

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

<p>Vendor and Purchaser. — Title.—Purchase-Money.—Mortgage.—Injunction. — Equity.—In an action by the assignee of a note and mortgage given for purchase-money of real estate, a cross complaint, alleging that the mortgage sought to be foreclosed'embraced other lands than that for the purchase-money of which the notes sued on were given; that the grantor to whom the mortgage and notes were given, and by whoin they were assigned, conveyed a portion of the real estate described in the mortgage, with covenants of warranty, and that such grantor is insolvent; that a suit is now pending against the parties to this action and the mortgagee, by parties claiming a paramount title, for the purpose of settling the question of title to the land conveyed by the mortgagee; and asking that the action upon the note and mortgage be restrained and delayed until the determination of the suit in relation to the title, is sufficient on demurrer.</p> <p>Same. — Case Overruled. — In such ease equity will enjoin the proceeding to enforce collection of the note and mortgage until the result of the suit for the determination of the title to the lands purchased is ascertained. Strong v. Downing, 34 Ind. 300, overruled on this point.</p>

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

<p>City. — Street Improvement. — Ordinance.—Charter of Evansville. — Amendment. — Statute Construed,. — The 58th section of the special charter of the city of Evansville, taken in connection with sections 2 and 30 (Local Laws 1847, p. 3), fully authorized the common council, by ordinance, to provide in detail a method of procedure for the improvement of streets, a mode of assessing the expense upon abutting property, and to enforce payment thereof. Such ordinances were not repealed or impaired by the act of 1875 (Acts 1875, p. 70), amending sec. 58, only in so far as they were inconsistent with the amendment.</p> <p>Municipal Corporation. — Nunc Pro Tunc Entry. — A municipal corporation, like a court, has authority to make an entry of record nunc pro tunc to supply a clerical omission; and when made such entry operates as if made when the fact so entered actually occurred.</p>

<p>Statute oe Limitations. — Offer of Bounty. — Contract.—Case Overruled. —An offer of bounty to volunteers for military service, entered upon the records of a county board, in 1863, and the acceptance of the offer by enlistment according to the conditions of the order, do not constitute a contract in writing within the meaning of the statute of' limitations, sec. 211 of the code. Sithin v. The Board, etc., 66 Ind. 109, overruled on this point. .</p> <p>Same. — Such a contract, resting partly in writing and partly in parol, is regarded in law as an oral contract, to which, the six-year period of limitation applies.</p>

<p>. Practice. — Appeal.—Parties.—Statute Construed. — Where a part of sev- • eral co-parties appeal, the statute (R.S. 1881, sec.635) requires only that co-parties to the judgment appealed from shall join or be notified.</p> <p>Slander. — Pleading.—The words spoken of a female, “She is a bitch,” when alleged in the complaint to have been spoken at a time and place where they were understood to mean, and did mean, an imputation of whoredom, are actionable under the statute, R. S. 1881, sec. 285.</p> <p>Same. — Married Woman. — Statute Construed. — The act authorizing a married woman to sue in her own name, for injury to her person or character, R. S. 1881, sec. 5,131, operates retrospectively, affecting only the remedy, and she may maintain the suit for slanderous words spoken before the statute took effect.</p> <p>Practice. — Instructions to Jury. — The court need not repeat, in another form, instructions which, of its own motion, it has substantially given.</p> <p>Change of Venue. — An application for change of venue being overruled for a defect in the affidavit therefor, a second application was made, supported by an affidavit which would have been good in the first instance, but which failed to show why the new matters therein alleged were not stated in the first affidavit.</p> <p>Held, that the second application was properly denied.</p> <p>Slander. — Evidence of Malice. — The speaking of actionable words, of like import with those charged in the complaint, at other times, may be proved for the purpose of showing malice.</p> <p>Married Woman. — A married woman can not maintain a suit for depriving her of the support and society of her husband. Llliott, C. J., and Woods, J., dissent.</p>

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

<p>Pleading. — Notice.—Mistake.—A complaint to recover money paid in consequence of an error in computing interest in making a settlement, which fails to aver that the defendant had notice of the mistake, is bad on demurrer.</p> <p>Same. — It is not necessary, in such complaint, to offer to place the defendant in statu quo.</p> <p>Same. — Payment.—A complaint, alleging that the plaintiff paid to the defendant $1,500 to apply on two notes held by the latter as a banker ■ for collection against the former, and that defendant applied $600 thereof upon a note held hy himself against the payee of the two notes, and that the plaintiff was compelled afterward to pay the $600, hut averring nothing as to how he was compelled to do so,“is bad on demurrer. It shows no liability of the defendant to the plaintiff for the money misapplied.</p> <p>Demurrer. — Practice.—A demurrer admits only such facts as are well pleaded, and does not admit conclusions of law.</p> <p>Voluntary Payment. — A voluntary payment of money, with knowl- . edge of all the facts, where there is no liability to pay, gives no right of action.</p> <p>Pleading. — Fraud.—A complaint, alleging that a hanker, expert in making computations, in settling a complicated account with one who is incapable of making-such computations, falsely and fraudulently made out an indebtedness to himself of $3,450.05, when only $2,000 was really due, and thereby obtained payment of' the larger sum, in known reliance upon his computation, is good on demurrer.</p> <p>Same. — Diligence.—In such case the rule, that one who deals with another in cases where there is no relationship of trust and confidence existing, must use ordinary diligence to protect his own interests, does not apply.</p> <p>Same. — Answer.-^Practice.—Ah answer pleaded only to some paragraphs of the complaint, and good as to them, is not had on demurrer for failing to answer the whole, complaint; and where'an answer to a complaint in three paragraphs, one of which is had, sufficiently answers ' the good paragraphs, it is good on demurrer.</p> <p>Same. — Mistake.—Settlement.—To a complaint to recover money paid upon a settlement made hy mistake andfraud, an answer averring that the payment was made hy a conveyance of land from the plaintiff to the defendant, the price of which was tó he fixed-hy two persons, who, in case of disagreement, should call' in a third, and who, having disagreed, called upon the third person, who was corruptly bribed hy the plaintiff to place a false valuation on the land, whereby the defendant was made to allow $1,400 in excess of the "fair value thereof, is sufficient on demurrer.</p> <p>Same. — Counter-Claim.—Conveyance.—Fraud.—A counter-claim, to rescind such conveyance, alleging the same facts, with the addition that the defendant did not discover the fraud thus practiced upon him until this suit was begun, that he had offered to rescind and reconvey the land, and therein tendering such rescission, averring that the deed re-conveying is brought into court for the plaintiff, is also good.</p>

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

<p>Decedents’ Estates. — Promissory Note. — Attorney's Fees. — In an action against a decedent’s estate under the code of 1881, upon a note stipulating for the payment of attorney’s fees, such fees may he recovered . against the'estate.</p>

<p>Appeal Bond. — Pleading.—Demurrer.—Mortgage.—Supreme Court. — To a suit to foreclose a mortgage, D., holding a junior mortgage, was made a defendant to answer as to his interest. There was judgment of foreclosure against all the defendants, D. included, and as to him, only that his mortgage was junior to that upon which the suit was brought. There was no personal judgment, even against the mortgagor, for the recovery of any balance which might remain unsatisfied after exhausting the lands mortgaged. D. alone appealed to the Supreme Court, giving bond with W. as surety, conditioned, amongst other things, to pay “any judgment that may be rendered or affirmed against D.” The Supreme Court affirmed the judgment. In a suit on the bond by the assignees thereof against W., the surety, the only breach alleged was, that the mortgaged premises had been sold, leaving a balance of the mortgage debt unsatisfied, which still remained unpaid.</p> <p>Held, that, inasmuch as there was no judgment against D. for the mortgage debt, the failure to pay it was not a breach of the bond, and a demurrer to the complaint should have been sustained.</p> <p>Estoppel. — Pleading . — Practice.—Where the plaintiff, not being estopp id to aver a fact, though the defendant is, alleges that fact in his o implaint, it is to be regarded as true on behalf of the defendant on demurrer to the complaint.</p>

<p>.Contract. — Statute of Frauds. — Agent.—An agreement, by which A., in consideration of $217 paid, agrees to make B. his agent and permit him to remain such for a reasonable time, is valid; it is not within the 5th clause of sec. 1 of the statute of frauds, B. S. 1881, sec. 4,904. The question of what is a reasonable time must be determined from the evidence, and if A. wrongfully revokes the agency before such time elapses, B. can maintain a suit for damages.</p> <p>Same. — Pleading.—In a suit upon such a contract by B., an averment in the complaint under a videlicet, that three years is a reasonable time, is immaterial. !</p> <p>Same. — Damages.—In a suit by B. for breach of such a contract by wrongfully terminating the agency, the plaintiff is not confined to the recovery of merely nominal damages.</p> <p>Same. — Evidence.—Witness.—Expert.—Opinion.—On the trial of such a cause, it is competent to put in evidence the opinion of an insurance agent, expert in that business, as to what would be a reasonable time.</p> <p>Same. — Evidence.—Evidence that the plaintiff, at the same time, acted as agent for other insurance companies, is immaterial, unless there be also some evidence tending to show that the contract required the plaintiff to give his whole time to the business of the defendant.</p>

<p>Infant. — Disaffirmance of Contract. — Deed.—The question, as to what is a reasonable time within which, after reaching full age, a deed made du ring infancy, may he disaffirmed, depends upon the circumstances of the case as they appear by the evidence, and is therefore for the jury and not for the court; and it is error to instruct the jury, that, if immediately on reaching full age the infant had knowledge that he was not bound by the deed, but did not disaffirm for a period of ten months, the time was unreasonable.</p>

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

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