Volume 78 — Indiana Reports

<p>Pleading. — Demurrer.—A demurrer to an entire complaint, containing one good paragraph, should he overruled.</p> <p>Same. — Harmless Error. — Practice.—There is no available error in sustaining a-demurrer to a good paragraph of an answer, if there remain another paragraph stating substantially the same matter.</p> <p>City. — Damages.—Evidence.—Jury.—In a suit against a city to recover damages for unlawful excavations made adjoining the plaintiff’s lot, evidence showing what would be the cost of a wall along the line of the plaintiff’s' lot, to protect it from caving, is admissible, the necessity of such a wall being a question for the jury.</p> <p>Same. — Oily Council. — Declarations.—Parol evidence of the proceedings of a city council, and of the declarations of individual members thereof, in ordering the grading of a street, is not admissible, until some valid excuse is shown for not producing the record of such proceedings.</p> <p>Same . — Improvement of Streets. — Statute Construed. — Sections 3162 to 3165, R. S. 1881, apply only where a city seeks to improve its streets at the expense of the abutting owners, and do not limit the general powers over streets conferred by other provisions of law; and where a city, in the exercise of its general powers and at the expense of its treasury, grades a street, it is not liable to adjoining owners for consequential injuries, merely because it fails to comply with the requirements of those sections.</p> <p>Same. — Grading Streets. — Earth can not he removed from a street except for its improvement, nor can such earth he used by a city except to grade that or other streets, the grading of which is part of the same general plan of improvement.</p> <p>Same.' — Adoption of Plan. — Where the common council directs that a plan of improvement for S. street be prepared, which is accordingly done and reported, and the action of the council thereon appears on its record in these words: “ The survey and plan for the improvement of S. street by J. is accepted,” an adoption of the plan is sufficiently shown.</p> <p>Same.- — Case Oidtieised. — While the question actually before the court in City of Delphi v. Phans, 36 Ind. 90, was correctly decided, there are many expressions in the opinion in that case which can not be maintained.</p>

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

<p>Beal Estate. — Action to Recover. — Evidence.—Judgment.—Harmless Error.— In a suit for the possession of real estate, by the purchaser at a sale on execution against the execution defendant, the judgment entry is sufficient proof prima facie of the judgment, and the pleadings need not be put in evidence, though, if admitted, the error is harmless.</p> <p>Same. — Sheriff’s Sale. — Assignee of Certificate. — Evidence.—Title in Stranger.— In a suit for the possession of real estate, brought by the purchaser at sheriff’s sale against the execution defendant, the defendant is not permitted to prove title in a stranger, and the assignee of the sheriff’s certificate, who receives a sheriff’s deed thereon, is, in legal effect, the purchaser at the sheriff’s sale, within the meaning of this rule.</p> <p>Same. — Receipt.—Execution.—Res Gestee. — Harmless Error. — Semble, that a receipt from a judgment plaintiff to the sheriff for the proceeds of lands sold on execution issued on a judgment is competent evidence as a part of the res gestee, in an action by the purchaser against the execution defendant for possession of the lands; but, in any event, such evidence is harmless.</p> <p>Execution. — Sheriff’s Return. — Amendment.—It is lawful for one who, as sheriff, executed process, to amend his return, by leave of the court, even after the expiration of his term of office.</p> <p>National Bank. — Right to Hold Real Estate. — A national bank has authority to take title to real estate in discharge of indebtedness previously contracted.</p> <p>Pkactice. — Instructions.—Evidence.-—It is the duty of the court, by instructions, to construe record and other written evidence in the cause, and to state its effect. ></p> <p>Sheriff’s Deed. — Date.—Delivery.—The date of a sheriff’s deed is prima facie evidence of the time of its delivery.</p>

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

<p>Cbiminal Law. — Sale of Meat of Diseased Animals. — Statute Construed.— To constitute an offence, under sec. 2070, B. S. 1881, in the sale of meat of diseased animals, or having the same with intent to sell, it was intended that the sale, or intended sale, must be tor food, and that the defendant must have knowledge of the bad quality of the meat. Elliott, O. J., and Woods, J., dissent.</p> <p>Same. — Pleading.—Indictment.—Where, by construction, a meaning is put upon a statute defining an offence, which is not so broad as the general words of the statute, it is not sufficient to charge the offence in the words of the statute, but the indictment must bring the case also within the meaning of the statute. Elliott, C. J., and Woods, J., dissent.</p>

<p>Mortgage. — Note Gwen in I/ieu of Notes Secured by Mortgage. — Evidence.— Payment. — In an action upon a note, and to foreclose a mortgage given to secure the notes for which the note in suit had been executed, evidence that the plaintiff’s assignor received the note in full payment of the mortgage notes is admissible, and if the mortgage notes were fully paid by the new note there could be no foreclosure of the mortgage.</p> <p>Payment. — Promissory Note. — Presumption.—Evidence.—Anything is payment which the creditor accepts as payment, and one note is paid by another note, if the latter is accepted as payment; if the note given in payment be negotiable by the law merchant, the presumption is that it was received as payment, and, if not thus negotiable, the presumption is that it was not received as a payment, but evidence is admissible to show that in fact it was received as a payment.</p>

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

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

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

<p>Negligence. — Railroad.—Negligence of Co-employee. — Brakeman.—Train Dispatcher. — Injury to a brakeman upon a train en route, by reason of a collision with another train moving in an opposite direction, and which was the result of the negligence of the train dispatcher, whose duty it is to control the movement of trains, affords no right of action against the railroad company for the injury. The brakeman and train dispatcher, though many miles apart, and with distinct duties, are nevertheless co-servants in the accomplishment of the same general object.</p>

<p>Promissory Note. — Principal and Surety. — Collateral Securities. — Answer.— To a suit against the maker and two endorsers of negotiable notes, one of the endorsers answered that she endorsed merely as surety of the maker; that she was induced to do so by reason of the fact that the notes were-secured by a mortgage on real éstate of ample value to make this indebtedness and an older mortgage thereon for a small sum; that a suit was. brought to foreclose the older mortgage, to which the plaintiff was made a party; that he suffered a judgment of foreclosure, and that the real estate was sold to satisfy the older lien, and the time for redemption allowed to expire, Without her knowledge, the plaintiff giving her no-notice thereof. °</p> <p>Held, that the plaintiff had a right to be passive as to the mortgage security, and was under no legal obligation to notify the endorser of said suit, and, therefore, that the answer was bad on demurrer.</p>

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

<p>Judgment. — Default.—Action for Relief under Section 99. — Practice.—Issues.— Proof.- — An applicant, under section 99 of the code, for relief from a judgment by default, need not prove his alleged defence to the original action, but he must prove his excuse for suffering the default, and the proof pro and con may be by affidavit, including the applicant’s verified complaint or motion, or by oral testimony, or by both kinds of evidence, in the discretion of the court.</p> <p>Same. — Evidence.—Record.—The exclusion of evidence on a particular point, or of a particular kind, presents no question when the record does not show what other evidence was offered.</p> <p>Same. — Decedents’ Estates. — Personally belongs to Representative, not to Widow and Heirs. — Action.—Parties.—In an action, under section 99 of the code, to be relieved from a judgment on default, the complaint alleged that after the death of the judgment plaintiff, who had obtained a judgment upon aj contract whereby M. and another had agreed to release the judgment plaintiff from a debt owing by him to B., B. procured an order against the widow and heirs, the administrator not being made a party, substituting B. as plaintiff in the judgment, and hence B. is made defendant to the application to set the judgment aside.</p> <p>Held, that the order substituting B. as plaintiff was a nullity.</p> <p>Held, also, that the judgment belonged to the administrator, not to the widow, and that B. was consequently not a necessary party to the plaintiff’s application, and, the administrator having made default, the plaintiff was entitled as against him to an order setting the default aside.</p>

<p>Easement. — Grant—Prescription.—Deed.—Evidence.—An easement is away attached to an estate, belongs to the estate as part of it, and not to the person of the owner of the estate, and a grant of the estate passes the easement, though not specified in the deed, and even though the latter does not, in terms, convey appurtenances. Therefore, where title to the easement is claimed as having been acquired by prescription, proof that the present owner of the estate has personally enjoyed it for the requisite period of time is unnecessary. It is sufficient that it has been, during that period, attached to the estate of which he is now seized.</p> <p>■Same. — Highway.—Action for Damages. — A private easement may exist in a way which is also a public highway, and it does exist whenever the lands are so situated, with reference to the highway, that the use of the latter is necessary for access to the land. In such ease, the owner of the land can maintain a suit for damages for obstruction of the highway.</p> <p>•Same. — Instruction.—Private and Public Way.-^Obstruetion. — In such case, when the fact of obstruction by the defendant is not disputed on the trial, the complaint containing a paragraph for obstructing a private way, and another for obstructing a public way necessary to approach the plaintiff’s lands, an instruction to the jury is not available error, which declares that “ T^ie question for you to determine is, has the plaintiff the easement by prescription, claimed by him in the first paragraph of his complaint, or the special interest in the highway, claimed in the second paragraph of his complaint ? If you find that he has either, your verdict should be in his favor.”</p> <p>Instruction. — Practise.—There is no error in an instruction to the jury which, announcing no legal proposition, merely states the nature of the plaintiff’s claim.</p> <p>Private Way.— Obstruction. — Pleading. —Joinder of Causes. — Verdict.— Judgment. — In a suit for damages, a paragraph of complaint for obstructing a private way of the plaintiff may be joined with one for obstructing a public highway in which the plaintiff has a special interest, and a verdict for the plaintiff is good without specifying whether the way is public or private, and a judgment thereon, “ that the way be opened up and kept open,” is proper.</p> <p>'Same. — Prescription.—Instruction.—In such case an instruction, declaring that the plaintiff can not recover unless he has proved a prescriptive right to the way claimed, but a slight variation in any particular would be of no consequence, such as a variation in the course of the way for a few feet at a given point, or in the terminus of the way, is correct.</p> <p>Highway. — Prescription.—Dedication.—User for twenty years constitutes a road a public highway, but user for a less period may so constitute it by dedication, all that is required being the assent of the owner of the soil to the public use, and the enjoyment of such use for such a period that public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment.</p> <p>Same. — Acceptance.—-An acceptance by the public of such way is shown by long continued user, grading, macadamizing, bridging, or the like.</p> <p>Same. — Estoppel.—Where the owner of land through which a way runs knows that another is offers costly improvements, in the faith that the way is public, and making no objection, he is estopped from asserting that the way is not .public.</p> <p>Same. — Damages.—Injunction.—One whose only mode of access to his real estate is being interrupted by unlawful obstructions, may arrest the injury by injunction, and he may recover damages merely nominal, not being bound to wait until the injury is fully consummated and actual damages have accrued.</p> <p>Same. — Dedication.—Intention.—Presumption.—Intention by the owner of the soil to dedicate a way to public use must appear by proof, but it will be presumed against the owner of the soil, when the easement has been enjoyed .by the public during a period corresponding with the limitation of real actions, fixed by statute.</p>

<p>Will. — Charitable Trust.- — -Intoxicating Liquors.- — A bequest in a will, devising to the trustees of a certain organized church, having trustees, and to their successors, $1,000, to be put at interest, and the interest to be appropriated annually to the suppression of the manufacture, sale and use of intoxicating liquors, and providing that if said trustees failed for two successive years to use the interest as directed, then the whole bequest should go to the heirs of the testator, is valid.</p>

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

<p>Practice. — Exceptions, How Saved. — Exceptions taken during the progress of a trial, under the Code of 1852, must be saved in bills filed at the time, unless time be then granted beyond the term for filing the bill.</p> <p>Same. — New Trial. — Bill of Exceptions. — Upon the overruling of a motion for a new trial, time may be given for filing a bill containing the evidence.</p> <p>Same. — Instructions.—In order to save any question in reference to instructions, under sections 324-5 of the Code, it must appear that the same were filed.</p> <p>Benevolent Society. — Certificate.—Evidence.—Presumption.—In an action upon a contract for life insurance in the shape of a certificate of membership, reciting that the deceased was a “ beneficiary member in good, standing” in a benevolent association, and that upon his death a sum named would be paid, “ provided lie be in good standing when he dies,” the certificate is proof of the good standing of the party named at the time issued, and such standing will be presumed to have continued, in the absence of contrary evidence.</p> <p>Same. — Burden of Proof. — In such case the burden was on the society to-show that, by reason of his conduct, or his failure to comply with the regulations or requirements of the society, the deceased had lost Ms good standing.</p> <p>Same. — By-Law.—Notice of -Assessment — Under the by-law of such society (for which see opinion), a member was entitled to notice of assessment, before he could be suspended for non-payment.</p> <p>Proof of service or giving of notice involves proof of its contents.</p>

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

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

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

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

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

<p>Contract. — Signed mthout Reading. — Misrepresentation of Contents. — The law affords no relief to one who, able to read, signs a contract without reading it, reposing a blind confidence in representations of another, whose interest is adverse, as to the contents of the instrument.</p> <p>Same. — Pleading.—Insurance Note. — A plea, setting up such misrepresentations as a defence to a note given for an insurance premium, is not made good by the averment that the company never delivered a policy to the defendant, and that he had never seen any policy of insurance issued to him.</p> <p>Same. — Insurance.—Agreement by Agent to Issue Policy a Good Consideration.— Promissory Note. — The agreement of an insurance company, through its agent, to issue a policy, is binding on the company, and is a sufficient consideration for a note given for a premium.</p>

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

<p>Unlawful Detention of Lands. — Appeal Band. — Mesne Profits Pending Appeal. — Under the statute concerning the unlawful detention of lands (2 B. S. 1876, p. 662), on an appeal by the defendant from the judgment of the circuit court to the Supreme Court, the appeal bond may be' lawfully conditioned, that the defendant, among other things, will pay and satisfy all damages which the plaintiff may sustain, for mesne profits of the premises recovered, or for any waste committed thereon, as well before as during the pendency of such appeal.</p> <p>Same. — Assignment of Bond. — Complaint.-—An appeal bond-is assignable by endorsement in writing, so as to give the assignee a right of action thereon, in his own name; and where the plaintiff, in an action on such bond, sues only for the 'recovery of the mesne profits of the premises, during the pendency of the appeal, his complaint will not be bad on demurrer thereto, for the want of sufficient facts, merely because it contains an admission of the payment of the previous judgment and costs.</p> <p>Same. — Practice.—New Trial. — Errors of law, occurring at the trial, must be specifically pointed out and assigned as causes for a new trial, in the motion therefor; for, if not so assigned, the Supreme Court will not consider such errors of law, nor decide any question thereby presented.</p> <p>Same. — Evidence.—Transcript of Judgment of Supreme Court. — In an action on an appeal bond, given on an appeal to the Supreme Court, a certified transcript of the judgment of that court is competent evidence.</p>

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

<p>Promissory Note. — Pleading.—Answer.—General Denial. — In an action upon promissory notes, an answer by tbe makers, that they had “ executed ” the notes, but had not delivered them, is sufficient, as such answer is equivalent to a general denial.</p> <p>Same. — Void Consideration. — An agreement by the payees of such notes, in consideration of their execution, to use their influence to secure the dismissal or favorable termination of a criminal prosecution, is void, and does not furnish a sufficient consideration for such notes.</p> <p>Same. — Given for Debt of Bankrupt. — An answer, that such notes had been given for the debt of A., who had been adjudged a bankrupt, of which the payees had notice, and that A. subsequently obtained his discharge in bankruptcy, is insufficient in bar of the action.</p> <p>Same. — Testimony of Surety as to Declarations of Principal. — It is error to allow a surety to testify to what his principal told him in the absence of the payees, at the time he signed the notes, for what purpose the notes were given.</p>

<p>Pleading. — Complaint.—Demurrer.—If a complaint contain several paragraphs, some founded on contract, and some on tort, some good and some bad, there is no available error, under the code, in overruling a demurrer to the entire complaint, assigning for causes a want of sufficient facts and a misjoinder of causes of action.</p> <p>Same. — Arrest of Judgment. — When a complaint contains several paragraphs, one only being good, a motion in arrest of judgment should be overruled.</p> <p>Judgment. — Improper Belief. — Supreme Court. — -When the plaintiff is entitled to a judgment, but the judgment rendered gives relief to which he is not entitled, and no objection to the form thereof was made below, there is no remedy in the Supreme Court.</p>

<p>Descent. — Illegitimate Child. — Heir.—Statute Construed. — Under the provisions of the act of February 10th, 1853, 1 R. S. 1876, p. 410, the brothers and sisters of an intestate take his estate, as heirs, to the exclusion of his illegitimate child.</p>

<p>Contract. — Construction.— Unimportant Parts Suppressed.- — County Bounties to Soldiers for Particular Regiment.- — Enlistment Under Offer and Service in Another Regiment. — It is a rule of construction that a contract should be upheld rather than defeated. Force and validity will be given to all its parts and terms, if possible, but comparatively unimportant parts will be disregarded, if in that way only the contract can be sustained, especially where the party seeking relief has performed the service required of him, and in the manner required, except in unimportant particulars, which, without his fault, were put beyond his control. A county, authorized thereto by law, offered bounties for the enlistment and service of soldiers in the 69th regiment Indiana volunteers. A. accepted the offer and enlisted for that regiment, but afterwards, without his consent, was mustered into and served in the 84th regiment.</p> <p>Held, that he was entitled to the bounty.</p>

<p>Cbiminal Law.' — Suffering Escape of Prisoner. — Indictment.— Warrant.— Where an officer, whose duty it is to have the custody of a prisoner charged with or convicted of an offence against a law of this State, negligently suffers such prisoner to escape out of his custody, the offence of such officer is a misdemeanor, punishable by fine only. But the inapt use of the adverb “ feloniously,” in the description of the offence, furnishes no ground for quashing the indictment; nor was it necessary to the sufficiency of the indictment that it should charge that the officer had the prisoner in his custody by virtue of a sufficient warrant, or that it should set out a copy of the warrant.</p>

<p>Telegbaph Company. — Contract to Transmit and Deliver Dispatch on Sunday. — Penalty.—The statutory penalty given by “An act to regulate electric telegraph companies,” 1R. S. 1876, p.868, can not be recovered by a person who has delivered his dispatch for transmission and delivery on Sunday.</p> <p>Same.— Void Contract. — Salification.—A contract for transmitting a telegraphic dispatch, made on Sunday, is void, and the retention of the dispatch and of the consideration paid by the sender does not constitute a ratification.</p> <p>Same.— Work of Necessity. — A dispatch, “ Come up in morning; bring all,” can not be regarded as a work of necessity, within the meaning of the-statute for the protection of the Sabbath; nor is telegraphing of itself a work of necessity.</p> <p>Penalty. — Illegal Contract. — A penalty can not be recovered for the failure: to perform an illegal contract.</p>

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

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

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

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

<p>Pbactice. — Judgment.—Record.—Motion to Supply Omission. — Idmitaiion.—A. proceeding to correct the record of a judgment rendered December 11th, 1877, by a motion to supply an omission, filed January 14th, 1880, under section 99, 2 B. S. 1876, p. 82, came too late and should have been dismissed because not commenced within two years.</p> <p>Same. — Pleading.—In such a proceeding no formal pleading beyond the complaint, or motion, is necessary, and the application should be heard and decided in a summary manner.</p> <p>Same. — Objection to the proceeding may be made by a motion to quash, or to dismiss, for reasons apparent upon the face of the pleading and accompanying affidavits.</p>

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

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

<p>Promissory Note. — Answer.—Fraudulent Representations. — To enable a defendant to defeat an action against him on a promissory note, on account of fraudulent representations inducing him to sign it, he must show that the representations were concerning some material matter, that they were false, that they were such as he had a right to rely upon, that he did rely upon them, and that he was deceived thereby.</p> <p>Same.. — Fraud.—Allegations and Proof. — -The facts necessary to establish fraud must be alleged and proved by the party who relies upon it.</p> <p>Same. — Surety.—Pleading.—Defalcation.— In such case, an answer, that one of the defendants was surety on the bond of his brother as agent of plaintiff, that, after the termination of the period for which it was given, he was continued as agent and became a defaulter, that agents of the plaintiff represented to the defendants that his defalcation occurred while the bond was in force, and that they would at once commence suit upon the bond and criminal proceedings against the principal, must clearly show that he was not guilty of any defalcation while the defendant was liable as his surety, and that'the defendants relied upon the alleged representations of liability.</p> <p>Same. — Inducements.—In such case, an allegation, that the notes were executed “to avoid litigation and the shame of a criminal prosecution against their brother, and in consequence of fear of the same,” implies that other inducements than the supposed liability of the defendant as surety entered into the transaction.</p>

<p>Contract op Assumption. — Principal and Surely. — Subrogation.—Demand.— Promise. — B. became surety for W. and another upon a note for the price of a horse. W. afterwards sold his half interest in the horse to B., who, in consideration thereof, “ agreed with W. to assume and pay off the note.” B. was compelled by suit to pay the note.</p> <p>Held, in an action by B. against B., that he could recover the amount so paid.</p> <p>Held, also,that B.’s promise to W. inured to the benefit of B., who, having discharged the debt, was entitled to be subrogated to the right of action which W. would have had against B. if he had paid it himself.</p> <p>Held, also, that the holder of the note might have sued B. upon his promise, but the fact that he chose to sue the makers of the note, and not to accept B.’s promise, did not deprive B. of the benefit of the promise.</p> <p>Held, also, that after taking judgment against the makers of the note the holder might still have accepted and sued upon B.’s promise, and, by paying the judgment, B. became subrogated to this right of the holder.</p> <p>Held, also, that no demand by B. was necessary before bringing the action.</p> <p>Promise.— Privily of Contract.— Agency.— Trusteeship. — Demand.—Where, upon a consideration received, there is an explicit and unqualified promise to pay a specific sum, to become due at a known or stated time, to or for the benefit of a third person named, no case of agency or trusteeship arises which entitles the promisor to wait for a formal demand before discharging the promise, but it is, as to him, a purely legal obligation, and equity goes no further than to give the right of action to one who, otherwise, for want of privity of contract, could not sue. Miller v. Billingsly, 41 Ind. 489, and Durham v. Bischof, 47 Ind, 211, distinguished.</p>

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

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

<p>Attorney.— Circuit Court. — Duties of Clerk.■ — Money.—Judgment.—Payment. — Prior to the enactment of the act of March 9th, 1875,2 R. S. 1876, p. 17, every attorney was bound to know that the clerks of the several circuit courts throughout this State were not authorized to receive money in payment of judgments, dues and demands of record in their respective offices.</p> <p>Same. — In such case, payment of a judgment must he made to the judgment creditor, or to some one duly authorized to act for him.</p> <p>Same. — Power and Liability. — The general power and liability of an attorney for a defendant cease upon the entry of a judgment finally terminating the litigation, and do not include the payment of the judgment, although he he furnished with money for the purpose.</p> <p>Same. — Agent.—If an attorney for a judgment defendant, prior to March 9th, 1875, received money with which to pay the judgment, and paid it to the clerk of the court, acting in good faith, and his client or principal, with full knowledge, acquiesced in his act, he was not liable as attorney, or agent, for its loss by the insolvency and death of the clerk.</p> <p>Same. — In such case, to fasten upon him the liability of an attorney, for ignorance of the law, a consultation touching the question of law, and a special employment to make the payment in pursuance of his negligent advice, must be shown.</p>

<p>Replevin. — Justice of the Peace. — Jurisdiction.—Statute Construed. — Oases Overruled. — Under the provisions of see. 9 of the act concerning justices of the peace, 2 R. S. 1876, p. 605, an action of replevin before a justice must be brought either in the toivnship in ivhieh the property was taken, or in which it is detained. Beddinger’s Adm’r v. Jocelyn, 18 Ind. 825, and Test v. Small, 21 Ind. 127, overruled.</p>

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

<p>Township Trustee. — -Bond.—School Revenues.. — Mere Use not a Breach. — - Conversion. — The mere use of school revenues of the township by a township trustee in his own business is not such a conversion of the money as constitutes a breach of the conditions of his bond.</p> <p>Same. — Action on Bond. — Damages.—•Judgment.—In an action on the bond of a township trustee for a failure to account for and pay over school revenues received by him, the provision of section 7,1 R. S. 1876, p. 781, that the judgment shall include an assessment of ten per cent, damages: upon the amount thereof, is imperative.</p>

<p>^Replevin. — Pleading.—Complaint and Affidavit. — A complaint, which contains all the statutory requisites of an affidavit to obtain an order for the delivery of personal property, and is verified by the oath of the plaintiff or of some one in his behalf, will be sufficient both as an affidavit and a complaint in replevin.</p> <p>Same. — Evidence.—Demand.—Conversion.—In a suit for the recovery of the possession of personal property, alleged to be unlawfully detained, if a wrongful conversion of the property by the defendant is shown by the evidence, a demand for the property, before suit brought, and proof of such demand, are alike unnecessary.</p> <p>Same. — Pawn or Pledge. — Tender.—Where personal property is pawned or pledged as a security for a debt or loan, and the pledgee, without notice to the pledgor, wrongfully disposes of the property or converts the same to his own use, the pledgor may sue at once for the recovery of the property, or of its value, without any demand therefor, and without having first paid or tendered the amount of such debt or loan.</p> <p>Same. — Affidavit.—Gomly in which Property is Detained.- — In an affidavit in replevin, the statute requires that the affiant should state in what county he believes the property is detained; but it is not necessary to the validity of the verdict, that this statement should be sustained by any evidence.</p>

<p>Pleading. — departure.— Verdict. — Judgment.—-The complaint alleged ownership of a town lot and a building thereon, and that the defendant, without right, was about to remove the building, to the irreparable injury of the plaintiff. Wherefore, etc. Answer, that the defendant had leased the lot from the plaintiff, with the right to erect the building, and remove the same; that, while in possession and after written notice to quit, he was about to remove the building, as alleged in the complaint. Reply: 1. General denial. 2. That under a judgment against the plaintiff and defendantforeclosing a mechanic’s lien upon the building and lot, for an indebtedness incurred by the defendant for materials for building, the same had been sold at sheriff’s sale, and that in order to save his title to the lot the plaintiff had purchased the sheriff’s certificate of sale and still holds it.</p> <p>Held, that the reply was a departure, and a demurrer to it should have been sustained.</p> <p>Held, also, that a verdict, finding that “ the plaintiff has a lien on the building and lot for $116.40,” did not warrant a judgment for either party, and should have been set aside.</p> <p>Pleading. — Estoppel.—The facts admitted by a demurrer to a pleading must be taken as true against, as well as in favor of, the pleader.</p>

<p>Criminal Law. — Vagrancy.—Affidavit.—An affidavit charged that, on, etc., at, etc., “ J. C., an able-bodied male person, who has arrived at years of discretion, was then and there unlawfully found without any visible means of support, and then and there unlawfully found loitering and idling in and about the saloon of F. and the saloon of W., which said saloons were then and there tippling-houses, * * without being there engaged in some useful employment,” is a sufficient charge of vagrancy in a prosecution before a justice .of the peace, under the act of 1877, Acts 1877, Spec. Sess., p. 80.</p> <p>Same. — Duplicity.—Duplicity is no ground for quashing an affidavit.</p>

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

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

<p>Presumptions. — Trial Court. — Supreme Court. — Evidence.—Practice.—In the Supreme Court, all the presumptions go in favor of the proceedings below, and a judgment will not be reversed for the exclusion of evidence unless it be shown that the evidence excluded had some relation to the real and particular question involved at the trial.</p> <p>Criminal Law. — Injuring Toll- Gate. — Turnpike.—Highway.—Presumption.— Instructions. — In the absence of the evidence given upon the trial of a person indicted for unlawfully injuring a toll-gate, 2 B. S. 1876, p. 479, sec. 66, instructions correctly defining the rights of the travelling public over turnpikes constructed upon existing highways will be presumed applicable to the evidence.</p>

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

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

<p>Pbactice. — Supreme Oourt. — Appeal.—Lapse of Time. — Dismissal.—Lapse of time for the taking of an appeal to the Supreme Court may be pleaded in bar of the appeal; or the question may be raised on motion.</p> <p>Same. — Disability of Appellant. — A motion to dismiss an appeal not taken in time will be sustained, unless the appellant shows that he was under " disability.</p> <p>Same. — Agreement for Submission. — An agreement by the appellee for the submission of the cause, entered on the transcript more than a year before the filing thereof, does not affect the appellee’s right to move for a dismissal of the appeal because not taken in time.</p>

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

<p>Vendor and Purchaser. — Contract.—Rescission.—Fraud.—A purchaser of property can not rescind the contract for fraud so long as he retains the property, if of any value.</p> <p>Sake. — Pleading.—Answer.— Value of Property. — Offer to Return. — An answer seeking to avoid the payment of the price of property purchased, on the ground of fraud, which does not aver that the property was of no value, or does not aver a return or an offer to return the property, is insufficient on demurrer.</p> <p>Same. — Consideration.—Copyright.-—-Insurance Plan. — A. court can not say that the transfer of an instrument for the organization of insurance companies is of no value, as the vendor of such property, before publication, if not copyrighted, is entitled to control its disposition.</p> <p>Same. — Instruction.—An instruction, that the transfer of a plan for the organization of insurance companies is of no value because there is no law in this State authorizing the formation of such companies, is erroneous.</p> <p>Instruction. — Evidence.—Issues.—Practice.—Supreme Court. — An instruction, which is not applicable to any evidence admissible under the issues, is erroneous, and will reverse the case, although the evidence is not in the record.</p>

<p>Negligence. — Bailroad—Pleading.—A complaint against a railroad company, to recover for personal injury, showed that the plaintiff, who was casually passing, at the request of an employee of the defendant, got upon a car that was moving slowly upon a switch, and applied the brakes to stop it, and, while so engaged, other servants of the defendant carelessly caused other cars of the defendant to collide violently with that which the plaintiff was upon, by reason of which the injury occurred.</p> <p>Held, that the plaintiff must be regarded as a mere intermeddler, to whom the defendant owed no duty, either as employee, passenger, or traveller on an intersecting highway, and that the complaint was bad on demurrer.</p>

<p>Peomissoey Note. — Pleading.—Title.—A complaint upon promissory notes,, which fails to aver to whom the notes are payable, is bad upon demurrer, as it does not show any title in the plaintiff to the notes.</p> <p>Same. — Possession—Foidence.—Fraudulent Agreement. — A complaint in such action, which averred that possession of the notes sued upon was obtained by the defendant by trick, connivance and fraudulent practices, is not supported by proof that they were voluntarily surrendered in pursuance of a fraudulent agreement.</p>

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

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

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

<p>Constitutional Law. — Cities and Towns. — Section 1640, B. S. 1881, which forbids cities and towns from punishing hy ordinance any act which is a public offence by statute, is constitutional. If not embraced in the subject expressed in the title of the act of which it forms a part, it is at least properly connected with that subject.</p>

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

<p>Judgment. — Decree of Foreclosure. — Collateral Attack. — Action, to Recover Real Estate. — Sheriff’s Sale.' — Presumption.—A decree of foreclosure against a woman and her husband can not be successfully attacked by her as a defendant in a collateral proceeding by the holder of the sheriff’s deed to recover possession of the real estate sold and conveyed to him by virtue of the decree. The correctness of the decree, and of the sheriff’s sale under it, must be presumed against her.</p> <p>Same.— Wife’s One-Third of Proceeds. — In such case, if the wife be entitled to one-third of the proceeds arising from the sale of the mortgaged premises, she must enforce her right by separate action. It would not defeat the purchaser’s right to possession.</p>

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

<p>Pleading. — Bond.—Exhibits.—In a suit upon a bond, where the complaint does not aver that a copy of the bond is filed therewith, but there is annexed to it, under the heading “ Copy of bond,” an instrument in the form of a bond executed by the defendants, and such as is described generally in the complaint, a demurrer should be sustained.</p>

<p>CbiminaIi Law. — Public Offence Act of 1881. — Where the act of April 14th, 1881, Acts 1881, p. 174, defines an offence described in earlier statutes, it abrogates the provisions of such statutes.</p> <p>Same. — Desecration of Sabbath. — Constitutional Latm. — The 95th section of the act of April 14th, 1881, Acts 1881, p. 194, does not grant immunities to one class of citizens which, upon the same terms, shall not belong to all, and is constitutional and valid.</p>

<p>Mobtgage, — No Priority Between, Different Claims. — A single mortgage, given* to secure obligations to different parties maturing at different times, is. equivalent to the simultaneous giving of separate mortgages to secure such obligations, and no priority is allowed. Otherwise, if the obligations were payable to the same party and had passed into the hands of' different owners.</p> <p>Same. — Special Finding. — Motion to Modify Decree. — Practice.—When a motion is made to modify a decree of foreclosure rendered upon facts found specially, the court, for the purposes of the motion, can not looK beyond, the finding and the pleadings.</p> <p>Same. — Evidence.—Evidence admitted, but not relevant to any issue, fur- . nishes no ground either for modifying the judgment or decree, or for a new trial.</p>

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

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

<p>Landdobd and Tenant. — A tenant can not disjrate his landlord’s title. Same. — •Notice to Quit. — Description.—The description of the premises in a notice to quit, as “the dwelling-house situate on the northeast corner of Fifth and Judiciary streets, Aurora, Indiana, now held of me by you as tenant,” is sufficient.</p> <p>Same. — Service of Notice. — Statute Construed. — Service of the notice may be made and proved by a constable, and such notice may be served under section 6, 2 E. S. 1876, p. 341, on the tenant, whether on or off the premises, or, if he can not be found, upon some one of proper age residing on the premises.</p> <p>Pbaotioe. — Answer.—Demurrer.—General Denial. — It is not error to sustain a demurrer to a paragraph of answer, when the facts pleaded therein are admissible in evidence under the general denial filed therewith and remaining on file.</p>

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

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

<p>CniMrsTAn Law. — Counterfeiting.—Jurisdiction.—-The courts of this State have jurisdiction, as prescribed by statute, to punish the offence of counterfeiting the coin of the United States current in this State.</p> <p>Same.— U. S. Statutes Construed. — Crimes.-—Section 711 of the Revised Statutes of the United States, construed with section 5328, does not divest the States of the right and jurisdiction to enact and enforce their own criminal laws, though the acts made criminal thereby might also be made criminal by the laws of the United States.</p>

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

<p>Partnership. — Notice of Dissolution. — Whern a partner withdraws from a firm, direct personal notice of the fact to a customer is not necessary to relieve him from liability upon contracts made in the name of the old firm with such customer, after such withdrawal. Actual knowledge of the fact, however received, is sufficient.</p> <p>Same. — Burden of Proof. — Though, in a suit against partners, the plaintiff, being a customer, must prove the partnership to have existed, yet, having done so, if any defendant seeks to escape upon the ground that he had withdrawn from the firm before the contract was entered into, the burden is then on him to show such withdrawal, and that the fact had come to the plaintiff’s knowledge.</p> <p>Instructions. — Practice.—The error of an incorrect instruction to the jury is not cured by giving another which states the law upon the same subject correctly, unless the erroneous instruction be expressly withdrawn.</p>

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

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

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

<p>Covenant on Warranty. — Seisin.—Breach.—Decedents’ Estates. — Parties. —TLeir.—Where a covenant of warranty was broken in the lifetime of the covenantee, and possession was by him surrendered to the holder of the paramount title, and the covenantee has died, the action should be brought by the administrator and not by the heir.</p> <p>Same. — Paramount Title. — Complaint.—In such action the complaint must show that the title to which possession was surrendered was paramount to that of the grantor of plaintiff’s intestate and of all other persons.</p> <p>Same. — Fee Simple. — In such complaint an averment that the paramount title was in fee simple imports that it was the highest and most ample of all estates.</p> <p>Same. — Eviction.—Partition.—Evidence.-—On trial of such action, a judgment in a partition proceeding, where the question of title was in issue, is competent evidence to prove the eviction of the covenantee, but not to prove the paramount title by which he was evicted.</p> <p>Same. — -Judgment.—A judgment hinds only parties and privies.</p> <p>Same. — Beal Estate. — Possession.—Deed.—Joint Tenant. — A deed of land draws possession to the grantee, and the possession of one joint tenant is the possession of both. The title of neither is superior.</p> <p>Same. — Sheriff’s Sale. — Where a deed was made to C. and H., and the interest of C. was sold and conveyed by the sheriff, the purchaser did not thereby acquire a title superior to that of H., nor could C.’s title by lapse of time have become superior to that of his co-owner.</p> <p>Same. — Common Source of Titles.- — Where both parties claim under the same third person, it is prima facie sufficient to prove the derivation of title from him without proving his title.</p> <p>Same. — Measure of Damages. — Set-Off.—Mesne Profits. — In actions for breach of the covenant of seizin, the measure of damages is the purchase-money with interest, without the right to set off the mesne profits.</p>

<p>Fixtubes. — Evidence.—Stave Machine. — Grist Mill. — Line Shaft. — In an action of replevin for possession of a stave machine, consisting in part of a line shaft connecting it with a grist mill, evidence tending to show that the machine was set up under an adjoining shed, so that by means of belting it could be run by the steam engine in the mill; that the line shaft was hung from joists in the mill, and that the rest of the machine was not attached to the real estate, justified a finding that the line shaft was personal property.</p> <p>Same. — Circuit Court. — Justice of the Peace. — Title to Real Estate. — Jurisdiction. — In such case, objection under section 11, 2 R. S. 1876, p. 607, that the justice of the peace had not jurisdiction of the action, because the title to lands came in question, ceased to be an objection when the cause reached the circuit court, on appeal.</p> <p>Same. — Pleading.—Practice.—In such case, in the circuit court, under section 34, 2 R. S. 1876, p. 612, the defendant, without plea, was entitled to show that the articles sued for as personal property were fixtures.</p> <p>Same. — Instruction.—In such case, the trial court correctly refused to instruct that if the shaft was bolted on and fastened securely to the joists of the mill, it was a part of the real estate on which the mill was situate.</p> <p>Practice. — Motion in Arrest. — A motion in arrest of judgment reaches only such defects as are apparent on the face of the record, not cured by the verdict or a statute of amendments, or waived by failure to demur.</p> <p>Same. — Costs.—Justice of the Peace. — Circuit Court. — "Under section 70, 2 R. S. 1876, p. 627, a judgment in the circuit court for the recovery of property sued for and eight dollars damages will not entitle the defendant to costs, against whom judgment before the justice was simply for the recovery of the property and costs. Reduction of the judgment must he ascertained by a comparison of the judgments, and not the verdicts.</p>

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

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

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

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

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

<p>Constitutional Law. — Gravel Hoad Assessmewis. — The act of March 2d, 1877, authorizing and validating gravel road assessments (Acts 1877, Reg. Sess., p. 72), is constitutional.</p>

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

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

<p>Liquob Law. — License.—Late.—A license to sell intoxicating liquor, under the law of March 17th, 1875, should bear date of the day when issued, takes effect from that date, and does not relate back to the order-of the board of commissioners granting the license, though so dated, so as to legalize sales made between the date of the order and the issuing of the license. Vannoy v. The State, 64 Ind. 447, and The State v. Wilcox, 66 Ind. 557, overruled.</p> <p>Same. — Bond.—The license can not lawfully issue until the licensee has given the bond required by law, and such bond does not cover transactions which occurred before its execution.</p> <p>Same. — Statutes.—Repeal.—The 12th section of the liquor law of 1875 is not. repealed by section 249 of the act of 1881 concerning public offences.</p> <p>Same. — Criminal Law. — Information and Affidavit. — Name of Accused. — Practice. — Amendment.—An affidavit and information, in a prosecution for selling intoxicating liquor without license, must name or in some way-designate the accused, and, if the information omits the name, it should, on motion, he quashed. In the lower court the information might, have been amended to conform to the affidavit, but, over a motion to. quash, it will not be regarded as amended on appeal.</p>

<p>Mortgage.— Foreclosure. — Decedents’ Estates. — Heirs.—Consideration.—Preexisting Debt. — Insolvency.—In an action against the heirs and administrator of a deceased mortgagor, to foreclose mortgages, answers that the mortgages were given to secure pre-existing debts, there being no new consideration therefor, and that the decedent’s estate was insolvent, contain no defence.</p> <p>Same. — Existing Indebtedness. — Privity.—An existing indebtedness is a sufficient consideration to support a mortgage as between mortgagor. and mortgagee. If obligatory upon the mortgagor in his lifetime, the mortgage is valid against those in privity with him by representation.</p> <p>Same. — Insolvency of Estate. — Preferred Debts. — Mortgages of a decedent were not invalidated by the insolvency of his estate; but under sections 108 and 109, 2 B. S. 1876, p. 534, were preferred debts as to the personalty.</p> <p>Same. — Recording.—That a mortgage was not recorded within the time prescribed by statute, is not a defence that can be made by the administrator and heirs of the deceased mortgagor.</p>

<p>Insurance. — Promissory Note. — Fraud.—False Representations. — Pleading.— In an action by an insurance company upon a promissory note, given for premiums on insurance, an answer is good which avers false representations of existing facts affecting the responsibility of the company and its ability to fulfil its contracts, made by its agent as to matters presumed to be within his knowledge, and of which the defendant was ignorant, whereby the defendant was injured.</p> <p>Same. — Foreign, Insurance Company. — Evidence.—A foreign insurance company furnished to the Auditor of State a statement substantially as required by statute. The copy of its charter was furnished as a separate paper, and not embraced as the fourteenth item of the statement, as section 3765, R. S. 1881, specifies. This was accepted by the auditor as sufficient. The auditor’s certificate of authority and copy of statement recited that a copy of the charter was filed, and this was filed by the company’s agent in the clerk’s office, without a copy of the charter.</p> <p>Held, that a premium note taken for insurance made in the county was not, for this cause, void.</p>

<p>Slander. — Actionable Words. — Pleading.—In an action of slander by D. against E., it was averred that A. died testate, bequeathing to B. and C., daughters of D., $500 each, leaving E., his son, surviving him, and that E. spoke of and concerning D., and of and concerning his father’s death, the following false and scandalous words: “ Old lady, you gave my father four double doses of morphine on the day he made his will; you said, old man, you had better be fixing up your business; if it hadn’t been for you giving morphine, your daughters would not have gotten what they did.”</p> <p>Held, that the words, with the proper innuendoes, are not actionable per se.</p> <p>Held, also, that the extrinsic circumstances averred in the complaint do • not render the words actionable.</p> <p>Verdict. — Defects not Cared. — Complaint.-—-D&mmrer.—A verdict will not aid defective averments in a complaint, where its sufficiency is questioned by a demurrer.</p>

<p>Replevin. — Evidence.-—-Possession.—To sustain replevin the evidence must show that the defendant was in actual or constructive possession of the property at the time of the commencement of the action.</p> <p>Same. — Sheriff.—Execution.—Delivery Bond. — Demand.—Demurrer to Evidence. — In replevin against a sheriff evidence that the property belonged to the plaintiff, and was levied upon under an execution against his father; that the sheriff then took from the plaintiff a delivery bond and permitted the property to remain on the farm where he resided; and that afterwards the plaintiff formally demanded and was refused a return of the property to him, is sufficient on demurrer to sustain the action.</p>

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

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

<p>Pleading. — Demurrer.—Record.—When the demurrer to a pleading is not set out in the record, the ruling of the circuit court on such demurrer will not constitute available error for the reversal of the judgment.</p> <p>Pbactice. — Deposition.—Motion to Suppi-ess. — A motion to suppress a deposition, for any objection appearing therein, must be made before entering on the trial, and not afterward. Where the motion to suppress is made after the trial is commenced, for an objection appearing in the deposition, and is sustained by the court, it is an error for which, if properly saved and assigned, the judgment below will be reversed.</p>

<p>Pbactice. — Supreme Court. — Assignment of Errors. — New Trial. — Suppressing Deposition. — Error in suppressing a deposition is a reason for a new trial, but not a proper specification in an assignment of errors.</p> <p>Same. — Specification of Eror. — A specification: “ The court erred in rendering the judgment in said cause,” is too general to present any question for consideration.</p> <p>Same. — Instructions.—A party desiring further instructions upon a question of law must ask for them.</p> <p>Pbomissoby Note. — Delivery.—Gift.—Evidence.—On trial of an action upon a promissory note, evidence that it was executed to the plaintiff as payee, at the request of her father, a creditor of the maker, and held by him, and that the plaintiff took it from the depository of his private papers in his absence, and without his knowledge or consent, and refused i. upon request to return it to him, hut commenced suit against the maker, <• sustains a finding that the note was not so delivered as to vest the property therein in her and constitute of it an executed gift.</p> <p>Same. — Ti-uslee.—Constructive Delivery. — In such case the father could not appoint himself trustee for his daughter and make a valid delivery of his own property to himself as such trustee; nor would his intention or promise to give the note to her constitute him a trustee for her.</p> <p>Same. — Deposition.—In such case the suppression of questions and answers in a deposition of the plaintiff relative to credits on the note, not for payments of the maker, not authorized by her father, and not tending to show a delivery of the note, was not error.</p> <p>Same. — Hearsay.—Directions as to Possession. — In such case, the father not being a party to the action, the daughter’s conversations with him, unless a part of the transaction, were inadmissible; hut he was properly permitted to testify what directions or assent he gave to her, or any other person, to take possession of the note.</p> <p>Witness. — Impeachment.—Questions evidently asked for the purpose of impeachment only, but fixing neither time nor place, are improper.</p> <p>Same. — Evidence.—Deposition of Deceased, Party. — Testimony of Surviving Party. — Where the deposition of a deceased party, represented by her executor, has been read in evidence, the other party may testify on all material points and matters of fact embraced in the deposition.</p> <p>New Teiae. — Affidavit.—Newly-Discovered Evidence. — An affidavit for- a new trial on the ground of newly-discovered evidence, not stating the facts expected to be proved, and that the affiant believed such facts to be true, is insufficient.</p>

<p>New Trial. — Misconduct of Jury. — Irregularity.— Verdict. — Evidence.—Practice. — It is irregularity amounting to misconduct on the part of the jury, and good cause for a new trial, that a letter of the losing party, which was attached to a deposition of the prevailing party, and read in evidence, fell into the hands of the jury, with other papers in the cause, although inadvertently, and was read aloud and commented upon by one of the jurors while they were deliberating, and was returned into court with their verdict and the other papers.</p> <p>Supreme Court. — Evidence.— Verdict. — The Supreme Court will not disturb a verdict because the evidence is conflicting, if there is any tending to sustain it.</p>

<p>Descents. — Second or Other Subsequent Wife. — Life-Estate.—The proviso in section 24 of the statute of descents (section 2487, R. S. 1881) limits the right of a second or other subsequent wife in the lands of the husband, who has no children by her but has children alive by a previous marriage, to an estate in fee for her life only in her sfiare of such lands.</p> <p>Same. — Creditors of Husband. — Such share of such second or other subsequent wife, in the lands of her husband, is held by her during her life, and, upon her death, descends to his children by a previous wife, free from all demands of his creditors.</p> <p>Same. — Power of Administrator. — Petition for Sale of Beal Estate. — Orders of Court. — Jurisdiction.—Estoppel.—In March, 1866, A. died intestate, the owner in fee simple of certain real estate, leaving S. A., his widow by a second marriage, and the plaintiffs, his children by his first wife,' as his heirs at law. At the October term, 1866, of the court of common pleas, the administrator of A.’s estate filed his petition for an order to sell all of said real estate, for the payment of the decedent’s debts, of which petition notice was duly given, in the mode prescribed by law. Upon the hearing, the widow, S. A., made default, and the plaintiffs, then infants, answered, by their guardian ad litem,; and the court then found that S. A. was the owner of a life-estate in one-third of said real estate, and ordered that the whole of said real estate be sold, subject to her said life-estate. On November 24th, 1866, S. A. consented that her interest in the real estate might be sold at the same time the decedent’s interest therein was sold, under the order of the court, agreeing to take for her interest such allowance as the court might make her out of the proceeds of such sale. On February 23d, 1867, the administrator of A. sold the said real estate, in accordance with the order of the court and the consent of S. A., to one M., which sale was confirmed by the court, and a deed was ordered to said purchaser. At the next term of the court, the administrator of A. filed his petition, praying the court to declare the interest of S. A. in the proceeds of the sale of the real estate, together with her written agreement to accept a part of the money in lieu of her life-estate therein ; and the court found the value of her life-estate in one-third of the proceeds to be a certain sum of money, which was fully paid by the administrator of A., under the order of the court, and accepted by S. A. in full satisfaction of her interest in the real estate. The widow, S. A., died in 1875, and from and under the said M., by regular conveyances, the defendants claimed title to all said real estate.</p> <p>Held, that the foregoing facts constituted no defence whatever to the claim of the plaintiffs to the one-third of the real estate which, upon A.’s death, descended to S. A. in fee simple for her life only, and which, upon her death, descended in fee simple to the plaintiffs, free from all demands of the creditors of A.</p> <p>Held, also; that the administrator of A. was not authorized by law to petition for, and the court of common pleas had no jurisdiction to order, the sale of such one-third, for the payment of A.’s debts.</p> <p>Held, also, that the plaintiffs were not estopped, by any of the facts aforesaid, from asserting their claim and title to such one-third part of the real estate, when, upon the death of S. A., the same descended to them in fee simple.</p> <p>Pabtition. — Statute of Limitations. — An answer to a complaint in partition, that the cause of action did not accrue within five years before the com- * mencement of the suit, nor within two years after the plaintiffs became of full age, is bad on demurrer, for want of sufficient facts.</p>

<p>Promissory Note. — Illegal Gcmsideration. — Grain-Broker.—Margins.—In a suit upon a promissory note, it was found specially tbat tbe note was given to a grain-broker in consideration of commissions and advances upon ■wheat purchased by him for the maker, that the maker of the note had entered into a combination with others to purchase through the plaintiff and other brokers, for delivery during a certain month, more wheat than there was in the market, thereby forcing the price to a high rate, with a view to make profit on settling with sellers failing _to deliver. Whether the plaintiff was a party to this combination, or had knowledge of it, was not found. A conclusion of law that the note was valid, and the plaintiff entitled to recover upon it, was held to be correct.</p>

<p>Criminal Law. — Indictment.—New Trial. — Evidence.—Where the evidence fails to show that the defendant is guilty of the offence, charged in the indictment, his conviction will be contrary to law, and a new trial must be granted.</p>

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

<p>Mechanic’s Lien. — Decedents’ Estates. — A mechanic’s lien upon lands of the ancestor may be enforced against the lands in the hands of his heir, but a personal judgment against the heir can not be obtained.</p> <p>Same. — Notice.—A joint notice of mechanic’s lien by two or more persons having separate claims against distinct parcels of property is bad; so also is a single notice by one against separate parcels, seeking to charge both parcels with the aggregate of his claims against each.</p> <p>Practice. — Demurrer.—Motion to Strike Out. — A bad complaint should be met by demurrer, but, if the right result be reached by a motion to strike out, the irregularity is not available error.</p>

<p>Pbactice. — Suits By or Against Executors, Administrators or Guardians. — Parties as Witnesses. — Under the first proviso in section 2 of the act of March 11th, 1867, defining who should he competent witnesses in all suits where a judgment might be rendered either for or against the estate represented by an executor, administrator or guardian, neither party was allowed to testify as a witness, unless required by the opposite party, or by the court trying the cause.</p>

<p>T?b Adíen. — Courts.—Proceedings in Fieri. — Motion for New Trial. — Notice.—The proceedings in a cause remain in fieri until the end of .the term at which the motion for a new trial, though filed after judgment, is ruled upon, and in the mean time the court may alter, amend or set aside its former ruling, orders and judgment, without special notice to the parties.</p> <p>Same. — Mechanic’s Lien.- — Finding.—Judgment.—Collateral Attack. — -In an action upon an account and to foreclose a mechanic’s lien, there was a general finding for the plaintiff on which a personal judgment only was entered against the defendant. After the rendition of the judgment and .at the same term of court, the defendant filed a motion for a new trial, which, at the next term, was overruled, and at a later day in the term, ■on motion of the plaintiff, without notice to the defendant, the court set aside its former judgment and entered a like personal judgment and a decree foreclosing the alleged lien. v</p> <p>Meld, that this action was within the power of the court, and not erroneous. The judgment of the circuit court can not "be questioned collaterally on the ground that it goes beyond and is not according to the finding.</p>

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

<p>Practice. — Suppressed Depositions. — Harmless Frror. — Where depositions have been suppressed and the ruling is complained of as erroneous, the error, if any, will be considered harmless, Avhen the record shows that the suppressed depositions Avere read in evidence, on the trial, by the complaining party. •</p> <p>Same. — Appeal by Plaintiff. — When Judgment Affirmed. — When the plaintiff appeals and the record shoivs he has no cause of action against the defendant, intervening errors, if any, must be regarded as harmless, and the judgment beloAV must be affirmed.</p> <p>^Executory Contract eor Sate of Goods. — Delivery or Offer to Deliver to Vendee. — Failure to Accept. — Measure of Damages. — In all cases of contracts for the sale of personal property which has any market value, the vendor must deliver the property to the vendee, or must do such acts as will vest the title to such property in the vendee, or as Avould have vested the title in him if he had consented to accept such property, before such vendor can maintain an action against the vendee for the recovery of the contract price, or any part thereof; and in such an action, the measure of the vendor’s damages, as a rule, is the difference between the value of the property at the time of the vendee’s refusal to accept it and the contract price.</p>

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

<p>Negligence. — Damages.—A team of horses attached to a heavy wagon, having been left by the defendant in a public street near.a railroad track, hitched by the lines only to the lever of the rubber-block, escaped from his control and ran away, and, in so doing, ran over and against and destroyed the plaintiff’s scales, without the latter’s fault.</p> <p>Held, that the defendant was guilty of such negligence as made him liable, in damages, for the destruction of plaintiff’s scales.</p>

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

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

<p>Judgment. — Clerical Eror or Mistake. — Evidence.—Upon motion or petition, and notice, the court has power to correct clerical errors or mistakes in the entry or record of its judgments, and, to that end, parol evidence is admissible.</p>

<p>•Pbactice. — Default.—Answer.—Trial.— Witness. — Where a defendant’s answer is standing, judgment can not be entered against him by default; but, unless summoned and failing to appear as a witness, he must be called and the cause submitted to the court for trial.</p> <p>Bill oe Exceptions. — Omiman of Signature. — Power of Judge. — Gmreetion of Record. — A paper, purporting to be a bill of exceptions, presented to the judge August 22d, 1879, examined and approved and filed by him, but not signed, on that day, did not become a part of the record by his adding his signature April 26th, 1880, and appending an explanation of his omission thereof, the term having closed and time not having been given in term, and no proceedings being had by notice and motion for the correction or amendment of the record. 5</p>

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

<p>Supreme Court. — •Practice.—Co-parties on Appeal.— Waiver of Objection for Want of Parties. — Where one of several parties, plaintiff or defendant, appeals to the Supreme Court, he is only required, by section 551 of the code of 1852 (section 635, R. S. 1881), to give notice of his appeal to his co-parties, if any, in the judgment appealed from; and if the capse is submitted by agreement in the Supreme Court, without an objection then made of the want of proper parties, such objection is thereby waived.</p> <p>Mistake oe Pact. — Reformation of Peed or Mon'tgage. — Where it appears that, by the mutual mistake of all the parties to a deed or mortgage as to matters of fact, the instrument does not conform to or express their intention and agreement, a court of equity will reform the instrument by correcting such mistake.</p> <p>Mistake oe Law. — But where it is sought to reform an instrument on the ground of mistake, and it does not appear that the instrument does not contain the precise language the parties intended it should contain, the mistake, if any, is a mistake of law as to the legal effect of such language ; and for mistakes of law, except under peculiar circumstances not shown to exist in this case, a court will afford no relief.</p>

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

<p>Practice. — Suits by or against Administrators. — Parties, when Witnesses.— Under the second proviso in section 1 of the act of March 15th, 1879, amendatory of section 2 of the act of March 11th, 1867, defining who should be competent witnesses (Acts 18V9, p. 245), in an action against the. representative of a deceased maker and a surviving maker of a promissory note, where each sets up a separate defence, it is discretionary with the trial court to permit the surviving maker to testify.</p>

<p>Injunction. — Referee.—Appeal.—Injunction is not the proper remedy to prevent a referee appointed to take evidence from proceeding to the discharge of his duties as such. An appeal is necessary.</p> <p>Same. — Legal Remedy. — Equitable Relief. — Where a party’s legal remedy is perfect and complete, equitable relief will not be granted. The principle remains as it was when actions at law and suits in equity were distinct.</p>

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

<p>From the La Grange Circuit Court.</p>

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

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

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

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

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

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

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