Volume 79 — Indiana Reports

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

<p>CeimiuaIí Law. — Dogs Not Subject of Larceny. — Common Law. — There is-neither at common law nor by the law of this State such a property in dogs as makes them the subject of larceny.</p>

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

<p>Decedents’ Estates. — Final Settlement. — Res Adjudícala. — After an estate has been adjudged finally settled, and the administrator therefore discharged, letters of administration de bonis non can not issue upon the same estate, while such final settlement remains unrevoked and in force, the matter being res adjudícala.</p> <p>Same. — Appeal Bond. — Supreme Court. — Section 2454, R. S. 1881, requiring an appeal bond, does not apply where an executor of another estate, as such, is the appellant, section 646 making a bond by him unnecessary.</p>

<p>Redemption. — Execution.—Liens.—Statute Construed. — The law concerning’ the priority of liens, as it existed before the act of 1879, providing for the redemption of real estate from sheriff’s sales (Acts 1879, p. 176), was. not changed by that act.</p> <p>Same. — Sheriff’s Sales. — Application of Proceeds. — The requirement of section 5 of the act of 1879, that upon a sheriff’s sale, on behalf of a redemptioner,. the proceeds shall be first applied to pay “ the amount due for redemption,” must be construed in connection with, and be controlled by, section 3 of said act, which positively preserves the priority of liens, so that though a second redemptioner must pay not only the redemirtion money paid by the first, with interest and costs, but also the debt, interest and. costs, by virtue of which the latter was enabled to redeem, yet no priority for the latter sum would accrue over any older lien held by a creditor who had not redeemed, and the second redemptioner could not demand that the proceeds of his sale should be applied thereto in preference to such older lien.</p> <p>Same. — Mandate.—Mortgage and Judgment Inens. — A mortgage, being the oldest lien, was foreclosed, and the real estate sold, leaving a portion of the judgment unsatisfied. A., the holder of a judgment lien next in priority, redeemed, and from him B., a holder of a junior judgment lien who paid the redemption money, interest and costs paid by A., and also, the amount o"f A.’s judgment. B. then sued out an execution on his judgment, with the proper recital of the several redemptions. The sheriff, holding also an execution for the balance of the mortgage debt, sold in regular form upon B.’s execution, and the holder of the mortgage-debt became the purchaser; he tendered to the sheriff, in cash, the amount of the original redemption money with interest and costs, which had been paid by B. on account of the first sale, and, for the residue of his bid, tendered his receipt to apply on his execution in the sheriff’s hands, it being the oldest lien. The sheriff refused the receipt, as also to execute a deed or certificate of purchase to him.</p> <p>Held, that a mandate should go against the sheriff, to compel him.</p> <p>Shekiff. — Execution.—Application of Proceeds of Sale of Beal Estate. — When a sheriff holds several executions against the same party, issued upon judgments which are liens on real estate, the proceeds of sale of such real estate on any of such writs should be applied to the satisfaction of all, in the order of the priority of the liens.</p>

<p>Judgment. — Set-Off.—Decedents' Estates. — T. obtained a judgment of allowance against the estate of S. for the amount of a note. The executors of S. held a note of later date against T., who was insolvent, executed to them in their representative capacity, upon which they obtained judgment. T., having in the mean time assigned his judgment, as collateral security, to C., who had notice of all the facts, died.</p> <p>Held, that the executors of S. might, on motion, obtain a set-off of the judgment held by them against the judgment of allowance made to T.</p>

<p>Pleading. — Amendment.—A pleading may be amended by filing an amendment thereto, without re-writing the whole pleading; and in such case the original pleading and the amendment will constitute the amended pleading.</p> <p>Supreme Court. — Demurrer.—A demurrer to a complaint, treated in the court below, without objection, as in a cause, though not entitled as of any cause or court, will he so regarded by the Supreme Court.</p> <p>Bill oe Exceptions. — Evidence.—A bill of exceptions, which declares that it contains all the evidence, but does not contain written evidence which it shows was admitted, is not sufficient to present any question to the Supreme Court as to the sufficiency of the evidence.</p> <p>Building Association. — Mortgage.—Pleading.—Evidence.— Witness. — OrossExamination. — A complaint alleged an agreement by the defendant, in consideration of the assignment to him by the plaintiff of a certain mortgage, that he would pay to the plaintiff certain sums of money, and the further sum of $10 on Friday of each week, as dues on the principal of said mortgage, and $20 on the first Friday of each month as interest on said mortgage, in accordance with sections 3, 4 and 7 of the constitution and by-laws of the plaintiff (a building and loan association), until all the shares of stock should be paid and the plaintiff dissolved; and further, that he would pay the plaintiff all further sums ■or dues which might be assessed by its board of directors against him; that the sum of $200 was legally assessed, and that the mortgage was duly assigned, and that the shares were not fully redeemed. There was a proper breach assigned, and bill of particulars.</p> <p>Held, that the complaint was good on demurrer.</p> <p>Held, also, that the constitution and by-laws of the plaintiff, also an order of its board of directors authorizing the assignment of the mortgage by its president and secretary, were admissible in evidence.</p> <p>Held, also, that a witness, the secretary of the plaintiff, might state the amount due from the defendant without accompanying the statement with the data from which it was made and a statement of the plaintiff’s .assets and liabilities; and if the defendant desired the data, or the sources of knowledge of the witness, he could obtain them on cross-examination.</p>

<p>Mortgage. — Foreclosure.—Instalment Notes. — Assumption of Indebtedness. — A mortgage which secures several notes maturing at different times, and which has been foreclosed as to the last note falling due, may again be foreclosed for the remaining notes as against a person who has purchased the equity of redemption after the foreclosure, with full knowledge that the prior notes were unpaid, and who assumed to pay them as a part of the purchase-money.</p> <p>■Same. — Estoppel.—Merger.—Such person is equitably estopped to insist that the mortgage is merged in the foreclosure proceedings.</p>

<p>Sheriff’s Sale. — Deed.—Misdescription.—Color of Title. — Subrogation.—Conveyance. — Where land sold at sheriff’s sale, upon execution, is misdescribed in the levy, return and notice, or, on foreclosure of a mortgage, where the decree is void for want of notice, and the land is misdescribed in the decree and sheriff’s deed, the purchaser receiving a sheriff’s deed nevertheless takes color of title, which he can convey, and the right of subrogation to the rights of the judgment or mortgage creditors passes to his grantees.</p> <p>Assignment ofEbrob. — Supreme Gmrt. — Practice.—That the court erred in> rendering the judgment set out in the record, as an assignment of error, is. too vague to raise any question in the Supreme Court.</p>

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

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

<p>IPeomissoby Note. — Commercial Paper. — Endorser and, Endorsee. — Considerar tion. — Fraud.—One who carelessly executes commercial paper, which he can not read, being deceived by the payee as to its character, and therefore supposing it to be an instrument wholly different, when, by reasonable care, he might have ascertained the true contents of the paper, can not make defence as to the consideration, against an innocent holder for -value, who received the paper by endorsement, before maturity.</p>

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

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

<p>Former Recovery. — Evidence.—The best test of identity where a former adjudication of the same matter is pleaded is, would the same evidence sustain both the present and the former suit ?</p> <p>Judgment. — Justice of the Peace. — Jurisdiction.—A judgment of a justice of the peace on default for $200, where it appears that the note on which it was rendered would, with the interest, exceed $200, but where it does not appear that the plaintiff claimed more than $200, nor that there were not credits on the note, can not be held void, for want of jurisdiction.</p>

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

<p>Instructions. — Oral and in Writing. — Practice.—An oral instruction can not be lawfully given when the court has been properly required by a. party to give all the instructions in writing.</p> <p>Same. — Malicious Prosecution. — Reading Statute an Oral Instruction.— Uponi trial of an action for the malicious prosecution of a criminal action, orally citing and then reading to the jury the statute, 2 B. S. 1876, p. 465, section 18, defining malicious prosecution, was an oral instruction, and the court’s failure, when it had been required, to reduce it to> writing as a part of its written instructions thereupon given, was error..</p>

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

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

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

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

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

<p>Principal and Surety. — Mortgage.—Subrogation.—A mortgage by the principal debtor to the surety, with condition that the mortgagor shall pay the debt, and that the surety shall be indemnified, is in equity available to the creditor, and he may resort to the mortgaged property for the satisfaction of his debt.</p> <p>Same. — Merger.—Satisfaction.—The subsequent purchase, by the surety, of the property mortgaged, does not merge the mortgage as against the creditor, nor can the surety enter satisfaction of it.</p> <p>Same. — Notice—If such mortgage be duly recorded, the record charges all subsequent purchasers and mortgagees of the property with notice of the rights of the creditor.</p> <p>Same . — Principal and Agent — Trust and Trustee— Where an agent, making a loan of money for his principal, takes a mortgage to secure the loan in his own name, instead of the name of the principal, he is in equity regarded as holding the mortgage in trust for the principal.</p> <p>Notice.- — Equity.—One who, with notice of an equity, purchases the estate of one who has no notice, ordinarily takes the estate discharged from the equity; but if, having notice, he first sells the estate and then buys it back, the case is an exception to the rule.</p> <p>Supreme Court. — Assignment of Error. — Practice.—Where a complaint is good against one of several defendants thereto, a joint assignment of error by all, which questions its sufficiency, is not available as to any of them.</p> <p>Same. — An assignment of error that the court erred in rendering the judgment, is too general to raise any question in the Supreme Court.</p>

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

<p>'Chattel Mortgage. — When Void Upon its Face. — Fraudulent Intent Question of Fact. — Á mortgage of chattels made with intent to hinder, delay or defraud creditors, is void as to such creditors; but, as the question of fraudulent intent is made hy statute in this State (section 4924, B. S. 1881) in all cases a question of fact, the cases will be rare indeed in which it ■can be said, as matter of law, that a chattel mortgage is void upon its face.</p> <p>Same. — Action to Set Aside Mai'lgage. — Sufficiency of Gomplaint. — In an action by the creditors of the' mortgagor of chattels to set aside the mortgage as fraudulent against them, if the complaint contains no allegations of facts impeaching the good faith of the parties to the mortgage, or the validity of the debts thereby secured, or the good faith and integrity of the parties in their dealings with the mortgaged property, such complaint is bad on a demurrer thereto, for the want of sufficient facts.</p>

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

<p>Contkact. — Grading Street. — Trustees of Town. — Complaint.—A complaint by a contractor against a property owner, to recover an assessment made against him by the trustees of a town for grading the street whereon his property abuts, must be founded upon a written contract and set forth the original or a copy thereof.</p> <p>Same. — Bond.—Copy.—In such case a copy of the contractor’s bond is not a sufficient substitute.</p> <p>Same. — Presumption.—Parol.—A contract not appearing to be in writing must be presumed to be by parol.</p> <p>Same. — Estoppel.—Silence.—Mere silence of a property owner having knowledge that work was being done, and failing to object and prevent it by injunction,’will not estop him to contest an assessment against him, made without any contract.</p> <p>Same.— Work Accepted. — Trustees.—In such case the contractor can not be heard to allege that the property owner received and accepted the grade. 'The trustees of the town alone could do that.</p>

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

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

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

<p>Judgment. — Action on. — Jurisdiction.—An action may be maintained on a judgment in the court which rendered it.</p> <p>Same. — Replevin Bail. — Defendant by Confession. — Joint Liability. — Complaint.— In such action against the judgment defendant and his replevin bail, the complaint, on demurrer of the bail for want of facts, need not show a joint liability. It is enough that it shows a cause of action against him by his becoming a judgment defendant by confession.</p> <p>Same. — Complaint.—“ Duly Rendered.” — A complaint alleging that on the 16th day of March, 1877, in the Porter Circuit Court, the plaintiff’s intestate, naming her, recovered a judgment, etc., sufficiently shows that the judgment was “ duly rendered,” and when and where.</p> <p>Same. — Parties.—Administrator.—Profert of Letters. — An administrater, suing on a judgment recovered by his intestate, need not allege her death or his appointment, nor make profert of his letters.</p> <p>Same. — Plea in Abatement. — Decedents’ Estates. — An administrator’s right to ■ sue can not he questioned otherwise than by plea verified by affidavit.</p> <p>Same. — Answer.—An answer to a complaint on a judgment, averring that the defendant has ample property to satisfy the judgment, but has never been called on for property or money, and that an execution issued on the judgment was returned unsatisfied by order of the plaintiff, but containing no averment that any lien was lost thereby, or that the defendant was prejudiced in any way, is insufficient on demurrer.</p>

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

<p>Shekife’s Sale.- — Return.—Execution—Evidence.—In an action by a judgment debtor against a judgment creditor, to enforce a sale of real estate, parol evidence, in contradiction of tlie return of the sheriff on the execution, is inadmissible to show that a sale was made.</p>

<p>City. — City Judge. — Office Bent.— Void Contract.— 'It is unlawful for any officer of a city to be a party to, or in any manner interested in, any contract or agreement with the city,’ whereby any liability or indebtedness may be incurred by the city. And the common council of a city can not make a valid contract with the city judge for the use of his office as a city court room.</p>

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

<p>Pbactice. — Court Buie. — Cbsfe.—A rule of court providing that “ motions to require security for costs must be made at the first calling of the docket, unless the affidavit upon which the motion is based shows that the plaintiff’s non-residence was not known to the defendant or his attorney, and that it is made as soon as the fact comes to his knowledge,” is valid.</p> <p>Mobtgage. — Foreclosure.—Mortgagor.—Estoppel.—A mortgagor, with covenants for title, is estopped from pleading, to a complaint to foreclose, that he had, when the mortgage was executed, no title to the mortgaged premises, or to a part thereof.</p> <p>Same. — Practice.—Parties.—In a suit to foreclose a mortgage, the refusal of leave to persons claiming title paramount to that of the mortgagor, to become defendants, is not available error.</p> <p>Same. — Estoppel.—Foreign Corporations. — One who deals with a foreign corporation, by borrowing its money and giving security therefor by mortgage, is estopped from answering in a suit to foreclose, that the plaintiff had “no authority to loan money in Indiana,” without showing that by such loan the corporation violated its charter or some law prohibiting the loan.</p> <p>Interest.— Usury. — A contract for a rate of interest, lawful where the contract is made and where the parties contemplate its enforcement, is valid though the rate of interest exceed that which is allowed at the place fixed for payment.</p> <p>Damages. — Remittitur.—Supreme Court. — Where, by reason of a mere error in computation, the damages assessed are excessive, the Supreme Court will affirm the judgment at the costs of the appellee on condition that he remit the excess within a definite period, otherwise the judgment will be reversed.</p>

<p>Pleading. — Practice.—Competency of Evidence. — Where the plaintiff sues upon an open account, wherein it is charged that the defendants are indebted to him for certain personal property sold and delivered at a certain price, evidence tending to prove that the property was worth the price charged is competent.</p>

<p>"Practice. — Motion to Dismiss. — Dili of Exceptions.- — In order to present any question upon the overruling of a motion to dismiss an action, there must "be in the record a bill of exceptions.</p> <p>Same. — Demurrer.—No question is presented in respect to a ruling upon a demurrer, unless the demurrer is in the record.</p> <p>■Same. — -Motion in Arrest. — Gomplaint.—Town Ordinance. — A judgment in favor of the plaintiff upon an amended complaint consisting entirely •of a copy of a section of a town ordinance, unaided by any averment, .should on motion have been arrested.</p>

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

<p>Partition. — Complaint.—Title.—Guardian’s Sale. — A complaint for partition which is otherwise good is not bad because it avers that the defendants claim title to the plaintiff’s share through a guardian’s sale which was not ordered nor approved by the court.</p> <p>Statute oe Limitations. — Guardian’s Sale. — Real'JEstate, Action to Recover. —All actions brought to recover real estate sold by a guardian upon a judgment specially directing its sale must be brought within five years after the sale is confirmed, unless the party is under disability, and if so. the action may be brought within two years after the disability is removed.</p> <p>Same. — Infant.—Legal JDisabüiiies. — One disability can not be connected with another so as to avoid the statute of limitations. If the plaintiff is an infant when the cause of action accrues, the disability of coverture will not extend the time within which an action must be brought.</p> <p>Same. — Title of Purchaser al Guardian’s Sale. — The title of a purchaser at a guardian’s sale, who has been in possession for the requisite length of time, is protected by the statute, though the sale through which he claims is void.</p>

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

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

<p>Cbimikal Law. — Indictment.—Endorsement.—An indictment must be endorsed “A true bill ” and the endorsement signed by the foreman of the grand jury, and unless so endorsed a motion to quash the indictment will be sustained; and, where the indictment copied into the record shows, the lack of such endorsement, it will be regarded, as- a defect apparent on the face of the indictment.</p> <p>Same. — Practice.—Pill of Exceptions.- — Whatever is properly a part of the-record need not be made so by a bill of exceptions; and, as the endorsement forms a material part of the indictment,, a bill of exceptions is not necessary to present that question.</p> <p>Same. — Counts m Indictment. — Evidence.—Record.— Verdict. — It is not necessary that all the counts of an indictment should, be- sustained; if the' evidence fully sustains one good count, a general verdict will be sustained ; contra, if the record affirmatively- shows that the verdict is on a bad count.</p> <p>Same. — Larceny.—An offence may be charged in different ways in the indictment, to prevent defeat by variance' or failure of proof. And an indictment for larceny, consisting of several counts, is not bad, because in each count a different person is named as the owner of the property.</p>

<p>Fraudulent Conveyance. — Joinder of Parties. — Judgment Creditors — Practice. — Several judgment creditors may join in an action to set aside conveyances made by their debtor to hinder, delay and defraud them.</p> <p>Same. — Pecedents’ Estates. — Administrator of Surety. — Bond.—Principal and Surely. — The administrator of a deceased surety on an official bond may join in an action to set aside a fraudulent conveyance of his intestate’s principal without having paid any money for him.</p> <p>Same. — In such case he has an equitable right to have the property of the principal exhausted before resort is had to the estate of the surety represented by him.</p> <p>Same. — Practice.—Causes of Action. — Complaint.—Separate Paragraphs. — The fact, that a complaint seeks to set aside two or more conveyances as fraudulent, does not require that each conveyance shall be made the cause of action of a separate paragraph. They constitute but one cause of action, the fraudulent disposition of his property by the judgment debtor.</p> <p>■Same.— Venire de Novo. — Verdict.—In such case, where the general verdict is for the plaintiffs and specifies the amount due each, finds that their judgments were liens on the debtor’s real estate, and that his conveyances thereof were fraudulent, no ambiguity, uncertainty or repugnancy, requiring a venire de novo, appears.</p> <p>Special Verdict. — General Verdict. — Practice.—A specific verdict returned without the request of either party for a special verdict, or for answers to interrogatories, can be regarded as a general verdict only.</p> <p>Supreme Court. — Practice.—Demurrer.—Misjoinder of Causes of Action.— Complaint. — Refusal to Strike Out — The Supreme Court will not reverse a judgment for error in sustaining or overruling a demurrer for misjoinder of causes of action, or refusing to strike out parts of the complaint.</p>

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

<p>Evidence. — Promissory Note.- — Principal and Surety. — Alteration of Endorser merit. — Extension of Time.- — -Release.—On trial of an action upon a promissory note, the plaintiff read in evidence the note' and an endorsement: “Beceived October 15th, 1878, forty dollars on the within. F. L. G.” The defendant, to sustain an answer of suretyship and release by an extension of time given to the principal, was entitled to give in evidence that part of a conversation between the plaintiff and a competent witness, in which the plaintiff read to him and he himself read the same endorsement, with the added words, “ interest to February 23d, 1879."</p> <p>Same.' — -Possession of Written Instrument.— Endorsements.— Presumption.— One who owns and has possession of a written instrument is presumed to know its contents and to have made its endorsements, and to know their force and effect.</p>

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

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

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

<p>From tke Wabask Circuit Court.</p>

<p>Pabtition. — Estoppel.—•Vendor and Purchaser. — Adverse Possession. — An answer in partition, that the defendant had purchased the lands in good faith and for a valuable consideration, and that before such purchase, and before any conveyance to the plaintiff, the grantor of the plaintiff informed him that he had no interest in the land, by reason whereof, and relying thereon, the defendant purchased and was in possession adverse to all others, and claiming as owner when the plaintiff took conveyance, is insufficient on demurrer.</p> <p>Same. — Champerty.—Tenants in Common.— Conveyance. — The possession of a tenant in common of lands, who has ousted his co-tenant, and holds adversely to him, does not impair a conveyance by the latter of his share, the doctrine of champerty having no application to such cases.</p> <p>Wile. — Construction.-—Title to Beal Estate. — A testator devised his farm and certain property to his wife for life, and “ at her death the farm to belong to my son, Thomas X,” together with certain personal property. After certain other specific devises and bequests, the will proceeded: “ and the balance of my-is to be sold and turned into money, and debts owing to me collected and then put to interest to educate my daughters and son Thomas J. equally, and the principal is to be divided in the following manner: My son Thomas J. is to have two shares, and each of the girls one share; if any of the last named seven daughters or my son Thomas J. should die before they come of age, then their part is to be divided among the other seven.”</p> <p>Held, that Thomas J. took the farm absolutely in fee simple, though he died before reaching his majority.</p>

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

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

<p>Foreign Coreorations. — Answer in Abatement. — Plea in Bar. — In an action by a foreign corporation on a contract made with it, an answer under oatb, that “ the plaintiff had not complied with the provisions of an act of the General Assembly” respecting foreign corporations, lacks the precision and certainty of a plea in abatement, and, stating, not facts, but a conclusion only, is insufficient to bar the action.</p>

<p>Replevin Bail. — Discharge of. — Motion.—Practice.—A discharge from a recognizance of replevin bail may be obtained upon proper cause shown, by motion in the court which rendered the judgment.</p> <p>Same. — Married Woman. — A married woman is incapable of binding herself by a recognizance of replevin bail, and, having signed such contract, may ' be discharged therefrom on motion in the court where the judgment was rendered.</p>

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

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

<p>Married Woman. — Covenants in Deed. — Husband and Wife. — Promissory Note. — Consideration.—Conveyance.—Adverse Possession.- — When a married woman takes a promissory note for a conveyance of her lands, with covenants of general warranty, in which her husband joins, and a portion of the lands described is at the time owned by a stranger in possession, so that the purchaser obtains neither possession nor title thereto,, there is a partial failure of the consideration of the note to the extent of the value of that part of the land, notwithstanding the statute, 1 B. S. 1876, p. 363, section 6, which enacts that the wife shall not he hound by such covenants. ■</p> <p>Pleading. — Answer.—Practice.—An answer which, commences as being general hut answers only a part, and in the conclusion purports to he pleaded only as an answer to such part, is not to he regarded as pleaded to the whole complaint, and is good on demurrer.</p>

<p>Supreme Court. — Brief.—Bime of Filing. — Dismissal.—On failure by an appellant to file a brief within the time prescribed by Bule 14, the clerk is. required to enter an order dismissing the appeal. Such rule applies as. well to causes submitted by agreement as to those submitted on call, and. as well to those appealed in the term of the trial court as to those appealed in vacation; and the fact, that the appellant has filed a brief' since the expiration of the sixty days, is no reason why the appeal should not be dismissed.</p>

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

<p>Erom tlie Dearborn Circuit Court.</p>

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

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

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

<p>Costs. — Judgment.—Injunction.—Where a judgment is rendered for the-costs of “suit laid out and expended, taxed at $-,” the omission to-fill the blank is immaterial and affords no cause for enjoining the collection of the judgment.</p> <p>Same. — Taxation of. — Practice.—The taxation of costs is a ministerial and not a judicial act, and, under section 38 of the fee and salary act, of 1875, clerks of the courts were authorized to tax fees as their services-were rendered, and this authority extended to services rendered by any other person in the several courts.</p>

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

<p>Mortgage. — Rents and Profits. — Married Woman. — Satisfaction of Decree.— It is competent for a married woman, her husband joining with her, to mortgage as well the rents and profits of her real estate, as the real estate itself, for the purpose of securing not only an outstanding debt, but the costs of foreclosure and of the insurance of the mortgaged premises. And where such mortgage is foreclosed, and the premises sold for the payment only of the mortgage debt and interest, the mortgagee and purchaser will be entitled, as against the mortgagor, to the rents and profits ■of the mortgaged premises, during the. year allowed for redemption, for the payment of such costs and insurance, and, until the same are paid, the mortgage and decree will not ho functus officio, or satisfied.</p>

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

<p>Fraudulent Conveyance. — Husband and Wife. — Notice.—Execution.—Judgment. — Assignment.—Mortgage.— Vendor and Purchaser. — In an action to subject lands to the payment of a judgment’against L., the facts found specially were, that on January 3d, 1874, L. and wife reconveyed the lands to H., the vendor of L., who held a mortgage for $6,000 purchase-money, and H., at the request of L. and wife, then gave the wife a title bond, conditioned for a deed when she paid II. $7,000, which was the original purchase price. H. credited her with $1,000 which L. had paid on the original purchase. H. .paid nothing for the conveyance to him. The intention of L. (of which H. had notice) was to defraud the plaintiffs and other creditors,-but as to the wife’s intention or notice of her husband’s intention the finding was silent. The judgment was rendered a few days after the giving of the title bond to the wife, and an execution thereon was levied on the lands, October 22d, 1874. L. had no other property subject to execution. L. furnished his wife $300 which she paid on the purchase by her from H., but all other payments by her thereon were of her own money — about $500. After the levy of execution the wife assigned title bond for $7,500 to C. who assumed her indebtedness to H. and paid or secured to her the balance. C. had no knowledge or notice of any claim of the plaintiffs against L. and wife. The conclusion of law was against the plaintiffs.</p> <p>Held, that a failure to find that the wife had notice of the fraudulent intent of her husband must, on exception to the conclusion of law, be deemed equivalent to a finding of that matter against the plaintiffs, and that L.’s wife was a born, fide purchaser.</p> <p>Held, also, that her assignee, even with notice, would take free from any claim of the plaintiffs.</p> <p>Held, also, that the levy of the execution before the purchase by C. was not actual or constructive notice to L.’s wife or to him.</p>

<p>Pleading. — Complaint of Several Paragraphs. — Joint or Sevei-al Demurrer.— Practice. — Where “ The defendant demurs to the first, second and third, paragraphs of the complaint, each separately, for the reason that neither paragraph, separately considered, states facts sufficient to constitute a. cause of action,” the demurrer is not joint, but is separate and several,, and will test the sufficiency of the facts in each paragraph of complaint..</p> <p>Same. — Numbering Causes of Demurrer.— Waiver. — Supreme Court. — Where only one ground of objection to a pleading is assigned in the demurrer thereto, it need not be numbered; but if two or more grounds of objection are specified in the demurrer, the statute provides that, unless the grounds be numbered, the demurrer “ shall be overruled.” This statutory provision is for the benefit of, and may be waived by, the adverse party; and unless the record shows an objection in the circuit court to the demurrer, upon the ground that the several causes therefor were not. numbered, the objection will be considered as waived, by the Supreme; Court.</p> <p>Same. — Complaint to Quiet Title and Set Aside Deed. — Copy of Deed. — In a complaint to quiet the title to real estate and to set aside a deed, the action is not founded upon the deed, and a copy of the deed is not a necessary part of the complaint.</p> <p>Same. — Prayer for Relief. — Demurrer.—A demurrer to a complaint for the' want of sufficient facts will not reach a defect, if any exist, in the prayer for relief.</p> <p>Hearsay Evidence. — Vendor’s Declaration after Conveyance. — Competency.— The declarations of a vendor of real estate, made after his conveyance,, are not admissible in evidence to affect the title of any one claiming under him.</p>

<p>Replevin. — Chattel Mortgage. — Parties.—Assignment for Benefit of Creditors.— In replevin by a mortgagee of chattels against a trustee under an assignment by the mortgagor for the benefit of creditors, a creditor as such is not a proper defendant, and it is error to admit him as a defendant.</p>

<p>Eandlobd and Tenant. — Notice to Quit. — Lease.—Rent.—A parol lease to run until the landlord shall sell the premises at a certain price, the rent to he paid every two months, is good, and on the happening of the contingency the lease terminates, no notice to quit being necessary.</p> <p>Evidence. — Admissions.—-A witness, on cross examination, denied having made a certain statement inconsistent with her testimony in chief, whereupon a witness of the adverse party was permitted to testify that she so stated.</p> <p>Meld, that it was not error to refuse to permit the adverse party to have his witness repeat this statement, as an admission.</p>

<p>.Decedents’ Estates. — Administrator.—Sale of Lands. — In a petition to sell lands, an averment that the petitioner is administrator of the deceased is a sufficient statement of his representative capacity. Profert of his letters or an averment of his appointment and qualification is needless.</p> <p>■Same.— Will.- — Where the deceased devised his real estate, charging it with the payment of his debts, his personal representative may, if the personal estate be insufficient, obtain an order to sell the lands, the devise being no obstacle whatever.</p> <p>.Same. — Petition.—The petition in such a case is not bad as against the devisee for a failure to aver that the will has been admitted to probate, inasmuch as, without the will, he would have no interest in the land.</p> <p>¡Same. — Evidence.—Commissioner’s Deed. — Possession of the testator, with a deed to him purporting to be from a commissioner appointed by a competent court, without the record on which the deed is based, is, as against the devisee, sufficient evidence of the testator’s title.</p> <p>■Same. — Judgment.—A judgment in a suit between the devisee and a stranger, whereby the title was adjudged to be in the former, is not, on the hearing of such a petition, binding upon the administrator, as evidence.</p> <p>Same.— Will. — Conveyance.—A will is not revoked by an invalid conveyance subsequently made by the testator.</p>

<p>Corporations. — Shares of Stock.- — -Personal Property. — Shares of stock in incorporated companies, whether the property of such companies be tangible or intangible, are personal property.</p> <p>Same. — Foreign Corporation. — Taxation of Stock. — City.-—Railroad.—A city has the right to tax its citizens for stock owned by them in a foreign railroad company, although a tax has been paid thereon in the State where the corporation is located.</p>

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

<p>Instruction. — Issue.—Evidence.—An instruction, which is applicable to the issues and the case made by the evidence, is unobjectionable.</p> <p>Same. — Payment.—Harmless E-ror. — The omission of the court, in reciting the.issues to the jury, to call their attention to a plea of payment, does not injure the defendant when there is no dispute about the amount paid.</p> <p>Same. — Counter-Claim.-—Ma/rried Woman. — An instruction not to allow the defendant, upon his counter-claim, anything overpaid by him, if the jury shall find that the plaintiff was, at the timé, a married woman, if erroneous, was harmless, where the jury did not find that anything was overpaid.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a judgment upon the weight of the evidence.</p>

<p>Rastaedy. — Lost Papers. — Complaint.— Warrant. — Justice of the Peace. — limitations. — In a prosecution for bastardy before a justice, lost papers may be supplied as in civil cases in other courts, R. S. 1881, sections 379, 1456; and, if the papers lost be the complaint and the warrant before service thereof, the prosecution will be deemed as begun with the ■originals.</p> <p>Same.— Witness. — The defendant in a prosecution for bastardy may be compelled to testify for the prosecution.</p>

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

<p>Masteb Commissioneb. — Constitutional Law. — Habeas Corpus. — So far as the statute, section 1404, R. S. 1881, confers judicial power on the master commissioner, e. g., to grant writs of habeas corpus, it is in conflict with the Constitution and therefore void.</p> <p>Same. — Practice.—On appeal from the order of a master commissioner in a proceeding before him in habeas corpus, remanding a prisoner to the custody of the sheriff, the Supreme Court will affirm the judgment.</p>

<p>Contkact.- — Rescission.—Fraud.'—Restoration.—A party who desires to rescind' a contract on the ground of fraud must restore, or offer to restore, what he has received on the contract, so as to place the other party, as near as may he, in statu quo.</p> <p>Same. — Heirs.—Fraudulent Conveyance of Ancestor. — Consideration.—Offer to Restore Notes. — Complaint.—A complaint of heirs to set aside a conveyanee fraudulently made by their ancestor, which shows that the consideration was evidenced by the notes of the grantee, must show an offer by some one to restore the notes.</p> <p>Same. — In such case, the heirs stand in no better position than their ancestor would occupy if alive and prosecuting- the action.</p> <p>Query. — Attempted Fraud. — Misrepresentation of Matter of Law. — If a wife, advised by her husband that a conveyance of her real estate is necessary to prevent its sale for his debts, join with him in such conveyance, does such false representation of a matter of law furnish a ground for setting it aside, or extenuate her attempted fraud? "</p>

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

<p>Pleading.— Parties. — Contrast.— Assignment. — A complaint on a written contract assigned in writing, but not by indorsement, is, under the statute (R. S. 1881, section 276), bad on demurrer, unless the assignor be made a defendant thereto.</p>

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

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

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

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

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

<p>Pabent and Child. — Minor’s Earnings. — A father may emancipate his-minor child from service to him, and thereafter the child has a right to his own earnings, and may recover wages from the father as from a stranger, as if he had arrived at full age.</p>

<p>Contract. — Statute of Frauds. — Parol Agreement. — Where a debtor conveyed land to his creditor upon the parol agreement that the latter should sell the same, and, after satisfying the debt out of the proceeds, pay the residue to the debtor, and a sale was accordingly made, the agreement to pay can be enforced, and is not within the statute of frauds.</p> <p>Pleading. — Complaint“ Due and Unpaid." — That a sum of money is “ due and unpaid,” is sufficiently shown by a complaint, if it appear thereby that the event upon which it was to be paid has occurred, and that the •defendant is indebted to the plaintiff in that sum.</p>

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

<p>Pleading. — Complaint Cured by Vbrdicl. — A cause of action, though defectively stated, if not tested by demurrer, will be upheld after verdict.</p> <p>Mistake. — Description of Land in Deed. — Pleading.— Vendor and Purchaser.— In an action between vendee and vendor to correct a mistake in the description of land, it is enough to show that the parties agreed about and intended the deed to describe a specific piece of property, and that, by their mutual mistake and the mistake of the scrivener, it was not properly described. It is not necessary that the parties shall have agreed upon the particular words to be used, and that by .mistake other words were used instead.</p> <p>Same. — Deed.—Correction.—Judgment LAen. — Execution.—Negligence.—Good-Faith Purchaser. — As between the immediate parties to a deed, a description will be corrected, though the mistake arose from negligence, and one who obtains a judgment lien and an execution against the property is not a purchaser for value, whose rights will be preferred to a vendee who before the date of the judgment had paid the price and received a deed intended, but which by mistake failed, to convey the property. The rule that equity will not aid the negligent does not apply in its fullest sense to the correction of mistakes merely in description of the property contracted about.</p> <p>‘Same. — Statute of Frauds. — Personal Privilege. — The correction of mistakes of description in a deed of land is not forbidden by the statute of frauds; and, if it were, the right to plead the statute is personal, and does not belong to a stranger.</p> <p>.Practice. — Instructions.—Entry by Clerk. — Instructions can not be made a part of the record by recitals of the clerk entered upon the transcript.</p>

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

<p>Practice. — Judgment.-—Default.—-Appeal.—Review of Judgment, — An appeal may be taken, or a bill to review will- lie, from a judgment taken by default without first making a motion to set aside the default.</p> <p>Same. — Motion to Set Aside Default. — No question that depends upon a motion to set aside a default or to modify the judgment will arise upon an appeal, or upon a bill to review, unless such motion was made. The bill itself will not subserve such purpose.</p> <p>Mortgage. — Complaint.—Foreclosure.—Judgment.—A complaint to foreclose a mortgage and to recover a personal judgment is sufficient, if the facts averred authorize the foreclosure, though they do not authorize a personal judgment.</p> <p>Same. — Assignment of Error. — Practice.—Personal Judgment. — Review of Judgment. — When a personal judgment is rendered upon such complaint, art assignment of error, that the complaint does not state facts, etc., either upon appeal or upon a bill to review, presents no question as to the-judgment. If the complaint is sufficient for any purpose, it is sufficient to withstand such assignment, and the remedy for such error is by motion to modify or correct the judgment. Berkshire v. Young, 45 Ind. 461;. Davidson v. King, 49 Ind. 338; Emmett v. Yandes, 60 Ind. 548, modified.</p> <p>Pleading. — The character of a pleading must be determined by its averments and not by the name given it.</p> <p>Same. — Parties.— Vendee of Mortgagor. — In an action to foreclose a mortgage, the vendee of the mortgagor is a proper and necessary party, if he-accepts the conveyance, though he does not take possession,of the property.</p>

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

<p>Beceiveb. — Appointment.—Partnership.—Pleading.— Vendor’s Idem. — Parties:. —In an action by a receiver of partnership property to foreclose a vendor’s lien on real estate which he had sold, an answer to the effect that, one of the co-partners was not a party to the proceeding in which the appointment of the receiver was made, but not showing that such co-partner was at the time alive and within the jurisdiction of the court, which appointed the receiver, nor that he had .a substantial interest in the partnership, is not good.</p> <p>Same. — Plea of No Consideration. — If in such case the answer showed that the appointment of the receiver and the sale of the realty were void, it would be a want of consideration, provable under a plea of no consideration, also pleaded.</p> <p>Same. — Estoppel.—Collaieral Attach — -The vendee of a receiver who has given his note to the receiver for the purchase-money and has accepted, and holds possession under, the receiver’s deed, can not, in the absence of fraud or mistake, deny the validity of the receiver’s appointment.</p> <p>Vendor and Vendee. — Fraud.—Known Facts. — Rescission.—A vendee who accepts a deed, knowing that an inchoate interest of a wife in the property has not been extinguished, and takes an agreement from the vendor to adjust and extinguish that interest, or credit a sum upoh the last instalment of the purchase price, can not claim that he was deceived as to his vendor’s capacity to convey that interest, nor on account of it resist payment of the earlier instalments of the purchase-money. A vendee, who has taken and holds undisturbed possession under his deed, can not resist the payment of purchase-money on account of defects in the title, or outstanding interests, unless he has been compelled to buy in such interests or has suffered substantial injury on account thereof.</p> <p>Same. — Rescission.—Rents and Profits. — The vendee, who has been in possession of improved property, can not rescind without offering to reconvey and to account for rents and profits, or the value of the use.</p> <p>Vendor’s Lien. — Foreclosure.—Practice.—•Harmless Error. — A decree of foreclosure of a vendor’s lien should require that the vendee’s personal property be first exhausted, but, if this is omitted without objection or exception, the error will not be available on appeal.</p>

<p>Malicious Pbosecutiox. — Want of Probable Cause. — Attorney.—Demurrer' to Evidence. — On trial of an action for malicious prosecution, in pro'curing the indictment of the plaintiff for perjury in making an affidavit for the removal of a cause from a justice of the peace to the circuit court, evidence that the defendants were before the grand jury, not of their own motion, but in obedience to legal process, that the deputy prosecutor was attorney for one of the defendants in the civil case, and was familiar with it, and advised them that, if the facts were true as they stated them to him, there was good cause for a prosecution, was insufficient to show a want of probable cause, and a demurrer thereto was rightly sustained.</p> <p>Same. — Burden of Proof. — Malice.—In such case, the burden of proof lay upon the plaintiff to show a want of probable cause as well as malice, .and a prosecution begun and ended.</p>

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

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

<p>Deed. — Condition Subsequent. — Forfeiture.—Demand.—To work a forfeiture of an estate by reason of a condition subsequent, it must appear that there was a demand of performance of the condition and a failure to perform.</p> <p>¡Same. — Non Compos Mentis. — Instruction.—An instruction to the jury, “ that if, at the time of executing- the deed in question, the grantor had mind to know and comprehend that he was making a deed and thereby conveying the land described in it to his son, and had an object in so doing whicn he comprehended, then he was of sound mind,” is not a correct definition of mental soundness.</p> <p>¡Same. — Action to Set Aside. — Disaffirmance.—Heirs.—Complaint.—A. deed executed by a grantor of unsound mind, he not having been so adjudged at the time of making the deed, is not void but voidable only, and he ¡has the right to avoid or ratify it on becoming sane, and his heirs have 'the same right; and an action by heirs to set aside such deed can not be . -maintained unless some act disaffirming the deed has been done before ■ commencing the suit; and, if the complaint fail to show this, it is bad on demurrer.</p> <p>Assignment of Error. — •Practice.—Supreme Court.--The assignment of error of the insufficiency of one or more paragraphs of a complaint, less than the whole, presents no question in the Supreme Court.</p>

<p>Supreme Court. — Verdict.—Eoidenee.—The Supreme Court will not disturb a verdict or decision upon a question of fact, when the evidence is conflicting.</p> <p>Witness. — Impeachment and Corroboration by Sis Own Statements. — A witness, whose testimony has been assailed by evidence of his inconsistent statements, may be supported by proof of his declarations made in harmony with his testimony; but he can not be thus corroborated simply because-his testimony has been contradicted by other direct evidence.</p>

<p>Judgment. — Real Estate, Action to Recover. — New Trial of Right. — Payment of Costs. — Condition Precedent — Under the provisions of section 601 of the civil code of 1852 (2 B. S. 1876, p. 252), the payment of all costs and of the damages, if the court so direct, by the party against whom judgment is rendered, in an action involving the title to real estate, is made a condition precedent to his application for a new trial, as a matter of right; and the court has no discretionary power to dispense with his compliance with this condition, without the consent of the judgment plaintiff.</p> <p>Same.— Voluntary Payment of Costs. — Injunction.—Where, in such a case, the party against whom judgment is rendered, with a full knowledge of the facts, but, through a mistake of law, voluntarily pays costs which he was not required to pay, he can not recover of the judgment plaintiff the costs so paid, by execution, fee-bill or otherwise; and where an execution or fee-bill has been issued for the collection of the costs so paid from the judgment plaintiff, he may enjoin the enforcement of such writ.</p>

<p>Practice. — Complaint.—Good and Bad Paragmphs. — Motion in Arrest.— Verdict. — -If one of two or more paragraphs of complaint is good, and there-is a general verdict for the plaintiff, a motion in arrest can not be sustained, nor error assigned, for want of facts stated in the complaint or in any paragraph, especially where the answers to interrogatories show that the verdict rests in part at least on the good paragraph.</p> <p>Contract. — Growing Timber. — Statute of Frauds. — Damages.—Contracts for the sale of growing timber are within the statute of frauds, and to be binding must be in writing. But where A., for a consideration received, agrees without writing to pay B. $100 in growing timber to be cut from A.’s land, but refuses to permit the timber to be cut, B. has his action,, and the sum named is the measure of his recovery.</p>

<p>'Taxes. — Injunction.—Contract.—A proper construction of the stipulation, “ taxes of 1875 to he paid by owners respectively,” contained in a proposition made by L. to M., on the 25th day of March, 1875, to exchange a' city block for bank stock, which proposition was accepted, imposed the duty upon M. to pay the taxes for 1875 upon the bank stock and precluded him from enjoining their collection.</p>

<p>IEasement. — Private Way. — Parol Grant. — A parol grant of a private way, upon a valuable consideration, where the grant is followed by the grantee’s -occupation and use of the way for sixteen years, can not be revoked by the grantor or by one claiming under him, upon the ground that the grant rested in parol, or that the way had not been marked out or designated in writing.</p> <p>ÍPjracoiice.— Uncertainty in Pleading. — Uncertainty in the allegations of a pleading can not be reached by a demurrer for the want of facts, but only by motion to make more specific.</p> <p>iSame. — Prayer far Belief. — Demurrer.—A complaint will not be held bad on demurrer for the want of facts, if the facts stated show that the plaintiff is entitled to some relief, though it may be different from the relief demanded. A prayer for relief is not the subject of demurrer.</p>

<p>Supreme Court. — Practice.—Co-Defendant.—One defendant can not complain, in the Supreme Court, that the name of a co-defendant was stricken from the record by the court below, unless it appears that he was prejudiced thereby.</p> <p>Same. — Cross Complaint. — That a cross complaint was stricken from the record by the court below can not be questioned in the Supreme Court,, unless the record shows the ground upon which the court below acted.</p>

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

<p>■City.— Highway Outside Boundaries.— Drainage.— Damages.— Consequential Injuries. — A municipal corporation has authority to use a public way lying outside,of its boundaries, for the purpose of drainage, without paying or tendering damages to adjacent property owners, and for conse•quential injuries resulting from the proper and reasonable exercise of such authority there can be no recovery.</p> <p>'Same. — Street Improvements, Authority to Make. — A municipal corporation is not bound to let all public work to contractors; but sewers, bridges and the like may be built by the officers of the city, if the governing corporate officers deem it expedient. City of Delphi v. Evans, 36 Ind. 90, explained.</p> <p>'Same. — Care, Diligence and Skill. — Where municipal improvements are made with ordinary care, diligence and skill, the corporation is not responsible for injuries resulting to adjacent property.</p> <p>■Same. — Duty of Officers. — Presumption.—Until the contrary appears, the officers of a public corporation are presumed to have done their duty.</p> <p>“Pleading. — Material Facts. — -Material facts essential to the existence of a cause of action should be positively alleged, and not left to be gathered by mere conjecture, nor should they be stated by way of recital.</p> <p>Same. — Obstruction of Highway. — That the obstruction of a highway, complained of by an abutter, is permanent, is a fact material to his cause of action.</p> <p>.Same. — Defect in Plan. — A municipal corporation is liable for injury resulting from a negligent error in the plan of a drain or sewer.</p>

<p>Justice or the Peace. — Title to Real Estate, When in Issue. — Ju/risdiction.— The jurisdiction- of a justice in an action for the recovery of possession of real estate is not ousted by an answer concerning the title, unless it is made evident that the title itself must be tried.</p> <p>Same. — Real Estate, Action to Recover. — Lease.—In an action before a justice of the peace for the possession of land, an answer, thait, upon foreclosure of a mortgage made by the plaintiff, the sheriff had sold and conveyed to a purchaser, who had made a lease to the defendant, under which he had taken and was holding peaceable possession, does not necessarily bring the title in issue. The facts stated may be confessed and avoided.</p>

<p>Bill op Exceptions. — Filing.—When a bill of exceptions is signed in vacation, it will not be deemed a part of the record, unless it appear otherwise than by the bill itself, that time was given to prepare it.</p> <p>Former Adjudication.— Verdict. — Evidence.—Special Findings. — Complaint in two paragraphs to recover for personal injury, loss of service andi expenses of care of plaintiff’s wife in consequence of an accident caused by a defective alley of the defendant. Answer, 1. General denial. 2. To one paragraph of the complaint a former judgment, in a suit for the-same cause, recovered by the plaintiff and wife against the defendant, which has been paid. Reply, 1. General denial. 2. That, on the trial of the former cause, the court excluded all evidence of the expenses of nursing and reasonable expenses of curing the wife, upon the objection that those matters were not sufficiently pleaded. General verdict for' plaintiff, and a finding upon an interrogatory, that the former judgment was for injury to the plaintiff’s horse, wagon and produce alone, but the? result of the same accident.</p> <p>Held, that the special finding was not within the issues, and did not entitle the defendant to judgment.</p>

<p>Redemption. — Complaint.—Payment of Purchase-Money. — A complaint for the redemption of land sold upon foreclosure of a mortgage, which does not allege that the purchase-money and ten per centum interest have been paid to the clerk, is insufficient.</p> <p>Same.— Undivided Interest. — The owner of an undivided interest may not-redeem it only, but must redeem the entire parcel.</p> <p>Same. — Statute', Compliance With. — One who seeks the benefit of the statute-. giving a right of redemption must fully comply with its requirements..</p> <p>Same. — Statutory Bight. — The general equitable right of redemption is forever barred by the decree and sale; the statutory right springs into existence with the sale, continues for one year and then expires.</p> <p>Judgments. — Husband and Wife. — The liens of judgments obtained on the-lands of the husband prior to marriage are paramount to the rights of. his wife in the lands.</p>

<p>Fobecdosube. — Senior and Jwnior Mortgages. — The rights of a junior mortgagee are in no wise affected by the foreclosure of a senior mortgage, unless he is made a party to the foreclosure proceeding.</p> <p>Same. — Purchaser With Notice of Junior Mortgage Holds as Mortgagor. — Permanent Improvements Subject to Lien. — The purchaser under the foreclosure-of a senior mortgage, having constructive notice of a junior mortgage-duly recorded, holds the land as if he had himself mortgaged it, and all buildings and permanent improvements made by him thereon become-subject to the lien of the junior mortgage.</p> <p>Same.— Value of Land. — In an action by a junior mortgagee against a, mortgagor and the purchaser under a foreclosure of the senior mortgage, the value of the land at the time he bought it is not in question.</p> <p>Same. — Complaint.—In an action to foreclose a mortgage as to part only of the property mortgaged, the complaint alleging that the other lands-embraced therein had been sold on judgments rendered prior to the date-of the mortgage, no error is committed in refusing to require the plaintiff to foreclose as to the tracts so sold.</p> <p>Same. — Improvements and Taxes. — Cross Complaint. — Counter-Claim.—In suchi action, the purchaser, not being liable for rents and profits, can not by cross complaint require that he be allowed for his improvements and taxes paid, but may by counter-claim ask that upon default of a redemption, by either, and on sale, upon foreclosure, the proceeds of the sale be applied first to reimburse him and then in payment of the junior mortgage,, and that the surplus, if any, be paid to him.</p> <p>Same. — Bedemption.—In such case, a finding that the junior mortgagee ought to redeem by paying the purchaser within a fixed time an ascertained amount is contrary to law. A junior mortgagee is under no-obligation to redeem the first mortgage. He may foreclose without redeeming..</p> <p>Same.- — Improvements.—Covenant.—In a suit for foreclosure, the mortgagor-is not entitled, as against the mortgagee, to be allowed for improvements made by him on the mortgaged property, unless there be a covenant in the mortgage for such allowance in case of foreclosure.</p> <p>Same. — Statute of Limitations. — An action to foreclose a mortgage may be commenced within twenty years after the cause of action accrued.</p> <p>Pbactice. — Inspection of Papers.- — Notice.—Due notice of a motion for an order granting an inspection of papers is necessary.</p> <p>Pabol Evidence. — Indemnity Mortgage. — -Payments.—-In an action to foreclose an indemnity mortgage, parol evidence is admissible to prove payments made upon notes set forth and described in the mortgage, without producing or accounting for the notes.</p>

<p>Pbomissoby Note. — Maker.—Signature.—Principal and Agent. — Corporation.— The directors of the Howard County Agricultural Association gave a note in which were the words “ on,” etc., “ The Howard County Agricultural Association, who execute this note by her directors, do promise to pay,” etc. Signed by T. M. K., A. L. S. “ Secretary,” and others, followed by the words “ Directors Howard County Agricultural Association.”’</p> <p>-H'eld, in an action thereon, that the note was that of the association and. not of the individuals whose names are signed thereto.</p>

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

<p>Oeiminau Law.— Estrays. — Conversion.—Indictment.-—-Motion in Arrest. — ■ Statute Construed. — An indictment charging that the defendant did, “ on or about the tenth day of June, 1880,” take up five estray sheep and “ convert the same to his own use before the title to the said sheep had been vested in him according to law,” is insufficient under section 50, % E. S. 1876, p. 475, as qualified by section 19 of “An act regarding es-trays,” etc., 1 E. S. 1876, p. 464, upon motion in arrest of judgment.</p> <p>Same. — Indictment.—Averments.—Time.—In such indictment, an averment that the animals were taken up on a day between the first day of November and the first day of April, or that they were found in the inclosure of the taker-up, is material to show that they were the subject of illegal conversion.</p> <p>Same. — Statute Construed. — In such case, time is essential and must be correctly laid and proved. The statute, 2 E. S. 1876, p. 475, section 50, does not cover cases of an illegal taking up.</p> <p>Same. — “ Convert." — Pleading.—In such case, the word “ convert” alleges a. fact, the particulars of which need not be stated.</p> <p>Same. — Certainty.—It is the duty of the State to so frame an indictment as to apprise the defendant, with a reasonable degree of certainty, of the character of the charge preferred against him.</p> <p>Same. — Transcript of Record. — “A T-ue Rill." — It is immaterial whether the words “A true bill,” endorsed upon the indictment, appear in the record as written across it, or be copied into the transcript immediately after the indictment.</p>

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

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

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

<p>Evidence. — Tax List. — Beplevin.—In a suit for the recovery of personal property, the tax list, sworn to by a party, showing no claim to the property, is admissible in evidence against him.</p> <p>Same.— Witness.- — -Discretion of Court. — Practice.—It is no abuse of discretion for the judge, after a witness has been examined by the parties, to interrogate him concerning the state of his feelings towards the party against whom he has testified.</p> <p>New Trial.— Newly Discovered Evidence.— Newly discovered evidence which is merely cumulative, i. e., of the same kind and to the same point, is no cause for a new trial.</p> <p>Same. — Dill of Exceptions. — Affidavits.—Affidavits in support of 4 motion for a new trial can come into the record only by bill of exceptions or order of court.</p>

<p>Dworce. — Alimony.—The marriage was the seventh of the husband and the fourth of the wife. They lived together fourteen months. He had property worth $2,500 and she a house and other property. She went away to visit a sick son, by a former marriage, and he to Missouri, and they remained apart; but before the separation she, without reason or excuse, refused to permit conjugal privileges. He had expended $26 in repairing her house, allowed her to retain $130 in household goods, and while they lived together he furnished her a comfortable support. A divorce. was decreed to her for abandonment, with $100 alimony.</p> <p>Held, that the alimony was sufficient.</p>

<p>¡Practice. — Pleading.—Counter-Claim.—Where the facts set up in a cross complaint are in no way connected with, or dependent upon, the matters alleged in the complaint, no available error is committed in dismissing such cross complaint.</p>

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

<p>Deed. — Taxes.—Covenant.—-Accord and Satisfaction. — A stipulation in a deed of real estate by the grantor to pay certain taxes thereon is a personal contract with the grantee, and not a covenant running with the land; and an accord and satisfaction thereof to the grantee while he holds title discharges the contract, so that his vendee can not recover for its breach.</p>

<p>Married Woman. — Mortgage.—JBanb-upt.—Judicial Sale. — Where a wife joins her husband in .executing a mortgage of his lands to secure his indebtedness, and then he is adjudged a bankrupt, whereby her inchoate third of his lands becomes absolute under the statute, it is her right,, upon foreclosure of the mortgage, to have a decree that the other two-thirds be first sold, if it appear that such two-thirds is of value sufficient to discharge the debt. (The case also construes an order entered by the-bankruptcy court, for which see opinion.)</p>

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

<p>■ Special Vebdict. — Special Finding. — New Trial. — -Where a special verdict does not find upon material facts established by the evidence, the remedy is by a motion for a new trial; and where a special finding or a special verdict is silent upon a point, it is equivalent to a finding upon that point against the party who has the burden of the issue; and if the point is sustained by the evidence, the finding is wrong and the party injured is entitled to a new trial.</p> <p>Same.— Venire de Novo. — -The office of a special verdict or a special finding is to find the facts which have been proved, but the failure to find these facts is not a defect on the face of the finding or verdict to be reached by a motion for a venire de novo. But where such verdict or finding is on its face defective or imperfect, a motion for a venire de novo is proper.</p>

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

<p>Pbactice. — Summons.—Serme.—Continuance.—Divorce.—A failure to serve the summons under section 13 of the act concerning divorces, ten days before the first day of the term of court, is no cause for setting aside the service or quashing the writ, but merely a cause for a continuance of the case.</p> <p>Same. — Continuance.—New Di'ial. — The refusal of the court to grant a continuance must be assigned as a cause for a new trial, to present any question thereon in the Supreme Court.</p>

<p>Fkatotti/ent Conveyance. — Suit by Grantor’s Administrator to Avoid Deed-—Sufficiency of Complaint. — Under the provisions of sections 84, 85 and 86 of the act of June 17th, 1852, providing for the settlement of decedents’ estates (sections 2333, 2334 and 2335, E. S. 1881), where the administrator of a deceased grantor sues to avoid the conveyance of his decedent and to subject to sale, for the payment of debts, the real estate conveyed, upon the ground that the deceased, in his lifetime, had transferred the same with intent to defraud his creditors, the record must show that the action was instituted within five years after the death of the decedent, and the complaint must state substantially the- same facts, as the decedent’s creditors would have been required to allege, if they had sued to set aside the alleged fraudulent conveyance.</p> <p>Same. — In such action, the administrator’s complaint must show affirmatively, in order to constitute a cause of action, that the deceased grantor, in the alleged fraudulent conveyance, had no other property for the payment of his existing debts, not only at the time of such conveyance but also at the time of his death and the commencement of the action.</p> <p>Pleading. — Practice.—Defective Complaint. — Failure to Demur.— Waiver. — - Effect of - Verdict. — Where necessary facts are defectively alleged, and no-objection has been taken thereto by motion or demurrer, it may sometimes be said that the defects have been obviated by evidence and cured by the verdict; but where the complaint entirely omits allegations of material facts, necessary to the maintenance of the action, such allegations can not be supplied by evidence, nor can their omission be cured by the verdict, nor is the objection waived by a failure to demur.</p>

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

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

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

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

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

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