Volume 80 — Indiana Reports

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

<p>Railboad. — Tax.—Foreign Corporation. — Notice.—Injunction.—County Commissioners. — That the property and franchises of a railroad company are owned by a foreign corporation, that there was a prior existing levy on the township to aid the same road, or that proper notices of election concerning the levy of the tax were not given, are matters which must have been decided by the board of commissioners before granting the prayer of the petition, and that decision could only be reviewed upon a direct appeal, and can not be questioned by a suit to enjoin the collection of the tax.</p> <p>Same. — Town.—•Township.—For the purpose of a tax in aid of a railroad, an incorporated town within a township is part of the township.</p> <p>Same.— Work Done by Company. — Collateral Attack. — That the railroad company had not done work in the township equal to the amount of the tax, was a matter necessary to be decided by the board of commissioners before ordering the collection of the tax, and, that order having been granted, the question is settled as against a collateral attack.</p>

<p>Beau Estate, Action to Recover. —Blaster and Servant. — Bishop and, Priest. — Tenant.—Under the rules and customs of the Roman Catholic Church, a priest in charge of a congregation, holding his place at the will of the bishop of the diocese, and occupying the church properly, including dwelling-house, only as an incident of his employment as priest, is not a tenant. His possession is more like that of a servant.</p> <p>Same. — Landlord and Tenant. — When the occupation of a house by a servant is connected with the service, or is required by'the employer for the necessary or better performance of the service, the occupation is as servant, not as tenant, and the possession is that of the master.</p> <p>Same. — Sight to Possession — In such case, upon a termination of the service, the right to occupy ceases.</p>

<p>Awabd. — Arbitration.—Agreement.—Condition Precedent. — An agreement to submit to arbitration recited that there were controversies between the parties about the occupancy of certain real estate, and their rights thereto; that it was agreed that the appellant should surrender possession, which should not be a waiver of any of his rights.</p> <p>Held, that the surrender of possession was not a condition precedent to the submission.</p> <p>Same. — Exceptions to Award. — To an award adjudging that the defendant pay the plaintiff a sum of money and pay his own costs in certain suits pending between the parties, and dismiss them, the defendant in answer to a rule of court to show cause why judgment should not he entered on the award, filed exceptions to the award, alleging: 1. That proof of the submission and of making the award, and of service of copies thereof had not been proved according to the terms of the submission. 2. That the arbitrators exceeded their authority in requiring the defendant to dismiss and pay costs of a criminal prosecution, not under his control. 3. That since the award, the plaintiff' had committed waste on the real estate (specifying it) to the defendant’s damage, $200.</p> <p>Held, that the exceptions were insufficient.</p> <p>Same. — Trial.—Practice.—Objections to the validity of an award, filed in answer to a rule to show cause, are in the nature of exceptions, and are to be tried by the court summarily without a jury.</p> <p>Same. — When an award is good in part and in part bad, and such parts are independent and severable, the award will bo upheld so far as it is good. Same. — Matters occurring after an award, can not affect its validity. Same. — Mew Trial. — Practice.—A motion for a new trial is not proper upon exceptions to an award, and no question for the Supreme Court can arise thereon.</p>

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

<p>Interest. — Recoupment.—•Promissory Note.— Statute Construed.— In a suit upon a note stipulating for the payment of interest at the rate of ten per cent., executed before the law authorized such rate interest in excess of six per cent., and not exceeding ten per cent., voluntarily paid after the law authorized such higher rate of interest, can not be recouped under the provisions of the act of March 10th, 1879.</p> <p>Same. — Contract.—Such interest, when paid, could not be recouped or recovered back, and the act of March 10th, 1879, does not affect existing contracts.</p>

<p>Sheriff. — Fees.—Hoarding Prisoners. — Allowance.—Tíme.—Statute Consumed. —Under the fee and salary act of March 12th, 1875,1 B. S. 1876, p. 467, a sheriff is not entitled to charge for boarding a prisoner in his custody, for a full day -when he, in fact, furnished the prisoner board for part of a day only.</p>

<p>Judgment. — Execution.—Levy.—Appraisement.—Injunction.—Sheriff.—A complaint to'enjoin the collection of a judgment and obtain an entry of satisfaction averred the levy, in 1875, of an execution issued on the judgment, upon goods of value exceeding the judgment; that the sheriff ever after kept possession of the goods until the last were sold in 1878; that the goods were lawfully appraised at a sum greater than the judgment; that divers other fieri facias writs were issued from time to time and levied on such of the goods as remained unsold; that other unauthorized appraisements were made, and the whole of the goods finally sold without regard to appraisement in 1878, so that there was left a considerable balance of the judgment apparently unpaid. The answer did not controvert the irregular issue of writs of fieri facias, when writs of vendí, should have issued, nor that unauthorized appraisements were made; but it averred that none of the goods were sold for less than two-thirds of the appraised value, and that, in fact, they were all sold for more than their actual value.</p> <p>Meld, that the answer was good.</p>

<p>Supreme Court. — Submission.—After submission of a cause it is too late to object that the co-parties of the appellant in the court below have not joined in the assignment of error or been notified under the statute.</p> <p>Ejectment. — Damages.—Seal Estate, Action to Secover. — In an action for the recovery of real estate, without actual proof of the possession of the defendant, or the receipt of rents by him, the plaintiff can only recover nominal damages; but, where the necessary proof is given, the recovery should be for damages until the rendition of judgment.</p> <p>Same. — Sents.—Evidence.-—-Excessive Damages. — In such case, where the only evidence upon the subject is that the defendant received $100 as rent of the premises, and had no further connection with the possession, an assessment of damages in the sum of $500 is excessive.</p>

<p>Landlord and Tenant. — Lease.—Statute of Frauds. — A parol lease for an indefinite time, with possession under it, is a tenancy from year to year, and the contract is not within the statute of frauds.</p> <p>Verdict.- — Lntenogatories to Jury. — Practice.—The court may properly require the jury to answer special. questions of fact which are pertinent and may control the form of such questions.</p> <p>Supreme Court. — Practice.-—BUI of Exceptions. — No question can be made in the Supreme Court as to the ruling of the lower court on motions to amend pleadings or for continuance made on affidavits, where the affidavits are not in the record by bill of exceptions.</p> <p>Same. — Exceptions.—The admission of evidence can not be questioned in the Supreme Court unless exception was taken to the ruling.</p> <p>Instructions to Jury. — Instructions applicable to the evidence and as favorable to the party complaining of them as the law will admit, are not available error.</p>

<p>Public Ditch. — Assessments.—Judgment.—Injunction.—County Commissioners. —Jurisdiction.—A complaint to enjoin the collection of assessments for a public ditch constitutes an indirect attack upon the proceedings and judgment of the board of commissioners. In this case the alleged defects (for which see opinion) do not affect the jurisdiction, and furnish no ground for an injunction.</p> <p>Judgment. — Collateral Attach. — The proceedings, orders and judgments of inferior courts can not be assailed collaterally on account of mere errors or irregularities.</p> <p>Jurisdiction. — Presumptions.—If it appear affirmatively that, in reference to the proceeding, which is brought into question, the tribunal had jurisdiction by law of the subject-matter,, and had lawfully acquired jurisdiction of the parties, the same presumptions will be indulged in favor of the proceedings had as if the court were one of general powers. And the verity of these presumptions can not be questioned collaterally.</p>

<p>Constable.— Execution. — Levy.— A constable'who levies upon personal property by virtue of an execution issued by a justice, must dispose of such property according to law. If he wastes it or negligently and wrongfully permits it to be withdrawn from the levy and it is lost to the execution plaintiff, he and his sureties are liable to the extent of the value of the property seized under the writ.</p> <p>Same. — Official Bond, Breach of. — Complaint.—In an action upon the official bond of a constable, it is sufficient if the facts stated show, prima facie, a liability; and where the complaint shows a levy upon sufficient personal property to satisfy the judgment, and a breach of duty in failing to advertise and sell, it is not necessary to also aver that the debtor did not have other property out of which the judgment could have been made.</p> <p>Same. — Return on Execution. — Evidence.—A constable’s return upon an execution is not conclusive in an action against him for a breach of official duty, and evidence in contradiction thereof is admissible.</p> <p>Same. — Amendment of Return. — An officer may amend his return under the sanction of the court, and the fact that it was so amended does not detract from its force as evidence; and it is immaterial upon what part of the writ the return of a constable is written; it may be upon a separate paper, properly identified and attached to the writ.</p> <p>Same. — JRecord of Band. — Evidence.—The record of the official bond oí a constable is admissible in evidence.</p>

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

<p>Practice. — Failure of Evidence. — Supreme Court. — As a rule, the Supreme Court will not disturb the verdict of a jury or the finding of a trial court, upon the mere weight of the evidence; but where there is no evidence in the record tending to sustain the verdict or finding, upon the real question in issue, the judgment below must be reversed and the cause remanded for a new trial.</p>

<p>'Orimiital Law. — Murder.—Indictment.—Under the code an indictment for murder describes sufficiently the manner of the killing, which shows that it was done by “ striking, cutting, bruising, and mortally wounding with a stone.”</p> <p>Same.- — Absent Witness. — ISoidence.—Postponement.—Admission.—Impeachment. —Practice.—In order to avoid a postponement at the request of the defendant, to procure the testimony of an absent witness, the prosecutor must admit the truth of the facts stated in the affidavit, and, in such case, evidence in rebuttal to impeach the absent witness is incompetent and inadmissible.</p>

<p>Criminal Law. — Blackmailing.—The statute against blackmailing (K. S. 1881, section 1926,) does not embrace the case of a threat to accuse of crime, made by letter, for the purpose of inducing the payment of money justly due; and, where the letter claims that it is a just debt which is demanded, the indictment will be bad unless it traverse that fact.</p>

<p>Promissory Note. — Alteration.—Accommodation Endorser. — A material alteration of a negotiable note, endorsed by an accommodation endorser, made after sncli endorsement and without his consent, discharges him, though the holder took it ignorant of the alteration.</p> <p>Same. — Payable at a Bank. — •Notice.—When a note, payable at a particular bank, is endorsed by an accommodation endorser for the purpose of being discounted at that bank, having in it the words “ interest on this ■ note has been paid to maturity,” and is changed without the endorser’s consent, by drawing a pen through these words, any other person discounting it takes it with notice of dishonor, and can not hold the endorser.</p>

<p>Ceimotai. Law. — Affidavits.—Separate Counts. — -Motion to Quash. — Supreme-Court. — Where two affidavits were treated in the court below as the first and second counts of one and the same affidavit, by a motion to quash the “ affidavit and information,” and the defendant appealing has urged no-objection to the affidavit treated as the second count, the Supreme Court can not say that the trial court erred in overruling the motion.</p> <p>Same. — Evidence.— Verdict. — Where the evidence in the record, although conflicting, tends to sustain the verdict of conviction in a criminal cause, the Supreme Court will not reverse the judgment.</p>

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

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

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

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

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

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

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

<p>Stjp'keme Cotikt.— Weight of Evidence. — Burden of Proof. — The Supreme-Court will not review the finding upon a question of fact, if supported by-circumstantial evidence, though it be against the direct testimony of a number of witnesses, especially if the burden of proof was on the appellant..</p>

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

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

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

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

<p>New Trial. — Diligence.— Witness. — Practice.—To warrant the granting of a new on acoolu)t 0f discovered evidence, it must be shown that the evidence could not have been obtained by reasonable diligence before the trial, and that the evidence is not for impeachment only.</p>

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

<p>Sheriee’s Bond. — Damages.—In a sqit upon a sheriff’s bond, for failure to levy, and failure to return an execution within the time required by law, the recovery is limited to nominal damages unless facts are averred in the complaint showing actual damages.</p> <p>Same. — Pleading.—Execution.—Levy.— Verdict. — Evidence.—Supreme Court.— When it is merely-alleged in one paragraph of complaint as the foundation for recovery, in a suit on a sheriff’s bond, that the sheriff failed to return an execution for $1,110 in time, and in another, that he failed to levy the execution, one of the defendants thereto having sufficient property out of which it might have been satisfied, the recovery can only be nominal under K. S. 1881, sections 784, 786 and 787; but, under a paragraph alleging special injuries resulting from the failure to levy, sell and return, actual damages may be recovered, and under the last paragraph, if the evidence show two hundred dollars worth of personal property and real estate of uncertain value which might have been levied on but was not, and fail to show that any of it has been so squandered or lost as to defeat the lien, a verdict for $24.57 will not be disturbed by the Supreme Court, because it is too small.</p> <p>Same. — Amount of Recovery. — Costs.—In a suit on a sheriff’s bond, where the recovery is less than $50, not having been reduced by set-off or counter-claim, the defendants should have judgment for costs.</p>

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

<p>County Commissioners. — Appeal.—Bailroad ■ Stocks. — Injunction.—As the statute was in December, 1872, B. S. 1881, section 5772, an appeal was not allowed from an order of a board of county commissioners, selling railroad stocks belonging to the county.</p> <p>Same.— Costs. — The board would, in no event, be a proper party to such appeal, and the costs, therefore, would not be taxed against it.</p> <p>Injunction. — Semble, that if the members of the board act corruptly in disposing of property of the county, injunction would lie, and if that could not be made effective they would be personally liable for the breach of trust.</p>

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

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

<p>Negligence. — Pleading.—Railroad Company. — A complaint against a railroad company for personal injury to a passenger, which, does not aver generally that the plaintiff was without fault, and alleges the facts to be that at the station the train slackened speed so that the plaintiff could have alighted without damage if there had been a platform; that it was dark, windy and raining, and the plaintiff had never been at the station; that the conductor informed him of arrival at the place and ordered him to alight, and, relying entirely on this order, he stepped off as directed, and by reason of there being no platform, as he supposed there was, he fell under the cars and was injured, is bad on demurrer, because it does not show that the plaintiff was free from contributory negligence. Elliott, C. J., dissented.</p>

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

<p>Contract. — Hescüsim.—Conveyance.—Tender.—Where land has been conveyed by warranty deed, in pursuance of a contract to exchange lands, the vendee, in order to rescind, must rec'onvey the title so conveyed to him.</p> <p>Conveyance. — Heal Estate. — Law of Place. — The law of the State where the land is situate controls in its alienation and in the construction of conveyances.</p> <p>Same. — Common Law. — Prsumption.—In the absence of proof, the Supreme Court will presume that the common law is in force in a sister State.</p> <p>Same.— Quitclaim Peed. — Estate for Life. — Under the common law, an ordinary quitclaim deed for land in Kansas only conveys an estate for life, as it is without words of inheritance, and is insufficient to re-invest the vendor with the title so conveyed by him.</p> <p>Same. — Rescission.—Pleading.—Exhibit.—A deed of reconveyance, in an action to rescind a contract, is not a proper exhibit, and can not limit the averments of the pleading which it accompanies.</p> <p>Same. — Agent.— Waiver.- — The refusal of an agent to accept a deed, on the ground that he has no authority, does not waive the objection that the deed is not sufficient to reconvey the title.</p> <p>Supbeme Coubt. — Law of Foreign Stale. — Judicial Notice. — The Supreme Court will not take judicial notice of the laws of a sister State, but they must be proved as other facts.</p>

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

<p>Taxation. — Special Assessments. — Omitted Property.- — Under the assessment law of December 21st, 1872, and its subsequent'amendments, the general duty of listing and assessing property, for the purposes of taxation, was conferred upon tlie township assessor; but provisions were made, in several sections of the law, for the special assessment of omitted property, either by the treasurer or auditor of the county, or by the proper township assessor.</p> <p>Same. — Under that law and its amendments, however, no special assessment of omitted property was authorized to be made for past years, but only for the current year; and such special assessments, when made for the current year, were absolutely barred if not returned to the county treasurer on or before the 1st day of March, in the succeeding year, unless such return had been prevented by injunction or order of court.</p>

<p>Slander, — Privileged Communications.- — Statements, made on application1 by one not a member of the church to a committeeman of a church who is investigating rumors against a member, are not privileged under the statute, JR. S. 1881, sec. 497.</p> <p>Same.— Witness. — Evidence.—Harmless Error. — Evidence for the plaintiff having been given, that, at a certain time and place, the defendant said of the plaintiff, “ She is nothing but a whore,” the defendant asked a witness who was present, “ Did the defendant speak these words, 1 She is nothing but a whore? ’ ” also, “ What was said about the plaintiff being a whore? ” These questions were excluded as leading, and the court then asked, “Was anything said about the character of the plaintiff for chastity and virtue, and if so state what was said ? ” To which the witness answered that he did not recollect of anything being said about her character.</p> <p>Held, that the excluded questions were not leading, and should have been allowed; but that the error was cured by the subsequent question and answer.</p> <p>Same. — Evidence.—It appeared for the defence that the plaintiff’s visits-to his house after he became a widower were so frequent as to cause criticism, and, to rebut this, it was not error for the court, over the defendant’s objection, to permit proof of a request by his deceased wife, just before her death, the defendant not being present, that the plaintiff should fix her clothing and dress her after death.</p> <p>Same. — Damages.—Damages in the sum of $1,000 for words charging whoredom upon a female can not be regarded as so excessive as to call for a new trial.</p> <p>New Trial. — Evidence.—Practice.—Though it seem to the Supreme Court,, with the record only before it, that a new trial should have been granted on the evidence, yet it will not reverse the judgment if there be evidence fairly tending to support the verdict.</p>

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

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

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

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

<p>Pleading. — Airest of Judgment. — Practice.—If a complaint shows the necessary facts inferentially, though not by direct averment, it is sufficient, on motion in arrest of judgment, made on the ground of failure to contain sufficient facts to constitute a cause of action.</p>

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

<p>Witness. — Evidence.—Opinion.— Value. — One who knows the very property in controversy is competent to testify to an opinion of its value; so, also, is one who is conversant with current prices of such property generally, but who never saw the property in controversy, upon a hypothetical description of it embodied in questions to him.</p>

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

<p>Instruction. — Instructions, stating the law correctly when taken as a whole, will be upheld, though parts of them, separately considered, may . be slightly inaccurate.</p> <p>Same. — Where a party desires specific instructions directing attention to points relied upon by him, he should, at the proper time, request such instructions as he deems necessary.</p> <p>Same. — Intention.—Contract.—Practice.—It is not improper to instruct the jury that they might look to the circumstances surrounding the transaction and to the intention of the parties at the time they entered into the contract. It is proper to direct the attention of the jury to the material and leading facts of the case, but not to assume the existence of controverted facts, nor to so state the facts as to present to the jury a one-sided view of the case, and thus mislead them.</p>

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

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

<p>Married Woman. — Disability to Contract. — Settlement.—Receipt.—Husband and Wife. — Under the laws prior to 1881, a married woman was under a general disability to make personal contracts. If indebted, she could not, without the consent of her husband, bind herself by a settlement, accord and satisfaction, account stated, or by a receipt based on such adjustment. Neither could she, without such consent, set aside a settlement made before marriage, and so revive against herself obligations which had been extinguished in such settlement.</p> <p>Same. — Promissory Note. — A married woman desiring to sell her real estate for $1,000, and her husband refusing to join in conveying at a price less than $1,500, she thereupon agreed with the purchaser that the conveyance should be made and he should give his notes and mortgage upon that basis, and that she would give him a credit on the notes for the difference. She did accordingly, afterward, without the husband’s consent, give a receipt for a sum to be credited on the notes.</p> <p>Held, in an action by the administrator of the wife upon the note, that the receipt was a nullity.</p> <p>Practice. — Refusal of Parly to be Examined. — Striking out Pleadings.■ — Notice.— It is not error to refuse to strike out a party’s pleadings because he refused to be examined unless notice was given to other adverse parties of the time and place of such examination.</p>

<p>Insurance. — Complaint.—Performance of Conditions Precedent. — In a complaint on a policy of insurance, a statement: “ And said plaintiff further says that he has in all things observed aud performed and fulfilled all and singular the matters and things which were on his part to be observed, performed and fulfilled, according to the conditions, form and effect of said policy of insurance,” is a sufficient allegation of the performance of the conditions precedent named in the policy.</p> <p>Same.— Value of Properly. — Amount of Loss. — In such complaint, a statement of the loss, giving the amount lost upon each of the articles insured, is sufficient to show that the property destroyed was of some value, and that a cause of action to some extent had accrued to the plaintiff</p> <p>Same. — Policy.—A policy of insurance is governed by the same principles applicable to other agreements involving pecuniary obligations.</p> <p>Same. — Premium Notes Unpaid. — Defence.—'Where a policy provides that if premium notes be not paid the policy shall become void, it is a good defence to an action on the policy that the premium notes were unpaid at the time of the loss.</p> <p>Pleading. — Answer.—Reply.—A reply which responds to a part only of the answer to which it is pleaded is bad on demurrer.</p>

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

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

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

<p>Husband and Wife. — Judicial Sale. — Inchoate Interest of Wife in Real Estate of Husband, Sold on Execution. — Partition.—Under the act of March 11th, 1875, 1 E. S. 1876', p. 554, the inchoate interest of the wife in the real estate of the debtor, sold on execution against him, vests and becomes absolute on the day of sale, and her death immediately after the sale does not prevent it so vesting, and her husband may maintain partition as to such interest against the purchaser at the sheriff’s sale.</p>

<p>Practice. — Motion to Strike Out. — Bill of Exceptions. — Supreme Court. — Where a motion to strike out a pleading, or a part thereof, is sustained by the court, such pleading or part thereof is no part of the record thereafter, unless it be made such by hill of exceptions or order of the court; and, if this be not done, the ruling of the cou rt, though erroneous and assigned as error, presents no question for the decision of the Supreme Court.</p> <p>Pleading. — Causes of Demurrer. — Defect of Parties. — A demurrer to a complaint or cross complaint, solely for the want of sufficient facts therein, will present no question in relation to any defect of parties.</p> <p>Married Woman. — Mistake in Deseriptim of Land. — Reformation of Quitclaim Deed. — A mistake in the description of land, in the quitclaim deed of a married woman, may be corrected and such deed reformed by the judgment of the proper court, either during or after the coverture.</p> <p>Statute oe Limitations. — Pleading.—Exceptions.—Where a statute of limitations contains exceptions, it must be pleaded to he made available, unless the complaint or cross complaint shows on its face that the plaintiff or cross complainant is barred, notwithstanding the exceptions.</p> <p>Husband and Wiee. — Lands Sold on Execution. — Inchoate Interest of Wife.— Conveyance. — Where the lands of the husband had been sold on execution, it was competent for the wife, her husband joining with her, to sell and convey her inchoate interest in such land; and, in such a case, a quitclaim would have the same force and effect as a warranty deed.</p>

<p>Contract. — Breach of. — Complaint.—In an action for breach, of a contract for the payment of money, if the complaint do not show that the money has not been paid, it is bad on demurrer.</p> <p>Same. — Nominal Damages. — A complaint for failure of the defendant to furnish, for the use of the plaintiff, a horse and wagon according to a contract alleged, and not averring any facts showing injury to the plaintiff, is good for nominal damages only.</p> <p>Same. — Condition Precedent. — Performance.-—Evidence.—New Trial. — In a suit to recover money due upon the performance by the plaintiff of a condition precedent, and the general denial is pleaded, it is error to refuse a new trial, when there is no evidence whatever as to performance of the condition.</p>

<p>Husband and Wife. — Improvements on Wife’s Beal Estate. — Debts of Husband. — Creditor of Husband. — Pleading.—A complaint by the creditor of a husband to charge his demand upon real estate of the wife or the rents thereof, on the ground that the husband had expended his own means ,in making improvements thereon in fraud of his creditors, must show that at the time the husband had not other property sufficient, etc., and that, knowing of the husband's fraudulent purpose, she participated or acquiesced in it.</p> <p>Qiuere, whether, if the wife was party to the fraud, the creditor could have a remedy against her real estate.</p>

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

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

<p>Principal and Surety. — Judgment and Execution. — Duties and Inabilities of . Sheriff. — Complaint.—Where one of two or more judgment defendants sues the sheriff for neglect of duty, in failing to levy an execution, issued on such judgment, on the property of the principal defendant therein, claiming that he is a surety therein, he must allege in his complaint that the question of his suretyship in the judgment had been determined in his favor, in a proceeding for that purpose, and an order made by the proper court, that the sheriff should first levy upon and exhaust the property of the principal, before a levy should be made upon the property of the surety, and that a memorandum of such order was endorsed by the clerk on the execution. For the want of these allegations, such complaint is bad on demurrer, for insuificient facts.</p> <p>Same.. — Judgment by Default. — -Jurisdiction.— Void Order. — Where a judgment by default is rendered against two or more defendants upon a cause of action, which does not show that the relation of principal 'and surety exists between them, and the question of suretyship is not tried and determined, an order of the court, that the property of one of the defendants be first levied upon and sold, is void for any purpose for want of jurisdiction, either of the subject-matter or of the parties.</p> <p>Pleading. — Answer.—Each paragraph of answer must state facts sufficient to constitute a defence to the entire complaint, or to so much thereof as it purports to answer, or it will be held bad on demurrer, for the want of facts.</p> <p>Practice. — New Trial. — Excessive Damages. — No question is presented to the Supreme Court in relation to the amount of the judgment, when it appears that the complaining party has not assigned as cause for a new trial, in his motion therefor, either excessive damages or error in the assessment of the amount of recovery.</p>

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

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

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

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

<p>Criminal Law. — Abortion.-—Prosecution Under Section 1923, S. S. 1881.— Where death results from the unlawful attempt to produce an abortion, the prosecution should be brought under section 1923, R. S. 1881.</p> <p>.Same. — Dying Declaration. — Evidence.—In such prosecution, the death of the woman from the unlawful act of the accused gives to the offence the character of felonious homicide, and the dying declarations of the deceased are admissible in evidence; such declarations are not admissible to prove what occurred before or after the act has been done, but the res gestae only, and must be of facts only, and not of mere matters of opinion, and must be such as would have been competent evidence if the dying person had been sworn as a witness.</p> <p>Same. — Inference.—Evidence.—The statement, that11 The operation was performed for the purpose of producing an abortion,” is an inference, and not admissible in evidence as a dying declaration.</p> <p>Same. — Homicide.—Dying declarations are admissible only in cases of homicide; but, where death results from an unlawful attempt to produce an abortion, it is an essential ingredient of the crime and the subject of judicial investigation.</p> <p>Same. — The highest office which can be rightfully allotted to a dying declaration is a statement of the unlawful act which occasioned death, naming the time when and the party by whom it was done.</p>

<p>Judgment. — Lien of. — Transcript.—Under the provisions of sections 528 and 529, 2 B. S. 1876, p. 234 (R. S. 1881, sections 610 and 611), the transcript of a judgment filed in a county other than that where rendered does not create a lien on real estate in such county against subsequent purchasers thereof in good faith, without notice, unless recorded and entered in the judgment docket of the court of such county.</p>

<p>Guardian. — Resignation and Reappointment in Another Gounty. — Liability of Bondsmen. — A guardian who resigns, and obtains a reappointment in another county, where he gives bond and charges himself with the sums which had come into his hands under his first appointment, does not thereby discharge his first bondsmen from liability for a previous defalcation.</p> <p>Same. — Additional Bond for Sale of Realty. — Accounting for Different Funds.— Burden of Proof. — Defalcation.—The sureties upon a guardian’s additional hond for the sale of realty are liable for the proceeds of the sale only, and the sureties on the general bond for other funds. The sureties upon each bond undertake that the guardian will account for the respective funds for which they are liable, and therefore, when sued therefor, have the burden of showing that the guardian has accounted for the same. If the different funds have been mixed and the account so kept that a proven defalcation can not be identified with either fund, it is a breach of both bonds; and the action may be on either bond, if not for the entire loss, certainly for a pro rata share of it.</p>

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

<p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a verdict or finding on the mere weight or preponderance of the evidence.</p>

<p>Bepleyin Bail. — Judgment.—.Execution.—A written undertaking, entered upon the back of an execution to pay one-half of the judgment upon which the execution issued, is invalid as a recognizance of replevin bail, and does not authorize an execution to issue upon such undertaking.</p>

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

<p>Judgment. — Default.—Application to Set Aside. — Demurrer.—Practice.—If a demurrer for want of facts to an application under section 396, R. S. 1881, to be relieved from a judgment by default, be overruled, the defendant is entitled to controvert the truth of the alleged excuse for suffering the default. The demurrer in such case admits the truth of the complaint or motion only for the purpose of testing its legal sufficiency.</p> <p>Same. — Error in Record. — Default Over Answers on File. — It is not cause for relief under said section, that there were answers on file of the party defaulted.' Error of the court is not mistake, inadvertence, surprise or neglect of the party, for which relief may be had thereunder.</p>

<p>Pbactice.— Witness. — Parties.—Default.—Where the plaintiff in an action has had some of the defendants duly summoned as witnesses for him, and they failed, without excuse, to appear and testify, the plaintiff is entitled to have the answers of such defendants struck out and judgment rendered against them as by default, under section 518, R. S. 1881.</p>

<p>Constitutional Law. — Soldiers’ Bounties. — Section 3, Acts 1867, p. 26 (being of an act entitled “An act to legalize and make valid, certain county bonds, and to provide for the payment of the same”), which requires counties to give bounties to certain soldiers, is unconstitutional, because the subject of it is not within the title of the act, nor connected with the subject expressed, as required. (B. S. 1881, section 115.)</p>

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

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

<p>Coubts. — Terms.—Statute Construed. — The act of March 5th, 1881, fixing the time and terms of court in the circuit composed of the counties of Bartholomew and Brown, fixes a term in Bartholomew to begin on the third Monday in November, to sit seven weeks if the business require it, and in Brown on the first Monday of January. In 1881 the term of seven weeks in Bartholomew did not expire at the time thus named for the January term in Brown to begin.</p> <p>Held, that the January term in Brown was required to begin at the time named in the statute, and the November term in Bartholomew could sit-only six weeks.</p> <p>Same. — Adjournment.—-The circuit court can sit in regular term only at the time fixed by law, and during the period allotted as the term in one county, it can not sit in another county of the same circuit in regular term; nor does adjournment shorten the term so fixed, it only stops the business.</p> <p>Same. — Jurisdiction.—If a court sit in regular term in one county during the time fixed by law for the term in another county of the same circuit, its proceedings can not be sustained.</p> <p>Cbiminal Law. — Murder.—Evidence.— Witness. — Experts.—Cross-Examination. — In a trial for murder, a surgeon may testify to his opinion of the character of a wound, and, having- so testified in chief, he may be cross-examined upon the same subject.</p> <p>Same. — A witness in a murder case, who has testified about the dressing of wounds of the deceased, can not be asked on cross-examination whether one of the surgeons who dressed the wound was drunk.</p> <p>Same. — A medical witness who has, in such case, testified to the treatment of the deceased, may be asked on cross-examination as to the effect of certain medicines administered by him.</p> <p>Same. — A surgeon who, in such case, has described the wound and given his opinion of its character, and who treated the deceased, may be asked on cross-examination whether, at the time of treatment, he supposed that the intestines were severed by a knife used by the accused.</p> <p>Same. — Evidence of Flight. — In a prosecution for murder, the flight of the prisoner may be proved against him, and he may prove, to account for such flight, the manner of the persons present towards him, and that they followed and threatened him with violence.</p> <p>Same. — Instructions.—Reasonable Doubt. — In a criminal case, it is error to instruct the jury, that “ as moral certainty does not embrace absolute certainty, on the other hand, a reasonable doubt does not include every possible doubt that might exist in the field of man’s speculation. These terms are used in an effort to convey to the understanding that state of the mind wherein convictions are formed conscientiously upon a basis which all thoroughly disciplined judgments will concur in, and no pure conscience will disapprove.”</p> <p>Same. — A reasonable doubt may arise as well from lack of evidence as from the evidence itself.</p> <p>Same. — Instruction.—In a prosecution for murder, it is error to instruct that it is admitted that the prisoner cut and stabbed the deceased and inflicted the wound; therefore, to constitute the corpus, it only remains for the jury to find from the evidence that that wound was in itself fatal.</p> <p>Same. — Self-Defence.—In a. trial for murder, instructions professing to cover the whole subject of self-defence, which do not even intimate that the right of self-defence may extend to the taking of human life, are erroneous, if there was evidence before the jury from which it might have been inferred that there was, at the time of the homicide, such appearances as might have impressed the prisoner with a reasonable apprehension of great bodily harm, unless he resorted to extreme measures to avert it.</p> <p>Same. — The right to take life in self-defence is not dependent upon the fact that a man of ordinary prudence would, under the circumstances, apprehend immediate and urgent danger, but upon the fact that the aeeused himself was really and reasonably so impressed by the appearances.</p> <p>Practice. — Evidence.—That the rejection of evidence may be made available error, there should be a statement of what it will be, unless the question propounded indicates its character and materiality. On cross-examination the rule is otherwise.</p>

<p>Attorney.— Verdict. — Special Findings. — A complaint to recover for services as attorney in effecting a compromise of several suits against the defendants, alleged a joint employment by them. Answer of general denial and payment. Verdict for the plaintiff for $750, and special findings : 1. That the defendant H. did not, in connection with the other defendants, or any of them, enter into a joint express contract to employ the plaintiff. 2. That Id. did not, in connection with the other defendants, or any of them, jointly agree to pay the defendant.</p> <p>Held, that there was no conflict between the general verdict and the special findings.</p> <p>Same. — Contract.—Ratification.—Instruction.—In a suit against several jointly to recover for services in effecting a compromise of suits, it is correct to instruct the jury that, though some of the defendants did not unite with the others in employing the plaintiff, in the first instance, yet if the jury should find that they, with knowledge that the plaintiff had effected a compromise of the suits against them and others, accepted, acted upon and enjoyed'the fruits of such compromise, they must be held liable with the others.</p> <p>Same. —The evidence showing a joint contract by several of the defendants, professing to act for themselves and some others of the defendants, and some evidence tending to prove a ratification by these others, this instruction was correct: “ It is a question of fact whether the defendants or any of them, by a joint contract, express or implied, ever employed the plaintiff to render the services alleged.. If you find that any of them did so employ him, and that in pursuance thereof he rendered the services, then you should find against those who so employed him by contract, express or implied, for some amount, unless you further find that he has been fully paid.” Also the following : “ If some of the defendants employed the plaintiff by a contract, express or implied, and some of them did not, and did not afterwards accept or enjoy the fruits of his services, then as to such as did not accept and enjoy the fruits of such services, you should find for them, although the plaintiff should be entitled to recover against the others.”</p> <p>Practice. — Instructions.—There is no error in refusing instructions already substantially given, nor those too narrow to be applicable to the whole evidence on the questions-to which they relate.</p> <p>Same. — Bill of Exceptions. — To make an oral addition to or modification of a written instruction prayed is a fatal error, under section 533, R. S. 1881, but to be available error it must expressly appear by bill of exceptions to have been done.</p>

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

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

<p>'Assignment op Ebkoes. — Names of Parties. — Rule of Court. — Unless the assignment of errors contain the full names of all the parties, according to rule No. 1 of the Supreme Court, the appeal will be dismissed.</p>

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

<p>Mortgage. — Assumption of Payment. — Deed.— Mistake.— Correction.— Contract. — Rescission.—A. mortgaged lands to B., and then sold the lands to C., who agreed to pay the mortgage; but the conveyance, which recited C.’s agreement, by mistake, did not describe the property. Subsequently, A. and C. rescinded the contract (C. never having been in possession)before B. had notified C. that he accepted him for the debt.</p> <p>Held, that B. could not recover a personal judgment against C. for the mortgage debt, nor could he compel a correction of the deed.</p> <p>Special Finding. — Practice.—When the court finds the facts specially with, its conclusions of law thereon under the statute (R. S. 1881, section 551), a fact in issue, concerning which there is no finding, is deemed not proven.</p> <p>Appeal. — Notice.— Waiver. — Dismissal.—The right to have an appeal dismissed for want of notice to parties to the judgment, who have not appealed, is waived by a submission of the cause by agreement.</p> <p>Witness. — Cross-Examination.—Evidence.—Harmless Eror. — -It is error to allow a part}’- to call a witness to contradict an irrelevant statement of his adversary’s witness, drawn out on cross-examination; but, if the matter be so entirely irrelevant that it can not influence the result, the error will not be available.</p>

<p>Subrogation. — Subrogation tabes place where one pays a debt which another was justly liable to pay, and the payment is made to discharge the property of the person paying from an incumbrance.</p> <p>Same. — Redemption.—Pleading.—The plaintiff and T. purchased lands, each to pay half the purchase-money, and give a mortgage for unpaid instalments. Plaintiff paid his half, but the mortgage was foreclosed for the last instalment which T. should have paid. The land was sold therefor by the sheriff and redeemed by the defendant, who held a junior judgment lien against T. Defendant then obtained a decree against, the whole land to make his redemption money, and then the plaintiff, to redeem, paid the necessary sum into the clerk’s office.</p> <p>Held, that the foregoing facts constituted a good complaint by the plaintiff against the defendant and T. to be subrogated to the rights of the defendant.</p>

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

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

<p>.Railroad. — Assessment of Damages. — Instruction.—Two railroads, side by side, already crossed the appellee’s farm, between his house and barn, within one hundred feet of each. The appellant appropriated for its main line a strip seventy-five feet wide along the east line of the farm, about seven hundred feet from the house, and for a switch, to make connection with one of the other roads, a strip from the main line seven hundred feet south of the other roads and curving thence northwesterly and reaching the other roads between the house and barn. The west line of the farm is two and one half miles east of the court-house in Indianapolis. There was a hamlet of four or five houses abutting the r farm on the east. Upon the trial of an action for the appropriation of such land, an instruction that the condition of the other roads could “ only be considered in estimating the value of the ingress and egress, upon the east of” the farm “to and from the residue not appropriated by the” defendant, was calculated to mislead the jury, and should have been refused.</p> <p>Same. — Evidence.— Witness. — A witness for the appellee having testified in chief that the farm was worth $600 per acre, and on cross-examination that it could not have been sold for more than $200 per acre, but that he knew of no sales in that neighborhood at the latter price, on re-examination was allowed to testify over exception, that he knew of no land that could have been bought in that neighborhood for less than $500.</p> <p>Held, that this was error. •</p> <p>Same. — Evidence, that since the appellant’s road was built the place of its junction with other roads, as well as at the junction of the switch with them, is almost constantly obstructed by locomotives, cars and smoke, upon it and the other roads, was held admissible.</p> <p>Same. — In proving the value of land, it is proper to ask a witness if he_ knows its value — and the inquiry need not in terms ask as to “ the market cash value.” Value in that connection means cash value.</p> <p>Same. — Cross-Examination.—A witness for the appellant having testified to the value of the land, and the damage to it, and the demand for land in the locality, may properly be asked, on cross-examination, to state how rapid has been the increase in the price of land around the city, about the same distance from it, during the last fifteen years.</p> <p>Same. — A witness for the appellant having stated, on cross-examination, that he had within two years sold a piece of land, four and a half miles from the city, for $300 per acre, it was proper, on re-examination, to ask if he had not sold an adjoining tract, equally as good, for $125 per acre.</p> <p>Practice. — Interrogatories to Jury. — There is no error in refusing to send interrogatories to the jury, when presented after the argument is closed.</p> <p>Same — Witnesses. — Discretion—The court having notified the parties, before any evidence was offered, that no more than eleven witnesses, on certain questions, would be permitted, and then enforced the order, it was held to be within the discretion of the court, and not error unless an abuse of discretion appeared.</p>

<p>Taxes. — Guardian and Ward. — Parlies.—The ward of a guardian is not a proper party to an action brought by the treasurer of a county against such guardian to recover unpaid taxes of the ward.</p> <p>Same. — County Treasurer. — Assessment of Taxes. — A county treasurer has no authority under section 94 of the act of December 21st, 1872, 1 R. S. 1876, p. 72, for the assessment of taxes, to assess taxes upon property omitted from any assessment except for the current year.</p>

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

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

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

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

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

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

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

<p>Evidence.— Witness.— Comparison of Handwriting. — New Trial.— Bill of Exceptions. — A reason for a new trial, which stated that the court erred in permitting certain witnesses, naming them, to compare the disputed signatures with certain notes and mortgages not connected with the case, etc., and in allowing them to express an opinion from such comparison as to the genuineness of the disputed signatures, is sufficiently definite. Such “ notes and mortgages ” need not be embraced in a bill of exceptions, nor need the bill of exceptions contain all the evidence in order to present the question arising upon the ruling in allowing the comparison.</p> <p>Same. — Experts.—Signature.—Promissory Note. — Papers not connected with the case, and not read in evidence, can not be used for the purpose of comparing the signatures to them with the disputed signatures, unless the party against whom they are sought to be used admits them to be genuine; 'but an admission by the party who seeks to use them, though he himself executed them, will not authorize their use, and the testimony of expert witnesses based upon such comparison is not admissible.</p> <p>Same. — Bill of Exceptions. — Supreme Court. — Where the question can be determined without the entire evidence, it is not necessary that the bill of exceptions should contain all the evidence in the ease.</p>

<p>Mortgage. — Reformation.—Mistake.—Description.—Complaint.—A complaint to reform a mortgage as t,o a mistake in describing the land and to foreclose it against the mortgagor and C., a junior vendee, was in the usual form, with averments as to the mistake, describing the land intended by metes and bounds, containing twenty-seven acres; that this was the only • land owned by the mortgagor in the section named in the mortgage; that this was the land which the parties agreed and intended to describe, but the same was omitted by mistake of the scrivener, and that C. had notice and bought subject to the mortgage.</p> <p>Held, that the complaint was sufficient on demurrer.</p> <p>Same.— Verdict.— Interrogatories.— In such case, the general denial being pleaded, the jury found a general verdict for the plaintiff, and, in answer to interrogatories, that there was no mistake; that the mortgage was written according to instructions; that the mortgagee only owned twenty-six acres in the section mentioned in the mortgage, but that the mortgagor intended and directed that the mortgage include the twenty-six acres, and C. had notice that the twenty-six acres were embraced in the mortgage.</p> <p>Held, that C. was not entitled to judgment, notwithstanding the general verdict.</p> <p>Same. — Evidence.—In such action, the evidence showed that the description in a mortgage was written accordingto directions, thus : “ 27 acres, fractional section 15, town 8 south, of range 11 west,” and that all parties were satisfied with it when executed; that the mortgagor owned 26 ■ acres in the section, but not 27 acres.</p> <p>Held, that there was a failure of proof of such a mistake as will warrant a reformation of the mortgage.</p> <p>Held, also, that a verdict having been found for the plaintiff, it was error to refuse a new trial.</p> <p>Held, also, that the description was void for uncertainty, and not merely defective.</p>

<p>Summons. — Service.—Return.—Extrinsic Facts.- — Where the return of process appears regular on its face, the insufficiency of the service can only be raised by an answer stating extrinsic facts.</p> <p>Foreign Corporations.' — Process.—Agent.—Jurisdiction.—Abatement.—Answer.- — A verified answer, that the defendant is a corporation created by the laws of another State, that the person upon whom process was served was its agent in the county only where the action was commenced, and that the contract sued on was made out of the State and was not connected with the business of his office, is sufficient, on demurrer, to abate the action for want of jurisdiction of the person of the defendant.</p> <p>Hike Insurance.— Complaint on Policy. — Description of Property. — Insurabh Interest. — A complaint upon a policy of fire insurance should, by description, identify the house burned with the house insured, and show that the insured had an insurable interest in the house at the time it was burned.</p> <p>Same. — Occupancy.—In such complaint, if the policy sued on provides that it shall cease to be valid when the premises cease to be occupied, it must be alleged that the house was occupied to the time of its burning.</p> <p>Same. — Presumption.— Value. — In such case, in aid of the complaint, it will be presumed that the property insured and destroyed was of some value.</p> <p>Pleading. — -Demurrer to Answer Peaches Back. — A demurrer to an answer reaches back and tests the sufficiency of the complaint.</p> <p>Same. — Bad Answer. — A bad answer is good enough for a bad complaint.</p>

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

<p>Account. — Evidence.—Award.—Partnership.—A complaint before a justice on account for a “ balance on settlement of partnership accounts,” is not sustained by putting in evidence an award made by arbitrators for an amount due on adjustment of partnership transactions. The plaintiff’s suit should be on the award.</p>

<p>Negligence. — Injury to Employee by Negligence of Co-Employee. — Liability of Employer. — An employer is not liable to one of his servants for the negligence of a fellow-servant engaged in the same general undertaking, unless the employer has been guilty of negligence in the selection of an incompetent servant, by reason of whose unfitness the injury has occurred.</p> <p>Same. — Pleading.—General Allegation. — In general, it is sufficient to allege in a complaint that the injury was produced by the negligence of the defendant in a specified act or omission, without stating the particulars, of the negligence.</p> <p>Same. — Employee!s Sight to Assume Ordinary Care and Precaution of His En~ player. — While a servant assumes the risk, more or less hazardous, of the service in which he engages, he has a right to assume that all reasonable attention will be given by his employer to his safety, so that he will not be carelessly and needlessly exposed. to risks which might be avoided by ordinary care and precaution on the part of his employer, and where, in the absence of such care and precaution, an employee is injured, the employer is liable, although the negligence of a fellow-servant contributed to the injury complained of.</p> <p>Pbactice. — Motion to Make Specific. — When the allegation of a pleading is deemed indefinite and uncertain, the remedy is by motion to make more specific, and not by demurrer.</p>

<p>Decedents’ Estates. —• Claims. — Pleading.— Practice.— Evidence.— Under the provisions of the act of February 14th, 1881, concerning the allowance of claims against decedents’ estates, Acts 1881, p. 20, where a claim was filed against a decedent’s estate, founded upon the decedent’s promissory note, payable to a third person, and by him assigned, by endorsement, to the claimant, and the execution of the assignment of the note was not put in issue by a pleading under oath, the assignment was admissible in evidence without proof first made of its execution. It is now different, under sections 364 and 2324, R. S. 1881.</p>

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

<p>Statute op Limitations. — Coupling Disabilities. — One disability can not be coupled with another so as to prevent the statute of limitations from barring the action.</p> <p>Same. — Decedents’ Estates. — Every claim against an estate must be brought within seven and a half years after it accrues, unless the claimant is under some disability.</p> <p>Same.- — Account.—Pleading.—In an action upon an account against a decedent’s estate, an answer that the cause of action did not accrue within six years, is bad, as such action may be brought at any time within eighteen months after the decedent’s death, if not barred at that time.</p> <p>Pleading. — Decedents' Estate. — Defences. — Harmless Error. — In actions' against an estate, all defences except set-off, may be proved without plea, and the defendant has the benefit of them, though he attempts to plead them specially; and where such a defence is specially plead, the defendant is not injured by overruling a demurrer to an insufficient reply to such pica.</p> <p>Same. — Reply.—A bad reply is sufficient for a bad answer.</p> <p>Husband and Wipe.— Wife’s Earnings. — The right to services rendered by the wife during marriage, prior to the act of March 25th, 1879, belongs to the husband, and her earnings can not be recovered by the wife.</p> <p>Same. — Foreign State. — Common Law. — Presumption.—Services rendered by the wife before marriage in another State, where it is presumed the common law prevails, belong to the husband.</p>

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

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

<p>Rbactice. — Tidal by Referee. — Finding.—Exception.—Supreme Court. — Where a cause is tried by referee under the statute (R. S. 1881, sections 556 and 557), and, pursuant to requirement, the referee states the facts found and his conclusions of law separately, exception to the conclusions of law may he filed with the referee, and by him reported to the court, which makes them a part of the record without a bill of exceptions; and in that ease, if the court sustain the exceptions, no exception by the party . complaining of the ruling is necessary to save the question for the Supreme Court.</p> <p>'Same. — Conclusions of Law. — .Judgment.—Where, after sustaining exceptions to the conclusions of law of a referee, the court renders judgment upon ■the facts found, without objection or exception, no question can be made thereon in the Supreme Court.</p> <p>'Same. — New Trial. — If the finding of facts by a referee be not questioned, but exceptions to his conclusions of law be sustained by the court, there ■is no reason for a new trial, but the court should then render judgment in favor of the party entitled to it upon such facts.</p> <p>Landlobd and Tenant. — Crops.—Rent.—Contract.—Delivery.—Notice.—Demand. — If by the terms of a lease the tenant is required to divide the crops, and deliver to the landlord a share thereof at a certain time and place, and does not do so (the landlord not attending!, but keeps the .property undivided in bulk, and then, on reasonable notice and demand, fails so to divide and deliver at the place where the property is, he is liable for the value of such share, though after that he may offer to divide and deliver.</p>

<p>Supreme Court. — Practice.—Assignment of Error. — New Trial. — The statutory causes for a new trial are not properly assignable as errors, and, if so assigned, they will present no question for the decision of the Supreme Court.</p> <p>Same. — Bill of Exceptions. — Evidence.—Supreme Court. — Beversal ofJudgment.-When it appears that the bill of exceptions does not contain all the evidence given in the cause, the Supreme Court will not reverse the judgment upon any question depending for its proper decision upon the sufficiency of the evidence.</p> <p>Same. — Evidence.—Objection to Question. — Exception.—Where an objection is sustained to a question propounded to a witness, amere exception to the ruling of the court will present no available error, unless it is shown that the complaining party informed the court at the time what fact or facts he expected to prove by the answer to the question. Then, if the offered evidence is excluded, and an exception properly saved, the decision, if erroneous, may1 constitute an available error.</p> <p>Same. — Mecord Must'Show Error. — Presumption.—Until error is shown by the record, the Supreme Court will indulge every reasonable presumption in favor of the rulings of the trial court.</p>

<p>Criminal Law. — Trespass.—Information.—Removing Part of Realty. — Statute Construed. — Fence.—An information under section 1961, R. S. 1881, charging that the defendant removed rails and stakes from the fence of the prosecuting witness, on the land of said witness, shows that the fence was a part of the realty, and is not bad for not alleging the separate values of the rails and stakes.</p> <p>Same. — Allegation of Value Unnecessary. — Evidence.—Under clause 9, section 1756, R. S. 1881, the omission to allege value, or the amount of damage or injury, unless of the essence of the offence, is not ground for quashing an indictment or information. It is sufficient to make the proof on the trial.</p> <p>Same. — Particular Description of Land Unnecessary. — The land upon which an offence under s'ection 1961, R. S. 1881, is charged to have been committed, need not be particularly described.</p>

<p>Practice. — Bill of Exceptions. — -Where, upon overruling a motion for a new trial, time is given to file a bill of exceptions, the bill may embrace all rulings made during the progress of the trial, and at the term at which time was given, whether as to each time was given or not; and it is immaterial whether the whole be embraced in one bill or several.</p> <p>Same. — Interrogatories.—Answer.—Jury.—It is the duty of the court, where interrogatories are asked, to instruct the jury to answer them in the event that they find a g-eneral verdict.</p>

<p>.Married Woman. — Alienation of Real Estate. — Partition.— 'Husband and Wife. — Although a •woman can not, during the existence of a second or subsequent marriage, alienate real estate acquired and held by her in virtue of a previous marriage, yet, if the real estate, so acquired and held by her, is an undivided share or interest in the lands of her previous husband, she is entitled to have such share or interest set off to her in severalty, and, to that end, she may bring and maintain an action of partition against the owner or owners of the residue of said.lands.</p> <p>Practice. — Motion for New Erial. — Under section 354 of the civil code of 1852, the motion for a new trial must be made at the term the verdict or decision (finding) is rendered, except for cause discovered after such term.</p>

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

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

<p>Ceimihal Law. — Former Conviction. — Assault and Battery. — Judgment Fraudulently Procured no Bar to Prosecution. — A judgment of conviction of assault and battery, fraudulently procured by a defendant, before a justice of the peace, in the absence of the injured party, is no bar to a real prosecution for the same offence. Such judgment is a mere nullity.</p> <p>Same. — Jeopardy.— When it Attaches. — Jeopardy does not attach until the first step in the trial is taken.</p> <p>Same. — When no Bar. — A defendant can not shelter himself behind the jeopardy into which he thrust himself in defiance of law and in opposition to the desire of the officers of the State. 'Same. — Trial in Absence of Injured Party. — Fraudulent Judgment of Conviction. — Where a justice of the peace, in a prosecution instituted before him by the defendant for assault and battery, over the objection of the officers of the State and their motion to dismiss, and in the absence of the injured party, because too badly injured to attend, renders a judgment of conviction, it is fraudulent, and not a bar to a real prosecution.</p>

<p>Demurrer to Evidence. — Practice.—The evidence of the demurring party will not be considered upon a demurrer to the evidence. Thomas v. Pud-dell, 6G Ind. 326, and Baker v. Baker, 69 Ind. 399, on this point overruled.</p> <p>Same.— When Party May not Demur. — Burden of Issue. — A party can not successfully demur to the evidence, when the burden of the issue is upon him, as his own evidence will not be considered upon such demurrer.</p>

<p>Guardian and Ward. — Final Report. — Collateral Attach. — A guardian’s final report, settlement and discharge by the court are res adjudicata of all matters therein, and can not be collaterally attacked in a suit upon the bond. Such report can only be set aside by a direct proceeding therefor.</p>

<p>Pbomissoby Note. — Purchaser for Value. — Collateral Security for Pre-existing Debt. — The endorsee of commercial paper, who receives it as collateral security for a pre-existing debt, is a purchaser for value.</p> <p>Same. — Pleading.—Foreign Law. — Exhibits.■—A complaint upon a promissory note shows a cause of action, notwithstanding a statute of another State,* which is pleaded for the purpose of giving the note a mercantile character, be not well pleaded.</p> <p>Pbactice. — Pleading.—Exhibit.—The reference to an exhibit, which is filed with a pleading, need-only be such as to identify it.</p>

<p>Note. — This opinion was filed at the May term, 1882, and ispublished in ibis volume by request of the court. Reporter.</p>

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