Volume 81 — Indiana Reports

<p>Winn. — Attestation.-—The attestation of a will thus, “Signed and sealed in the presence of,” etc., followed by the signatures of two witnesses, is sufficient in form.</p> <p>Same. — Execution.—If one who subscribes a will as an attesting witness is competent for that purpose, he is a fit person to write the testator’s name thereto at his request.</p> <p>•Same. — Attesting Witnesses. — Signature.—Proof, in the absence of a contest, of the genuineness of the signatures of the attesting witnesses, and that they are dead or non-residents of the State, or can not be found, and that they attested it at the testator’s request, and in his presence, and that one of them wrote the testator’s name at his request, and that the subscribing witnesses in person wrote their own names in his presence, is sufficient.</p> <p>Same. — Testator’s Capacity. — Presumption.—Statute Construed. — Express proof of the capacity of the testator to make a will, and of his freedom from coercion, when no contest is pending, is not required by the statute, R. S. 1881, section 2587. This, in the absence of proof, is presumed.</p> <p>'Same. — Competency of Witnesses. — The competency of the attesting witnesses to a will will be presumed until the contrary is shown.</p> <p>Same. — Pleading.—A complaint to overthrow a will, which alleges generally that “ the will has been admitted to probate unlawfully and without sufficient proof,” is too vague and uncertain.</p>

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

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

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

<p>Raieboad Comban?. — Liability for Wilful Acts and Torts of Agents and Servants. — Corporation.—Principal and Agent. — notification.—A corporation is liable for tbe wilful acts and torts of its agents, done to the injury of others, within the general scope of their employment, though the particular acts had not been previously authorized, and have not been ratified since, by the corporation.</p> <p>Same.— Contract with Passenger. — Breach—Negligence.—The contract of a railway company with its passenger is to carry safely; and if, through the negligence or wilful act of the conductor or of a brakeman, or of both, a jet of water is dashed upon the passenger while being carried, it is a breach of the contract.</p> <p>Same. — Pmdence.—Previous Declaration of Servant. — It being charged in the complaint that plaintiff, while being carried on the defendant’s railroad, was drenched with water, and that it was done wilfully, and evidence tending to show that it was done by the direct procurement of the brakeman, it w:as competent to prove a previous declaration by the brakeman of his purpose to do it.</p> <p>Saite. — Evidence of Injury. — In an action against a railroad company for having wrongfully drenched the plaintiff, while a passenger, with water, it being specially charged that the injury caused a recurrence of dizziness and vertigo, it was competent, without offering medical testimony on the subject, to prove, among instances of such dizziness after the injury, the falling of the plaintiff upon a sidewalk.</p> <p>Jury. — Communication of Court With.' — Coercion of Agreement by Threat.— Practice. — It is error for the court, without the consent of a party, to send word to the jury, by the bailiff in charge, that if they do not agree to a verdict, he will keep them together until Saturday — thatis to say, for four days. Such threat is an improper effort to coerce into an agreement.</p>

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

<p>Supreme Court. — Assignment of Erors. — Dismissal.—After submission of a cause in tbe Supreme Court, a motion to dismiss the appeal, for the reason that the names of some of the parties are omitted in the assignment of errors, mil fail unless harm has resulted from the omission.</p> <p>Lis Pendens. — Statute Construed. — The act of 1877, concerning lis pendens, Acts 1877, Spec. Sess., p. 54, liad no retroactive effect, and therefore did not apply to cases pending when it took effect, nor did it apply to cases in the courts of the United States.</p> <p>Same.— Vendor and Purchaser. — Notice.—Before such act a purchaser of real estate, while a suit was pending concerning it, was bound by the result of the suit, when, at the time of the purchase, the nature of the claim upon the property was disclosed by the pleadings.</p>

<p>Township. — Bepair of Highways. — Negligence.—Damages.—In 1879, a civil township had no such powers conferred or duties imposed upon it as required it to keep in repair the public highways; and hence it was not liable for damages accruing from neglect to do so.</p>

<p>Criminal Law. — Constable.—Taking Beeognkance. — Statute Construed, — Fixing the amount of a recognizance in cases of felony, is a judicial act which a constable has no authority to perform; nor does section 1705, R. S. 1881, confer upon him authority to take recognizances in such cases without a judicial order fixing the amount, or directing that bail may be taken; and a bond so taken, without such order, is void, and subsequent acts of the court can not validate it, nor is it such a defect as is cured by section 1221.</p> <p>Recognizance Bond, — Complaint.—A complaint upon a forfeited recognizance must state facts showing that the officer, by whom bail was accepted, had authority to take it.</p> <p>Same.— When Void. — Jurisdiction.—A recognizance taken by a court without jurisdiction, or by an officer without authority, is void.</p> <p>Same. — Justice of the Peace. — Amount of Bond. — A justice of the peace can not fix the bail in cases of felony at the time of issuing the warrant.</p>

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

<p>Decedents’ Estates. — Olaim.—Principal and Surely. — Prior to the statute of 1881 (E. S. 1881, section 2311), an ordinary suit' might be brought against a principal debtor, and the administrator of his surety; and if the principal was not served with process, the suit might go on against the administrator alone, unless objection was made by motion before pleading.</p> <p>Guardian and Ward. — Action on Pond. — Pleading.—Appraisement.—A complaint on a guardian’s real estate bond, to recover for failure to account for the proceeds of the real estate sold, need not show an appraisement of the real estate.</p> <p>Same. — Set-Off.—Answer of Surety. — In such an action, the guardian being the father of the wards, and answer of set-off by the surety, alleging that the wards were indebted to the guardian in a sum named, “ for board, clothing and maintenance,” is bad on demurrer.</p> <p>Same. — An answer in such case by the surety, that, the wards being of tender years and unable to earn support, tho guardian, who was their father, being destitute of means to support and educate Ris children and wards, was compelled to apply thereto the proceeds of said real estate, and now refuses to make claim against them on account thereof, is sufficient.</p> <p>Same. — Statute of Limitations. — An answer, in such case, by a surety, alleging that the cause of action did not accrue within three years next before the commencement of the action, is bad. <</p>

<p>New Tbial. — Practice.—Recovery.—A motion for a new trial, on the ground that the finding is contrary to law, or to the evidence, presents no question in reference to the amount of the recovery.</p>

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

<p>í'baudtji.ent Conveyance. — Creditor’s Bill. — Defence.—In a suit by a creditor to set aside a conveyance of real estate, alleged to have been executed by his debtor for the fraudulent purpose of cheating, hindering and delaying the creditor in the collection of the debtor’s indebtedness to him, the answer of the debtor, to the effect that, at the time of the commencement of the suit, no part of his indebtedness to the creditor was due and unpaid, will constitute a complete defence, in bar of such suit;</p>

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

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

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

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

<p>Intoxicating Liquor. — Beer.—Selling on Sunday. — Evidence.—On trial of an indictment for selling liquor on Sunday, evidence, to wit: “Am sure it was on Sunday. Mr. K. got a glass of beer for himself and one for me. Defendant handed us the liquor; K. paid for it five cents a glass; beer is an intoxicating liquor,” shows that the beer so sold was an intoxicating liquor, and is sufficient to sustain a conviction.</p> <p>Same. — Instruction.—Assuming Fad. — -Jury.—On such trial, it was error to instruot the jury: “It would be a legitimate inference for you to draw that the witness, in saying beer was intoxicating, had reference to the beer spoken of by him when he said he had purchased beer of the defendant.” The inference from the facts is a question for the jury, and not a matter of law for the court.</p> <p>‘Same. — Construing Evidence. — Practice.—Upon a motion for a new trial, challenging the sufficiency of the evidence, a court is authorized to give a construction to the testimony of witnesses which it may not do when giving the cause to the jury.</p> <p>Same. — If the evidence show that liquor was sold on some Sunday within two years prior to the return of the indictment, it need not fix the precise Sunday within that time.</p>

<p>Fire Insurance. — Pleading.—Condition Precedent. — “Fulfilled” and “Performed ” Equivalent. — The allegation in a complaint, in an action upon an insurance policy, that “the plaintiffs duly fulfilled all the conditions of said agreement and insurance on their part,” is sufficient. The word “ fulfilled ” is equivalent to the word “ performed,” as used in section 84 of the code, R. S. 1881, section 370.</p> <p>Same. — Notice, Proof and Demand. — In such case, a further allegation of due notice and proof of loss, and demand of payment, constitutes no part of the general allegation of performance, but only shows that an action had accrued.</p> <p>'Same. — Insurable Interest at Time of Loss. — Complaint.—A complaint on a policy of insurance must show that the plaintiff had an insurable interest at the time of the loss.</p> <p>•:Same. — Repayment of Premium. — Cancellation of Policy. — Answer.-—Repayment of unearned premium and a cancellation of the policy constitute a good defence to a complaint on an assigned policy of insurance by the assured.</p> <p>Pleading. — Joint Complaint. — The complaint of two or more persons must show a right of action in both.</p> <p>■Same. — Dad Answer to Bad Complaint. — A bad answer is good enough for a bad complaint.</p> <p>Practice. — -Demurrer Carried Bach.- — A demurrer to an answer should be carried back and sustained to a bad complaint,</p>

<p>Justice oe the Peace. — Jurisdiction.—Oml Action. — Amount in Controversy, —The jurisdiction of a justice of the peace, in civil suits founded on contract or tort, under section 1433, B. S. 1881, is limited to the amount of two hundred dollars.</p> <p>Same. — Complaint.—Bill of Particulars. — Where a hill of particulars, filed with the complaint, shows that the plaintiff’s claim or cause of action does not exceed the sum of two hundred dollars, the justice will have jurisdiction of the case, even though the prayer of the complaint is for a sum in excess of two hundred dollars; for, in such case, the amount in controversy can not exceed the amount of the demand as stated in the hill of particulars.</p> <p>Same. — Appealfrom Justice. — Jurisdiction of Circuit Court. — If the justice of the peace have jurisdiction of a cause, on appeal from such justice, the circuit court will also have jurisdiction of such cause.</p>

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

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

<p>Township Tbustee. — Successive Bands. — Liability of Sureties.— Estoppel.— The sureties upon a township trustee’s official bond are not liable for defalcations which occurred before the bond was given, and are not es-topped by the acts, book entries, or reports of the trustee, from showing when a defalcation in fact occurred.</p> <p>Same. — The condition of a township trustee’s bond embraces “all moneys belonging to the township,” and therefore includes money received from his predecessor in office.</p> <p>Same. — Defalcation.— Use of Township Funds. — A township trustee is not a defaulter because he invests in his private business money received from public sources, so long as he continues ready to pay out all sums required for public uses, and at the proper time is ready to pay over to his successor the remainder for which he may then be accountable.</p> <p>Same.' — •Failure to Pay Over to (Successor. — The failure of a township trustee to pay over to his successor the sum for which he is accountable, though he be his own successor, is a defalcation, for whioh the sureties upon his first bond are responsible; but if,- after entering upon his second term, he make the defalcation good by paying the amount thereof to himself as trustee, he then, with his sureties, becomes liable therefor upon his new bond.</p>

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

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

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

<p>Constitutional Law. — Publication of Delinquent Tax List. — Fees and Salaries. — Repeal of Statute. — Section 28 of the fee and salary act of March 31st, 1879, Acts 1879, p. 130, fixing the price for publishing delinquent tax lists, is embraced within the title of the act and is constitutional, and repeals that clause in section 3 of the act of March 21st, 1879, Acts 1879, p. 199, in relation to such publication.</p>

<p>■Criminal Baw. — Perjury.—Sufficiency of Indictment. — Under the criminal code, section 1747, E. S. 1881, it is only necessary, in an indictment for perjury, to set forth the substance of the controversy or the matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury is assigned, without setting forth any part of the record or proceeding, or the commission or authority of the court or other authority before which the perjury was committed.</p> <p>Same. — Materiality of Testimony. — It must appear, though it need not be alleged in express terms, in an indictment for perjury, that the testimony given, and alleged to be false, was touching a matter material to the point in question.</p> <p>Same. — Pleading.—Former Acquittal. — Jeopardy.—A plea of former acquittal is sufficient, if it shows that the defendant had been indicted, tried and acquitted, in a court of competent jurisdiction, for the same felony charged in the indictment in the pending case; for the fundamental law forbids, that a person charged with crime be put in jeopardy twice for the same offence.</p>

<p>County Auditor. — Relator.—Capacity to Sue. — County Treasurer. — Defalcation. — County Commissioners. — A county auditor may sue a defaulting county treasurer individually, in the name of the State, on his relation as such auditor, for trust funds, and for State, county, school, road, railroad, corporation and other taxes, if so directed by the board of commissioners of the county.</p> <p>Same. — Referee.—Trust Funds. — Taxes.—In a suit by the State on the relation óf a county auditor, against a county treasurer, for trust funds, and by order of the board of county commissioners for taxes not accounted for, a report of the referee finding the facts, and his conclusions of law, which finds a gross sum due from such treasurer, a failure to find that the board ordered the suit is not reached by exceptions to the conclusions of law, nor would the defendant, on that account, be entitled to judgment on the report.</p> <p>Ebberee. — Venire de Novo. — New Trial. — Exception.—Practice.—Where a referee, under order, reports the facts and his conclusions thereon, an insufficiency in the facts found, by omission or uncertainty in the conclusions appearing in the report, is reached, not by motion for a venire de novo, but by motion for a new trial; and the conclusions may be questioned only by exceptions thereto.</p>

<p>Practice. — Evidence.—Exception.—An objection to the admission of evidence must be stated and an exception reserved in the trial court, to present the question of its admissibility in the Supreme Court.</p> <p>Same.. — Promissory Note. — Non Est Factum. — In an action upon a promissory note, where the defendant pleads non est faetum, prima fade evidence of the execution of the note entitles it to be read in evidence.</p> <p>Same.— Witness. — Hearsay.—Where, on cross-examination of a witness, it appears that all he knew about what he had testified was hearsay, it is proper for the court, on motion, to strike out his testimony.</p>

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

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

<p>Supreme Court. — Joint Assignment of Errors. — Where a joint demurrer by several to a pleading is overruled, an assignment of error by each separately, that the ruling was erroneous as to him,, presents no question in the Supreme Court.</p> <p>Same. — Gomplaint.—The sufficiency of a complaint against two defendants can not be questioned for the first time in the Supreme Court as to its sufficiency as against one only.</p> <p>Chattel Mortgage. — Recording.—Time.—The time within which the statute requires a chattel mortgage to be recorded, R. S. 1881, section 4913, is computed by excluding the day on which it was executed and including that on which it was recorded.</p> <p>Practice. — Special Finding. — Harmless Error. — Where it appears from the whole record that a particular fact was really not in dispute on the trial, but treated as admitted, it is not essential that the court should, in a special finding of the facts under section 551, R. S. 1881, state such fact.</p>

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

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

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

<p>Negligence. — Oity.—Complaint.—Knowledge of Defective Machinery. — Personal Injwry. — Complaint by an employee against a city for personal injury, averring that the injuries resulted from defects in a fire engine of which he had charge, which were known to the defendant and unknown to the plaintiff. It was objected on demurrer that it should have been alleged that the defects were known to some proper officer of the city. Held, that the objection was insufficient.</p> <p>Special Verdict.— Venire de novo. — Practice.—No finding should be made in a special verdict as to facts upon which there was no evidence, but an issue on which no facts are found should be regarded as not proved by the party having the burden of that issue, and silence as to such issue is not ground for a venire de novo.</p> <p>Same. — Hew Trial.- — If a special verdict ought to have found facts which are not found, the remedy is by motion for a new trial, on the ground that the verdict is contrary to law.</p>

<p>Practice. — Motion for New Trial. — Bill of Exceptions. — The motion for a new trial and exception to the ruling thereon may be made a part of the record by a bill of exceptions.</p> <p>Same. — Stenographeds Report of Evidence. — A stenographic report of the evidence, embodied in a bill of exceptions, followed by a statement that that was all the evidence given in the cause, shows the evidence, though it do not appear that the stenographer was sworn.</p> <p>Contract. — Offer of Sale and Acceptance hy Letter. — Parol Evidence. — In an action for the price of a horse alleged to have been sold by the plaintiff to the defendant, the plaintiff, admitting that he had sent a letter to the defendant containing an offer to sell him the horse for two hundred dollars, offered in evidence a letter, afterwards received from and signed by the defendant, of the tenor following: “ I might purchase your horse at $200— the price you asked. I would like to get it at once, if it will do me, which I am quite certain it will. Please reply at once.”</p> <p>Held, that the two letters do not show a complete written contract for the sale of the horse, and that the one offered was competent evidence, in connection with parol evidence offered, to show the sale charged.</p>

<p>Pbomissoby Note. — Principal and Surety.■ — Extension of Time. — Principal’s Insolvency. — Evidence.—Payee’s Knowledge. — On trial of an action on a note against principal and surety, wherein the surety has answered an extension of time, a question to the payee, a witness, asking his reason for not giving an extension, and his answer thereto that he knew of the princi- * pal’s insolvency, were relevant, competent and material.</p> <p>Pbactice. — Objection to Question. — Evidence.—Supreme Court. — An objection to a question put to a witness can not be made for the first time in the Supreme Court.</p> <p>Instbuction. — Ei'rtmeous Conclusion. — An instruction which, having stated a part only of the evidence given relative to the issue, concludes: “ your finding should be for the plaintiff,” is erroneous.</p>

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

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

<p>County Orders. — Promissory Note. — A county order for taxes refunded containing the words “ due and payable June 30th, 1878, with 8 per cent, interest from date,” is in legal effect the promissory note of the county, is assignable, and is presumed to be upon a sufficient consideration.</p> <p>Same. — Refunding Taxes Paid on School Lands. — Act of February 8th, 1877.— Pleading. — In an action against a board of commissioners upon an order for the repayment of taxes paid on school lands, if the taxes were of the class which the act of February 8th, 1877, Acts 1877,p. 139, prohibits from being refunded, and that fact does not appear on the face of the complaint, it must be pleaded as a defence to the action.</p>

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

<p>Statute of Frauds. — Contract for purchase of Real Estate. — Description.—Presumption. — A contract recited that “ The parties of the first part having conveyed certain lands ” (not described, except in a certain township and county), “ in part, agree to have the same completed within twenty days, or pay to the parties of the second part $500 ; and the parties of the second part agree to comply with the contract on completion of the deeds, or pay to the parties of the first part $500.”</p> <p>Held, in an action thereon, that the agreement was within the statute of frauds, the land not being so described as to be capable of identification, and the presumption being that the contract referred to was in parol.</p>

<p>Sheriff’s Sale. — Action to Set Aside. — Pleading.—A complaint to set aside a sheriff’s sale of real estate on execution, against a vendee of the purchaser, on the ground that the execution defendant’s personal property ¡was not first exhausted, and that the real estate sold should have been subdivided and a part only sold, is bad on demurrer, if it do not show that the sheriff had knowledge of the personal property or by reasonable ■diligence could have discovered it, and that it was within reach of the execution, and was so unencumbered that its sale would have yielded something, and that the vendee had notice of the irregularities.</p> <p>Same. — Sale in Parcels. — Whenever it is doubtful whether real estate levied on is legally susceptible of division, the action of the sheriff, taken in good faith and without abuse of discretion, is conclusive.</p> <p>.Same. — Division. —It is doubtful whether, in selling an undivided share of real estate on execution, a sheriff has power to subdivide such share and sell less than the whole of it.</p> <p>Same. — Sale in Solido. — Limitation of Action to Set Aside. — A sheriff’s sale of real estate in solido, which should have been sold in parcels, is not void but voidable, and proceedings to set it aside must be brought within a reasonable time — and it seems that this must be done within the year allowed for redemption, unless excuse be shown for the delay.</p>

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

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

<p>Pkomissoby Note. — Contract.—Payment of Note in Services. — Demand.—When a note for the payment of money on a day fixed contains a stipulation that payment may be made before maturity in sawing lumber at a named price, the payee to furnish the logs theréfor, the payor may give notice of his readiness to perform accordingly, and request that the logs be produced, and a failure of the payee to do so will excuse performance on the part of the payor; and the payee can not demand money without showing that he furnished logs and requested the payor to saw them.</p> <p>Same. — A stipulation in a note that it may be paid in specific articles of property or in work or labor is for the benefit of the payor, and he may, as he elects, pay either in property or labor, and if he make proper tender can compel the creditor to accept payment in the articles or work; but if lie fails to duly exercise his election, or make a proper tender when it is necessary, the creditor may enforce payment in money.</p>

<p>Practice. — Judgment Reopened. — Section 601, R. S. 1881. — Complaint.—Demurrer. — A party notified by publication only, and who has had a judgment against him opened under sec. 601, R. S. 1881, may demur to the original complaint for such cause as would not be deemed amendable on appeal, or cured by the verdict on motion in arrest.</p> <p>Partition.— Cross Petition.— Notice.— Res Adjudicóla. — If a person, not named in the petition for partition, becomes a party, and files a cross petition, claiming that certain defendants had conveyed their alleged interests to him, there can be no valid finding and decree in reference to the cross petition without legal notice of the filing thereof, or an appearance thereto by such defendants. The original petitioners, under section 7 of the act concerning partition, 2 R. S. 1876, p. 343, may dispute the right of such third person to appear if hostile to their interests, but they can not represent such defendants.</p> <p>Pleading.— Written Instrwment. — The deeds through which one claims title are not the foundation of his action for partition or to quiet title, and copies thereof filed with the complaint can not be looked to in passing upon a demurrer to the complaint.</p>

<p>Will. — Construction.—Tenants in Common. — Partition.—A will contained the following clauses : “ First. I give and bequeath to my son, N. T.,” certain real estate, describing it. “Second. * * To my daughter, A. A., twenty-five dollars in money. Third. * * To my beloved wife, B. T., all my land or real estate, of every description whatever, that I own at my death (not devised or given away in this will); also, all my personal property, * to have, use and control during all her natural lifetime, and after her death * * to my six children, * except that my son, N. T., is to have an equal share in the personal property with the other children; if any of my said seven children shall die without bodily heirs, then the others to have the share or shares, both real and personal, of the deceased ones, equally divided.”</p> <p>Held, that the third clause does not affect any property disposed of by the first and second clauses.</p> <p>Held, also, the testator having died leaving a widow and eight children, that upon the death of the widow and N. T, without issue, and subsequently the death of M. T., a son named in the will, leaving an only child, J. T., the land devised by the first clause of the will to N. T. belongs to A. A., J. T., the daughter of M. T., and the brothers and sisters of N. T. as tenants in common, each entitled to a one-seventh part thereof.</p>

<p>' Mabbied Woman. — Inchoate Interest in Husband’s Land Sold on Foreclosure. —Mortgage.— Vested Right. — Act of 1875 Construed. — When a man’s land has been sold upon foreclosure of a mortgage made by him alone before the passage of the act of 1875, Acts 1875, p. 178, the inchoate interest of the wife is not affected by that law. The vested right of the mortgagee could not be impaired by an enlargement of the inchoate right of the wife.</p> <p>Same. — Redemption.— Wife’s Transfer of Right. — Party.---If a wife is not made a party to a foreclosure against the husband, her right to redeem from a sale under the decree continues unaffected, and this right she may transfer to another, by joining her husband in the execution of a deed.</p>

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

<p>Former Adjuiucation. — Grounds of Defence. — A matter finally determined by a competent tribunal is considered forever at rest, and the ad- • judication includes every ground of defence which might have been litigated in the case.</p> <p>SjÍme. — Promissory Note. — Answer of Fraudulent Alteration. — Reply.-—Where in an action upon a promissory note the maker answers a fraudulent alteration by the plaintiff, as adjudicated in a former action thereon, a reply that the alteration, if made at all, was made by the plaintiff’s collecting agent without her fault, knowledge, connivance or consent, is bad.</p> <p>Same. — Alteration.—Spoliation.—The alteration of a note by the payee, whereby it is made payable at a bank in this State, is material and avoids the note, but an alteration by a stranger, or by an agent not having authority, is a mere spoliation, which does not release the parties.</p> <p>Same. — Fraudulent Alteration. — A fraudulent alteration by tlie payee of a promissory note will prevent him from recovering either on the note or on the original consideration.</p>

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

<p>Supreme Court. — New Trial. — Practice.—The Supreme Court will not reverse a judgment for error in granting a new trial, unless it appears that the action of the court has resulted in manifest injustice to the complaining party.</p> <p>.Same. — Newly Discovered Evidence. — ■'Where a new trial was asked because of newly discovered evidence and for various other reasons, the Supreme Court can not say that the trial court erred in granting such motion, because it should not have been granted for newly discovered evidence. 'The other reasons may have authorized the court to grant the motion.</p>

<p>Landlob:?and Tenant. — Where the term of a tenancy is uncertain, the tenant who sows a crop is entitled to reap it.</p> <p>Shebibf’s Sale. — Beal Estate.— Growing Ch'ops. — Landlord and Tenant.— Judgment LAen. — Mortgage Lien. — A tenant who sows crops on land subject to a judgment lien may claim them against a purchaser at a subsequent sheriff’s sale, and this rule applies to land under the lien of a mortgage which creates no estate in the mortgagee. Jones v. Thomas, 8 Blackf. 428, distinguished.</p> <p>Same. — Landlord’s Share of Crops of Land Sold on Execution. — Bedemption.— The purchaser at sheriff’s sale on foreclosure or upon execution gets only the landlord’s share, at most, in the crops upon the land, when he obtains title; otherwise, if the crops were planted after the sale and during the year for redemption.</p> <p>Keceiveb. — Application for Appointment of. — Pleading.—A petition for the appointment of a receiver must show affirmatively the facts which make the receiver necessary. It will not be sufficient to allege ignorance of material facts nor to allege a legal conclusion without stating the facts on which it is predicated.</p> <p>Same. — Beal Estate, Action to Becover. — Averments of Title in Petition for Beceiver. — Where, in an action for the recovery of real estate, a petition by the plaintiff for the appointment of-a receiver is filed, averring the plaintiff’s ownership of a junior judgment and his redemption from the foreclosure sale made by the defendant, the allegation of title that the “plaintiff afterwards took such other steps as required bylaw, as that,. on,” etc., “ and after due and legal sheriff’s sale of said real estate,” a deed therefor was by the sheriff executed to him, is insufficient.</p>

<p>Appeal. — Parties.—Execution.—In an appeal to the Supreme Court by A. from a judgment refusing to quash an execution against A. and B., on the motion of A., it is not necessary to make B. a party.</p> <p>Same.— Time. — An appeal from a judgment overruling a motion to quash an execution may be taken, and is in time if taken within a year from the time of overruling the motion; and in such case the record is conclusive as to the time, and can not be contradicted by answer to the assignment of errors.</p> <p>Replevin Bail. — Defects Owed. — Bastardy.—Following a judgment in the usual form against the defendant in bastardy, there was a recognizance of replevin bail, not attested or approved by the clerk, but in the form, prescribed by statute, save that the word,“security ” was used instead of “ bail.”</p> <p>Meld, that it was made good by section 1221, R. S. 1881, and applied to the judgment in gross.</p>

<p>New Trial. — Evidence Offered. — Exception.—An exception to the ruling of the court in allowing a party to “ offer ” certain evidence, is meant to include the putting in of the evidence.</p> <p>Evidence. — Foreign Statutes. — Authentication.—A statute of another State, authenticated as required by the act of Congress, E. S. 1881, section 454, is admissible in evidence, though the authentication be not in conformity with the statute of this State, E. S. 1881, section 457.</p>

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

<p>Pleading. — Promissory Noté. —Consideration.—Irrelevant Averments. — Demurrer. — A promissory note imports a consideration, and consequently averments in a complaint on such note, concerning the origin and nature of the consideration, are irrelevant and not to be considered on demurrer.</p> <p>Same. — Anticipation of Defence. — It is not proper, in anticipation of the defence, to aver in the complaint matters which do not aid the statement of the cause of action.</p> <p>Bankruptcy. — Fiduciary Debt. — Discharge.—Factor or Commission Merchant. —The obligation of a factor or commission merchant to his principal for the proceeds of goods sold is not, under the bankruptcy law of 1867, a fiduciary debt, and is, therefore, discharged by a discharge in bankruptcy.</p>

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

<p>Paetneeship. — Ghaltel Mortgage. — Lien.—Principal and Surety. — Where, by the contract of copartnership, it is stipulated that one partner shall hold a lien upon the property of the firm, as indemnity for any liability he may incur as surety for the other, and afterwards the other partner mortgages his interest in the partnership property to a third person, without notice of this stipulation, the mortgage will be postponed in favor of the lien created by the stipulation, the mortgagee being charged with notice of the latter. Woods, J., dissents.</p>

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

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

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

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

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

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

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

<p>Taxes. — Complaint to Enjoin Execution of Deed for Land Sold. — A complaint to enjoin a city treasurer from executing a deed for real estate sold for taxes, which avers that the owner of the property, at the time of the sale, had sufficient personal property in the county out of which the tax could have been collected, is good on demurrer.</p> <p>Same. — Sale, of Beal Estate, When Owner has Personal Property. — A sale of real estate for taxes, while the owner has sufficient personal property out of which the taxes could have been satisfied, is void.</p> <p>Same. — Agreement to Bid Jointly at Tax Sale. — Public Policy. — An agreement made between two or more persons to bid jointly upon property at a tax sale, if not made to prevent bidding, for the purpose of protecting their own interests, is not fraudulent in law, and will not vitiate such sale.</p> <p>Same. — Judgment Lien-IJolders May Purchase. — When one holds a judgment lien upon real property offered for sale for taxes, he has the right to pay the taxes, but this right does not impose upon him the duty to pay them, nor does it prevent him from acquiring title to such property by purchase at such tax sale.</p>

<p>Supreme Court.— Assignment of Error. — Where a complaint consists of more than one paragraph, the sufficiency of a single paragraph thereof can not be questioned for the first time in the Supreme Court.</p> <p>County Clerk. — Official Bond. — Complaint.—As to the sufficiency on demurrer of the complaint on the bond of a county clerk, to recover for fines, docket and witness fees collected by him, see opinion.</p> <p>Same. — Docket and Witness Fees. — Fines and Forfeitures. — Attorney General.— Prosecuting Attorney. — Statute Construed. — It is the duty of the clerk — E. S. 1881, section 5858 — to pay docket fees to the treasurer within thirty days after collection; also on the first of January, annually, all fines, jury fees, and witness fees not claimed for a year; also the proceeds of sales of real estate of unknown heirs — section 2412; also, when after the lapse of two years from final settlement of an estate, heirs do not claim the surplus, and the court directs the payment — section 2415; and on default the Attorney General may, at once, under section 5668, sue for the same; but for default as to fines and forfeitures, and for property es-cheating to or belonging to the State, he has no duty to perform until a year has elapsed from the time the cause of action has accrued, and then only if the prosecuting attorney has failed, neglected,, or refused to collect or begin suit.</p> <p>Same. — Repeat—Case Disapproved. — Section 5668, E. S. 1881, is not so inconsistent with sections 4435, 5611 and 5616, or either of them, as to repeal them. Moore v. State, ex ret, 55 Ind. 360, disapproved on this point.</p> <p>Same. — Statute of limitations. — Principal and Surety. — In a suit against the county clerk and his sureties, on his bond, it is error to sustain a demurrer to an answer by the clerk, that the cause of action did not accrue within three years, and the error can not be regarded as harmless because there was a similar defence pleaded by the sureties in another paragraph, nor because the judgment against the clerk was no larger than against the sureties ; nor can the suit be regarded as upon the bond against the sureties, and against the clerk as not upon the bond, so as to make the period of limitation, as to him, six years, as provided in section 293, R. S. 1881.</p> <p>Same. — Payment After Suit. — Semble, that a county clerk, pending a suit on his bond, may pay, as he ought before suit, to the proper officer, and, under proper issues, proof of such payment is admissible; but this would not affect the plaintiff’s.right to costs and penalties.</p>

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

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

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

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

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

<p>Criminal Law. — Ooniinuance.—Evidence.—Where a fact not constituting the body of the offence, but a circumstance tending to prove guilt, is to be put in evidence by the prosecution, and the defendant learns the intention of the State too late to procure evidence which will explain the fact, it is error to overrule his motion, on proper affidavit, to postpone the trial so as to give him the opportunity.</p> <p>Same. — Affidavit of Absent Witness. — The affidavit of the absent witness need not be made a part of the application for a continuance.</p> <p>Same. — Burglary.—Ownership.—Indictment.—Landlord and Tenant. — Where the building alleged to have been burglariously entered is in possession of a lessee or tenant, it may properly be charged to be his property, or that of the landlord, sec. 1753, R. S 1881.</p>

<p>Emblements. — Sheriff’s Sale. — Redemption.—Landlord and Tenant. — Crops.— The law favors the right of one who sows to reap, but, if he knows he can not reap before the expiration of his right of possession, he sows at his peril; so, where an execution defendant remains in possession of real estate sold on execution during the year for redemption and puts in a crop which will not mature until after the year expires, and he fails to redeem, he is not entitled to such crops.</p>

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

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

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

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

<p>From the "Warren Circuit Court.</p>

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

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

<p>■Specific Performance. — Title Bond. — Contract.—Mistake.—Statute of Limitations.— Vendor and Purchaser. — Suit to compel a conveyance according to the conditions of a title bond. Cross complaint averring that the purchase-money was unpaid, alleging that a recital in the bond of payment was a mistake, and that the purchaser and her assignee were in possession, praying for a correction of the mistake, that an account be taken of the purchase-money due, and on payment that a conveyance be made by a commissioner, and for general relief. Answer to the cross complaint, the statute of limitations.</p> <p>Held, that the cross complaint was good on demurrer, and the answer bad.</p> <p>Held, also, that plaintiff, by suing for specific performance, waived the statute.</p> <p>■Same. — Estoppel.—The recital of payment in a title bond for a deed for the purchase of real estate does not estop the obligor from averring, in a suit for a deed, the non-payment of the purchase-money.</p>

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

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

<p>Contract. — Unmmdness of Mind. — The contract of an insane person, whose disability has not been judicially determined, is voidable only, and not void.</p> <p>Same. — Disaffirmance.— When Ocmtraci of Insane Person mil not be Set Aside.— An insane person, unless his insanity had been judicially declared before the contract was made, has not the same unqualified right, as an infant or married woman, to disaffirm his contract; and when there is nothing in his appearance, conversation or conduct to indicate his mental incapacity, and he makes a contract with one without notice of his condition, which is in itself fair and just, and such contract becomes so far executed that the parties can not he placed in statu quo, the contract will not be set aside.</p> <p>Same.— Chattel Mortgage.- — -Title to Property. — Possession.— Demand.— Replevin. — A chattel mortgage executed by an insane person, whose mental unsoundness has not been judicially determined, will vest the title, and, after default in the condition, the right of possession of the chattel in the mortgagee; and actual possession obtained under it can not be made wrongful without a disaffirmance. In such case, there must be, therefore, a disaffirmance before an action can be maintained to recover the chattel from the mortgagee.</p> <p>Same. — Semble, that a party to a contract should not be allowed to disaffirm on account of insanity, without restoring what he had received, or offering to make compensation therefor, if the other party acted in good faith, and the contract itself was fair.</p> <p>Same. — Instructions.—Burden of Proof — Shifting of Burden. — In an action by the mortgagor of a chattel, to recover possession on the ground of his insanity when he made the mortgage, it was not error to instruct “That the plaintiff must have established, by a preponderance of evidence, that he was insane at the time he executed the note and mortgage,” nor in refusing to instruct “ That if the plaintiff had established by a preponderance of the evidence, that he was of unsound mind prior to the making of the chattel mortgage, then the burden of proof is cast upon the defendant to show that the plaintiff was of sound mind at the time,” etc. The burden of proving insanity is on the one who alleges it.</p> <p>Qumre, whether it is quite accurate to say that the burden of a particular affirmative issue bver shifts in the course of the trial from one party to> the other.</p>

<p>Tbaudulent Conveyance. — Subsequent Creditor. — Costs.—Execution.—Where one, already embarrassed beyond his ability to pay, in anticipation of a possible indebtedness for costs of a lawsuit which he afterwards commences, and for the purpose of evading payment thereof, conveys real estate to another, upon a secret arrangement that the latter shall pretend to own it, that it may escape execution, but hold it for the use of the grantor, and that his other assets shall be disposed of before the liability for costs shall accrue, it may be made subject to execution to satisfy a subsequent judgment for such costs, if other property can not then be found liable to execution.</p>

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

<p>¡Supbeme Coubt. — Practice.— Waiver. — Pew Trial. — Reasons for a new trial covered by a specification in an assignment of error, but not discussed, will be regarded by the Supreme Court as waived.</p> <p>Same. — Evidence.—Competency.—The competency of evidence can not be objected to for the first time in the Supreme Court.</p> <p>Same. — Preponderance.—The Supreme Court will not weigh evidence tending to support a verdict, to determine its preponderance.</p> <p>'Guabdiau astd Wabd. — Bemoval from Slate. — Damages.—In an action by a ward, in 1880, upon the bond of his guardian who had, in 1873, removed from the State without accounting and paying over, the measure of ■damages upon recovery was provided by section 163, 2 R. S. 1876, p. 551.</p>

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

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

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

<p>Divorce.— Alimony. — Attorney’s Fees. — Antenuptial Cemtract. — Where at marriage the wife is 33 and the husband 77 years of age, and there was an antenuptial contract concerning property, containing a release of all share in the husband’s estate upon his death, and it appeared that the husband had made provision for the wife beyond the requirements of the contract, an allowance to the wife of $25 for attorney’s fees, and a refusal to allow alimony, will not be disturbed by the Supreme Court.</p>

<p>Parties. — Husband and Wife. — Notice.—In a suit to foreclose a mortgage upon lands purchased by a married woman subsequent to the mortgage, her husband is a proper party defendant, and it is not necessary to aver that he had notice of the mortgage.</p> <p>Pleading. — When a party is made defendant to answer to his interest, he can not, after verdict, object to the complaint that his interest is not specifically stated.</p> <p>Practice. — Objection to the sufficiency of a reply comes too late after verdict.</p> <p>Same. — New Trial. — Where a party negligently and without excuse fails to prepare for trial, he can not get a new trial because of surprise, and of accident preventing his presence at the trial; and if upon such a motion there be counter affidavits contradictory of the statements of those in support, the Supreme Court will not interfere with the ruling on the motion.</p>

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

<p>Appeal. — County Commissioners. — Practice.—An appeal from, the order of a county board levying a tax in aid of a railroad goes to the circuit court, not for the correction of errors, but for trial as an original cause; objections filed there, in the nature of an assignment of errors, should he wholly disregarded, and the party appealing can make no question in the Supreme Court concerning the ruling of the circuit court upon them.</p> <p>Railroad. — Tax.—Public Aid. — Evidence.—In July, 1879, a petition was presented to the county board asking an appropriation for a township of $75,000, to aid a railroad, as provided by the statute (R. S. 1881, sec. 4045). An election was held and the appropriation voted. In June, 1880, the board levied a tax of one per cent, accordingly. In June, 1881, another levy of one per cent, was ordered, and on trial of an appeal from this last order the appellant offered to prove that a tax of one peícent. for the years 1880 and 1881 would not raise the $75,000.</p> <p>Held, that the evidence was immaterial.</p> <p>Held, also, that the appeal raised no question upon the proceedings occurring before the order appealed from.</p> <p>Judgment. — Assignment of Error. — Supreme Gourt. — When the judgment appealed from is defective and incomplete, but no error is assigned thereon, and no available error has been committed in the proceedings which led to it, it will not he reversed.</p>

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

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

<p>Taxes. — Invalid, Tax Sale Lien. — Statute of Limitations. — The right of a purchaser at an invalid tax sale to enforce a lien against the land is barred by the lapse of fifteen years, not by the five years’ limitation prescribed in the 250th section of the assessment law, for an action to recover the land itself. Acts 1872, p. 117; 1 E.S. 1876, p. 127.</p> <p>Same. — Subsequent Taxes.— Voluntary Payment.- — When the right to enforce a lien upon land for the amount bid at an invalid tax sale, has been lost by lapse of time, a subsequent payment of taxes on the land will be deemed a voluntary payment, furnishing no cause of action, and ineffective to restore the original right.</p> <p>Same.— Pleading. — -Limitation.— Phidenee. — When, under a complaint in ejectment, the plaintiff seeks, under sections 256 and 257 of the assessment law of 1872, Acts 1872, p. 119, 1 E. S. 1876, p. 129, to enforce a lien for the amount of his bid at an invalid tax sale, the answer of general denial admits proof of all defences, including the statute of limitations.</p>

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

<p>Corporations. — Information.—Quo Warranto. — An information under the third clause of section 1131, B>. S. 1881, is sufficient if it appear therefrom that the defendants pretend to be organized as a corporation, and are exercising corporate powers, when they are not so organized as the law requires.</p> <p>Same. — Whether corporators intend, in good faith, to carry out the purposes of their organization, can not be questioned by quo warranto.</p> <p>Turnpike Company. — Organisation to Purchase Hoads. — Statute Construed.— To organize a turnpike company under the statutes (R. S. 1.881, sections 3624 and 3658), there must be a substantial compliance with the requirements prescribed. There can be no such organization for the purpose of purchasing, etc., two or more distinct roads already existing, and owned by different corporations.</p> <p>Same.- -Subscription by Initial of Christian Name. — Articles of association for the formation of a turnpike company may be subscribed by the corporators, by their usual signatures, and the use of initials to designate their Christian names is not objectionable.</p> <p>Same. — Estoppel.—That the State has instituted a criminal prosecution for breaking down a toll-gate, described in the indictment as the property of a corporation named, is no bar to an information to contest the valid organization of the supposed corporation.</p>

<p>Supreme Court.— Appeal.— Parties.— Trust and Trustee.— Mortgage. — E., trustee of an express trust created by mortgage, obtained a judgment of foreclosure, and then died. Afterwards the mortgagors appealed, making a party appellee B., who was named in the mortgage as the successor of E. as trustee in case of the death of the latter.</p> <p>Held, that B. was properly made a party to the appeal.</p>

<p>•Contract. — Pleading.—Condition Precedent. — Performance.—In pleading tlie performance of a contract, the statute (R. S. 1881, section 370) makes it sufficient to aver that the party has performed all the conditions on his part.</p> <p>Same. — •Sale of Personal Property. — Title.— A contract, whereby A. agrees to buy all the spring lambs of B. at certain prices to be paid, the seller to pasture them till called for, passes title to the purchaser without specifically setting the property apart, and if, without fault of the seller, it suffers injury, the loss falls upon the purchaser.</p> <p>.'¡Special Finding. — • Practice. — When the court finds the facts specially, stating separately its conclusions of law thereon, a party by excepting to the conclusions does not lose the right to move for a new trial.</p>

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

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

<p>PbACTICE. — Pleading.— Uncertainty. — Mere uncertainty in a pleading is not reached by demurrer, but by motion to make specific.</p> <p>Raiíboads. — Fences.—Gattle-Pits.—^Wben a railroad company makes gates in its fences to enable a farmer, whose lands lie on both sides, to pass and repass, and does not protect the crossing by cattle-pits, the railroad is not securely fenced, as the statute (R. S. 1881, section 4031) requires.</p> <p>Same. — Stock Killed. — Negligence.—Evidence.—There is no question of negligence by either party, nor of motive for not securely fencing, involved in a suit for animals killed, under the statute requiring railroads to be fenced, and it is not error to exclude evidence upon these subjects.</p>

<p>Slander. — Actionable IPbrcis. — Pleading.—Inducement and Innuendo. — Words spoken of an unmarried woman which are intended to convey, and do convey, to the mind of the hearer, the meaning that she was guilty of fornication, are slanderous and actionable; and when the allegations of the complaint, in an action for slander, show, by the inducement and innuendo, that the words charged to have been spoken meant, and were intended to mean, that the plaintiff had been guilty of fornication, such complaint shows that the words were uttered slanderously, and are actionable.</p> <p>Same. — Malice.—Presumption.—Instruction.—Where, in an action for slander, justification is not pleaded, it is not error to instruct, that if the defendant spoke the words charged, intending and being understood to impute fornication as charged, the law will presume malice.</p> <p>Same. — Repeating Slanderous Charges. — It is actionable to repeat in good faith slanderous words concerning another, on an occasion not privileged, though at the same time a disbelief in their truth be expressed, and the purpose of the repetition be to obtain advice as to the propriety of informing the plaintiff of the charges.</p> <p>Instructions. — Practice.—Harmless Error. — If all the instructions, taken as a whole, fully give the law of the case, it is not material that a single one may, in itself, omit something which ought to he given.</p>

<p>Vendor and Purchaser.— Vendor’s Lien. — Complaint.—Deed.—In a complaint to recover purchase-money of real estate and to establish a vendor’s lien, an averment that the purchaser has no other property subject to execution is unnecessary, and if the vendor has not conveyed to the purchaser, the absence of an averment that a deed has been tendered is an objection which can be made only by the purchaser.</p> <p>Same. — Lien.—Judgment.—Sheriff’s Sale. - A judgment against a purchaser of real estate having no conveyance, and there being no fraud, is not a lien upon the real estate, and a sale on execution issued on such judgment vests no rights in the purchaser.</p> <p>Judgment. — -Practice.—Supreme Court. — Objection to the form of a judgment can not be made, for the first time, in the Supreme Court.</p>

<p>Pleading. — Payment.—Sheriff’s Sale. — Action on Sheriff’s Bond. — A plea of payment is a relevant and proper defence to an action against a sheriff to recover a surplus remaining in his hands from the proceeds of a sale of property on an execution against the plaintiff; and it is error to give judgment for the plaintiff as for a failure of the defendant to answer, when such plea is on file.</p> <p>Same. — A plea of payment need not state to whom the payment was made.</p> <p>Sheeiee. — Payment to Clerk of Court. — Ratification.—To an action against the sheriff for the recovery of an alleged surplus remaining in his hands from the sale of plaintiff’s property on execution, it is a good defence that the sheriff had paid the money to the clerk of the court, to whom the attorneys of record of the plaintiff, “ thereunto duly authorized,” had receipted for parts of the money, and the remainder, with the plaintiff’s consent, had been applied by the clerk to costs taxed against the plaintiff; such facts show a ratification of the act of the sheriff in the disposition of the surplus.</p> <p>Peincipal and Agent. — Ratification.—The unauthorized act of an agent, or of one assuming to act as an agent, can not be accepted in part and rejected in part.</p>

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

<p>Contract. — Partnership.—Fraud.—Receiver.—Complaint.—Verdict.—Judgment. —Excessive Damages.— Vendor and Purchaser. — Complaint in two paragraphs, alleging fraudulent representations whereby the plaintiff was induced to purchase for $1,281 an interest in the property, machinery and trade of a factory worth only $800, and become a partner. One paragraph prayed damages, the cancellation of a note given for part of the purchase-money, and for general relief; the other added a prayer to annul the contract. The verdict found for the plaintiff damages in the sum which had been paid, and that the note be cancelled, but was silent as to annulling the contract.</p> <p>Held, that the complaint was good on demurrer.</p> <p>Held, also, that the damages were excessive, since a judgment in accordance with the verdict would leave the plaintiff owner of the property bought.</p>

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

<p>Contested Election. — Quo Warranto. — Jurisdiction.—The right to an office may be contested and tried upon information filed in the circuit court, under sections 749 and 750, 2 R. S. 1876, pp. 298 and 299, notwithstanding the special statutory provisions for the contest of elections.</p>

<p>Criminal Law. — Reserved Question of Law. — Appeal Sustained. — No Reversal of Judgment. — Gosts.—-During the prosecution of a criminal cause, the prosecuting attorney may, by bill of exceptions, under section 1846, R. S. 1881, reserve any point of law for the decision of the Supreme Court. And, if the defendant be acquitted, the prosecuting attorney may, within one year, take the reserved case to the Supreme Court, upon appeal; there shall be no reversal of the judgment, on such appeal, but the opinion of the Supreme Court shall be the uniform rule of decision in inferior courts, and if the decision below is held to be erroneous, the appellee must pay the costs of appeal.</p> <p>Same. — Foreign Insurance Company. — Certificate of Auditor of State. — Duly of Agent. — Under section 3765, R. S. 1881, a foreign insurance company is not required to file, in the county clerk’s office, a certificate of the auditor of State showing that it is authorized to do business in the county; but it is made the duty of any agent of any such company, who assumes to act as such agent in the transaction of insurance business in any county, to procure and file in the office of the clerk of the circuit court of the county a certificate from the auditor of State, showing that he is authorized to act as such agent in the transaction of insurance business, for such company, in such county.</p> <p>Same. — Embezzlement by Agent. — Rlegal Consideration or Premiums. — Defence. —Where an agent of a foreign insurance company is prosecuted for the embezzlement of the moneys of the company received by him, in the course of his agency, as embezzlement is defined in section 1944, R. S. 1881, it is no defence that such agent had not complied with the requirements of section 3765, R. S. 1881, in regard to his agency, and had therefore received such moneys for the company, upon an illegal consideration and in the transaction of an unlawful business.</p>

<p>Ceiminax, Law. — Sabbath Desecration. — Indictment—In a prosecution for desecration of the Sabbath, under section 95, Acts 1881, p. 194, R. S. 1881, section 2000, the indictment alleged that the defendant, on the 4th day of December, 1881, unlawfully engaged in common labor, and his usual vocation, by selling cigars.</p> <p>Held, that the indictment was insufficient for failing to allege that the sale was on some day known and commonly called Sunday.</p> <p>Held, also, that proof must be made of the sale on some particular Sunday within a time not barred by the statute of limitation of six months, section 1594, R. S. 1881.</p>

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

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

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

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

<p>Supreme Court. — Practice.—Second Appeal. — Where a judgment has beau reversed and°the cause remanded to the court below, and from the proceedings there had a second appeal is taken, such appeal brings before the Supreme Court, for review and decision, nothing but the proceedings subsequent to the reversal; and none of the questions presented and decided on the first appeal can here-heard or re-examined on the second appeal.</p> <p>Promissory Note. — Mortgage on Peat Estate. — Suit by Assignee against Indorser. — Due Diligence. — Insolvency of Maher. — Defences.—Under section 5504, R. S. 1881, the assignee of promissory notes, not payable to order-or bearer in a hank in this State, and secured by mortgage on real estate, having used due diligence in the premises, or where, by reason of the insolvency of the maker of the notes, due diligence would have been unavailing, may have his action against his immediate or any remote indorser of the notes, for ary balance due or to become due thereon after the sale of the mortgaged premises ; and it is no defence to such action that the mortgaged premises depreciated in value between the time when the assignee might have enforced, and the time when he did enforce, the sale of said premises.</p> <p>¿Samé. — Assignor’s Contract. — Sale of Mortgaged Premises. — Application of Proceeds. — The contract of the assignor or indorser of a promissory note, negotiable under the statute of this State, but not governed by the law merchant, is a warranty that the maker is liable on the note and able to pay it. Upon the sale of mortgaged premises, the proceeds of the sale shall be applied, under section 689 of the civil code of 1852 (sec. 1104, R. S. 1881), first to the payment of the principal due, interest and costs, and then to the residue secured by the mortgage and not due; and an answer of the assignor, seeking a different application of the proceeds of sale from that prescribed in the statute, is bad on demurrer for the want of facts.</p> <p>Same.— Want of Diligence. — Notes not Due. — The assignee’s failure to use due diligence in the prosecution of his judgment against the maker upon the notes then due, is no defence in the suit against the assignor upon the notes which afterwards became due.</p> <p>•Same. — Assignment of Mortgage Notes. — Judgment of Foreclosure. — Merger.—In the judgment recovered by the assignee of notes secured by mortgage, against the maker thereof, for the foreclosure of the mortgage, there is no merger of the assignor’s contract of assignment.</p>

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

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