Volume 82 — Indiana Reports

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

<p>Criminal Law. — Sufficiency of Indictment. — Supreme Court. —Practice.— Waiver. — Where it is assigned, as error, that the indictment is insufficient, and no defects therein, either in form or substance, are indicated in the assignment, and the appellant’s counsel does not, in his brief, allude even to the alleged insufficiency of the indictment, the Supreme Court will consider the supposed error to be waived and abandoned.</p> <p>Same. — Prosecution of Infant. — House of Refuge. — Supreme Court. — Presumption. — Where an infant, under the age of sixteen years, has been arraigned for a violation of any criminal law of this State, and it appears that the trial court, under section 6214, R.S. 1881,has arrested the proceedings and committed the accused to the guardianship of the House of Refuge, the Supreme Court will presume, where the record shows nothing to the contrary, that this action was had with the consent of the accused.</p> <p>Same.— Motion for New Trial.— Exception.— Judgment.- — Supreme Court.— Practice. — In criminal cases, it is cause for a new trial, that the verdict of a jury or finding of the court is contrary to law, under section 1842, R. S. 1881, and, unless the record shows that such cause was assigned in the motion for a new trial, the overruling of such motion,, and an exception to the ruling, the question is not presented and will not be considered by the Supreme Court; nor will the court consider objections to the judgment, when the record fails to show that any objection or exception, either formal or substantial, was made to the judgment in the trial court.</p>

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

<p>Real Estate, Action to Becoveb. — Sheriff's Sale. — Mortgage.—Agreement. —Evidence.—Where to an absolute deed of lands there is a separate written defeasance, thus constituting a mortgage, it seems that parol evidence to show that the deed was intended to operate as a mortgage is not admissible, except in cases of fraud or mistake; and an agreement, made without the knowledge of a judgment plaintiff, between the judgment defendant and his vendee of the premises, that the vendee should assume the payment of plaintiff’s claim, and allow defendant to remain in possession, and that a. certain sum agreed upon as interest should stand instead of rent, is not competent evidence in a suit by an assignee of plaintiff, the purchaser at sheriff’s sale, to recover possession from the defendant.</p> <p>Same.— Trust and Trustee.— Mesne Profits.— Demand.— Ejectment. — After a judgment foreclosing a mortgage of real estate, and before sale thereon the judgment defendant, by absolute deed intended to operate as a mortgage, conveyed the premises to P., who undertook to advance money to pay the mortgage debt and other debts of the judgment defendant, but of this the judgment plaintiffs had no notice. Subsequently, the land was purchased at sheriff’s sale, upon the judgment, by the plaintiffs therein, and they then entered into a contract with P. for the sale of their certificate of purchase to him, receiving a sum of money in hand, and the sale to be effective upon the payment by him to them of the balance of their debt in certain instalments, and, for the purpose of carrying out this contract, the certificate was assigned to W. in trust, who had no notice of the contract between P. and the judgment defendant.</p> <p>Held, that W. on receivinga sheriff’s deed could maintain ejectment against the judgment debtor, and that demand of possession was not necessary.</p> <p>Held, also, that mesne profits to the time of the trial could be recovered.</p> <p>Held, also, that the rights of the judgment defendant against P. could not be interposed to defeat W. in a suit for possession and mesne profits.</p> <p>Same.— Unrecorded Defeasance. — An unrecorded defeasance is not notice to subsequent purchasers.</p> <p>Same. — Notice.—The continued possession by a judgment defendant of lands sold on execution against him, is not notice to the judgment plaintiff, or his assignees, that the right of possession is claimed or held in any other character than that existing at the time of the sale.</p> <p>Same. — Agreement between Execution Defendant and Third Person. — An execution defendant in possession can not make any agreement with a third person which will impair the rights of the judgment creditor.</p> <p>Same. — An execution defendant in possession can not contest the title of the judgment creditor’s assignee.</p> <p>Same. — Payment of part of Judgment. — Effect o/. — -The rule that, where money is paid in redemption of lands sold upon execution, the holder of the certificate can not take out a sheriff’s deed, does not apply to a case where a third person agrees to buy the certificate and pays part of the agreed price therefor.</p>

<p>Decedents’ Estates. — Costs.—Statute Construed. — Action against Executor or Administrator and Co-obligor. — A joint suit against an administrator or executor and the co-obligor of the deceased, upon a joint or joint and several obligation, is governed in respect to costs by the rules of the code, and not by section 62 of the decedents’ estates act. 2 B. S. 1876, p. 512.</p> <p>Principal and Surety. — Extension of Time. — Notice.—An extension of time by agreement with the principal debtor does not discharge a surety, unless the suretyship be known to the holder of the obligation.</p> <p>Same. — Burden of Proof. — The surety who alleges an extension of time, without his consent, must allege and prove that the holder of the obligation had notice of the suretyship.</p> <p>Supreme Court. — Evidence.—This court will not disturb a verdict for lack of evidence, if supported by some evidence, especially when against the party who had the burden of the issue.</p>

<p>Drainage. — Estoppel.— Collateral Attack. — Where a drain is established pursuant to the act of 1867, Acts 1867, p. 186, a party to the proceedings, haying notice and being assessed for the construction thereof, can not maintain a suit for injury to his land thereby, or by reason of its construction thereon. He is bound by the proceedings before the county commissioners, unless appealed from, and can not attack them collaterally.</p>

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

<p>Evidence. — Execution of Lost Note.— General Denial Not Verified. — Non-Payment. — On trial of an action upon a promissory note alleged to have been lost, due and unpaid, the plaintiff, to sustain the issue formed by the general denial, not verified, is not required to prove the execution of the note, or his allegation that it is unpaid.</p> <p>«Supreme Court. — Practice.—Motion to Dismiss Appeal. — Diligence.—A motion-in the Supreme Court to dismiss an appeal because not prosecuted with diligence can be made only on call in open court.</p>

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

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

<p>Fraudulent Conveyance. — Execution.—Parol Trust. — Agreement.—Complaint to restrain the levy of an execution against another, upon lands of the plaintiff. Answer, that in 1868 the lands were conveyed by the execution defendant to the plaintiff, without consideration, upon a parol agreement that the latter would hold in trust for the former; and that afterwards in 1872, when the former became indebted to the execution plaintiff, he made a false and corrupt pretence of a purchase of the lands by the plaintiff from the execution defendant, in fraud of creditors, money being paid therefor, which was secretly returned, at which time the execution defendant had, and still has, nothing subject to execution.</p> <p>Held, that the answer was insufficient on demurrer.</p> <p>Held, also, that said trust, if a trust at all, was an express one, and could not be created by parol.</p>

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

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

<p>Sheriff’s Bond. — Action on. — Complaint.— Voluntary Assignment. — A complaint, by the assignee of an insolvent debtor, on the bond of a sheriff, for the wrongful taking of property of the debtor conveyed to him, which gives no description of the property or copy of the deed of assignment or its date, and does not show when or where it was recorded, is insufficient.</p> <p>Same. — Title of Assignee. — In such action the complaint need not state the particulars of the assignee’s title, but if it undertakes to do so, and thereby show’s want of title, it is insufficient on demurrer.</p> <p>Voluntary Assignment. — Lien of Execution. — A voluntary assignment for the benefit of creditors, made by an execution defendant, does not divest the lien of the execution.</p> <p>Practice. — Bill of Exceptions.- — Motion to Strike Out. — The ruling of the court in striking out a pleading must be shown by a bill of exceptions, to present any question thereon in the Supreme Court.</p> <p>Same. — A pleading having been-struck out of the record can be brought back only by a bill of exceptions, or by order of court.</p> <p>Same. — Demumr to Answer. — A demurrer to an answer tests the sufficiency of the complaint.</p> <p>Same. — Judgment on Defective, Complaint. — Where the complaint fails to show a cause of action, and a judgment is rendered against the plaintiff, he can not complain thereof on account of error in ruling upon his demurrer to an answer.</p>

<p>Fraudulent Conveyance. — Action against Grantee. — A creditor who lias no lien upon the property of his debtor can not maintain an action against a person who has accepted a conveyance of the property, for the purpose of defrauding the creditor, and who has conveyed the property to another at the instance and for the benefit of the debtor, without retaining any portion of it, or receiving any benefit from it.</p>

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

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

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

<p>C/BIMINAI, Law. — Practice.—Information.—Under section 1679, R. S. 1881, an information as well as an affidavit is necessary to an original prosecution for crime, and if there be no information, and no offer to file one, the cause may be ended by quashing the affidavit.</p>

<p>Judgment. — Misnomer of Party. — Abatement.—A defendant who.is sued by a wrong name, is served with process, and fails to plead the misnomer in abatement, is bound by the judgment.</p> <p>Same. — Action Upon Judgment. — Complaint.—In an action upon a judgment, an averment in the complaint, that the judgment was rendered against the defendant by another name, is sufficient to show that he is bound by the judgment.</p> <p>Same. — Record.—Dismissal.—Appearance.—Default.— Presumption.— Supreme Court. — Where the record shows the dismissal of an action for want of prosecution, and afterwards the defendant’s withdrawal of his appearance, a default and judgment rendered against the defendant, the Supreme Court will presume, the record showing nothing upon the subject, that the cause was properly reinstated.</p> <p>Same. — Collateral Attach. — Jurisdiction.—Where a domestic judgment is collaterally attacked, and the record is silent upon the subject, jurisdiction of the person will be presumed.</p>

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

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

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

<p>Supreme Court. — Practice.—Ew.dence.—Where the proof of a 'fact is clear and convincing, and yet the trial court has found the contrary without any evidence fairly tending that way, the finding, though against the party who had the burden of proof, will be set aside by the Supreme Court, especially when, the witnesses were numerous, their testimony harmonious, and no attempt was made to impeach them, or to refute their statements by opposing evidence.</p> <p>Married Woman. — Infant.—Disaffirmance of Deed Executed During Coverture and Minority. — Action to Quiet Title. — Complaint.—Estoppel.—It is a question of fact whether the disaffirmance of a deed made by an infant feme covei't was unreasonably delayed after she .had reached her majority; and in an action by her to recover real estate so conveyed, a cross complaint by the defendant, to quiet the title thereto on account of such delay, should, besides alleging the lapse of time and circum- ' stances, aver that the delay had been unreasonable.</p> <p>Quaere. — Whether an infant feme covert, who has conveyed her real estate, must disaffirm on arriving at full age, or may she do so within a reasonable time after becoming discovert ? and can she while under coverture be bound by an estoppel in pais against disaffirming her deed made when she was an infant and under coverture ? Scranton v. Stewart, 52 Ind. 68, and Miles v. Lingerman, 24 Ind. 385, criticised.</p> <p>Estopped in Pais. — As a rule there can not be an estoppel in pais unless there has been a change in the position of the parties in respect to the matter in dispute, to the detriment of the one who pleads the estoppel.</p>

<p>Mortgage. — Subrogation.—Estoppel.— Vendor and Purchaser. — Payment and Enin/ of Satisfaction. — A person who purchases real estate which is subject to a mortgage and a judgment lien, and who pays the mortgagee the prior lien and causes an entry of satisfaction to be entered of record without any knowledge of the judgment, is entitled to be subrogated to the rights of the mortgagee as against the judgment creditor and is not estopped to assert such right against such creditor who purchases the property at execution sale upon the judgment after the entry of satisfaction.</p> <p>Same. — Preferred Creditor. — Fraudulent Conveyance. — A mortgage, made by an insolvent debtor to secure a valid claim, is not invalid because it was executed while a suit was pending by another creditor against the mortgagor for the collection of a debt, and because it was made to give the mortgagee a preference over such other creditor.</p> <p>Same. — Consideration.—Where a mortgage is executed to secure pre-existing notes, no consideration other than the notes is necessary to support the mortgage.</p> <p>Special Finding. — Presumption.—Burden of Issue. — Where the special finding of the court is silent upon any question of fact, such fact is regarded as found against the party upon whom the burden of the issue rests.</p>

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

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

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

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

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

<p>Contract. — Consideration.—Merger.—Release of Surety in Judgment. — R. recovered a judgment on a note against B. and M.,the latter being surety. Theretofore, B. had made his note to S. for $2,500, and to secure that and to indemnify M. had executed a mortgage to S. and M. upon 300 acres of land. Afterwards, in pursuance of an agreement between all of said parties, B. paid R. $1,000 on the judgment, and conveyed forty acres of the land to S., in satisfaction of his demand, and M., for the purpose of releasing the forty acres from the lien of the mortgage, assigned the same to S., B. at the same time agreeing to release M. from the judgment.</p> <p>Held, in an action by M. to enjoin the levy and sale of his property under the judgment, that the agreement was upon a sufficient consideration and binding on B. and his executor, and was not merged in a subsequent written release, made without M.’s knowledge, by B. to B.</p> <p>Mortgage.— Misdescription. — Assignment of Record. — The effect and validity of an assignment of record of a mortgage are not affected by the fact of an error in the record in respect to the description of the premises.</p> <p>Former Adjudication. — Action to Enjoin Enforcement of Judgment. — The judgment, in an action by two to enjoin the enforcement of a joint judgment against them, is no bar to a separate action by one of them to enjoin the enforcement of the same judgment against him, on grounds personal to himself, and in which his co-defendant has no interest.</p> <p>Same. — Pleading.—Joint Plaintiffs must have Joint Cause of Action. — Injunction. — A complaint must show a joint cause of action in favor of all the plaintiffs; and parties having separate causes of action, though they seek the same relief, as a rule, can not join in one complaint, and this rule applies to an action to enjoin the enforcement of a judgment against two or more, who each have separate grounds for the injunction, of such character as not to be available for each and all of the judgment defendants.</p>

<p>Divokcb. — Insanity aflea• Marriage. — Failure to Provide. — Statute Construed.— Insanity arising subsequent to marriage is not a cause for divorce, nor is a failure to provide a support for the wife by the husband, resulting from such insanity. The statutory cause of the failure of the husband to make provision for his family, section 1032, B. S. 1881, does not apply where such inability arises from mental or physical disease.</p>

<p>Negligence. — Verdict.—Special Findings. — Gmiributory Negligence. — In a suit for negligently placing a steam engine in a street, whereby the plaintiff’s team was frightened, and he was injured, the jury found a general verdict for the plaintiff, and, in answer to special questions submitted, that both of plaintiff’s horses had previously run off; that the engine was calculated to scare a team not disposed to be frightened; that the plaintiff saw the engine in time to avoid danger, but did not apprehend any.</p> <p>Held, that the facts specially found did not show contributory negligence on the part of the plaintiff, and were not inconsistent with the general verdict, and that judgment for the defendant thereon was erroneous.</p>

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

<p>Supreme Court. — Brief.— Waiver. — All questions raised by a motion for a new trial, but not discussed by the appellant in his brief, are regarded as waived.</p> <p>Action to Quiet Title. — Injunction.—New Trial. — Evidence.—In an action to quiet title and to obtain an injunction to restrain the defendant from injuring the property, the defendant is not entitled to a new trial merely because there was no evidence of the threatened injury.</p> <p>Same. — Complaint.—Practice.—Where the complaint states facts which entitle the plaintiff to a judgment quieting his title, the suit maybe regarded as an action to quiet title, and if the complaint is answered, such relief may be granted, though the complaint contains no such prayer.</p>

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

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

<p>Statute oe Limitations. — Board of County Commissioners. — County Treasurer. — The statutory bar of six years operates upon the claim of a county treasurer made before a board of county commissioners for fees for the collection of delinquent taxes due him and not allowed at the proper time of settlement.</p>

<p>City. — Power to Prohibit Sale of Intoxicating Liquor on Sunday. — A city, organized under the general law for the incorporation of cities, has no power to pass an ordinance prohibiting the sale of intoxicating liquors within the city on the Sabbath day.</p>

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

<p>Replevin. — Judgment of Return of Property. — Pleadmg.—Practice.—A cross complaint or answer specially praying a return of the property to the defendant, in an action of replevin, is not necessary to entitle him to judgment for such return, the general denial being enough.</p> <p>Same. — Default.—Affidavit to Set Aside. — The affidavit of a plaintiff in replevin to set aside a default and judgment against him rendered thereon, is insufficient if it do not show the nature of his cause of action. A general statement, that “ he has a good cause of action, and believes he will recover judgment,” is insufficient, and the court can not, on motion to set aside the default, take notice of the affidavit for the writ.</p> <p>Same. — Excusable Neglect. — A railroad accident caused the loss of a day to a party enroute to.court, notwithstanding which he could have reached the place in time for trial, but for the fact that he stopped to get a necessary witness, with whom he had arranged to meet his train of the day-before and go with him, and who had met that train, and by reason of the delay he was defaulted, and judgment rendered against him.</p> <p>Held, that his neglect was not excusable.</p>

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

<p>Sheriff’s Sale. — Levy of Execution on Personal Property, which is Wasted.— ' Judgment. — Bond.—Principal and Surety. — A sheriff who levies upon and wastes sufficient personal property, belonging to the principal in the judgment, to satisfy the writ, and afterwards with said writ levies upon and sells real estate of a surety in said judgment, does not thereby render himself and his sureties liable upon his bond to the owner of such property.</p> <p>Same. — Satisfaction of Judgment. — Sale Thereafter does not Divest Title. — A levy upon sufficient personal property, which is wasted, satisfies the writ, and a sale thereafter of real property upon such writ does not divest the title of the owner of the property.</p> <p>Same. — Estoppel.—In a suit against a sheriff and the sureties upon his bond, where the plaintiff alleges the invalidity of a sale made by him, he and his sureties are not estopped to insist that such sale did not divest the plaintiff’s title to such property.</p>

<p>Hegligence. — Animal.—Stallion.—Evidence.—Where one assuming to own a stallion contracts for his service, and by negligent management the mare is injured, he is liable, and proof that he was really the owner of the stallion is not essential.</p> <p>Instruction. — Evidence.—Practice.—An instruction to the jury which recites a part only of the evidence, excluding some which is material, and declaring that the evidence recited will not justify a recovery, should not be given.</p> <p>Verdict. — Interrogatories.—To determine whether the answers of a jury to interrogatories are inconsistent with the general verdict, all the answers must be considered.</p> <p>Master and Servant. —Negligence.—Contract.—Evidence.—Representations. —An express contract is not essential to create the relation of master and servant; it may be implied from circumstances; so that the master will be liable for the negligence of the servant, though in fact the relation did not exist, as where he induces the belief, and thereby leads another to act upon it to his injury.</p>

<p>SuBKOGATION.— Replevin Bail.— Principal and Surety.— Mortgage. — Where several notes are secured by a mortgage, and a personal judgment is obtained on the note first due, a surety for stay of execution, who is compelled to pay the judgment, can not be subrogated to the mortgage security for reimbursement, unless he pays the entire indebtedness secured by the mortgage, or the same is otherwise satisfied without exhausting the mortgaged property. Qerber v. Sharp, 72 Ind. 553, distinguished.</p>

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

<p>Fraudulent Conveyance. — Preference of Creditor. — A failing debtor may • prefer one creditor over another, and, to that end, may use property bought on credit of one for the payment of another.</p> <p>Same. — Bescission and Affirmation of Contract. — Attachment.—While a creditor of whom the debtor had bought goods, not intending to pay for them, but to use them in preferring other creditors, may doubtless disaffirm the sale, and recover his goods, unless resold to an innocent purchaser, yet, by bringing an attachment suit against his debtor, he affirms the sale, and takes the place of an ordinary creditor.</p> <p>Pjractige. — Motion for New Trial. — The motion for a new trial can not on appeal be regarded as evidence of the facts stated therein, although the motion itself becomes a part of the record, without a bill of exceptions..</p> <p>Same. — Special Instructions, IIoiu Made Part of Iiecord. — Instructions given must be signed by the judge, and in order to be made part of the record, under sections 533 and 535, R. S. 1881, must be filed, and the fact of the filing must be shown in the transcript.</p>

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

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

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

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

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

<p>Statute or Limitations. — Sale of Personal Property. — Account.—Where a sale of personal property is made and nothing is said as to the time and manner of payment, the law implies a payment in cash at the time of delivery, and as the cause of action for the price of the property then accrues, the statuté of limitations commences to run from that time, and a suit for the value of the property after the expiration of six years from the sale is barred by the statute.</p>

<p>Will. — Construction.— Widow. — Election.—Estate for Life. — Conveyance.—The testator devised to his wife “ all my property, real and personal, during her life, and at her death, if anything should remain, the same to he divided among my heirs at l?w.” He left surviving him his Avife and children and grandchildren. The wife afterwards executed a deed o£ conveyance of the ivhole of the real estate, for an adequate price, with covenant that she Avas lawfully seized of the same in fee simple.</p> <p>Held, that the wife took an estate for life with power to sell and convey the whole estate in fee.</p> <p>Held, also, that the execution of the deed by her was an election to take under the will, and not under the law giving her only a third in fee, and was such an execution of the power to convey as to vest in the purchaser the whole estate in fee.</p> <p>Tenant eob Lies. — Memainder-Man.—Taxes.—Burden of Proof. — A tenant for life is required to preserve the remainder by paying taxes and incumbrances, if the income of the estate is sufficient therefor; but, in a suit by the remainder-man against the tenant for life for failure of the latter in that respect, the burden of proof to show that the income of .the estate was sufficient is on the plaintiff.</p>

<p>Contract. — Promise to Pay Debt of Third Person. — A written promise, on a new and valuable consideration, to pay the debt of' a third person, is valid, although there is no release of the original debtor, and may be enforced by the creditor.</p> <p>Same. — Consideration.—The assignment of a sheriff’s certificate of the sale of land under a decree of foreclosure is a sufficient consideration for a promise by the assignee to pay a junior judgment lien on the land. Same. — Performance in Manner Bequested. — A party procuring performance in a given manner can not complain thereof.</p> <p>Same.— Payment in Notes. — Action, for Becovery of Money. — "Where one undertakes to pay in notes and refuses to execute them, he may be sued in the first instance for the. recovery of money.</p> <p>Sheriff’s Sale. — Description in Notice. — Answer.—Beply in Avoidance.- — A. assigned to B. a sheriff’s certificate of the sale of land, on which C. held a junior judgment lien, B. agreeing in consideration of the assignment to pay C.’s judgment. In a suit by C. to enforce payment, an answer by B. that the sale was void because of an insufficient description in the notice is avoided by a reply that under a second sale the defendant acquired a perfect title and had long been in possession of the land.</p>

<p>Soldiers’ Bounty. — Burden of Proof on Claimant. — The hoard of commissioners of. Rush county offered a bounty to volunteers enlisting in the military service of the United States, the offer to cease whenever the quota of the county was full.</p> <p>Held, in an action by a claimant to recover the bounty, that the burden of proof was upon him to show that he enlisted and was credited to the county before the quota had been filled.</p>

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

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

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

<p>Evidence. — Declarations.—Decedents’ Estates. — In an action against an administrator, the declarations of the intestate, in his own favor, made in the absence of the plaintiff, are not admissible in evidence on behalf of the estate.</p> <p>Same. — Supreme Court. — Practice.—When a case has been tried and decided upon a given theory, and material error committed in the admission of evidence, the Supreme Court will not consider whether, upon another theory, the decision might be upheld, unless the conclusion is clear.</p>

<p>Pubdue University. — College Secret Society. — Mandate.—The board of trustees and faculty of Purdue University can not make membership in a Greek letter fraternity or other college secret society a disqualification for admission as a student in the university, or require, as a condition of such admission, that an applicant, who may be a member of such a society, shall sign a pledge to disconnect himself from such society during his connection with the university, and admission, refused for such cause, may be enforced by mandate against the trustees and faculty.</p> <p>Woods, J., dissents.</p>

<p>Pleading. — Action to Quiet Title. — Averments as to Claim of Defendant. — It is not necessary that the complaint, in an action to quiet title, should show with particularity the nature of the defendant’s claim ; and where the complaint, in such an action by the owner of real estate sold on execution, avers that the defendant refused to recognize the redemption of the land by the plaintiff, made prior to the expiration of the year allowed for redemption, but thereafter demanded and received a deed from the sheriff, such averments sufficiently show a claim by the defendant under color of title, adverse to the plaintiff, from which the owner is entitled to have the property freed.</p> <p>Same. — Practice.—Demurrer.—A pleading which shows that the party is entitled to some relief, though not to ail the relief prayed, is sufficient on demurrer.</p> <p>Same.— Inferences from Facts.— Conclusions.— Where facts are properly pleaded, courts will draw the proper inferences; but the statement of the pleader’s conclusions neither adds to nor detracts from the facts pleaded.</p> <p>Same. — Exhibits.—It is only where a pleading is founded upon a written instrument that it is necessary to set out the instrument.</p> <p>Redemption. — Payment to Clerk of Bank Notes. — Complaint.—The holder of a sheriff’s certificate of purchase of real estate sold on execution can not defeat a redemption in a case where the clerk receives in good faith .the amount necessary to redeem in bank notes, deposits them in bank and has continuously, from the time of the receipt, lawful money ready for the holder of the certificate, which he is willing to deliver, and'does tender to him, and where such facts appear in the complaint, in an action to set aside the sheriff’s deed executed after such redemption, and to quiet title to the land, the complaint is sufficient on demurrer.</p> <p>Money. — Legal Tender. — In legal acceptation, money means gold or silver coinage or notes made a legal tender by a valid statutory enactment. National bank notes are, therefore, not money. A creditor may receive bank notes as money, but he can not be compelled to do so.</p> <p>Same. — County Clerk may require Legal Tencler Money in Payment of Redemption of Land Sold on Execution.— Waiver. — A county clerk may require gold or silver coin or notes made by law a legal tender, in payment of the amount necessary to redeem land sold on execution, but he may receive payment in its equivalent, and, where he does so, and holds himself in readiness to pay in legal tender, the holder of the sheriff’s certificate can not, for his failure to require payment in legal tender, defeat the redemption.</p> <p>Bankruptcy.' — Bankrupt’s Property. — Title Revests on Discharge WiSiout Proof of Claims. — Judgment of Discharge can not be Collaterally Attacked. — Where a person has been adjudged a bankrupt and his property conveyed to an ■assignee, and no claims are proved against the bankrupt, and both bankrupt and the assignee are legally discharged, the property in the hands of the assignee revests in the bankrupt without any formal conveyance. 'Such judgment of discharge can not be collaterally impeached, even as to the fact that the bankrupt was not entitled to a discharge.</p>

<p>Dbaining Association. — Corporation Debts. — Judgment.—Individual Inability. — -Statute Construed. — A complaint against members of an association formed under the act of June 12th, 1852, authorizing the construction of levees and drains, and the supplemental act of June 4th, 1861, to enforce their liability for the debts of the corporation, under sec. 4 of the act of March 4th, 1859, in which the plaintiff claims as assignee of a judgment for the debt, rendered against the corporation, and sets out an assignment of the judgment to him, and a bill of particulars of the services for which the judgment was rendered, must be regarded as a suit on the judgment.</p> <p>Same. — Stockholders’ Inability. — The liability of the members of the association, in such case, is not for the judgment, but for the original debt, as individuals and not as corporators, and a complaint against them founded upon the judgment against the corporation is bad on demurrer.</p>

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

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

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

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

<p>Masked Woman. — Mortgage. — Redemption. — Judicial Sale. — Vendor and Purchaser. — Statute Construed. — Where during marriage a husband purchases lands, and gives a mortgage for purchase-money, the wife has, in consequence of section 2495, K. S. 1881, no inchoate interest in the land, as against the mortgagee, and, therefore, no interest vests in her, under section 2508, upon sale of the land under a decree of foreclosure against the husband alone, and in such case the purchaser may, upon suit against her, obtain a decree fixing a time within which she must redeem or be barred.</p>

<p>Practice. — Motion for New Trial — It is not a good cause for a new trial, that the judgment is not sustained by the evidence, or is contrary to law.</p> <p>Pledge. — Sale of. — Demand.—Notice.—Mechanics’ Lien. — Statute Construed.— Upon default in the payment of a debt, an article pledged may be sold at public auction, after demand of payment, and upon notice to the pledgor of the time and place of sale. The act concerning liens of mechanics, etc., approved May 20th, 1852, R. S. 1881, section 5304, is not applicable to pledges.</p> <p>Same. — Conversion.—Measure of Damages.- — If the pledgee make an unlawful sale, it constitutes a conversion; and the measure of dalnages Is the value of the article, less the amount for which it was pledged,.</p>

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

<p>Covenant.— Warranty Deed. — Paramount Title. — Judgment.—Eoidence.—Notice. — Estoppel.—-Decedent’s Estate. — In a suit against executors'for breach of covenants of seizin and warranty in a deed of conveyance of lands by the testator, who was a remote grantor, alleging ouster of the plaintiff by judgment upon a paramount title, it appeared by the record thereof that suit was brought against the present plaintiff for possession; that the warrantor, on his own application verified, stating that he was the real party in interest, and bound to maintain the title to avoid damages on his covenants, became a defendant to the suit, and undertook the control of the defence; that, upon his death, the suit as to him abated, the present plaintiff was defaulted, and judgment of ouster rendered. But it was not shown that the warrantor had been formally notified of the pendency of that suit.</p> <p>Held, that the record was evidence of sufficient notice or a waiver thereof, and that the judgment concluded the executorsof the warrantor, so that they could not offer evidence to show that the title of the plaintiff in the former suit was not paramount.</p> <p>Same.— Vendor and Purchaser. — Covenantor and Covenantee. — Where the covenantee in a deed is sued for possession of the real estate by one claiming under a paramount title, the covenantee may relieve himself of the burthen of defending the suit by giving notice to his covenantor of the pendency of the suit, and thereby cast upon him the duty of defending .the title, and bind him by the judgment.</p>

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

<p>Continuance.— Witness.— Diligence. — Practice.—Where an affidavit for a continuance, on account of an absent witness, shows that the applicant knew that the attendance of the witness could not be secured, but took no steps to secure his deposition, the application should be refused, for failure to show due diligence.</p> <p>Same. — Deposition of Witness. — Where a party can obtain the deposition of a witness whose personal attendance he knows can not be secured at the term of court at which the cause is set for trial, it is his duty to cause his deposition to be taken.</p> <p>Railroad.— Killing Stock.— Venue.— Fkidence. — In an action, under the statute, against a railroad company for killing stock, the plaintiff must allege and prove the county in which the stock was killed ; but it is not necessary that the proof be made by direct or positive testimony; it will be sufficient if facts are proved from which it can be reasonably inferred. Same. — Complaint.—Duty to Fence. — In such action it is not necessary to allege in the complaint that the company was bound to fence the railroad at the place where the stock was killed. If not obliged to fence where the injury occurred, it may be shown as matter of defence.</p>

<p>Receiver. — Appointment.—Practice.—A receiver may be appointed, if the facts justify it, at any time while a suit is pending, and after appeal to the Supreme Court from a final judgment, the suit is still pending, so that the lower court may, on application, make such appointment.</p> <p>Same. — Mortgage.—Rents.—Taxes.—There was a foreclosure of a mortgage on lands for interest due, the principal debt not having matured, and an appeal to the Supreme Court by the administratrix without bond (the mortgagor having died). Pending this appeal the mortgagee applied to the lower court for a receiver of the mortgaged premises, showing the foregoing facts, and that the mortgagor died insolvent, having no other property ; that the land was worth less than the mortgage debt, and the annual rents less than the interest; that the heir was appropriating the rents to her own use, and not paying the taxes, and that a portion had been sold for delinquent taxes, and that there was a further delinquency of taxes in the sum of $520.</p> <p>Held, that the case was a proper one for the appointment of a receiver, to take the rents pending the appeal, and apply them as the court should direct.</p>

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

<p>Pbomissoby Note.: — Commercial Paper. — Endorser and Endorsee. — Attorney’s Fees. — Set-Off.—A promissory note, payable at a bank in this State, is-commercial paper, though it contain an agreement to pay attorney’s fees; and set-off against the payee can not be pleaded by the maker to a suit upon it, by an endorsee without notice, for value and before maturity.</p> <p>Same.— Collateral Security. — -Bank Director. — Eidorsement.—Consideration.— Notice. — Injunction.—Bona Fide Purchaser. — Suit against the maker by a second bona fide endorsee of commercial paper, taken before maturity, who-paid part of the price of the paper in cash, and for the balance agreed to cancel a debt held by him against his immediate endorser, which was never formally done. The payee had delivered the note without endorsement, as collateral security, to a bank for a small loan; then he endorsed it to another, who took it in good faith, agreeing to pay this loan, after which the paper was returned to its place in the Bank; and afterwards he endorsed it, without the bank’s consent, to the plaintiff, who, though a director of the bank, had no knowledge that the bank had any right to the paper. After the first endorsement, but without knowledge of it, the maker purchased a large note against the payee (who was and continued-to be insolvent), upon which he at once began suit, getting a temporary injunction against negotiating the note of the defendant, pending which and with knowledge of it, the first endorsee made the endorsement and sale to the plaintiff, who knew nothing of the injunction. After this, the maker’s suit against the payee proceeded to judgment and a perpetual injunction.</p> <p>Meld, that the first endorsee was protected against defences, and that the plaintiff could recover the full amount of the paper sued for.</p> <p>Pbesumption. — A'bank director is presumed to have knowledge of the securities of the bank, but this presumption may be overcome by proof.</p> <p>Semble, that if one, in consideration of the endorsement of commercial paper before maturity, agree to satisfy a note held by him against his endorser,, he is entitled to protection as a bona fide purchaser, though he had not, in fact, cancelled or delivered up the note of his endorser.</p>

<p>Intoxicating Liquob. — Sale or Gift. — Question of Fact. — Instruction.—Criminal Law. — Whether the delivery of intoxicating liquor, by an unlicensed saloon keeper, to one who received and drank it, was intended by the parties to be a sale or a gift, is a question of fact to be determined from all the evidence; and an instruction that if “the same was not then and there declared to be a gift, the law implies an agreement to pay the reasonable value thereof, and the transaction is a sale,” is erroneous.</p>

<p>Supreme Court. — Evidence.—Bill of Exceptions. — Where a cause can not be fully considered or properly decided without an examination of the entire evidence, the bill of exceptions must affirmatively show that all the evidence is in the record.</p>

<p>Mandate. — Practice.—Affidavit.—Demurrer.—The sufficiency of an affidavit, upon which a mandate is asked, may be tested by demurrer.</p> <p>Same. — Alternative Writ.— Waiver. — The parties may waive the issuing of the alternativ'e writ of mandate.</p> <p>Same. — Board of Commissioners. — Railroad Aid Tax. — A mandate will lie against a board of county commissioners to compel them to take action upon the petition of a taxpayer of a township asking them to take stock in a railroad company to the amount of money collected on a tax voted for that purpose.</p>

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

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

<p>Taxes. — Action Against County Treasurer for Selling Beal Estate. — Complaint. —Personal Property. — A complaint against a county treasurer to recover damages for selling the plaintiff’s lands for taxes, which alleges that the-plaintiff had personal.property within the county sufficient to make the taxes, and so informed the defendant, but fails to allege the character of the personal property, and that it was subject to seizure and sale, and that the property was shown to the officer, is bad on demurrer.'</p>

<p>Vendor and Purchaser. — Adverse Possession. — Statute of Limitations. — The possession of lands by a vendor is subordinate, and not adverse, to the rights of his vendee, and the statute of limitations does not run during its continuance, so that the time thereof can be added to the time during which a subsequent purchaser may hold, so as to make a sufficient period to bar the rights of the first purchaser.</p> <p>Same. — •Notice.—Possession.—Where the owner of a farm sells a portion, and the purchaser takes possession of a part only of the portion so sold, the vendor retaining possession of-and using the residue as part and parcel of his farm, and said conveyance is not recorded, the vendee’s possession of the part occupied and used by him is not constructive notice to a subsequent purchaser of the farm of the extent of his purchase.</p> <p>Same. — Mere possession is notice of a vendee’s rights to land actually enclosed and occupied.</p>

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

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

<p>Supreme Court. — Evidence.— Verdiet. — Account.—Set- Off. — Where, on the trial of an action upon an account, to which a set-off is pleaded, the evidence is conflicting, and a verdict is returned disallowing the account, and for the defendant for the amount of his set-off, the Supreme Court will not disturb it. *</p>

<p>Contract. — Extra Work. — Evidence.—Where, by the terms of a building contract, extra work is to be estimated in proportion to the contract price of the entire work, evidence of the reasonable value of the extra work is not admissible.</p> <p>Same.— County Commissioners. — County Building. — Individual Action. — The authority of a board of county commissioners, for the doing of extra work to an amount exceeding $500, in the construction of a county jail, under a contract with plans and specifications, can- not be shown by proving the separate individual assent of the members of the board. Same.--Salification. — Mistake.—It is not competent to show a ratification by the board of commissioners of extra work done under a contract for the building of a jail, by proof that the disputed items were omitted by mistake from the architect’s report to the board of extra work, the board having approved some and rejected others of the items so reported.</p>

<p>Cobpobations. — Contract.—Estoppel.—A party who so contracts with a body ' acting as a corporation, as by implication to recognize the fact of its corporate existence, is estopped to' question it collaterally, when sued upon the contract.</p> <p>Promissory Note. — Complaint.—Evidence.— Variance. — Endorsement.—Consideration. — Title.—A complaint upon a promissory note alleged to have been made to A., and by him assigned by endorsement to the plaintiff, is not supported by proof that A. was the agent of the plaintiff and as such took the note in his own name for the plaintiff upon a consideration moving from the latter.</p> <p>Practice. — Pleading.—Proof.—When there are several paragraphs of answer, some in confession and others in denial, the plaintiff can not treat those in confession as dispensing with the proof of facts put in issue by the paragraphs in denial.</p>

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

<p>Negligence. — Injury from Toy Pistol. — Pleading.—Instructions.-—• Variance,— I'mdm.ee. — The complaint alleged that the defendant sold to two sons of the plaintiff, aged ten and twelve years, cartridges loaded with powder and ball, for use in a toy pistol, and instructed the boys in their use, well knowing the dangerous character thereof, and that they were too young to be trusted with such articles; that the boys left the toy pistol loaded with one of the cartridges on the floor of their home, where a younger brother, aged six years, picked it up and discharged it, the ball inflicting a wound on one of the other boys from which he died; that the plaintiff expended large sums in'an endeavor to cure the wounded boy, lost his services and society, etc.</p> <p>Held, that the complaint was good on- demurrer.</p> <p>Held, also, that the sale of the cartridges, being in violation of the criminal law, was of itself an act of negligence by the defendant, and the court might properly so instruct as a conclusion of law.</p> <p>Held, also, that if the evidence disclosed that the sale was made to one instead of both the lads as alleged, the variance was immaterial.</p> <p>Same. — Intervening Agency. — Remote Damages. — A person who places in the hands of a child an article of a dangerous character and one likely to do injury to the child itself or others, is guilty of an actionable wrong; and, where injury results, the fact that some agency intervenes between the original wrong and the injury does not preclude a recovery if the injury was the natural or probable result of the original wrong.</p> <p>Same. — Sale of Dangerous ¡Explosives. — One who sells dangerous explosives to a child, knowing that they are to be used in such a manner as to put in jeopardy the lives of others, must be taken to contemplate the probable consequences of his wrongful act, and a probable consequence of such sale is that the buyers or their associates will be injured thereby.</p>

<p>Demubbeb to Evidence. — Practice.—The practice in this State requires the party demurring to evidence to set it out and to admit all the facts which it tends in any degree to prove, and hence the court is not required, in considering the demurrer, to weigh or reconcile conflicting evidence, nor to consider that which favors the demurrant when in con- , flict with other evidence against him.</p> <p>Negligence. — Railroad.—Highway Grossings. — A railroad company is entitled to precedence at highway crossings, on condition that it shall give reasonable and timely warning of the approach of its trains, and a failure to give such warning is negligence.</p> <p>Same.— Warning Signal at Railroad Grossing. — The obligations of railroads and travellers on highways at crossings are mutual, the same degree of care being required of each, and the right of precedence belonging to the railroad does not relieve it of the duty to give proper warning of its approaching trains, nor to use reasonable care to avoid collision.</p> <p>Same. — Excessive Damages. — Where, without fault, the plaintiff’s son, aged sixteen years, is seriously injured’ by the negligent management of a railroad train, so as to be unconscious for a time and disabled for some weeks, a verdict for $530 damages will not be held excessive.</p>

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

<p>Supreme Court. — Demurrer.—Exception.—Practice.—The ruling of the trial court upon a demurrer presents no question to the Supreme Court unless an exception was reserved to the ruling.</p> <p>Replevin. — Ohatld Mortgage. — Possession of Property. — The owner of personal property who executes a chattel mortgage thereon, containing a stipulation that he may retain possession thereof until the maturity of the debt, can, if the mortgagee takes possession of such property before that time, recover its possession in an action of replevin.</p>

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

<p>Pleading. — Consideration of Agreement. — Bill of Particulars. — Under section 363, R. S. 1881, in a proper case, the defendant is entitled to a hill of particulars of the plaintiff’s cause of action, and it would he error to overrule his motion therefor; but where the complaint counts upon an agreement, and states the consideration of such agreement to have been divers sums of money, pieces of property and accounts, the defendant is not entitled to a bill of particulars of such moneys, property and accounts.</p>

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

<p>Liquob íAVf. — Licenae.—A license to retail intoxicating liquors for one year, granted on the first day of September, but not received and paid for until the third day of that month, will not include and protect sales made by the licensee on the fourth day of September, of the following year.</p>

<p>ISubrogation. — Purchaser at Auditor’s Invalid Sale of Land Mortgaged to School Fund. — The purchaser of land sold by an auditor under a school fund mortgage, the sale having been set aside as invalid, may be subrogated to the rights of the State in the mortgage.</p> <p>Same. — Mistake in Description. — The fact that there was a mistaken description in a school fund mortgage, if the mistake was such as could have been corrected at the suit of the State, does not affect the right of subrogation on the part of the purchaser at a sale under the mortgage, upon the sale being set aside as invalid.</p> <p>Conveyance. — Description Mad.e Good by Reference. — A defective description in a deed or mortgage is made good by a reference to another deed which contains a true description.</p> <p>Same. — Public Policy. — Judicial Sale.— Volunteer. — Equitable Relief. — Public policy forbids that a purchaser of land sold by virtue of a decree, judgment or other lien, should be deemed to be a volunteer, and be denied equitable relief, in case of the invalidity of the sale, merely because he had no personal interest to protect, and purchased for the sake of the investment only.</p> <p>;Same. — Gaveat Emptor. — The doctrine of caveat emptoi' applies to the purchaser at an invalid judicial sale or sale by a public officer, in respect to any claim for recourse upon the party for whose benefit the sale was made, but not so as to deny a remedy against him whose debt has been, as to his creditor, paid or extinguished.</p>

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

<p>Negligence.— Complaint.— Railroad Crossing.— Highway. — ■ A complaint against a railway company for injury to the plaintiff at a highway crossing, which avers that the defendant negligently caused its trains of cars, to pass the crossing at unusual speed, and negligently omitted to give-any timely signal of its approach by bell or whistle at a proper distance, by reason whereof, etc., is sufficiently specific as to the defendant’s negligence.</p> <p>Same. — Instruction.—An instruction, that a failure of a railway company to sound the whistle at least eighty rods before reaching a highway crossing (the act of 1879, Acts 1879, p. 173, being in force) was negligence, and if by reason thereof the plaintiff was injured, without negligence on his. part, the verdict should be for the plaintiff, was held correct.</p> <p>Same.. — Contributory Negligence. — While the statute of 1879 was in force, a violation of it was negligence; and where the evidence showed this, an instruction, that if-there were obstacles to prevent the seeing of an approaching train until the plaintiff got near the railroad, it was his duty to stop before reaching it, and look and satisfy himself that no train was approaching, and if he did not, but by so doing he could have seen the train, he was negligent, and could not. recover, was properly refused.</p> <p>Practice. — Amendment.—Parties.—A complaint may be amended before answer and without leave, by substituting a different person as plaintiff.'.</p> <p>Same.— Verdict. — Special Findings. — In considering a motion for judgment on special findings, notwithstanding a general verdict, no reference can be had to the evidence given, but if by any conceivable evidence admissible under the issues, the special findings can he reconciled with the general verdict, the motion should be denied.</p> <p>Same. — Argument of Counsel. — Discretion of Court. — After the close of the evidence, one of the plaintiff’s counsel addressed the jury, whereupon the defendant’s counsel being, on inquiry, told by the associate counsel for the plaintiff, that he did not wish to say anything in the opening, declined to make any answer, whereupon said associate, over the defendant’s objection, also addressed the jury, and then the defendant’s counsel declined to argue.</p> <p>Held, that the discretion of the court was not abused, and there was no error.</p> <p>Saxe. — Improper Remarks. — Improper remarks of counsel in argument, to-which no objection is made at the time, will not warrant a new trial.</p> <p>Instructions.--When the court has given an instruction, substantially such as a party asks, it may refuse the latter.</p>

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

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

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

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

<p>Supreme Court. — Assignment of Error. — Defect of Parties. — A defect of parties defendants can not be taken advantage of by a specification in an assignment of errors, tliat the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Same. — Gomplaiiú.—Prayer.—Informality or insufficiency in the prayer of a complaint is not reached by such a specification of error.</p>

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

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

<p>Verdict. — Special Findings. — Where there is a general verdict, and also facts specially found upon questions sent to the jury, the latter will not affect the former, unless, when all taken together, they are in irreconcilable conflict with it; it is not enough that one of them, considered separately, shows such conflict.</p> <p>Same. — Interrogatories.—If two answers of the jury to interrogatories be-in conflict with each other, both must be disregarded, in considering whether the general verdict is controlled by the special findings.</p> <p>Same.— Venire de novo.— Issue.— Pleading.— Gross Complaint.— Practice.— Complaint to recover real estate, to which there was no answer, but a cross complaint averring facts which, if true, would defeat a recovery on the complaint; there was also an answer in avoidance of the cross complaint, but no reply. The record recited that “ the cause being at issue, comes a jury,” etc., and there was a verdict for the defendants, on the cross complaint, which took no notice of the complaint.</p> <p>Held, that the complaint should, after verdict, be treated as if it had been denied, and that judgment for the plaintiff, for want of an answer or non. obstante veredicto, should be refused.</p> <p>Held, also, that the verdict must be regarded as for the defendants as well upon the complaint as upon the cross complaint.</p> <p>Same. — Informality of a verdict will not vitiate it, if upon reasonable intendment it can be seen that it covers the issues, but the court will disregard form, and make it serve. It will be avoided only from necessity originating in doubt of its import, or its manifest tendency to injustice,, or because the issues found are immaterial.</p> <p>Contract. — Statute of Frauds. —Where lands are to be conveyed to the vendee: upon his executing a written agreement to reconvey upon the performance of conditions, and he receives the deed without then executing the writing on his part, but engages to do so when he can get time to prepare it, which he never does, he can be compelled to perform it.</p> <p>Continuance. — -Absent Witness. — Diligence.—Where a cause has been long pending and once continued, an affidavit for a continuance for an absent witness, whose residence has all the time been unknown to the party,, and which, as to diligence, alleges only that “ since the cause has been pending he has been making diligent enquiry as to the whereabouts of the witness,” and that he has, only a few days before, learned that the witness resides in Kansas, but not the place of his residence, is insufficient, because of its failure to state specifically the facts showing diligence of enquiry.</p> <p>Bill oe Exceptions. — Motion for New Trial. — Affidavits in support of a motion for a now trial were contained in the motion, but the bill of ex-eeptions did not contain them, and had only this concerning them : “And filed in support of said motion the following affidavits (which have been inserted on page — of this record).”</p> <p>Held, that the affidavits were not properly in the record.</p>

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

<p>Sheriee’s Sale. — Sale of Beal Estate of Debtor After Conveyance. — A sheriff’s sale of real estate, after the same has' been conveyed by the debtor to his vendee, is not invalid simply because the debtor had other real and personal property of sufficient value to satisfy the execution.</p> <p>Same. — Bight of Vendee to Have Other Property of Execution Defendant Exhausted,. — In such case the vendee, if he requests it, is entitled to an order requiring the officer to first, exhaust the property of the debtor, but the sale of the property is not invalid in the absence of such order.</p>

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

<p>Vendobastd Purchases.— Vendor’s Lien. — Mortgage.—Complaint.— Waiver. —Contract.—Promissory Note. — Decedents’ Estates. — Evidence.—Tlie plaintiff held a note for purchase-money of real estate, on E. B., so that a vendor’s lien might have been enforced. E. B. died solvent, leaving L. B. and others his heirs at law. The entire tract of land afterwards, by purchase from the other heirs of E. B., passed to L. B., who had notice of the plaintiff’s lien. Afterfrards L. B., in consideration of an assignment of the note (for which he received payment from E. B.’s administrator), executed to the plaintiff his own note for the amount thereof, specifying therein that it was “for purchase-money of land sold by the plaintiff.” L. B. then conveyed a portion of the land to C., who had notice of the facts.</p> <p>Held, that the complaint was not objectionable for praying a lien upon lands other than those subject thereto.</p> <p>Held, also, that the lien was not waived by failure to enforce the debt against E. B.’s estate.</p> <p>Held, also, that the note given by L. B. was a recognition of the plaintiff’s lien, and an express undertaking by him to discharge it, and the plaintiff thereby released his claim on E. B.’s estate.</p> <p>Held, also, that C. held the land subject to the satisfaction of the lien after L.«B.’s property should be exhausted.</p> <p>Held, also, that evidence was admissible, showing that the note of E. B. specified that it was given for purchase-money of land, and that E. B. declared, when he executed it, that that made it as good as a mortgage, and that the plaintiff required L. B. to make his note in the same form, so that it would be a lien on the land, was admissible as part of the res gestae, and to show the intention to preserve a lien.</p> <p>Held, also, that the note of L. B. was not an independent security, but must, under the circumstances, be regarded as amere substitute for the note of E. B.</p> <p>Costs. — Paities.—-Where one of several defendants tenders separate issues, all of which are found against him, there is no error in adjudging the costs thereof against him personally.</p>

<p>Assignment oe Errors. — Supreme Court. — An assignment of error must specify why the court ought not to have rendered the judgment complained of. To say “ it ought not to have done it,” presents no question.</p> <p>Same. — New Trial. — Deposition.—Causes for a new trial are not proper specifications of error, and, therefore, the overruling of a motion to suppress a deposition can not be brought to the consideration of the Supreme Court by an assignment thereof as error.</p>

<p>Criminal Law. — Amendment of Affidavit and Information. — Practice.— Whether the refusal to permit an amendment of an affidavit and information was erroneous, cannot be considered unless the record shows what amendment was proposed.</p> <p>Same. — Pleading.—The affidavit and information for a misdemeanor need not show why the prosecution was not commenced by indictment.</p>

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

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

<p>Bastabdy. — JSmdence.—Where, in a prosecution for bastardy, the relatrix introduces evidence tending to prove efforts on the part of the defendant, after knowledge of her pregnancy, to induce the marriage of the re- ■ latrix to another man, the defendant may prove that he, in fact, discouraged such marriage.</p> <p>New Tbiae. — Swrprüe.—A motion for a new trial, based upon affidavits showing surprise by the adversary’s evidence, and a belief that upon an- . other trial proof can be procured to overthrow such evidence, should not be granted, unless it appear that such countervailing proof could not have been obtained at the time or by a short delay of the trial, and that delay for that purpose had been requested.</p>

<p>Bastardy. — Limitation of Action. — Infant.—A prosecution for bastardy must be commenced within two years from the birth of the child, notwithstanding the relatrix is an infant.</p>

<p>Judicial Sale.— Wife's Inchoate Interest in Beal Estate Sold on Execution.— Statute Construed.- — Mortgage.—Constitutional Law. — The inchoate interest of a married woman in the lands of her husband, not exceeding $20,000, does i\pt become absolute under the act of 1875, sections 2508 and 2509, R. S. 1881, when sold upon a judgment rendered since the act took effect foreclosing a mortgage executed by the husband alone before the passage of the law; such act, as applied to such contracts, would impair their obligation, and it can not be held to embrace them.</p>

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

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

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

<p>Partition.— Wife’s Inehoate Interest in Real Estate Sold on Execution. — Complaint. — Statute Construed. — In an action for partition, under tie act of March 11th, 1875 (R. S. 1881, sections 2508, 2509), by the wife of the judgment debtor, the complaint must show that the judgment was rendered subsequent to the taking effect of the act.</p>

<p>Moktoaoe. — Promissory Note Annexed. — Evidence.—A mortgage executed to secure a note attached to it is binding though the note is not signed; and there is no error in allowing the note to be read in evidence, it being a part of the mortgage.</p>

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

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

<p>Trespass. — -Talcing Ice. — Basement.—The right to maintain a mill-dam and' exercise the privileges belonging thereto, and to overflow thereby the lands of another, does not confer the right to take ice formed thereon.</p> <p>Same. — Bailroad.—By acquiring an easement in the lands of another, for the construction of its road across the same, a railroad company takes, no right to ice which may form within the boundaries of its right of way. Such ice is the property of the owner of the land, and a stranger' taking it is liable as a trespasser.</p>

<p>Harmless Error. — Pleading.—Practice.—Where a cause has been tried upon agreement to admit all defences without pleading them, the action of the court in striking out a paragraph of answer is not available error.</p> <p>Trespass. — Gravel Roads. — Where a county, in constructing a free gravel road under the act of 1877, Acts 1877, p. 87, without agreement or condemnation, as the act provided, entered upon lands and took gravel, the county was liable as a trespasser.</p> <p>Eminent Domain. — Remedy.—Where private property is taken for public use without compensation, and no other remedy is given to the owner, he has the common-law remedy by suit for the injury.</p>

<p>Pleading. — Debt Due and Unpaid. — Defective Complaint Cured by Verdict,— Where the complaint alleges that, on a certain day, the defendant became and was indebted to the plaintiff in a certain sum, which he then promised to pay, but had since failed and wholly refused so to do, and no demurrer is filed to the complaint, and its sufficiency is questioned for the first time by an assignment of error, it will be held that the defects in the complaint were cured by the verdict.</p> <p>Partnership. — Practice of Law. — Constmction of Contract. — Where it appeared that one L. had entered into a written contract with the law firm of J. & J.,_ wherein they agreed to attend faithfully and skilfully to such legal business as L., by his acquaintance and popularity, and by the use of their names, could get up and turn into their hands, and to charge for such business fair prices, and to collect and divide the fees therefor, one-third to L., and two-thirds to J. & J.</p> <p>Held, that J. & J. and L. did not, under the contract, become co-partners in the general practice of the law, but only in such legal business as L. might get up and turn over to J. & J.</p> <p>Pleading. — Harmless JSrror. — Supreme Court. — Where the trial court has erred in sustaining a demurrer to a paragraph of answer, and it appears that all the matters alleged therein could have been given in evidence under another paragraph on which issue was joined, the Supreme Court will regard the error as harmless, and will not reverse the judgment.</p>

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

<p>Judicial Sale. —Husband and Wife. — Mortgage.-—Ejectment.—Judgment.— Bedemptioh. — In ejectment to recover possession of a tract of land, the court found specially that the plaintiff had, under a foreclosure of a mortgage, dated in 1876, for purchase-money, against the defendant alone, obtained a proper sheriff’s deed for the land ; that when the mortgage was made, the defendant had a wife, still living, who did not join in the mortgage, and, as a conclusion of law, found the plaintiff entitled to' possession of the whole of the land, and judgment was so entered.</p> <p>Held, that the legal effect of the finding and judgment was only to give the plaintiff posséssion of such interest in the land as the defendant may have had.</p> <p>Held, also, that the wife had no right to retain possession of an undivided third of the land, and had no right in it save to redeem.</p> <p>Case adhered to and distinguished — Kissel v. Eaton, 64 Ind. 248.</p>

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

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

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

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

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

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

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