Volume 84 — Indiana Reports

<p>Judicial Sale.— Wife’s Inchoate Interest in Real Estate. — Mortgage.—Constitutional Lato. — Case Distinguished. — The act of 1875 (R. S. 1881, sections 2508, 2509), in so far as, by its terms, it affects mortgages executed before its passage, converting the wife’s inchoate right into a vested estate upon sale to satisfy them, is in conflict with the constitution of the United States, and void. Taylor v. Stockwell, 66 Ind. 505, distinguished.</p>

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

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

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

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

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

<p>Maeeractice. — Pleading.—Contract.'—Statute of Limitations. — A complaint averred that the defendant, who was a physician, for a valuable consideration specified, “undertook and promised faithfully, skilfully and diligently to treat and cure” a certain tumor afflicting the plaintiff, and that he treated the same so unskilfully and negligently that the same was not cured; and the plaintiff was thereby disabled, and caused to suffer great pain and injury.</p> <p>Held, that the complaint was good on demurrer.</p> <p>Held., also, that the complaint was upon contract and not in tort, and an answer that the cause of action did not accrue within two years was bad on demurrer.</p> <p>Practice. — Pleading.—•Amendment.—It is within the discretion of the lower court, after a new trial has been granted, to permit the plaintiff to file an additional paragraph of complaint.</p> <p>Witness. — Experts.— Opinion. — A witness called as an expert can not be asked to give an opinion based upon facts personally known to him. Such questions must be based either upon facts previously stated by the witness himself, or upon facts testified to by others, or upon facts agreed to or assumed as true hypothetically.</p> <p>•Same. — An expert, who has listened to the evidence, can not, as such, give an opinion upon his own recollection and construction of such evidence.</p>

<p>Negligence. — JRailroad Company.- — Defective Machinery, — Burden of Proof.— Answer. — Contributory Negligence. — Demurrer.—Practice. — In an action against a railroad company by an employee, to recover for an injury-sustained by the use of defective machinery, alleged to have been negligently supplied by said company, the burden of proof, when the complaint is denied, is upon the plaintiff, not only to prove negligence on the part of the company, but to prove the want of it upon the part of the plaintiff, and, therefore, no error is committed in sustaining a demurrer to special paragraphs of an answer which allege matters merely-tending to show contributory negligence, as such matters maybe proved under the general denial.</p> <p>Same. — Pleading.—Practice.—General Denial.-- An answer in such case,which, alleges that the plaintiff assumed the risk incident to the use of such machinery,, is affirmative in its character, and such defence can not be.proved under th.e general denial.</p> <p>Same. — Defective Machinery. — Instruction.—It is error to instruct the jury in such case, that the railroad company is bound to procure for its use the best machinery; and it is also error to instruct that it is negligence to use defective machinery, -as such company is only liable for the failure to employ ordinary care and diligence in the selection and use of its machinery.</p> <p>Pbactioe. — Supreme Comí — Pleading.—Harmless Error. — Where a good paragraph of an answer is held bad, the Supreme Court can not, from an examination of the evidence, say the ruling was harmless; otherwise,, where a bad paragraph of an answer was held good and no evidence was offered to support it.</p> <p>Same. — Instruction.—Interrogatory.—An erroneous instruction will not reverse a judgment where the jury, in answer to an interrogatory, find that, the facts to which it is applicable do not exist.</p>

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

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

<p>School Law. — Poll Tax. — Oily.—School Commissioners. — The board of school commissioners of Indianapolis has no power to levy a poll tax for the support of the common schools of the city or for a special fund for the-support of such schools.</p>

<p>Paetitiost. — Judgment.—Collateral Attack. — Estoppel.—Res Adjudícala. — Answer. — In an action for partition against a husband and wife as tenants by entireties, an answer of the husband that, in a former action against him alone, the plaintiff alleged and the court found and adjudged that •the husband was the owner in fee of the undivided two-thirds of the land, and the plaintiff the owner of the undivided one-third and awarding partition, contains a good defence.</p> <p>Same. — A judgment in partition is valid as to parties served with process.</p>

<p>Cbimotai. Law. — Indictment.—Formal Objections. — Motion to Quash. — Merely formal objections to an indictment, such as the manner in which it is signed hy the prosecuting attorney, are not presented either hy a motion to quash or in arrest of judgment, and need not be considered or decided.</p> <p>Same. — Assault and Battery, with Intent. — Description of Offence. — Where the assault and battery is charged, in the indictment, to have been committed “feloniously, purposely and with premeditated malice,” with the intent,, etc., it sufficiently appears therefrom that such offence was committed “ in a rude, insolent or angry manner,” without the use of either of the last quoted words.</p>

<p>Witness. — Competency.—Objection.—When one is not wholly incompetent as a witness in a cause, but is incompetent as to particular matters, a general objection to his competency as a witness is properly overruled. The objection should be limited to the subject to which the incompetency applies.</p> <p>Heed. — Spoliation.—Fraud.— Vendor and Vendee. — The insertion by another of the name of an additional grantee without the consent of the original grantee is a mere spoliation, which does not affect the rights of the latter, even as against a bona fide purchaser from the person whose name was so inserted, unless the real grantee has been guilty of fraud or negligence, whereby the purchaser was misled.</p>

<p>Exemption. — Execution.—Tort.—Pleadings Determine Nature of Action. — Parol Evidence. — There is no exemption of property from sale on execution if the judgment is for a tort; a fact which is determined, by the pleadings alone if unambiguous in reference to the character of the action, parol evidence not being admissible to contradict the record.</p> <p>Same.— Waiver of Valuation Laws. — The fact, that a judgment is in terms collectible without relief from valuation laws, does not show that it was rendered upon a cause of action growing out of contract.</p>

<p>Witness. — Credibility.—Impeachment of Impeaching Witness. — Evidence.—The character of an impeaching witness for truth and veracity may be itself attacked, and may be sustained by countervailing proof.</p>

<p>Lien of Employee. — Corporation.—Notice.—Sheriff.—Answer.—In an action against a sheriff to recover personal property seized under execution, an answer undertaking to show that the execution plaintiff had a lien thereon under sections 5286, 5287, R. S. 1881, but failing to allege when or where the notice was filed, or where recorded, is insufficient.</p> <p>Same. — An answer, in such case, which fails to allege that the property seized, at the time of the levy or of the issue of execution, or between those times, belonged to the execution debtor, does not show the ordinary lien of an execution.</p> <p>Voluntary Assignment. — Recording of. — Evidence.—A voluntary assign-' ment for the benefit of creditors, not recorded within ten days, as required by sec. 2663, R. S. 1881, is not admissible in evidence.</p>

<p>Practice. — -Supreme Court — Record.—Demurrer.—Where a demurrer has been overruled, but is not in the record, the Supreme Court can not examine the ruling made below.</p> <p>Same. — New Ti'ial. — ’Where a motion for a new trial, which is not found in the record, has-been overruled, the Supreme Court can not examine the ruling.</p> <p>Verdict. — Venire de Novo. — Special Findings. — That the answers of the jury to special questions of fact are indefinite, uncertain, conflicting, or merely expressions of opinion, or are not within the issues, or are not sufficient answers to the questions put, are not grounds for a venire de novo, a general verdict having been found.</p>

<p>Town. — Street Improvement. — Assessment.—Complaint.— Exhibits. — In an action by a contractor against the owner of a town lot to enforce an assessment thereon for a street improvement, the complaint must aver the-cost of the improvement, the length of the improved line upon the street, and the length of the front line of the lot; otherwise the complaint is insufficient on demurrer, and exhibits attached to such complaint, other than the copy of the assessment, can not be considered in determining its sufficiency.</p> <p>Same.— Widening Streets. — Statute Construed. — Under the act of April 27th, 1869, 1 B. S. 1876, p. 890, sections 3368, 3364, E. S. 1881, an incorporated town has no authority to order, in the same proceeding, a street to be widened, graded and gravelled; as the proceeding to widen is distinct from a proceeding to grade and gravel, and these proceedings can not be blended, and an assessment made by virtue of such order is void.</p>

<p>Pkomissoby Note. — Material Alteration. — Spoliation.—The material alteration of a promissory note by a stranger is a mere spoliation of the instrument, and the rights and liabilities of the parties thereto are not changed or affected by such alteration.</p> <p>Same. — ■Alteration after Execution. — Presumption.—Pmden of Proof. — When once it appears that the note was altered after its execution, the presumption arises and will continue until the contrary is shown, that such alteration was made by the holder or by one under whom he claims, and the burden of rebutting and removing or overcoming such presumption is on such holder.</p> <p>Same. — Payee and Principal. — Pelease of Surety. — Where it is shown that the-agent of the payees of certain promissory notes, which, when executed,, were in legal effect the joint and several notes of the principal and surety,, so altered the same with the principal’s consent, but in the absence and without the knowledge or consent of the surety, as to make them the joint notes of the makers thereof, such alteration was material, and vitiated and avoided the notes as against such surety, and discharged and released him from any and all liability thereon.</p>

<p>Malicious Prosecution. — Bastardy.—A malicious and unfounded prosecution for bastardy, set on foot by procuring the necessary affidavit to be filed, gives a right of action to the party accused without probable cause, though the proceeding be ended by dismissal without any arrest having been made.</p> <p>Same. — The injury in such case is completed by filing the affidavit before a justice of the peace, and the issue of a warrant is not essential.</p>

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

<p>Practice. — Amendment of Pleadings. — Leave to amend or file additional pleadings is much in the discretion of the trial court, and should only he given on cause shown by affidavit where it is proposed to make a new issue, and never when the new pleading would be bad on demurrer.</p> <p>Principar and Surety. — Decedents Estates. — Promissory Note.- — Answer.— Misrepresentation. — Fraud.—An answer by a surety in a promissory note executed to an administrator at a sale of the effects of a decedent, alleging that the only consideration for the note was goods purchased at such sale by the wife of the principal; that she was an heir of the decedent ; that the administrator falsely and fraudulently represented tp the surety that there would be a large amount of money due her from the estate; that if he would sign the note as surety for her husband, he would never be required to pay it; that by such representations he was induced to sign it; that the representations were false, and known to he so when made, and that the estate is insolvent, is insufficient on demurrer.</p>

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

<p>Fi’om the Monroe Circuit Court.</p>

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

<p>Pbactice. — Parties as Witnesses. — Conflict of Testimony. — Supreme Cov/rt.— ■ Verdict. — In an action by one administrator against his co-administrator for a share of the allowance made for services, where the evidence is so conflicting that the jury must have believed one, as a witness for himself, and not the other, the Supreme Court can not interfere with the verdict.</p> <p>Same. — Instruction.—Money Had and Received. — Such an action is substan- _ tially an action for money had and received, and may be so treated in an instruction.</p>

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

<p>Oeiminal Law. — Larceny.—Indictment.—Concealment of Cwilt. — Limitations. —An indictment for larceny, charging th'e commission of the offence more than two years before the return of the indictment, and that the . defendant, by active means, which are specified, concealed the fact that the crime had been committed, until within two years, is good; but it is otherwise when the concealment is shown to have been, not of the crime, but of the defendant’s guilt.</p> <p>Same. — Description of Property. — An indictment for larceny, which describes the stolen property as “ six thousand and twenty-seven dollars of the paper money of the United States,” is bad.</p> <p>Same. — When an indictment for larceny fails to describe the property stolen, it will, nevertheless, be good if it show a sufficient legal excuse for the omission.</p>

<p>Practice. — Motion for Judgment on Answers to Interrogatories. — Evidence.— No reference to the evidence can he made in considering a motion for judgment on the answers to interrogatories, notwithstanding the verdict.</p> <p>Promise. — Consideration.—Settlement of Wife’s Lawsuit. — Statute of Frauds.— Debt of Another. — Parol Promise. — A settlement of suits involving the title to lands claimed by the wife, affords a good consideration for the husband’s promise to pay a stated sum to the adverse party. Such promise is an original one, and not one to pay the debt of his wife, and need not be in writing.</p> <p>Same. — The consideration of a promise need not be a benefit to the promisor; but may consist in a benefit to a third person, or a detriment to the promisee.</p>

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

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

<p>Beal Estate. — Action to Recover. — Gomter-Gláim.—Taxes.—In an action for the recovery of the possession of real estate, it is error to sustain a demurrer to a counter-claim by the defendant averring a purchase of the real estate at a delinquent tax sale, possession thereof under a tax deed and the making of valuable improvements, praying that his title be quieted, otherwise that a lien be declared in his favor for taxes, etc. In such action it is proper to plead specially where affirmative relief is sought.</p> <p>Taxes. — Sale of Meal Estate. — Lien.—Although a sale of real estate for delinquent taxes may be void, the purchaser is entitled to have and enforce a lien for the taxes paid by him. The purchaser at such sale succeeds to the lien of the State.</p> <p>Pleading. — Practice.—A pleading which states facts entitling the pleader to some relief, although not to all demanded, is sufficient on demurrer.</p>

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

<p>Partnership. — Suit cm Promise of One Partner. — Parties.—In a suit upon the promise of one partner to pay the debts of the firm on dissolution, the remaining partner is not a necessary party defendant.</p> <p>Same. — Husband and Wife. — Pleading.—Practice.—In such suit, originating before a justice of the peace, no error is committed in sustaining a demurrer to an answer which alleges that the services for which the firm was indebted were rendered by the plaintiff' while a married woman, and that the defendant had settled with her husband for them, as such defence is admissible without plea.</p> <p>Same.— Wife Competent Witness. — The wife, the plaintiff in such case, is a competent witness.</p> <p>Same. — -Wife’s Earnings. — Evidence.—It is not error in such action to admit in evidence a written instrument, executed by the husband (then a member of the firm) to the wife on behalf of the firm, certifying that she was entitled to remuneration from the firm for the services thereafter to be rendered, for the purpose of showing that the claim for her services belonged to her.</p> <p>Pbactice. — -Special Finding. — Judgment.—Where the court finds the facts specially, but states no conclusions of law thereon, such statement only amounts to a general finding, and a motion for judgment thereon can not be maintained, as such motion is not contemplated by the statute.</p>

<p>Taxes. — Enforcement of Lien. — Executor.— Capacity to Sue. — Parties.—Heir.— The remedy given by section 6497, R. S. 1881, to enforce a lien for taxes paid, where the sale of lands for taxes proves to be invalid, is, on the ■death of the purchaser, given to his heirs, and not to his personal representatives, and to a complaint by the latter a demurrer for want of facts should be sustained.</p>

<p>Justice of the Peace. — Appeal Bond. — Approval.—The acceptance of an appeal bond by a justice of the peace puts an end to the power of the justice over the cause, and, if the bond be insufficient, remedy must be sought in the court to which the appeal is taken.</p> <p>Same. — Endorsement on Bond. — The endorsement of acceptance of an appeal bond by a justice of the peace is not necessary. The fact of acceptance is the only material thing, and of this the endorsement is merely evidence, though the fact may also be shown by parol.</p> <p>Same.. — Revocation of Approval. — A justice of the peace can not recall his acceptance of an appeal bond.</p> <p>Same. — Statement of Amount of Costs. — An appeal bond filed with a justice of the peace, otherwise valid, is.not impaired by an erroneous statement of the amount of costs, and may be enforced against both principal and surety to the full extent of the penalty.</p> <p>City Obdihaítce. — Prosecution for Violation. — Oivil Action. — A prosecution for a violation of an ordinance of a municipal corporation is a civil action, and an appeal bond given in such a prosecution is governed by the law applicable to bonds given in ordinary civil actions.</p>

<p>Joint Obligors. — Action Against, — Process Returned Not Found as to One.— Plea in Abatement. — Practice.—In an action against two or more joint obligors, a return of the process not served as to one of the defendants does not, as to him, abate the action, nor afford support for a plea in abatement by the defendant served.</p>

<p>Appeal. — Supreme Court.- — Practice.—Notice of Motion to Dismiss. — A motion in the Supreme Court to dismiss an appeal is of no force until the date fixed in the notice for presenting it, or the date of the service of the notice.</p> <p>Same.— Waiver by Submission. — Submission bj agreement is a waiver of a pending motion to dismiss the appeal.</p> <p>Same. — A motion filed May 25th, 1881, to dismiss an executor’s appeal, commenced by filing a transcript January 20th, 1881, from a decision February 6th, 1880, allowing a claim, where the notice was served January 18th, 1882, and filed January 19th, 1882, for presentation January 24th, 1882, was overruled November 23d, 1882, because of an agreement July 18th, 1881, to submit the appeal for trial.</p> <p>Same. — Decedents’ Estates. — Bond.—The provisions of sections 189 and 190, 2 R. S. 1876, p. 557, Acts 1881, p. 478, sections 228 and 229, R. S. 1881, sections 2454 and 2455, only control the time within which the bond should be filed, and not the time within which the appeal might he perfected. Seward v. Clark, 67 Ind. 289, explained on this point.</p> <p>Pbactice. — Jleeord.—Motion fen- Continuance. — Supreme Court. — Where the affidavit in support of a motion for a continuance is not a part of the record, the Supreme Court can not review the ruling of the trial court. ■Same. — Evidence.—Bill of Exceptions. — A statement, “This closed the evidence in the case,” is not equivalent to “This was all the evidence given upon the trial of the cause.”</p>

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

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

<p>Criminal Law. — Indictment.—Gravel Roads. — Annual Statement. — Directors. —An indictment against a director of a gravel road company which shows that he failed to comply with section 3638, K. S. 1881, viz.: to make an annual statement, etc., but fails to aver that the board of directors so failed, is insufficient on a motion to quash.</p> <p>'Supreme Court. — Record.—Presumption.—The Supreme Court, on appeal, will presume, the contrary not appearing, that the record of the trial court as entered upon its order book by its clerk, has been regularly signed by the judge.</p>

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

<p>Bill on Exceptions. — Time Owen to File. — At the November term, 1881, a motion was made for a new trial, which was taken under advisement until the next, and sixty days were allowed to file a bill of exceptions, but none was filed within that time. At the next term the motion was overruled, and sixty days again given to file a bill, with special leave “ to save all exceptions taken at the trial.”</p> <p>Held, that the special leave thus given was a nullity.</p> <p>Malpractice. — JEkeessive Damages. — New Trial. — The sum of $4,500 is not such excessive damages as will warrant a new trial in a suit against a surgeon for malpractice, the result of gross ignorance and mismanagement, whereby the plaintiff was made helpless for life.</p> <p>Same. — A new trial on account of excessive damages, in a suit against a surgeon for malpractice, will only be granted where they are so excessive as to indicate that the jury acted from prejudice, partiality or corruption, or were misled as to the proper measure of damages.</p>

<p>Railroad. — Killing Stock. — Privo,te Crossing. — Contract of Land-Owner to Maintain Pence. — Case Overruled. — A railroad, company is bound by statute to fence its track where a private way crosses it, and can not, in a suit for the value of stock killed by its cars on account of the failure to so maintain a fence, escape liability by showing a contract with the adjacent land-owner to maintain a fence at such crossing, the owner of the stock not being a party to such contract. Indianapolis, etc., JZ. 1Z. Go. v. Adkins, 23 Ind. 340, overruled.</p> <p>Same. — Circumstantial Evidence. — It is not necessary in such suit that it should be shown by direct evidence that the stock was killed by the company’s cars. It is sufficient if there are circumstances shown from which that fact may be fairly and justly inferred.</p>

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

<p>Criminal Law. — Practice.—Change of Venue. — Jurisdiction.—The court to-which a change of venue has been ordered acquires jurisdiction upon the deposit with its clerk of the original indictment and a transcript of the proceedings of the court from which the change was taken; and, upon appeal to the Supreme Court, copies of these documents and of the notation of the filing of them set forth in the transcript are sufficient to-show the jurisdiction of the trial court.</p> <p>Same. — Transmission of Papers.— Indictment. — Presumption.—The contrary not appearing, it will be presumed on appeal, in a case wherein there-has been a change of venue, that the indictment was sealed up and transmitted from one court to the other, in the manner prescribed in the statute. The indictment need not be attached to the transcript.</p> <p>Same. — Clerk’s Recitals in Transcript. — Pile-Marks.—Evidence.—Captions and recitals made by the clerk upon a transcript,' if not evidence of the filing of papers, are requisite and proper for the identification of the papers referred to, and with copies of the file-marks are proper proof of the existence and filing of such papers.</p> <p>Same.— Verity of Record. — Instructions.—Presumption.—It must he presumed on appeal that the transcript is accurate; and, consequently, it can not be presumed that an affirmative statement in an instruction was given negatively, though it plainly ought to have been so given.</p> <p>Same. — Self-Defemse.—Evidence.—Defendant as Witness. — Belief of Danger.— It makes a case of self-defence if the accused, being without fault, resists his adversary in the reasonable belief that his own life is in danger; and, consequently, the defendant, upon a charge of homicide or felonious assault, may testify concerning his belief of danger and the grounds for it. Same. — Belief and Intention Not Identical. — The testimony of a defendant upon a charge of felonious assault, that he intended to defend himself, is not equivalent to testimony that he believed himself in peril of life or limb.</p>

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

<p>Decedents’ Estates. — Appeal by Executors or Administrators. — Appeal Bond. —In an appeal from tlxe allowance of a claim against a decedent’s estate, by an executor or administrator, sections 2454, 2455 and 2457, R. S. 1881, must be construed together, and no appeal bond is necessary.</p> <p>Pbactice. — Special and General Finding.- — Bequest of Party. — Signature of Judge. — Where the trial of a cause is by the court, its finding will be regarded as a general and not a special finding, unless it is made at the request of one or both of the parties, and signed by the judge.</p> <p>Same.— Causes for New Tidal. — Assignments of Error. — Causes for a new trial do not constitute proper assignments of error on appeal to the Supreme Court.</p> <p>Same. — Questions to Witness. — -Exclusion of Evidence. — Exception.-—Error.— Supreme Court. — Where, on the trial of a cause, a question is propounded to a witness and the court sustains an objection thereto, the party can not, by simply saving an exception to the ruling, get an available error into the record on the ground of the exclusion of evidence. For, in such case, the Supreme Court will not consider the error, unless it is shown that the party informed the trial court, at the time, what evidence he expected to elicit by the answer to the question.</p> <p>Same. — Cause for New Tidal. — Bill of Exceptions. — A cause for a new trial must be shown to be true by a bill of exceptions, or it will not be considered in the Supreme Court.</p> <p>Decedents’ Estates. — Partnership.—Individual Creditors. — Partnership Creditors.- — -Priority.—In the administration of the individual estate of a deceased partner, his individual creditors have priority, and the partnership creditors can have distribution of the surplus only of such estate after the payment of his individual debts.</p> <p>Supreme Court. — Causes for New Trial. — Excessive Damages. — Error in the assessment of the amount of recovery and excessive damages are statutory causes for a new trial, and unless assigned as such in the motion for a new trial, they will not be considered by the Supreme Court.</p> <p>Same.— Weight of Evidence. — If there is legal evidence in the record tending to sustain the finding of the trial court on every material point, the Supreme Court will not reverse the judgment on the weight of the evidence.</p>

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

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

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

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

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

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

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

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

<p>Insurance. — Local Agent.— Waiver of Condition. — An insurance agent, who has authority to solicit insurance and to issue policies, has authority to waive a condition that if the building insured stands on leased ground such fact should be expressed in the written portion of the policy.</p> <p>¡Same. — Boidence.—Supreme Cov/rt. — The facts that a policy of insurance provides that it shall not be valid until countersigned by its duly authorized agent at a given place, and such policy is countersigned by such agent, who solicits the insurance, fills up the written portion of the policy, delivers it, collects the premiums, tend strongly to show that such ■agent had authority to waive a condition in the policy with reference to the insertion in the policy that the building insured is upon leased land, .and the Supreme Court, upon such evidence, will not disturb the finding upon such question of fact.</p>

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

<p>.Payment. — Pleading.—Mortgage.—Foreclosure.—Practice.—Harmless Firror.— After the commencement of a suit to foreclose a mortgage the plaintiff died, and his administrator became the plaintiff and 'prosecuted the suit. The defendant then pleaded payment “ to the plaintiff before the commencement of the suit.”</p> <p>.'Held, that, though the plea was technically bad, there was no available error in overruling a demurrer to it.</p> <p>.Same. — Set-Off.—Contract.—Judgment.—An answer alleged that the defendant had made a payment, of a sum specified, upon a judgment formerly held by the plaintiff against him, which judgment had become dormant; that the plaintiff agreed with the defendant that if the latter would allow the judgment to be revived without the application of said payment, then, upon a specified condition alleged to have been performed, the plaintiff would apply the amount of such payment upon any other indebtedness of the defendant to the plaintiff. It was not alleged that the judgment was revived as agreed, nor that the amount of the payment had not been applied on other claims or indebtedness.</p> <p>Held, that the answer was bad.</p> <p>Supreme Court. — Questions Considered.- — When the Supreme Court finds a question in the record upon which it reverses the judgment, and there are other questions not likely again to arise in the court below, they need not be considered.</p> <p>Same. — Cross Errors. — -.Where the appellant obtains a reversal in the Supreme Court, cross errors raising questions upon rulings subsequent to that upon which the reversal is granted, and not likely again to arise in the cause, need not be.considered.</p>

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

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

<p>Nuisance. — Violation of Oity Ordinance. — Complaint.—Asrrest of Judgment.— A complaint for violation of a city ordinance forbidding the maintenance of public nuisances, alleging that the defendant “ kept a large quantity of hides, tallow and other substances which emitted a disagreeable odor,” does not show sufficient facts, and is bad on motion in arrest of judgment.</p>

<p>43-tjabdian and Wabd. — Inventory.—Removal.—The statute, R. S. 1881, section 2521, is imperative, that a guardian who fails to file an inventory as required shall be removed, and this, in case of resignation, applies to the successor.</p> <p>Same. — Accounts.—General Duties. — A guardian of several wards having an estate in common must keep separate accounts with each, and if he fails in this because he is too ignorant, he should be removed; so, also, if he manages the estate of his wards for his own benefit instead of theirs.</p>

<p>Deed. — Covenant.—Breach.—Partition.—Phiction.—Damages.—Where, in an action for partition, a paramount title to a part of the premises is established as against the grantee in a warranty deed for the entire premises, and the grantee purchases the interest of the adverse owner, the grantor having been notified of the action and required to defend it, the grantee is entitled to recover substantial damages as for a partial •eviction.</p>

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

<p>Pleading. — Complaint.—A complaint which shows a right to any relief whatever is good on demurrer.</p> <p>Same. — Specific and General Allegations.-. — Payment.—Specific allegations in a pleading will prevail against general allegations; and where specific statements of fact in a plea of payment show that the general allegation is untrue, the former will control.</p> <p>Mortgage. — Consideration.—A pre-existing debt is a valuable consideration, sufficient to support a mortgage given to secure it.</p> <p>Same. — Foreclosure.—Answer.—Reply.—Mistake in Description.— Bona FidePurchaser. — Replevin Bail. — Judgment.-—Complaint to reform a mortgage as to the description of part of the lands, and to foreclose. Answer, by a subsequent purchaser: 1. That he became replevin bail for the mortgagor on a judgment about two years after the date of the mortgage, in the-belief that the lands of the latter were free from liens save as appeared by the record of the plaintiff’s mortgage; that the plaintiff had knowledge of the error of description in his mortgage, and negligently omitted any effort to secure its correction; that he had been compelled to pay the judgment. 2. Alleging the same facts as to the plaintiff’s knowledge-of and neglect to have the erroneous description corrected; that the defendant afterwards, without notice, for a valuable consideration, bought the lands at a sale by an assignee in bankruptcy of the mortgagor. Reply:- 1 (to both). That the defendant purchased subject to the plaintiff’s lien. 2 (to the first paragraph of the answer). That the defendant’s claim on account of the judgment was fully paid by the assignee, the amount thereof and $135 being the consideration for the conveyance of the lands by the assignee.</p> <p>Held, that the first paragraph of the reply was good and the second bad on demurrer.</p> <p>Mistake. — Description.—A mistake in the description of land can not be corrected where the rights of persons acting in good faith, without notice, and who have parted with value or assumed a liability, have intervened. Same. — Deed.—Mamed Woman. — A mistake in the description of land in a deed executed by a married woman may be corrected.</p> <p>Merger. — Diens.—The doctrine of merger of a lien in an estate in fee, afterwards acquired, does not apply where it would operate to let in unjustly a subordinate lien.</p> <p>Practice. — Motion to Strike Out. — Harmless Hrror. — The erroneous refusal to strike out part of a pleading is a harmless error.</p>

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

<p>Partition. — Complaint.—Title—Apetitionforpartition, which fails to show that the plaintiff is seized of some definite undivided share of the lands of which partition is sought, is bad on demurrer.</p>

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

<p>Cbiminal Law. — Pleading.—Separate Offences. — Duplicity.—Indictment or In~ formation. — In criminal pleading, there can be no joinder of separate and distinct offences in one and the same count. "Where an information or indictment charges the defendant, in a single count, with two or more substantive offences, it is bad for duplicity, and a motion to quash the same, if made at the proper time, ought to be sustained.</p>

<p>City. — Sewers.—Negligence in Construction. — Damages.—A city is liable for negligence in> devising the plan of a sewer, as well as for negligence in executing the work.</p> <p>Same. — A city is not liable for error in the exercise of merely legislative power, and therefore, can not be held for failure to undertake the construction of sewers and drains, unless they are made necessary by its own acts.</p> <p>Same. — Where a city undertakes the making of sewers and drains, the work becomes ministerial, and ordinary skill and care are incumbent in devising the plan, in performing the work, and in maintaining the works constructed or adopted.</p> <p>Same. — Street.—Surface-Water.—Drain.—Injury by Overflow. — A city is not liable for injuries consequent merely upon the careful and skilful improvement of its streets, whereby surface-water is thrown upon private property, but it is liable if it collects the water in a channel and pours it upon another’s land within or without its corporate boundaries.</p> <p>Same. — -Where a city creates the necessity for outlets for accumulated water, it must provide them.</p> <p>Same. — In planning and constructing sewers and drains, a city is not hound to provide for extraordinary freshets, but as to such as may be reasonably anticipated, though only at long and irregular intervals, it is.</p> <p>Same. — Construction of Drains Beyond City Limits. — The statute, B. S. 1881, .section 3106, empowers cities to extend drains beyond their corporate limits, and to this power the law annexes the duties of skill and care in its exercise.</p> <p>Same. — Private persons, by so improving their lots as to interfere with the flow of surface-water, can not impose upon a city the duty of undertaking the construction of sewers.</p>

<p>Forcible Entry and Detainer. — Description of Land. — Practice.—Dismissal of Action. — An action for forcible entry and detainer, commenced before a justice, may be dismissed by the circuit court for want of a proper description of the land. “Three and one-half acres off of” a specified tract is not a good description of the land in a complaint in such action.</p> <p>Practice. — Pleadings Stricken Out. — Bill of Exceptions. — Pleadings, stricken from the files, can be made part of the record only by bill of exceptions or by order of court.</p> <p>Save. — Making of Transcript. — Deferences to Documents. — In making a transcript of a bill of exceptions the clerk should not at a (here insert) re- ' fer to another part of the transcript for a copy of the document, unless the copy referred to is a proper part of the record.</p>

<p>Fkaudueent Conveyance.— Who May Attack— Creditors only can attack ' a conveyance made to defraud creditors; as to all other persons the conveyance is valid.</p> <p>.Same. — Refoi'maiion of Deed. — Description.—Mistake.—Answer.—Reply.—Departure. — Complaint to reform a deed as to the description of lands, and to quiet the title thereto, alleging a conveyance for value by S., who was then seized, to the plaintiff, the mistake, and a subsequent voluntary conveyance by S. to E., who had notice. Answer by E. that S. had conveyed the lands to E. for value on a day named before making the deed to the plaintiff. Reply, admitting the conveyance to E. on the day named in the answer, and averring that such conveyance was voluntary, to defraud the creditors of one J. H., who for that purpose had conveyed the lands to S., and S. then conveyed the lands to E.; that after-wards the indebtedness of J. H. having been satisfied by compromise, the deeds from J. H. to S. and from S. to E., not having been recorded, were, by mutual agreement of the parties thereto, surrendered and destroyed.</p> <p>JETeld, that the reply was a departure and bad on demurrer, a party not being permitted to plead facts in derogation of his own title, for the purpose of destroying the claim of his adversary, while seeking to recover upon the strength of his own title.</p> <p>Supreme Court. — Motion to Dismiss After Submission. — Practice.—When one of several parties appeals, a motion to dismiss the appeal for want of notice to the co-parties of the appellant comes-too late after submission of the cause on the appellee’s motion.</p> <p>Same. — Motion to Correct Record. — Affidavits.—Where it is desired to correct an entry of record in the Supreme Court, showing submission of the cause at the instance of the party applying for the correction, the motion must be made in apt time and must be supported by affidavits-which exclude every conclusion in favor of the correctness of the entry..</p>

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

<p>Supreme Court. — Evidence.—Record.—Where all the evidence is necessary to a proper understanding of the case in the Supreme Court, it must be brought into the record by a bill of exceptions.</p> <p>Same. — BUI of Exceptions. — Leave to Fila — It must appear in the record elsewhere than in the bill of exceptions, that leave was granted to file such bill, and the filing thereof must be shown by the record independently of a recital therein.</p>

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

<p>Cóntbact. — Principal and Agent. — Master and Sei'vant. — Discharge.—De- ' mands. — Services.—Damages.—An agent who is wrongfully dismissed from service may maintain an action for a breach of the contract, against his principal or employer, and is not bound to wait until wages or compensation would have accrued had the contract not been broken. He can not split his demand into parts, but must combine in one action his claim for services and for damages resulting from the breach of the. contract, although they are prospective in their character.</p> <p>Same. — Insurance Agent. — Measure of Damages'. — Commissions.—Renewals.— In a suit by an agent against an insurance company for damages resulting from his wrongful discharge during the existence of the contract, his recovery is not restricted merely to commissions on premiums collected prior to his dismissal, but may include the probable value of the renewals on policies obtained by him, upon which future premiums would, in the ordinary course of business, be received by the insurance company, but merely speculative or conjectural damages can not be recovered.</p> <p>Same. — Damages.—Ascertainment of. — Actuary's Tables. — Where, in such suit, the amount of compensation due the agent upon renewals of policies can be ascertained by the use of life or actuary’s tables, it is not too remote to be recoverable.</p> <p>Same. — Evidence.—Witnesses.—Experts.—In such action, witnesses shown to be skilled in matters of insurance and familiar with the value of renewals of policies of life insurance, are competent to prove the value of the agent’s contract.</p> <p>Same. — Right to Compensation. — Although a principal may have the right to dismiss his agent at any time without cause, the exercise of that right does not deprive the agent of the compensation previously earned.</p> <p>Same. — Constructionby Parties. — Courts will enforce a contemporaneous construction of a contract adopted by the parties.</p> <p>Pleading. — Practice.—Demurrer.—A complaint which avers facts entitling the plaintiff to some relief, though not to all the relief prayed, is sufficient to repel a demurrer thereto for want of facts.</p> <p>Same. — Reply.—Departure.—A reply which fortifies the complaint, or which ■ does not quit the original cause of action, but avoids the answer thereto, is not a departure.</p> <p>Instructions. — Instructions to the jury must not only assert correct propositions of law, but must be so framed as to be applicable to the particular case made by the evidence.</p> <p>Same. — Supreme Court. — New Trial. — To present a question in the Supreme Court upon a ruling refusing an instruction, the ruling must have been assigned as one of the grounds for a new trial.</p>

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

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

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

<p>Pbomissoby.Note.— Interest after Maturity.— Measure of Damages.— Gases Overruled. — Where an interest-bearing promissory note contains no provision for any rate of interest after its maturity, in a suit upon such note interest after its maturity will be recoverable as damages, and the proper measure of such damages will be the rate of interest borne by the note before its maturity. Bums v. Anderson, 68 Ind. 202, and the ■cases which follow it, overruled on this point.</p>

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

<p>Estoppel. — Prommonj Note. — Alteration.—To a suit by an assignee of a. promissory note, one of the makers pleaded a material alteration of the note by erasure after its execution. Reply, that when the plaintiff was about to purchase the note he so informed the defendant, giving him a general description of the note (which, however, would not indicate the erasure), and was then informed by the defendant that he had no defence. The reply did not show that the defendant had knowledge-of the erasure, nor that it had been made before the assignment.</p> <p>Held, that the reply was bad.</p>

<p>Practice. — New Trial.— Verdict. — A motion for judgment on the answers to special interrogatories, notwithstanding a general verdict, does not preclude a subsequent motion for a new trial.</p> <p>Peed. — Delivery.—Title.—Recording.—An unconditional delivery of a warranty deed by the grantor to the grantee passes the title to the real estate, whether the purchase-money be paid or secured or not, and the deed may he recorded without the grantor’s consent.</p> <p>Adverse Possession.— Vendor and Vendee. — The mere continued possession of the vendor of lands is not adverse to his vendee.</p> <p>Same. — Judicial Sale. — Adverse possession of lands does not affect a judicial sale thereof.</p> <p>Instructions. — Harmless Error. — An erroneous instruction to the jurors, as to the law of the case, provided they find certain facts, is harmless if it appear by special findings that such facts were not found.</p>

<p>Coubts. — Judge.—Statute Construed. — Repeal.—The act 0^1877 (Acts 1877, Beg. Sess., p. 28) did not repeal sec. 4 of the act of 1855, 2 B. S. 1876, p. 10, authorizing the circuit judge to appoint a judge pro tem. to hold the court when the regular judge, having appeared and presided at a term, becomes unable to continue.</p> <p>Instbuctions. — Evidence.—Where a paper has been read in evidence, there is no error in telling the jury that it is in evidence.</p> <p>.Same. — Instruction.—Preponderance of Evidence. — Promissory Note. — There is no error, in a suit on a promissory note, the execution of which is not •questioned, and which has been put in evidence, in instructing the jury that the plaintiff should recover, unless the defendant has established a defence by a fair preponderance of evidence.</p> <p>Witness.- — Impeachment.—Admission.—A witness can not be impeached by showing a contradictory statement by him concerning a fact not relevant to the issue; nor if the witness be the adverse party is such statement admissible as an admission.</p>

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

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

<p>Descent. — Widow.—Second Wife. — Beal Estate.— Conveyance. — StaMde Construed. — Where a husband dies leaving a wife and no children by a second marriage, and a child by a former marriage, to which child he had,, during the second marriage, conveyed real estate of which he was seized in fee simple, the wife, not having joined in the conveyance, is entitled to one-third of the land in fee simple, by virtue of her marital rights, under the 27th section of the statute of descents, section 2491, R. S. 1881., Howk, J., dissents.</p>

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

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

<p>Pleading. — Practice.—A pleading must aver facts and not conclusions of law, and special averments will control general averments therein.</p> <p>Same. — Action to Recover Money Paid on Void County Order. — A paragraph of complaint which avers that the defendant is indebted to the plaintiff, a board of county commissioners, in a certain sum far money paid to him by the treasurer of the county upon a void order drawn by the auditor, without stating any fact to show the invalidity of the order, is insufficient upon demurrer.</p> <p>County Order. — Commissioners May Recover Back Money Paid on Void Warrant. — Highway.—Appeal.—Where a party obtains an allowance by the board of commissioners for damages sustained by the location of a highway through his land, and appeals from such order to the circuit court, such appeal and a dismissal of the proceedings' annul such allowance, and money thereafter paid to him by the county treasurer upon a warrant drawn by the auditor for such allowance may be recovered back by the county commissioners in an action therefor.</p> <p>Same. — County Auditor. — The fact that the county auditor supposed that, such allowance was unaffected by such appeal constitutes no defence to. such action; nor does the act of the auditor in drawing the warrant in good faith bind the county, as he has no authority, in the absence of an order, to draw warrants upon the treasury, and such act is void.</p> <p>Practice.. — Pleading.—Demurrer Improperly Overruled to Paragraph of Complaint. — Judgment.—Where a demurrer has been improperly overruled to one paragraph of a complaint, and it does not appear that judgment was. • not rendered upon such paragraph, the judgment will be reversed.</p>

<p>Guakdian and Wabd. — Breach of Bond. — Pleading.—It is a sufficient averment ofbreach of a guardian’s bond, in asuiton the relation of oneof the wards, that the guardian had been removed from the trust and had not accounted to the wards, nor to any one for them, for moneys which had come to his hands.</p> <p>■Same. — Capacity of Relator to Sue. — Unless specially denied, the capacity of a plaintiff to sue is not in issue; and so in an action,upon the bond of a guardian who has been removed, brought on the relation of one of the wards, the complaint need not show that the relator had become of age.</p> <p>■Same. — •Liability on Different Bonds. — New Bond Given on Discharge of Surety on two Earlier Bonds. — Where a part of the moneys with which a guardian is charged has come from the sale of real estate, and one who had been surety upon both the general bond and the additional bond has been discharged from liability, and a new bond executed by order of the court, the last named bond covers the liability of the guardian for all moneys or property of the trust in his hands at the time of its execution.</p> <p>Same. — Separate Action. — Recover Must be for Entire Liability. — In an action upon a guardian’s bond, as upon tlie bond of an executor or administrator, brought upon the relation of one of the parties interested, the recovery must be for the entire present liability, and the fund collected brought into court for distribution. Cotton v. State, ex ret, 64 Ind. 573,. modified on this point.</p> <p>Same. — Evidence.—Late of Record,. — Silence of Bill of Exceptions. — Breswmption. — Swpreme Court. — Where on appeal from a judgment in an action upon a guardian’s bond, the bill of exceptions does not show the date of an order for the removal of the guardian, the original entry of which was read in evidence without objection, it will be presumed that the: order was made before the bringing of the suit.</p> <p>Supreme Court.— Want of Evidence on Uncontested Point. — A judgment will not be reversed for want of direct evidence on a point which it is apparent was not a subject of dispute at the trial.</p>

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

<p>Decedents’ Estates. — Petition to Sell Lands. — Pleading.—To a petition of ■ an administrator to sell lands to pay an indebtedness to B. and S., which, had been allowed by the court against the estate, an answer that the decedent was not indebted to any one is good.</p> <p>Same. — Estoppel.—Administrator.—Heirs.—To such a petition an answer that the defendant is a purchaser from an heir to whom the land was awarded by judgment in partition, with the knowledge and consent of the administrator, shows no estoppel, and is bad. So, also, is an answer that the defendant purchased the land from the heirs for full value, with and upon the faith of consent to such purchase given by the administrator.</p> <p>SAME — Statute of Limitations. — To such a petition an answer, that “ no cause of action to have the lands sold hath accrued within the period of fifteen years next preceding the filing of the petition,” is good under section 212, Code of 1852; but an answer “to so much of the petition as sets up a claim in favor of B. and S., * * that the cause of action mentioned in the petition did not accrue within six years next preceding the filing of the claim,” is bad.</p>

<p>Criminal Law. — Statute Construed. — Constitutional Law. — The statute, R. S. 1881, section 1803, concerning the impeachment of witnesses, applies as well to prosecutions for crimes committed before as after it took effect, and is not an ex post facto law forbidden by the constitution.</p> <p>Same. — Statutes which merely affect modes of procedure in prosecutions for crime may be made to operate retrospectively.</p> <p>Same.— Witness. — ■ Impeachment. — Evidence.—Character.— Practice. — The defendant in a criminal prosecution having become a witness for himself, the State then produced a witness who testified that his general moral character was bad, and, on cross-examination, that he was reputed to be a drinking and profane man.</p> <p>Held, that this did not warrant the State in proving, on re-examination, that the defendant was reputed to be a dishonest man.</p> <p>Same. — Meeeiuing and Concealing Stolen Goods. — Knowledge.—Instructims to Jury. — In a prosecution for receiving and concealing stolen goods, an instruction, that if the defendant received and concealed the goods, then having such information as would lead a person of common honesty, prudence and judgment to the conclusion that the goods were stolen, then he acted with guilty knowledge, is an invasion of the province of the jury, and therefore error. It is not matter of law, nor is it even correct as matter of fact.</p>

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

<p>Tax Sai/e. — Oity.—Caveat Emptor. — The purchaser at a city tax sale assumes all risk, and, if. the sale proves invalid, has no remedy against the municipality.</p> <p>Same. — City Can Not be Purchaser. — Agreement with Purchaser. — A municipal corporation, without express power conferred by statute, can. not be a purchaser at a sale for taxes due the corporation; nor can it bind itself by an agreement to warrant the title of a purchaser at such sale. No such power is conferred by the statutes of this State.</p> <p>Same. — Municipal Powers Must be Exercised im, Mode Prescribed. — A power given to a municipality to sell property for delinquent taxes, like other powers, can be exercised only in the mode prescribed by statute, if there be such mode.</p>

<p>(Receives.- — Mortgage.—Foreclosure.—JRmts.—Judicial Sale. — Where the mortgagor of lands sold on. foreclosure occupies the property, a receiver could not, while the acts of 1879 (Acts 1879, pp. 169 and 176) were in force, be appointed at the instance of the plaintiff, to take possession and collect -the rent during the year allowed for redemption.</p>

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

<p>Vendor and Vendee. — jReal Estate. — Contract.—Staiute of Frauds. — A contract by parol for the sale of land is taken out of the statute of frauds if the vendee be put in possession under the contract, but the payment of purchase-money does not take a case out of the statute.</p> <p>Same. — •Possession Under Previous Contract. — Possession taken under a prior contract, and merely continued under the oral contract relied on, will not take the latter out of the operation of the statute of frauds.</p> <p>Same.— Vey,doi'’s Lien. — Assignment of Notes. — The assignment of notes for the purchase-money of land transfers, as an incident, the vendor’s lien which the payee had when the assignment was made.</p> <p>Same.— Waiver. — Security.—Married Woman. — As a rule a vendor’s lien is waived by the acceptance of other security, but such a lien is not waived by the acceptance of a’married woman as surety upon notes executed prior to the act of 1879 in relation to married women.</p> <p>Same.— Vendor Trustee for Assignee of Notes. — Where the vendor of real estate retains the legal title thereof, but assigns the notes executed for the unpaid purchase-money, he becomes the trustee for his assignee, that is, holds the land for the purpose of securing the debt transferred to his assignee.</p> <p>. Same. — Collateral Security. — Parties.—Where the owner of a promissory note assigns it as collateral security, he can not maintain an action thereon while it is held by his creditor.</p> <p>Same. — Tender of Deed. — Instruction.—Evidence.—Where, in a suit to enforce a vendor’s lien for purchase-money, the evidence shows that a conveyance had been made to the vendee, it is error to instruct the jury that the suit must fail because no deed had been tendered by the vendor.</p> <p>Sheriff's Sade. — Certificate of. — Title.—Deed.—A purchaser at a sheriff’s sale of real estate must have, in addition to the sheriff’s certificate, for the completion of his title, a deed therefor from the sheriff.</p> <p>Same. — Contract.—Relation.—Doctrine of. — The fiction of relation is allowed force when equity requires that the last of a series of acts shall be referred to the first; but it is never allowed when it would produce an inequitable result.</p> <p>Same. — Redemption.—■ Waiver. — Agreement.—A purchaser at a sheriff’s sale, who, during the year for redemption, accepts part payment of the debt, or takes notes giving time for payment beyond the year, agreeing not to take a sheriff’s deed, waives his right to such deed, and will not acquire title by afterwards taking it in violation of his agreement.</p>

<p>Highway. — Public Utility. — Evidence.—Tlie public utility of a proposed highway, on appeal to the circuit court from the decision of the board of commissioners, need not be shown by direct evidence, but may be inferred from the facts and circumstances in proof.</p> <p>Same. — Condition, of Existing Road. — •Witness.—Cross-Examination.—When, in trying the question of the utility of a proposed highway, a witness has testified as to the condition of a road near by, on the State line between this State and Ohio, it is not competent to enquire, on cross-examination, why that road had not been better worked, and especially to show that there had been disagreements between the supervisors of the two States in respect to working it.</p> <p>■Same. — Appi opriaiion of Land. — Damages and Benefits. — Constitutional Law.— In estimating the damages for the taking of land for a highway, including the value of that taken, benefits to the complainant from the proposed way may be considered. The constitution is not violated by so doing.</p> <p>:Same. — Fee not Taken. — -Easement.— Eminent Domain.— Dental Value.— Though land appropriated for a highway is taken for a presumably permanent use, only an easement is acquired, the title and all consistent uses remaining in the owner or occupant; consequently, evidence of the rental value of the land taken is not admissible to show damages.</p> <p>.Same. — Evidence.—Opinions.—The opinions of witnesses are not admissible to show the benefits or damages-which will result from the opening of a highway, nor to show the different values of the lands with and without the road. These must be determined by the jury in the light, of other ■competent evidence.</p>

<p>.Retiring Pabtnebs.— Liability for Subsequent Contracts. — Notice of Withdrawal. — Public Notice.- — Retiring members of a partnership, where the business is continued after their withdrawal, owe a duty to give public notice of their retiring from the firm, not merely to former customers of the firm, but also to the public generally; and this is so especially where, after their withdrawal, the prior business of the firm is carried on in the same manner, at the same stand, and under the same firm name. If no such public notice of their withdrawal is given, the retiring partners will be liable for the subsequent contracts of the partnership made with one who knew of the former existence of the firm, and did not know of their withdrawal at the time of the contract, and made such contract upon the faith and credit of all the partners.</p>

<p>Mortgage. — Reserved Right to Give a Second Mortgage Prior in Right to the First. — Mistakes in Description of °Premises. — Reformation.—When, by the terms of a mortgage, it is to be released in favor of any one who may take a second mortgage for a sum named and a third mortgage made to the holder of the first, an attempt to accomplish such change of the-securities will not be defeated by mistaken descriptions of the premises in the second and third mortgages; nor by subsequent conveyances and mortgages to parties not bona fide purchasers; nor by the failure of the holder of . the first mortgage to release it. In such a situation, equity treats as done what ought to have been done. °</p>

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

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

<p>"Partition. — Life-Estate.—The owner of a life interest in an undivided part of land may have partition, or, if that be impracticable, a' sale of the property and division of the proceeds.</p>

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

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

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

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

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

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

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

<p>Contract.— Will.— Decedents Estates.— A written contract, whereby A. agrees with B. that if the latter will maintain the former during life, “ all the personal property of A. shall, at his death, become the property of B.,” will not, on A.’s death, transfer the property toB. unless attested as is required of a will, though such contract be not revoked or repudiated by A. during life.</p>

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

<p>From the Superior Court, of Tippecanoe County.</p>

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

<p>Intoxicating Liquor.— Unlawful Sale. — Evidence-Supreme Court. — Where' the evidence in the record is sufficient to authorize and justify the jury-in finding that the unlawful sale of intoxicating liquor, charged in the indictment, was made by the defendant or by his authority and under his direction, and there is a verdict of guilty, and judgment accordingly, the Supreme Court will not reverse the judgment on any question relating to the sufficiency of the evidence.</p> <p>Cbiminal Law. — Defendant’s Failure to Testify. — Comments of Counsel. — New Trial. — Under the fourth clause of section 1798, R. S. 1881, the defendant in a criminal cause is a competent witness to testify in his own behalf; but it is expressly declared that his failure to testify “ shall not be commented upon or referred to in the argument of the cause;” and where the record shows that this provision of the statute was disregarded in the argument of counsel, it is an error of law, occurring at the trial, which can not be cured by the instructions of the court, and for which anew trial must be granted.</p>

<p>Mobtgage.— Agreement for Foreclosure.— Statute of P-auds. — A contract whereby a mortgagee agrees, that, in consideration that the mortgagor will permit a foreclosure and pay the costs and attorney’s fees, he will bid in the land for the full amount of the debt, is not within the statute of frauds, and will be enforced.</p> <p>J udgmbnt. — ■Satisfaction.—Injunction.—Practice.—The summary remedy to obtain satisfaction of a judgment by notice and motion, provided by section 580, R. S. 1881, is not exclusive, but a suit in equity to have satisfaction decreed, and for an injunction preventing collection, may he . maintained.</p> <p>New Tbial. — Evidence.—Supreme Gourt. — If there be evidence tending to support the verdict, a new trial for the want of sufficient evidence will not be awarded by the Supreme Court.</p>

<p>Practice. — Motion for New Trial.- — -Exception.—Unless excepted to, the ruling upon a motion for a new trial presents no question on appeal.</p> <p>Same.' — Behearing.—Correction of Becord. — A rehearing will not be granted in order that the record may be corrected, and so made to show an exception.</p>

<p>Pbomissoby Note. — Interest after Maturity. — A note specifying a certain rate of interest before maturity continues to draw interest at the same rate until paid or merged in a judgment, unless otherwise provided in the note.</p> <p>Same. — Principal and Surety. — Release of Surety. — Extension of Time. — Consideration. — An agreement between the principal and the payee of a note, to extend the time for its payment, will not release the surety unless founded on a valuable consideration; and the promise to pay interest at the rate specified in the note, or to pay instalments on the principal, is not a valuable consideration for an agreement to extend the time of payment, and will not release a surety on the note.</p>

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

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

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

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

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

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

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