Volume 85 — Indiana Reports

<p>Husband and Wipe. — Contract.— Wife’s Separate Property. — Under statutory provisions that a wife’s separate property shall remain her own, and that she may contract concerning it, or part with it, only with the consent of the husband, her contract with the husband does not bind her.</p> <p>■Same. — Statute of limitations.— Trust and Trustee. — Demand.—If a wife sue her husband or the administrator of his estate upon his express promise to repay money received of her, the statute of limitations may be pleaded; but if, disregarding the contract, she treat him as a trustee, as she may, the statute affords no defence until after demand and refusal to account, or the equivalent thereof.</p> <p>Same. — Presumption.—Husband a T-ustee. — The presumption under the statute is that the money or property of a wife acquired by descent, devise or gift, remains her separate property, and that, if the husband takes the possession and management thereof, he does it-as trustee for her.</p> <p>Same. — If a husband collect or receive moneys owing or belonging to his wife, or instead thereof take up and cancel his own obligations, he is accountable to her.</p> <p>Same. — Advancement to Daughter by Giving Credit to Husband. — If a father make an advancement or gift to his daughter by reducing the price of-land conveyed to her husband, the latter, in the absence of an express promise, is not liable to his wife, as trustee or otherwise, for the amount of the reduction.</p> <p>Pleading. — Glairn Against Estate. — A formal complaint is not necessary in prosecuting a claim against an estate.</p>

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

<p>Principad and Surety. — Bond.—Agent.—Town.—Conversion.—Release of Surely. — Pleading.—Consideration.—Estoppel.—Fraud.—Demand.—Accounting. — Practice.—An incorporated town, having bonds outstanding, issued to raise funds to erect a school-house, executed new bonds at a lower rate of interest, with a view to refund its debt, and appointed an agent to sell them. Afterwards the agent returned a part of these, and then, in consideration that he might retain those not returned, and that those returned would be again entrusted to him to negotiate and with the proceeds take up the old bonds, he gave bond with sureties, conditioned to perform said duties, and to account after a fixed date, it being recited in the bond that the securities were “ this day delivered ” to him. He became a defaulter and fled to parts unknown.</p> <p>Held, that a complaint by the town on the bond, alleging the above facts, was good on demurrer.</p> <p>Held, also, that the bond was executed on a concurrent and not a past consideration.</p> <p>Held, also, that neither the agent nor his sureties could question the validity of either the old or new bonds, or the right of the town to the proceeds of the latter.</p> <p>Held, also, that, the agent having absconded to parts unknown, a demand upon him was excused.</p> <p>Held, also, that an answer by the sureties, that before the commencement of the suit it was known to the plaintiff that the agent had converted the bonds to his own use, and that it did not inform the sureties, was bad on demurrer.</p> <p>Held, also, that an answer, denying that any demand for an accounting had been made on the agent, was bad on demurrer.</p> <p>Held, also, that an answer by the. sureties, denying the delivery of the bond sued on, is embraced in the general denial, and where the latter is pleaded there is no available error in sustaining a demurrer to the former.</p> <p>Held, also, that an answer by the sureties, that the plaintiff knew and concealed from them the fact that the agent had, before the bond was exe- - eated, disposed of the securities not returned, and also represented to them that he then liad them in his hands, whereby they were deceived and induced to become sureties, was not embraced in the general denial, nor in an answer alleging want of consideration, and was a good defence.</p> <p>Held, also, that by the terms of the bond the sureties were liable only for the securities delivered to the agent on and after its date.</p> <p>Practice. — Supreme Gourt. — Where a good defence has been erroneously stricken out, the Supreme Court will reverse the cause, and will not examine the evidence.</p>

<p>Decedents’ Estates. — Allowance of Claims. — Notes not Payable in Bank.— Contract of. Assignor. — Due Diligence. — Where a claim is filed against the estate of a decedent, as the assignor of a promissory note not payable in a bank in this State, the contract of the assignor is a warranty that the maker of the note is liable thereon and able to pay it; and section 5504, R. S. 1881, provides that the assignee of such note, having used due diligence in the premises, shall have his action against his immediate or any remote assignor.</p> <p>Same. — Sufficiency of Claim. — Failure to use Due Diligence'. — Sufficient Fkcuse. —Insolvency or Coverture of Maker. — Assignor’s Request. — A claim against the estate of a decedent, as the assignor of a promissory note not payable in a bank in this State, will be sufficient to withstand a demurrer thereto, for the want of facts, if it show either the use of due diligence in the premises against the maker of the note, or a sufficient excuse for the failure to use due diligence; and the insolvency or coverture of the maker of the note, or the request of the assignor not to sue such maker, will constitute a sufficient excuse.</p> <p>Same. — Motion far New Trial. — Fkidence.^On the trial of such a claim against the assignor’s estate, tthe excuse alleged in the claim, for the failure to use due diligence against the maker of the note, is a material part of the claimant’s cause of .action, and must be sustained by sufficient evidence ; and where the record shows that no evidence was given on the trial to sustain the alleged excuse, a new trial should be granted.</p> <p>Same. — Remote Assignee. — Defence.—Set-Off.—Negative Averment. — Durden of Proof. — In section 5504, R. S. 1881, it is provided that, in a suit against a remote assignor of such a note, he shall have any' defence which he might have had in a suit brought by his immediate assignee. In a suit by the assignee against the remote assignor of the note, where the defendant pleads a set-off against his immediate assignee, he must aver that he had no notice of the assignment to the plaintiff when he acquired such set-off; but, in proof, the burden of showing notice to the defendant of such assignment rests on the plaintiff.</p>

<p>Attachment. — Suit on Bond. — Complaint.—Where defendants in an attachment proceeding succeed, and bring an action upon the .bond to recover such damages as they sustained by the seizure and sale of their goods by a writ issued therein, it is not necessary to allege in the complaint that an affidavit was filed, or that the writ was delivered to the proper officer, or that the goods were sold by any person having authority.</p> <p>Same. — Answer.—Sale of Perishable Goods. — Judgment Bes Adjudicata. — An answer in such action, that the goods were sold as perishable property, under an order of the'court, made without objection, constitutes no defence, and an averment that the writ was rightfully issued adds nothing to the answer, as the judgment in the attachment proceedings concludes the defendant upon such question.</p> <p>Same .--Damages. — In such action the plaintiffs are entitled to such damages as they sustained, although it is not shown that the judgment in the attachment proceedings was upon the merits; and an answer which avers no fact in bar of the action is insufficient on demurrer.</p> <p>Same. — Measure of Damages. — The price for which the property was sold by the sheriff, under the order of the court, as perishable property, wa3 not the measure of damages in a suit upon the attachment bond.</p> <p>Same. — Instruction.—An instruction in such action, that if a part of the attached property was left with the plaintiffs, the cash value of the residue was the measure of damages, was properly refused, as it precluded a recovery for such expenses as were incurred in defending the suit, and such sums in addition in the nature of interest as will compensate the party for his loss; • and an instruction, which directs the jury to allow interest upon the value of the property taken and the amount of expenses incurred from the time the writ issues, in. addition to such sums, is erroneous, unless the property was then taken and the expenses then incurred.</p> <p>Same. — Mitigation of Damages. — Where the money arising from the sale of perishable property in attachment proceedings is brought into court, and, after the proceedings are defeated, the court, without objection, orders the money paid to the defendants, the same, in a suit upon the bond, will be considered, in mitigation of damages, as the property of the defendants.</p> <p>Same. — Creditor.—Parly.—Lien.—Judgment.—A creditor, who files his claim under an attachment proceeding, becomes a party thereto and is concluded by the judgment, and, if the defendant succeeds, such creditor acquires no lien upon the property, though his claim is allowed.</p> <p>Pbactice. — Instmetion.—Interrogatories.—An oral statement by the judge to tlie jury, directing them to answer certain interrogatories, is not an instruction within the meaning of the law, and there is no error in making it after a request to instruct in writing.</p> <p>Same. — The refusal of the court to give an instruction to the jury applicable to facts which the jury find do not exist is not error.</p> <p>Same. — Submission of Interrogatories. — It is not error to refuse to submit to the jury an interrogatory as to .a question of fact not involved in the issues, or as to a question of law.</p> <p>Same.— Verdict. — A. motion for judgment upon the answers of the jury to interrogatories can not be sustained where the facts found do not control the general verdict.</p> <p>Same. — Judgment.—Costs.—New Trial. — The rendition of a judgment for costs, without relief from valuation laws, if erroneous, is not cause for a new trial.</p> <p>Same. — Excessive Damages. — Supreme Court. — Where the damages assessed are excessive, the judgment will not be reversed for such cause if the successful party will remit the excess.</p>

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

<p>Pbincipae and Stjbety.- — Contribution.— Subrogation. — Moiigage.—A. was indebted by promissory notes to a number of persons, on one of which B. and O. were his sureties, on several others B. only was surety, and on others D. only was surety. Afterwards A. made to B. and D. a chattel mortgage, to secure the payment of all his said debts, reserving the right to possess the property and to sell it, applying the proceeds in payment of said debts, which was done in part. C. was compelled to pay the demand on which he and B. were joint sureties. Suit by C. against B. and D. for the amount he had paid.</p> <p>Held, that the acceptance of the mortgage did not impose upon B. and D„ any joint obligation as sureties upon all the debts mentioned in the-mortgage.</p> <p>Held, also, that the mortgage was a security for all said debts, pro rota, so-that 0., having paid the debt on which he and B. were co-sureties, became entitled to the share applicable to that demand.</p> <p>Held, also, that B. was liable to O. for contribution, as a co-surety.</p> <p>Held, also, that D. was not so liable to C., and, not having received more than his proper share of the mortgaged goods, was not liable at all to him. IIabmless Ebbob,. — There can be no available error in sustaining a demurrer to one paragraph of a complaint, where the plaintiff has the full benefit of the facts properly pleaded therein, under an issue formed on another paragraph.</p>

<p>Pleading. — Estoppel.—Covenants.— Written Instrument. — Exhibit.—A reply whereby the plaintiff seeks to estop the defendant .from making a defence by him pleaded, by reason of written coveriants of the defendant to the plaintiff, that the facts were other than as the defendant has pleaded, but not exhibiting a copy of the instrument containing the covenants, is bad.</p> <p>'Same. — Bad Beply to Bad Answer. — A bad reply to a bad answer' will be held good on demurrer.</p> <p>Pbomissoby Note. — Consideration.—Lease.—Assignment.—Eviction.-—-To a suit on a promissory note payable to the plaintiff, the defendant answered failure of consideration, in that the consideration was the assignment to him by A. of a lease which had been forfeited, and that the landlord had by suit evicted the defendant therefrom.</p> <p>Held, that the answer was bad on demurrer, it not appearing that there was fraud or any covenants in the assignment.</p> <p>Same. — Mortgage.—Belease.—A. held a leasehold estate which he had mortgaged to the plaintiff, and thereupon he assigned the lease as to a portion of the lands to the defendant, who, in consideration that the plaintiff released the mortgage to the portion so assigned, with the consent of A., made the note in suit payable to the plaintiff'.</p> <p>Held, that whether the plaintiff received the note as collateral security for the debt of A. or as payment thereof, the consideration, as between the plaintiff and defendant, was the release of the mortgage.</p> <p>Supreme Court.— Verdict. — Erroneous Instruction. — Where a verdict is clearly right on the evidence, the Supreme Court will not disturb it, though erroneous instructions have been given.</p>

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

<p>Bes Ad judicata. — Decisions of Supreme Court. — The decision of the Supreme Court upon a question, where the case is reversed, governs in all subsequent stages of the case, even in the Supreme Court upon a subsequent appeal.</p> <p>'County Commissioners. — Claims.—Appeal.—Statute ConMrued. — The act of 1879, R. S. 1881, sections 5758, 5760, .5769, operates prospectively only, and where suits were pending in circuit courts, against counties, when that act took effect, it did not deprive the courts of jurisdiction thereof.</p> <p>Bridges. — Bepairs.—Counties are liable for neglecting to keep their bridges in a reasonably safe condition.</p>

<p>Promissory Note. — Action by Endorsee. — Plea of Property in Another.— Ownership. — Attorney.—It does not sliow a defence to an action on a note by an endorsee to aver that it was endorsed to the plaintiff by one who, as attorney, took the note for his client and without authority caused it to be made payable to his own order.</p> <p>Same. — Principal and Agent. — Apparent Authority. — If the owner of a prom-1 issory note, drawn payable to his agent, leaves the note in the agent’s possession, and the latter endorses it to an innocent purchaser, the owner can not dispute the transfer.</p> <p>Same. — Fraud.—False Representations Must be Material. — It is no defence to •■a note made payable to an attorney of the owner, that the attorney .falsely represented that his client had a cause of action against the maker for criminal intimacy with the client’s wife, and had papers in the hands of an attorney at Piqua, Ohio, to begin suit for $20,000, unless a compromise could be made, etc. The defendant, being necessarily «ognizant of the facts, had no right to be influenced by such representations.</p> <p>Same. — Criminal Conversation. — Damages.—Contract for Silence. — Defence.—It is a good defence to a suit on a note given in settlement of damages claimed for criminal intimacy with the wife of the payee, that as a part of the settlement the parties agreed in writing that the note should be void if the payee should ever speak of such intimacy, and that he had broken this agreement.</p> <p>Pleading. — Practice.— Written Instrument. — Excuse for not Giving Copy.— If a pleading is based on a written instrument, a copy should be exhibited; but it is a sufficient excuse for not giving a copy, that the depositary of the writing had refused to deliver it or to furnish a copy.</p>

<p>Appeals to Supbeme Cotjbt. — Assignment of Errors. — Appellants Complaint. —Dismissal.—On an appeal to the Supreme Court the appellant must, under section 655, B, S. 1881, enter on the transcript a specific assignment of’ all errors relied upon. The assignment of errors constitutes the complaint of the appellant in the Supreme Court, and, in the absence of such an assignment, the appeal will be dismissed.</p>

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

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

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

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

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

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

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

<p>Mistake. — Decedents’ Estates. — Settlement with Administrator. — Negligence.— Equity. — Equity favors the diligent and will not afford relief from a imistake made in a settlement with an administrator, to a party who, besides his negligence at the time of the mistake, offers no explanation of his failure to discover it before the final settlement of the estate and discharge of the administrator.</p> <p>Same. — Setting Aside Final Settlement. — It is not good ground for setting' aside a final settlement of an estate that, by mistake, the administrator-had collected of a debtor the full amount of his note, a credit endorsed on the note having been overlooked — no reason beinj* shown why the* mistake could not have been discovered before the final settlement.</p> <p>Same. — Liability of Heirs. — One who, by mistake, fails to get the benefit of a credit endorsed upon a note held against him by an administrator,, and does not discover the fact until after final settlement of the estate, has no cause of action against the heirs or distributees of the estate.</p>

<p>Husband and Wipe. — Oiiy.—Donation of Land for Street by Husband Bars Wife’s Interest. — Acceptance.—A donation or grant of land by a husband, during life, to a municipal corporation for use as a street, noted as such on the plat of the city or an addition thereto, made in accordance with the statute, R. S. 1881, sec. 3374 et seq., and accepted by the city, bars the inchoate interest of his wife in such land.</p>

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

<p>Pabtitioh. — Descents.— Widow. — Conveyance.— Statute Construed.— Husband' and Wife. — A woman, married a second time, holding by descent an un— . divided third of the lands of a former husband, may, without suit, make-fair partition with the children of her former husband, and deed’s executed by her and her second husband, to carry out such partition, are not. an alienation prohibited by section 2484, E. S. 1881, as it stood prior tops amendment in 1879; and after such partition, and possession taken by the parties, she ceased to own any interest in the lands allotted to the-, children of the former husband.</p>

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

<p>City. — Coasting on Streets. — Personal Injury to Traveller. — Liability.'—A city,, after having adopted an ordinance prohibiting, upon its streets, sports tending to produce bodily injury, is not liable for a collision occurring upon a street, whereby a traveller was injured, as the result of coasting-for sport, though the sport was carried on by crowds, publicly, in the presence of its officers and police, to the obvious danger of persons using the street.</p>

<p>Winn. — Devise During Widowhood. — Election.—Descent.—Where a husband dies, leaving a wife and two children surviving him, having devised his land to his wife during widowhood, and she elects to accept the provision made for her by will, her estate is limited in duration to the period, of her widowhood; anda purchaser, through a mortgage executed by her after a second marriage, acquires no title to any part of the land. And the fact that no disposition of the land was made after the wife ceased to be a widow, did not entitle her to any portion of it under the law, as her election to take under the will precluded any such claim.</p>

<p>Decedents’ Estates. — Right of Action. — Representative and Heir. — The right to sue for money or other personalty of a decedent' belongs to the personal representative, not to the heir or widow.</p> <p>Pleading. — Intendments.—If the allegations of a pleading be ambiguous, uncertain or defective, they must be construed more strongly against the pleader.</p> <p>Husband and WiEe — Disposition of Personalty. — The law of this State places no restriction, in the interest of the wife, upon the power of a husband to dispose of his personal estate.</p> <p>Same. — Conflict of Laws. — Foreign Statutes in Derogation of Common Bight.— Consti'uction. — Statutes in derogation of common right, as for instance, if in restraint of the owner’s power to dispose of his personal estate, and especially a foreign statute, when invoked, if it may he at all, to affect transactions in this State, will be strictly construed.</p> <p>.Same. — Trust and Trustee.' — Personal Property. — A foreign statute, which forbids the creation of a trust in personalty for the sole use of the person declaring the trust, will not be deemed to affect a transfer or assignment made in this State of property situated here, by a resident of the foreign State, in trust partly for himself and partly for others.</p>

<p>iSupbejie Coubt. — New Trial.— Weight of Evidence. — The dogtrine is of universal application that the Supreme Court will not disturb a verdict or finding on the evidence, if there be parol evidence tending to support it.</p>

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

<p>Husband and Wife.— Wife’s Personal Services.— Before the act of 1879 the personal services and earnings of a wife belonged to the husband.</p> <p>Same. — Promise to Wife. — Maintenance of Child in Family. — Where a man and woman, owning adjoining farms, marry, and, dwelling in the house of the wife, live upon the products of both farms indiscriminately, maintaining as a member of their .family a grandchild of the husband, the wife can not (after the death of the husband) maintain an action against the child’s father upon his promise made to her to pay her for caring for • and maintaining the child.</p> <p>Parent and Child. — Contract with, Grandparent for Child’s Maintenance not Implied,. — Where a child is taken to be brought up in the family of its grandfather, the father, without express promise, is not liable for the child’s maintenance.</p>

<p>Verdict. — Special Findings.— Practice. — Evidence.—An inconsistency between a general verdict and the answers by tlie jury to special questions of fact, which will justify a verdict upon the latter against the former, must be irreconcilable in view of the pleadings alone, without reference to the evidence.</p> <p>Chattel Mortgage. — Consideration.—A chattel mortgage to secure a preexisting debt is supported by a sufficient consideration, except as against a prior equity.</p> <p>Same. — Fraud.— Question of Fact. — An agreement between the mortgagor and mortgagee of a chattel, that the former may sell the chattel, is not, as a matter of law, fraudulent, but the question of fraud is one of fact for the jury.</p> <p>Written Instrument. — Construction.—Instruction.—The construction of a written instrument is for the court, and when by the face of the instrument it is so the court may tell the jury that “upon its face it purports to be executed for an honest purpose.”</p> <p>.Execution. — Levy.—Chattel Mortgage. — Replevin.—The sheriff may, by reason of the statute, R. S. 1881, section 722, levy upon and seize property which is under chattel mortgage, and is not thereby subject to an action of replevin at the suit of the mortgagee.</p>

<p>Negligence. — Evidence.—In an action against a railroad coirpany for placing a hand-car upon a public highway, in consequence of which the plaintiff was injured while passing over the highway at nigl , evidence tending to show that the defendant’s servants, while executf g the lawful orders of the defendant, negligently left the car on the . :ighway, inadmissible.</p> <p>Same. — Personal Injury. — Measure of Damages. — In a suit for personal injury, resulting from negligence, the jury should consider the bodily paim and sickness, the extent of permanent disability, and the anxiety and! distress of mind fairly caused by the injury.</p> <p>Same. — -Excessive Damages. — An old lady aged sixty-two, by the defendant’s negligence, without intention, was injured by having the bones of an arm broken, which resulted in a protracted effort at cure, without success, so that she could never again perform her usual domestic duties.</p> <p>Held, that a verdict for $2,500 damages was not so excessive as to justify a new trial.</p> <p>Instructions. — Evidence.—An instruction which recites a part of the evidence, and tells the jury that, if they believe it, then the act complained of was not the act of the defendant, ought not to he given, if there was other evidence upon the same poiht consistent with that recited, which tended to show that the act was that of the defendant.</p> <p>Same. — It is not error to refuse a correct instruction if its substance he given in another form.</p> <p>Same. — Yerbal omissions and errors in an instruction, which impair its literal accuracy, but can not be supposed to mislead the jury — e. g., omitting to specify a certain time, which is nevertheless clearly implied — do not constitute an available objection.</p> <p>Same. — The court may properly state to the jury that there was evidence tending to prove a given fact; it may even recapitulate the evidence and say what it conduces to prove, if the jury be also told that they must determine for themselves what it does really establish.</p> <p>New Trial. — Suq>rise.— Witness. — It is not ordinary prudence to rely upon - the unsworn statement of an adversary’s witness as to what will be his . testimony; and surprise resulting from such reliance, whereby a party goes to trial without witnesses to prove the real truth, is not cause forr a new trial.</p>

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

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

<p>Bepusvin Bonn. — Verdict.— Value of Property. — Damages.—The failure of the jury, in replevin, to assess the value of the property, as the statute requires, will not prevent the defendant from recovering its value, in a suit on the undertaking, when return is adjudged and is not made, or damages for injury to the goods while held liy the plaintiff.</p> <p>Same. — Measure of Damages. — When there is a judgment of return against the plaintiff in replevin, and he fails to return some of the goods, and returns the rest injured by bad packing and storage, the measure of damages in a suit on his undertaking is the value of the goods not returned, with six per cent, per annum from the time of replevin, and the deterioration in value of those returned resulting from the causes named, with six per cent, per annum from the date of their return.</p>

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

<p>Sueeiciestcy oe Evideuce.— Verdict. — Master and Servant. — Consignor and Consignee. — Negligence.—A., of Cincinnati, shipped goods to New Albany, to be received and stored by B. They were received by C., upon his wharf-boat to be kept for A. until removed. The servants of B., in removing the goods from the wharf-boat, allowed part of them to fall into the river, whereby they were lost.</p> <p>Held, in a suit by A. against C. for negligence, that this evidence did not support a verdict against C.</p>

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

<p>Obiminai, Law. — Special Prosecuting Attorney. — Judicial Cognizance. — An indictment signed by a'“special prosecuting attorney” is not subject to a motion to quash, or to a plea in abatement which does not deny the due appointment of such special prosecuting attorney — the court taking judicial cognizance of its officers and of their signatures and official designations.</p> <p>■Same. — Duties of Special Prosecuting Attorney. — When, upon failure of the prosecuting attorney to attend, the court appoints “some person to prosecute,” the appointee may perform any duty of the office, including the signing of indictments.</p> <p>Same. — Indictment. —Burglary.—Larceny.—Election of Counts. — Upon an indictment of two counts, charging in one a burglary with intent to steal the goods of A., and in the other a larceny of the goods of B., the prosecuting attorney need not elect between counts, if his intention is to investigate one transaction only.</p> <p>‘Same.— Word “ Personal,” When Unnecessary. — An indictment for burglary with intent to steal “goods and chattels ” is not bad for the want of the word personal before “ goods and chattels.”</p> <p>Same.— Ownership of Goods. — An indictment charging the larceny of specified articles, “ of the value,” etc., “ and the property of A.,” shows that the articles named are the property of A.</p> <p>Same. — Practice.—Eoidenee.—When, the evidence shows indisputably that the conviction was had under the second count of an indictment, rulings in reference to the first count are immaterial.</p> <p>Pbactice. — Argument of Counsel. — Bill of Exceptions. — Motion for New Trial. —In order to save an exception to the action of the court in reference to the argument of counsel, the facts must be stated in the bill of exceptions ; it is not enough that they be stated in the motion for a new trial, or in affidavits in support of that motion.</p> <p>Same. — Occurrences in the presence of the court must be stated in the bill of exceptions ; but, in cases of doubt, the judge may receive affidavits or other proof to enable him to settle the bill.</p> <p>Same. — Improper speech by counsel would seem to be “ misconduct of the prevailing party,” and can not be made available as an irregularity of the court unless by an exception to the court’s refusal to take proper action moved for at the time of the misconduct.</p>

<p>Public Schools.— Township Trustee.— Colored Children. — Enumeration.— Mandate. — The township trustee will not be required by mandate to establish separate schools for colored children, unless it is shown to be practicable; nor will he, unless such separate school be practicable, be required by mandate to make separate lists of such children, as provided by section 4472, E. S. 1881.</p> <p>Mandate. - Public Officer. — A public officer will not be compelled by maniate to do an act at the instance of a Velator who does not show that he has an interest in the act sought to be coerced.</p> <p>Same. — Practice.—The alternative writ of mandate to compel two or more acts, if not sufficient as to all, is bad on demurrer.</p>

<p>Eati.road. — Killing Stock. — Fencing.—Where, in an action against a railroad.company for the value of stick killed by the cars of the defendant, the evidence shows that the stock went upon the track at a place where it was unfenced, but where a fence could have been properly maintained, the company is liable.</p>

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

<p>Promissory Notes. — Assignment.— Collateral Security.— Endorsement. — An assignee of a promissory note who has re-assigned' the note to his assignor, as collateral security, can not, while the latter so holds the note, maintain a suit on the endorsement. Aliter, after the debt secured is satisfied.</p> <p>Same. — Duty of Solder of Collateral Security to Sue. — One to whom a note is delivered as collateral security is not bound to sue thereon if he be certain that a suit would be fruitless.</p> <p>Tender. — To keep a tender good the money must be brought into court. Contract. — Rescission.—Pleading.—Presumption.—A general allegation in a pleading, that a contract had been rescinded, will be presumed to mean that the whole contract was annulled, and the parties reinstated in the-situation occupied before the execution of the contract.</p>

<p>Neshgence. — Contributory Fault. — To an action to recover for injuries sustained by the plaintiff to his property on account of the wilful, negligent and careless conduct of the defendant, an answer admitting- the injuries and averring that, at the time they were committed, the defendant was intoxicated by liquor sold to him by the plaintiff, who was a licensed liquor seller, is insufficient to constitute a defence.</p> <p>Stjpbeme Cotjbt. — Evidence.—Instruction.—Harmless Error. — Where the evidence clearly sustains the verdict, the judgment will not be reversed on account of an instruction not strictly correct.</p>

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

<p>Quieting Title. — Complaint.—A complaint to quiet title which avers title and possession in the plaintiff, and that the defendant claims title or an interest, the value of which is unknown to the plaintiff, which clouds the plaintiff’s title and impairs its market value, is good on demurrer. ’So, also, if the character of the defendant’s claim be alleged with facts showing its invalidity.</p> <p>Mobtgage. — Seal Estate. — School Fund. — Description.—Presumption.-—Judicial Knowledge. — A mortgage to the State described lands by section, township and range, not giving the county or State where situated.</p> <p>Held, that it will be presumed that the lands are in this State, and from the description the court will judicially know the county.</p> <p>Same.— University Fund. — Sale by State Auditor on Mortgage. — Notice.—A failure by the Auditor of State to give the notice of sale which the statute, R. S. 1881, section 4610, requires, on default of a mortgagor who has borrowed university funds, renders the sale void. So, also, if he sell to make more than the amount of principal, interest, damages and costs properly due. R. S. 1881, section 4611.</p> <p>Same. — Notice.—Publication.—Costs.—The statute, R. S. 1881, section 4610, requires that the notice of such sale should be published in one or more newspapers, not once merely, sixty days before the sale, but continuously, during the whole of that period. Semble, that if the notice be published in one newspaper as required, and in another only-a part of the time, the notice is sufficient; but in that case the expense of the notice in the latter paper is no part of the proper costs, and if it be included in the sum for which the land is sold, the sale will be void.</p>

<p>Nuisance. — Horse Stable. — A stable is not a nuisancé per se, and a court of equity will not, at the instance of an adjoining lot-owner, whose residence and well are twenty-five or thirty feet distant from defendant’s wood and carriage house, erected upon his own premises, enjoin him from constructing a horse stable therein, where the stable may never be used, and where its use may not injuriously affect such person, his family or his property.</p> <p>Same.— Complaint. — A complaint, in an action to enjoin the erection of a horse stable upon an alley by an abutting property-owner’, alleging the obstruction of the alley by such building, and in such proximity to the plaintiff’s residence that, if used for such purpose, it will endanger the health of himself and family, and render his property useless as a residence, is sufficient on demurrer.</p>

<p>Promissory Note.— Gravel Hoad Corporation.— Contracts with Officers. — A turnpike company is autliorized by statute, R. S. 1881, section 3653, to borrow money of any officer thereof for use in making its road, and to execute a promissory note therefor.</p> <p>Same. — Officer de Facto. — After the lawful election of other directors, and their organization as a board, a note made by the old board (still acting as such, but as usurpers) to its president, and signed by him as such, with the other officers, is unauthorized, and is not the note of the corporation.</p>

<p>Conversion. — Promissory Note. — Complaint.—Demand.—Parol Trust. — Deed. —Itkhibit.—A mother contracted with a stranger for the sale of land at an agreed price. This contract she gave by delivery to her three sons, A., B. and C., and at the same time conveyed the land to A. in trust, to Be conveyed to the purchaser, which was done, and a note taken in A:’s name (but really for the three) for a part of the purchase-money. B. sold his interest in the note, without endorsement, to C., while A. yet had possession of it. A. then transferred the note to D., who knew the facts, and who collected it and used the money. Suit by O. against A. and D. to recover for the conversion.</p> <p>Held, that no demand need be averred; that A. held the note upon a trust which was valid though not in writing, and that the complaint of C., alleging the foregoing facts, was good on demurrer.</p> <p>Held, also, that the deed was not a necessary part of the complaint.</p> <p>Held, also, that, upon the facts stated, the plaintiff could recover two-thirds of the money collected by the defendant D., with six per cent, per annum until the trial. '</p> <p>Same.— Variance. — Amendment.—In a suit for the conversion of a note, a variance as to the date and amount of the note may be amended at the trial.</p>

<p>Deed. — Delivery.—Escrow.—Depositary.—Agreement.—A deed, made in consideration of natural love and an agreement for support, to two sons and the wife of another son, was, after signing and being acknowledged, handed by the-grantor to the husband of the female grantee, with the direction, “ Take it and give it to some one to keep while I live, then to be recorded.” It was accordingly given to the grantor’s wife, and by her kept until the grantor’s death, and then was recorded, though the grantor had, a few days after the transaction, said it had not been delivered.</p> <p>Held, a good delivery of the deed.</p>

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

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

<p>Sheriff's Sale of Beal Estate. — Notice by Publication. — Posting Notices.. —Gonslmclion of Statute. — Under section 467 of the civil code of 1852, sec. 757, B. S. 1881, the advertisement of a sheriff’s sale of real estate, “ for' at least twenty days successively,” has exclusive reference to posting up. written or printed notices of the sale, and does not qualify or control the provision requiring the advertisement by publication in a newspaper of the county, for three weeks successively, which means a publication for twenty-one days, excluding either the date of the first publication or the day of the sale.</p>

<p>Mortgage. — Personalty and Realty. — Fixtures.—Mills.— Pleading. — -Suit to foreclose a mortgage describing as “ personal property ” the undivided half of a grist-mill, stationary boiler and engine, and a stationary sawmill. Answer that the property was a stationary steam saw and gristmill ; that the defendant purchased the same in good faith without notice, and that the mortgage had been recorded only in the record of chattel mortgages.</p> <p>Meld, that the answer was bad, and did not show that the property was real estate.</p>

<p>Husband and Wife. — Wife’s Personalty at Common Lam. — Reduction to Possession. — Before 1851 the common law in respect to husband and wife was in force in Indiana, whereby the wife’s personal estate, such as money, goods, chattels, and movables which she had in possession at the time of the marriage, vested immediately and absolutely in the husband; and so of money in the hands of her guardian, from whom it was received, by the. husband.</p> <p>Same. — Common Law. — Trust.—If at common law a wife, liaving money in her own right and custody, delivers it to her husband under his promise to invest it in real estate for her and in her name, but he, without her knowledge, takes the title in his own name, lie does not hold the land in trust for her, because the money was in fact and in law not hers but his.. Tracy v. Kelley, 52 Ind. 535, distinguished and criticised.</p>

<p>City. — Powers.—Fire Ordinance. — An ordinance prohibiting the keeping( on any one block, at one time, of more than five tons of straw, unless protected by a fire-proof enclosure, is authorized by the statute concerning cities. R. S. 1881, sections 3106, 3155, 3198, 3199.</p>

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

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

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

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

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

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

<p>Promissoby Note. — Agreement for Attorney's Fees. — Demurrer.—Avoid stipulation for attorney’s fees in a promissory note does not invalidate the note, and consequently a demurrer to a complaint on the note does not bring in issue the validity of the stipulation.</p>

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

<p>Practice.— Real Estate, Action to Recover,— New Trial as of Right.-— Oral' Motion. — During the term at which a judgment for the recovery of real estate has been rendered, a new trial as of right upon payment of costs, may be granted upon oral motion.</p> <p>Same. — Exception.— Waiver. — At the same term of court at which a judgment has been rendered, a new trial may be granted upon oral motion., and unless an exception be taken at the time, error can not be assigned upon the ruling.</p> <p>Same. — Oi-oss Qoniplaint, Separate Trial of Issues on. — Partition.—If, in an action for partition, issue is joined upon a cross complaint of one of the defendants claiming a part of the land, and that issue be tried separately, the action on the petition being continued, no question can be made, on appeal from the judgment on the cross complaint, in respect to the petition or the jiroceedings upon it.</p> <p>Evidence.— Handwriting.— Expert,— An expert may state his opinion whether or not the writing in question is in a feigned hand.</p> <p>Same. — Practice.—A party, to present any question upon the refusal of the court to permit his witness to answer an interrogatory, should inform the court what he expects to prove.</p>

<p>Assignment of Erbobs. — Supreme Court. — Errors of law occurring at the-trial, such as admitting or excluding evidence, and giving, modifying,, or refusing instructions, are not proper subjects for specifications in am assignment of errors.</p> <p>Same. — In such case, a specification, that the court erred in overruling the-motion for a new trial, presents for review all errors at the trial properly-excepted to at the time and stated in the overruled motion.</p> <p>Practice. — Evidence.—Testimony.—Bill of Exceptions. — A conclusion of a. bill of exceptions,' “And this was all the testimony, either verbal or written, that was introduced, heard or read on the trial of said cause,” is not the equivalent of “ This was all the evidence given upon the trial of the-cause.” The word “ testimony ” does not include documentary evidence. Same. — Exceptions to Decisions During Trial. — Instructions.—Under section-. 343, Code of 1S52, a bill of exceptions, upon overruling a motion for a new trial, did not, as now, under K. S. 1881, section 626, carry forward exceptions taken to decisions made during the trial; and instructions in. a bill of exceptions were not thereby incorporated in the record.</p>

<p>Taxes. — Beal Estate of National Banks. — Now Taxed. — Statutes Construed.— Beal estate owned by a National bank, by the provisions of the statutes, State and National, as construed together, should be assessed for taxation as realty in the township where situated, and not as a part of the capital stock of the bank.</p>

<p>Practice. — Appeal.—-Review of Judgment. — Tlie prosecution to final judgment of a complaint for review bars an appeal from the original judgment.</p>

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

<p>Receiver. — Power to Appoint. — The courts of this State, under the code, have the same power, for the same purposes and under the same emergencies, to appoint receivers, as had the .courts of equity before the adoption of the code.</p> <p>Same. — Action of Fjjectment. — Crops.—In an ejectment suit, it is no objection to an application jior a receiver to take charge of the crops, that no reason is shown why the action can not be speedily tried and the rights of the parties thereby saved.</p> <p>Same. — Practice.—Jinry Trial. — Change of Venue. — -The appointment of a receiver, in a pending action, is made by the court upon motion without the formation of issues, and without the aid of a jury, the evidence consisting of the verified application and such affidavits and depositions as the parties may offer. An application for a change of venue from the county does not affect the power of the court to make the appointment.</p> <p>Same. — Pleading.—Practice.—An unsworn denial is not a good answer to an application for the appointment of a receiver in a pending action, and may be stricken out on motion; the sustaining of a demurrer to such answer is not available error.</p> <p>Practice. — Change of Judge. — Record of Appointment of Other Judge. — When a change is taken from the presiding judge, and another judge is called, the latter may proceed in the case before the record of his appointment has been made up and signed.</p> <p>Same. — Ejectment.—New Trial as of Right.— Waiver of Exceptions. — By taking a new trial, in an action of ejectment, as a matter of right upon payment of costs, the party waives exceptions to rulings made at the trial had.</p> <p>Same. — New Parties Admitted After First Trial. — When, in an action of ejectment against one, the defendant had taken a new trial.as matter of right, and thereupon others were made defendants upon their own motion, and a second trial had, the new parties were not entitled to a new trial as of right. ■</p> <p>Evidence.— Witness. — Competency of Party.— The plaintiff in ejectment had contracted in writing for the sale of the land to the defendant, and upon a decree of foreclosure of his lien as vendor had repurchased the land and had obtained the sheriff’s deed; and the children of the principal defendant, having been admitted to defend, set up that the contract of sale, though made in the name of their father, was for the benefit of their mother, who was not made a party to the foreclosure, and that as her heirs they had her rights.</p> <p>Held, that there was no error in permitting the plaintiff to testify concerning the possession of the premises by the principal defendant before the commencement of the action.</p>

<p>Insurance.— Waives- of Conditions. — Agent’s Authority. — An adjusting agent of a fire insurance company to whom a loss is referred by the company, with authority to manage and control it until it is disposed of, has authority to waive the preliminary proofs of loss which the policy requires to be made to the company; and if he place a refusal to pay the loss wholly upon, other grounds, it is a waiver of the right to defend a suit on the ground that such proofs were not madé.</p>

<p>Decedents’ Estates. — Administrator.—Suit on Bond. — Parties.—Evidence.— Conversion. — In a complaint on the bond of a deceased administrator, on the relation of a creditor, alleging, as breaches, failure to pay the creditor’s claim, conversion o£ 'the assets, and failure to settle the estate in proper time, neither other unpaid creditors nor the administrator of the deceased administrator are necessary parties, nor is proof of a demand and failure to pay sufficient proof of a conversion of the assets.</p>

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

<p>Fraudulent Conveyance.— Estoppel.— Husband and Wife.— Suit by a judgment creditor to reach real estate, alleged to have been conveyed by the debtor through another to the debtor’s wife to defraud the creditor, and by the wife to W., with notice. Answer in estoppel, that the creditor, while the wife held title and because thereof, had taken the wife’s note. Held, that the answer was bad.</p> <p>Same. — Trust.—A further answer, that title to another tract of land, which had been paid for mostly by the money of the wife, had been conveyed to the husband upon his parol agreement to hold it in trust for the wife, and that the land in controversy was paid for by the proceeds of that tract, and the conveyance taken to the husband before the indebtedness accrued, upon his parol agreement to hold in trust for the wife, and that she had invested her own funds in improving the land, and denying all fraud, was held good on demurrer.</p> <p>Practice. — Bill of Exceptions.— WhenFiled. — Where, priorto 1881, on overruling a motion for a new trial at a term succeeding that of the trial, the bill of exceptions was filed within a time then given, errors of law occurring at the trial could not be saved by the bill.</p> <p>Same. — Instructions.—Where instructions are not signed by the judge or the party asking them, or his attorney, and the record does not show that they were filed, and they are not in a bill of exceptions, they are not properly a part of the record.</p> <p>Same. — New Trial.— Surprise. — Newly Discovered Evidence. — There must be proper affidavits to show surprise and newly discovered evidence as causes for a new trial, and these must be brought into the record by bill of exceptions, else the Supreme Court can not review the ruling of the court below on the motion.</p>

<p>Town. — Nuisance.—Pleading.—Complaint by an incorporated town to recover the amount of a judgment which it had been compelled to pay, alleging an unlawful excavation, wrongfully and without permission made by the defendants in a sidewalk, into which one H. fell and was injured; that H. sued the town and recovered the judgment; that the defendants were notified of the suit and defended it. Answer that the excavation was made for a stairway to the basement of a building of one of the defendants, such as was customarily made by others, with the knowledge of the town; that due care was used to avoid injury; that an unexpected caving of the earth occurred, of which the plaintiff had notice, but failed to inform the defendants, and the injury was the result of such caving, and could have been avoided by a trifling expense.</p> <p>Pield, that the answer was insufficient, because it did not aver permission from the town to make the excavation, but only evidence tending to show permission.</p> <p>Same. — Streets.—Negligence.—An excavation in a sidewalk of an incorporated town, made without leave, is a nuisance per se, and the wrong-doer is liable to the town for such damages as it incurs, to persons injured thereby; and this liability does not depend upon the negligence or care with which the excavation was made or guarded.</p> <p>Same. — Judgment—See AAjudicata. — In such case, where the town, upon being sued, notified the wrong-doer thereof, and that it will look to him for indemnity, the judgment concludes him, as to the facts thereby adjudicated.</p> <p>Same. — Pidncipal and Agent. — Where an act done is unlawful, creating a nuisance per se, an agent who actively participated therein, is liable alike with his principal.</p> <p>Pleading. — Averment.—The allegation in a pleading of circumstances from which a fact may be inferred is not equivalent to an averment of the fact.</p>

<p>From tbc Brown Circuit Court.</p>

<p>Bui. of Exceptions. — Evidence.—No precise form of words is required to show that a hill of exceptions contains all the evidence.</p> <p>Bastakdy. — Marriage of Parents. — The marriage of the parents of an ' illegitimate child, and the father’s acknowledgment of its parentage, have the effect by statute, R. S. 1881, sections 2475, 2476, to make the child legitimate; and a prosecution for bastardy can not be afterwards instituted and maintained, though the marriage was entered into by the father in bad faith, merely to escape a pending prosecution for bastardy, and then to abandon the mother.</p>

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

<p>Appeal Bond. — Supersedeas.—Bond, Effect of. — Pleading. — Costs. — Measure of Damages. — H. recovered a personal judgment against J. R. and D. R. for $631.76, and costs, and a foreclosure of a chattel mortgage against them and J. H., with a decree for the sale of the property to make the debt and costs. J. H. appealed to the Supreme Court, and, having given a proper bond, obtained a supersedeas. The judgment and decree were affirmed after the lapse of two years, but meantime the value of the mortgaged property had deteriorated by use and abuse, from $1,000 to little oi nothing, so that on final sale by the sheriff upon the decree, it yielded only $265, so that, deducting also some payments, there remained of the judgment unsatisfied the sum of $302.05; J. B. and 15. B. having been at all times insolvent. Suit on the appeal bond.</p> <p>Held, that a complaint alleging these facts was good on demurrer.</p> <p>Held, also, that the supersedeas having restrained all proceedings on the personal judgment, as well as the decree for sale, there was a liability on the bond for whatever injury was liable to result to the plaintiff from the appeal, and not merely for costs; but what would be the measure of damages upon a complaint so meager in its averments is not decided. Held, also, that an appeal bond need not be signed by all the judgment defendants. Willson r. Glenn, 77 Ind. 585, distinguished.</p>

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

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

<p>Judge. — Postponement of Trial. — Practice.—Objection to the action of the court in setting down a cause for immediate trial before a judge specially appointed to try the cause is not available in the Supreme Court unless the grounds of objection are shown by bill of exceptions.</p> <p>Practice. — Continuance.—There is no error in overruling a motion for de^ lay of a cause, when no reason for delay is shown..</p> <p>Judgment. — Decedents’ Estates. — An application to enforce a judgment against a decedent’s estate, made under section 621, R. S. 1881, can not be objected to by the tenant of real estate against which the judgment is sought to be enforced on the ground that it fails to show whether or not there were assets in the hands of the administrator.</p> <p>Evidence. — Becord Beinstated. — Where the record of a judgment, which has been destroyed, has been reinstated, it is admissible to prove the judgment, without producing also the pleadings.</p> <p>Same. — Judgment.—Injunction.—In an application to enforce a judgment under section 621, R. S. 1881, it is'not error to put in evidence a record showing that there had been an injunction restraining the sale on execution of lands to satisfy the judgment.</p> <p>Supreme Court. — Practice.—Error.—That a demurrer has been sustaihed to the answer of á defendant who does not appeal, can not be available error to another defendant who does appeal.</p> <p>Same. — An error which does not seem to have injured a defendant who appeals, there being others who do not appeal, is not available.</p> <p>Evidence. — Practice.—’Where evidence has been, admitted without objection, or without any ground of objection having been stated in the court below, no question can he made upon it in the Supreme Court.</p> <p>Same. — An objection to evidence, that “ it is inadmissible and incompetent,” is too indefinite to present any question.</p>

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

<p>Replevin. — Title.—Contract of Sale. — An answer in replevin for wheat is good which avers that the only right of the plaintiff to the wheat is conferred by a written contract, as follows: “An article of agreement, made this 25th day of September, 1879, between IT. B. and D. The said D. having purchased of IT. B. one hundred acres of growing wheat, at its market price per bushel when delivered * * in Kokomo, Ind., to be harvested and cared for in a good husband-like manner, and delivered in good merchantable order; sixty acres of the wheat being on the home farm where he now resides, and forty acres on the farm * * belonging to him and E. B.,” and that there had been no delivery of the wheat to-D. The contract was executory and passed no title.</p> <p>Same. — Judgment.—In replevin against several, if the plaintiff fails to show title in himself, the defendants are entitled to a joint judgment.</p> <p>Sale. — Contract.—Statute of Frauds. — Execution Creditor. — An execution creditor can not question a sale of property made by his debtor, merely because the contract of sale is within the statute of frauds. Parties to the contract and their privies only can do so.</p> <p>Same. — Growing Crops. — Title..—Delivery.—Where a growing crop is sold, and either delivery or payment remains to be done, title does not pass.</p> <p>Execution. — Lien. —An execution, upon its delivery to the officer, becomes a lien on personalty, and such lien will prevail against any subsequent purchaser.</p> <p>Jury. — Contract.—Construction.—A jury is not at liberty to find the effect and meaning of a written contract; that is the duty of the court.</p> <p>Special Verdict.— Judgment. — Practice.—A defendant, deeming himself entitled to judgment on a special verdict, may move for such judgment, and the question is thereby presented whether the plaintiff is entitled to judgment.</p> <p>Same. — Burden of Proof. — If a special verdict clo not find such facts as entitle the party having the burden of proof to judgment, then a motion by the adversary for judgment should be sustained.</p> <p>Same. — A special verdict should contain only facts found, and if it states either evidence or conclusions of law, such statements should be disregarded.</p>

<p>Partnership. — Judgment.— Verdict. — Attachment. — Complaint against S. and V., partners, upon an account, and to subject to the satisfaction thereof certain goods alleged to have been fraudulently transferred by S. to W. S., also a defendant. There was also an attachment by virtue of which the goods were seized and sold. V. filed a cross complaint averring the same facts alleged in the complaint. Other creditors became parties under the attachment; and, issue being taken upon the •complaint and cross complaint, the jury found certain sums due from the partners to the respective plaintiffs, creditors, and for them on the question of fraud against S., and against them as to W. S., and on the cross complaint, they found for Y. the plaintiff' therein.</p> <p>Held, that the creditors were not entitled to an order for the distribution of the proceeds of the goods; that W. S. was entitled to an order giving the proceeds to him, upon giving bond, etc., and the creditors were entitled to personal judgments against S. and Y.</p> <p>Same. — Lien of Creditors. — When a partner sells his interest in partnership goods to a co-partner, the latter may apply the goods to his individual debts, and there is no lien of pa Hnership creditors to interfere. Practice. — Pew Trial. — Presumption.-—Where a motion for a new trial is not made at the term at which the cause is tried, but at the next term such motion is filed on leave, without objection, consent thereto will be presumed, and the motion will be in the record.</p> <p>Same. — Bill of Exceptions. — The court, having granted time for a bill of exceptions, can not, over objections, afterwards extend it.</p>

<p>Quieting Title. — Tax Title — Evidence.—In an action to quiet the title to real estate, where the defendant claims title to the land under a tax deed, he must show by his evidence that the statute had been strictly complied with in every step required to be taken, to authorize the sale for taxes and the execution of the tax deed.</p> <p>Same. — Constitutional Law. — Statute Construed. — Statute of Limitations. — Section 250 of the act of December 21st, 1872, to provide for a uniform assessment of property and for the collection and return of taxes thereon, is not repugnant to any provision either of the State or Federal Constitution, and is a constitutional and valid enactment; but it must be strictly construed, and can not be held applicable to an equitable suit to quiet the title to real estate.</p>

<p>Sheriff’s Sale. — Return.—A proper sale of lands by a sheriff, by virtue of a proper decree issued to him authorizing it, and a sufficient deed made by him at the proper time, there having been no redemption, vest a good title in a stranger who purchases, as against the defendants in the decree, though the sheriff, by mistake, fails to endorse a return on the decree in his hands.</p> <p>Same. — Collateral Attack. — Ejectment.—In ejectment by the purchaser at sheriff’s sale, against the defendant in the execution, the latter can not attack the sale save for causes which render it, not voidable merely, but absolutely void.</p> <p>Ejectment.' — •Complaint.—Title.•—A complaint for the possession of lands, which, by the facts averred, shows title in the plaintiffj without stating the conclusion that he is owner, is good on demurrer.</p> <p>Pleading.' — Prayer for Belief. — 'A complaint, alleging facts which entitle the plaintiff to some relief, is good on demurrer, and is not vitiated by a prayer for the wrong relief.</p> <p>New Tbial. — Causes.—“ Error of law occurring at the trial as hereafter set forth, and excepted to by the defendant,” is not sufficiently specific, as a cause for a new trial, to present any question.</p>

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

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

<p>Bond. — Condition.—Breach.—Pleading.—In a suit on a bond with several conditions, there can be a recovery only for the breaches assigned by the complaint.</p> <p>Same. — Receiver.—To a complaint on a receiver’s bond, assigning for breach a failure to pay over to his successor $1,000, money received by the obligor as receiver, an answer showing a credit of $857 allowed him on settlement by the court which appointed him, and that said court found a balance due from him of $94, which-he paid to his successor, is good on demurrer.</p>

<p>Bond. — Justice of Peace. — Complaint not Cured by Verdict. — A complaint upon the official bond of a justice of the peace, for a failure to pay over money,, must show that the justice received the money during the period of time covered by the bond; .a defect in this respect not being'cured by the verdict.</p> <p>‘Same. — Defects Cured by Statute. — A misrecital in the bond of a justice of the peace in respect to the commencement of his term of office does not affect the validity of the bond, the defect being cured by the statute. Code 1852, sec. 790; R. S. 1881, sec. 5530.</p>

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

<p>Assignment os1 Error. — Practice. — Supreme Court. — Agreed Statement of Facts. — Where the evidence upon a trial consists of an agreed statement of facts, conclusions of law can not be stated; and a specification, “ The court erred in its conclusions of law upon the agreed statement of facts,” . presents no question.</p> <p>Same.— Specification.— Conclusions of Law.— A specification, “ The court erred in rendering judgment upon said conclusions of law,” presents no question for consideration.</p> <p>Same.' — Few Trial. — Bill of Exceptions. — In such case, to question the correctness of the finding, a motion for a new trial is necessary, and the agreed statement must be incorporated in the record by a bill of exceptions, or otherwise.</p>

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

<p>Attorney General. — Common School Fund.— Property Found on Bodies by Coroner. — The proceeds of effects found by the coroner on the bodies of dead persons do not belong to the common school fund, but go to the support of the common schools of the county, and a suit to compel its proper application can not be prosecuted on the relation of the Attorney General.</p> <p>Same. — Costs.—There is no error in refusing to render a personal judgment for costs against the Attorney General, where he, on behalf of the State, unsuccessfully prosecutes a suit on his relation as an officer, against a county, involving the right to public moneys.</p>

<p>Pbactice. — Error in Evidence Cured by Instruction. — An error in admitting improper evidence may be cured by an instruction which, in effect, directs the jury to disregard such evidence.</p> <p>Witness. — Foundation for Impeachment. — Time and Place. — An impeaching question which calls for a statement made “in June last, in Hazelton,</p> <p>• Indiana,” is sufficiently definite as to time and place, when the principal witness admits a conversation at such time and place, though denying the particular statement imputed to him.</p>

<p>Married Woman. — Statute of Frauds.— Vendor and Vendee. — Implied Promke. — Contract.—Consideration.—A married woman joined her husband in the conveyance of his lands, in consideration of which the vendee orally agreed to convey to her a city lot, which he afterwards refused to do.</p> <p>Held, that a complaint by the wife against the vendee for failure to perform his agreement, showing these facts, was good, on demurrer.</p> <p>Held, also, that the release by a wife of her inchoate interest in her husband’s lands may be a valuable consideration.</p> <p>Held, also, that the above facts give rise to an implied promise by the vendee that he will either return what he has received or its value, as being held by him on a consideration which has failed.</p> <p>Same. — Husband and Wife. — Conveyance.—Presumption.—Where a wife joins with her husband in the conveyance of his land, it will be presumed, in the absence of any special agreement to the contrary, that the induce- ' ment for the release of her inchoate right as to the grantee was the consideration paid by him for the land.</p>

<p>Peactice. — Finding.—• When Court May Hear Further Evidence After Entry of. — Attorney’s Fees. — Where, in an action upon a promissory note, a trial is had by the court, the finding announced, and entered on the docket, leaving a blank for the insertion of the amount of the recovery when computed, the court may, after overruling motions for a new trial and in arrest, hear evidence, over defendant’s objection, in respect to the amount of the attorney’s fee stipulated for in the note.</p>

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

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

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

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

<p>Supreme Court. — Amomt in Controversy. — Jurisdiction.—To give the Supreme Court jurisdiction in cases originating before justices of the peace, the amount in controversy, exclusive of interest and costs, must exceed fifty dollars; and when the plaintiff recovers that sum or is satisfied with the amount recovered, and the defendant is merely resisting the recovery, claiming no set-off' or counter-claim, the amount so recovered is all that is in controversy within the meaning of section 632, R. S. 1881.</p>

<p>Attachment. — Fraudulent Sale of Property. — Fmdenee.—Where the plaintiff in an action sues out an order of attachment against the property of the defendant, upon the ground that he has sold, conveyed or otherwise disposed of certain described property, with the fraudulent intent, etc., evidence showing the specific sale, with the alleged intent, will sustain the attachment proceeding, and, in such case, it is not incumbent on the plaintiff to prove, also, the negative fact that after such sale or conveyance, with such intent, the defendant did not have enough property left to pay his debts.</p>

<p>Intoxicating Liquok. — Sale Without License. — Indictment.—An indictment for selling intoxicating liquor without license “ to be drunk and suffered to be drunk in the defendant’s house, out-house, yard and garden,” is good on motion to quash; charging thus in the conjunctive it merely avers more than is necessary to make an offence, under section 5320, R. S. 1881.</p> <p>Same. — Evidence.—Appurtenances.-—A platform and steps annexed to a room are appurtenances thereof, within the meaning of section 5320, R. S. 1881.</p>

<p>Cbimisaí Law. — Affidavit and, Information.— Variance. — In a prosecution by affidavit and information for a misdemeanor, the information must be supported by an affidavit charging the same offence as that described in the information, and, therefore, where the affidavit upon which the information is based charges that the offence was committed on the 24th day of December, 1881, and the offence described in the information is alleged to have been committed on the 24th day of January, 1881, a motion to quash should be sustained.</p> <p>Same. — Amendment.—Practice.—An information, after a motion to quash has been made in the trial court, can not be amended in the Supreme Court.</p> <p>Same. — Motion to Quash. — It is not necessary, upon a motion to quash, to state to the trial court the specific objections to the affidavit and information. ,</p>

<p>Bill of Exchange. — Gommon Order. — Inability of Drawer. — Notice.—An order by A. upon B. to pay money to C., without words of negotiability,, is not an inland bill of exchange, but is classed with bank checks; and the drawer is entitled, as the drawer of a bank check, to notice of the failure of the drawee to pay upon presentation.</p>

<p>Intoxicating Liquor. — Unlawful Sale. — Injury m Consequence of Intoxication. —Proximate Cause. — Inability for Results. — Negligence.—Cases Criticised and Distinguished- — An unlicensed liquor dealer furnished on Sunday intoxicating liquor to A. until he was helpless and unconscious, and in that condition placed him in his sleigh, to which was attached a quiet horse of the plaintiff which A. had in use. An accident, induced by the inability of A. to manage the horse, caused the latter to run away, whereby the horse was killed.</p> <p>Held, that the liquor seller was, by statute (E. 8. 1881, sec. 5323), as well as at common law, liable for the value of the horse. Kraeh v. Heilmaai,. 53 Ind. 517, Gollier v. Early, 54 Ind. 559, and Baches v. Bant, 55 Ind. 381,, criticised and distinguished.</p>

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

<p>Obiminal Law. — Justice of the Peace. — Discharge of Jury. — The strict rules governing trials ior felonies in courts of superior jurisdiction are not applicable to trials before justices of the peace for misdemeanors; hence the discharge of a justice’s jury, after three hours’ deliberation, it being then late in the night, the defendant not objecting, but demanding another trial, will be presumed to have been regular, and will not bar another prosecution.</p> <p>Same. — Instruction to Jury. — Jury Judges of the Law. — In criminal cases the jury are, by the 19th section of the Bill of Bights, the judges of the law as well as the facts, and need not be governed by the instructions of the court or the decisions of the Supreme Court, and it is proper for the court to so instruct the jury.</p> <p>Ei/UOTT and Zollabs, J J., dissent.</p> <p>Intoxicating Liquob. — Sale Without License. — Time.—Statute of Limitations. —Time is not of the essence of the offence of selling liqu or without license, and hence the time charged need not be strictly proved, but it will be sufficient to show that the act was done at any time within the statute of limitations.</p>

<p>Pleading.— Complaint for Belief from Judgment by Default. — A complaint, under section 99 of the code, R. S. 1881, sec. 396, for relief from a judgment by default, should show, it seems, the nature of the cause of action on which the judgment was rendered, and a pertinent and good defence thereto.</p> <p>Pbactice. — Action upon Joint Contract. — Dismissal as to One of Two or Moi'e Defendants. — Beview of Judgment. — The dismissal of an action as to one of the defendants served with process in an action upon a joint obligation is no cause for a review of the judgment entered against the other defendants.</p> <p>Same. — Abatement.—Defect of Parties. — Demurrer.— Waiver. — A defect of parties, if apparent on the face of the complaint, is cause for demurrer; otherwise it must be pleaded, and, if not taken advantage of in either of these ways, is waived.</p>

<p>Pbactice. — Finding by Court. — Harmless Error. — When a cause is tried by the court without the intervention of a jury, its finding takes the place of a verdict, and can not be afterwards vacated or changed at the pleasure of the court; but a party not injured thereby can not maintain a suit to set aside such unauthorized proceeding.</p>

<p>Tbust and Tbustee. — So long as moneys held in trust can be distinctly-identified, the trust may be enforced against any one into whose hands it comes; aliter where this can not be done.</p> <p>Decedents’ Estates. — Liability of Distributees. — Where an administrator-embezzles the assets of an intestate, and dies, having so mingled such assets with his own that they pass to his administrator and can not be-identified, those entitled to distribution of the first estate, having made-no claim until after settlement and distribution of the last estate, cannot maintain a suit against those to whom the last estate has passed by distribution.</p>

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

<p>Pleading. — Evidence.—Uncertainty.—The averments of a pleading must be clear and unequivocal; but the evidence in support thereof may be sufficient, though uncertain or ambiguous.</p> <p>Contract. — Live-Stock.—Keeper’s Lien. — Statute Construed. — Ekidence.—Replevin.--The evidence showed a contract whereby the defendant undertook, for a price stated, to keep fifty head of cattle for the plaintiff in a manner and for a time stated; and that the defendant performed the agreement.</p> <p>Held, in an action of replevin, that the jury was warranted in inferring that the defendant was in the business of feeding live-stock, and accordingly entitled under section 5292, R. S. 1881, to a lien.</p> <p>Same. — Express Stipulation Excludes Implication. — If a contract for feeding- and caring for cattle provides specifically -what shall be done in certain particulars, any implication of duly to exercise reasonable eare in those-particulars is excluded, and the stipulated things must be done.</p>

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

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

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

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

<p>Criminal Court. — Absence of Regular Judge. — Appointment of Special Judge. —The provisions of section 1381, R. S. 1881, are applicable to criminal courts as well as to civil courts; and where the regular judge of a criminal court fails to appear during term for a period of three days, it is competent for the proper county officers to elect a competent and reputable attorney to act and preside as judge of such court until the return of the regular judge.</p> <p>Criminal Law. — Indictment.—Surplusage.—Where an indictment contains a sufficient charge of a public offence, mere surplusage will riot vitiate such indictment.</p> <p>Same. — Intoxicating Liquors. — Evidence.—Instructions.—Where the evidence shows that the defendant, not being licensed to retail intoxicating liquors, sold the prosecuting witness “ one drink” of whiskey, and there was no evidence that “ one drink ” was less than a quart, there was no error in refusing to instruct the jury that the defendant could not be found guilty. In such case the court’s instruction to the jury, that before they could convict they must find, beyond a reasonable doubt, that the quantity sold was less than a quart, is’ a correct statement of the law applicable to the evidence.</p>

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

<p>Demurrer to Evidence. — Practice. — Dismissal. — The general denial and affirmative defences being pleaded, the plaintiff, after both parties had put in evidence and rested, demurred to the evidence, and the court compelled the defendants to join in the demurrer. The demurrer was overruled, and then the plaintiff was permitted to dismiss his suit. Held, that the demurrer was wholly unauthorized.</p> <p>Held, also, that no judgment could properly be rendered upon it.</p> <p>Held, also, that there was no error in permitting the plaintiff to dismiss his cause.</p>

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

<p>Pleading. — Complaint—Common Count — Account.—A complaint upon an account, in the general form of the common count formerly in use, if accompanied by a proper bill of particulars, is good on demurrer, under the code.</p>

<p>Evidence.' — Hearsay.—Title to Personal Property. — In an action by A. against B. to try the title to property levied upon as the property of C., to satisfy a judgment recovered against O. by B., it is error to allow B, to prove that C., who was not a party to the suit, claimed the property, as such statement, in the absence of A., was mere hearsay.</p>

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

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

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

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

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