Volume 86 — Indiana Reports

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

<p>Railboad. — Public Aid. — Mandate. — Covmty Commissioners. — Relator. — A township had regularly voted aid for the construction of a railroad in a * definite sum, as authorized by statute, R. S. 18S1, section 4045. A tax of one per cent, upon the taxables of the township was levied for two years successively to raise the sum appropriated, as the statute provides, section 4056; but, owing to a shrinkage in the aggregate of taxables, these levies did not produce money sufficient to meet the whole sum appropriated.</p> <p>Meld,, that mandate would lie to compel the board of county commissioners to make the necessary additional levy.'</p> <p>Meld, also, that a taxpayer of the township was a proper relator to prosecute the suit. Woods, J., dissents, and Hows:, J., doubts.</p>

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

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

<p>Judgment. — Action on. — Gomplamt.—Exhibit.—A copy of the judgmentsued on is not a proper part oí a complaint on such judgment.</p> <p>Same. — Justice of the Peace. — A complaint upon the judgment of a justice of the peace must allege that it was duly given or made, or contain equivalent allegations.</p> <p>Same.' — Transcript.—Evidence.—On the trial of an action upon a judgment of a justice of the peace, a transcript thereof concluding: “Itis therefore adjudged by me that the plaintiff recover of the defendants Miller and Cox the sum of 133.95, with costs taxed at 1.00. Given under my hand," etc., is not inadmissible in evidence because the names of the parties do not fully appear, nor because the cause of action is not copied in full, nor because the amount of the judgment is not written out in words, but is fatally defective in not showing with certainty, in dollars and cents, the amount of the recovery adjudged.</p> <p>Same. — Original Papers. — In such case the original papers constituting the cause of action may be given in evidence to explain the meaning of the abstract numerals.</p> <p>Same. — Confession.—Replevin Bail. — As between the parties to the suit and the replevin bail, no affidavit is necessary to- authorize the entry of a judgment by confession.</p> <p>Same. — Partner.—A partner may not confess a judgment against the firm of which he is a member, but a judgment so confessed will be void as to them and valid as to him.</p> <p>Same. — Replevin Bail. — By his entry of bail a replevin bail releases ’ errors and waives any right to question the existence of the judgment which he has thereby expressly recognized.</p>

<p>Verdict.— Venire de Novo. — Practice.—A venire de novo is awarded when the verdict is uncertain or ambiguous, or does not fully find upon the issues, or fails to assess damages.</p> <p>Highway. — Location.—Appeal.—Statute Construed. — Cases Criticised. — An appeal to the circuit court from an order of a board of commissioners establishing a highway presents in the latter court for decision only such questions and issues as have been made before the board or by proper amendment on appeal. Section 5777, R. S. 1881, can not be applied, in its literal construction, to such an appeal. Scraper v. Pipes, 59 Ind. 158, and Bowers v. Snyder, 66 Ind. 340, criticised.</p> <p>Same. — Public Utility. — Whether a proposed highway will be of public utility depends not upon an absolute necessity for it, but whether the public convenience requires it.</p> <p>Same. — Dedication.-—-Evidence of Public Acceptance. — -A highway may become public by dedication by the owner of the land, and an acceptance thereof by the public; and public use of it, without any public work-having been done upon it, may evince such acceptance.</p>

<p>Beview of Judgment. — Complaint.—Causes.—Default.—A complaint to review a judgment by default for error of law will lie only for such errors as might be available in the Supreme Court on appeal, viz.: 1. That the court rendering the judgment had no jurisdiction of the subject-matter. 2. That the facts averred in the complaint did not make a cause of action. Error in the form of a judgment by default, or a defect in the title of the complaint on which such judgment was rendered, are not sufficient grounds for review.</p> <p>¡Same. — Complaint for Foreclosure of Mortgage. — A complaint good for the foreclosure of a mortgage, but not sufficient to warrant a personal judgment, is sufficient to resist a review of a judgment of foreclosure and in personam by default, which is sought on the ground that the facts in the .complaint did not show a cause of action.</p> <p>Same. — A complaint to review a judgment of foreclosure and in personam by default, only alleging as cause for review that the complaint in the original action did not state facts sufficient to constitute a cause of action for a personal judgment, is bad on demurrer.</p>

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

<p>Review oe Judgment. — Appeal.—Where, in a proceeding to review a judgment for error of law, the judgment is reversed, an appeal from such judgment of reversal lies to the Supreme Court.</p> <p>PiiEADiNG.- — General and Special Averments. — Complaint to Quiet Title. — A complaint to quiet title, which avers generally that the plaintiff is seized in fee simple, and then proceeds to set forth the facts which constitute his title, is bad on demurrer, if the facts so stated do not show title in him.</p> <p>Same. — Tax Title. — An averment in a complaint in an action to quiet title to real estate, that the plaintiff “ claims title by a tax deed and sale by the county auditor of P. county (where the lands are), which deed is recorded,” etc., is insufficient to show title in him.</p> <p>Tax Deed. — Description.—Mistake.—Deformation.—A deed to a purchaser for taxes which, by mistake of the county auditor, erroneously describes the land, can not be reformed by suit.</p> <p>Same. — Qtmniij.—Where section, township and range are given by numbers, in a deed of lands, it is not necessary that the county where the lands are situated should also be given.</p>

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

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

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

<p>Pleading. — Defects Owed by Verdict. — Where a complaint is defective, but. contains such facts as will enable the court to remedy the defect by reasonable intendment, it will be held good after verdict.</p> <p>Evidence. — Assault and Battery. — Bes Oestes. — Declarations.—Admissions.— The declarations of a plaintiff while lying on the floor where he had been thrown by the defendants, who were present and still pursuing their attack upon him, constitute part of the res gestes, and, in a suit for the assault and battery, are admissible for the plaintiff. It was also competent as evidence of an admission by the defendants of the facts declared, if they remained silent.</p> <p>Same. — Conversation.—When part of a conversation between parties is properly in evidence, the whole, together with the attending circumstances, including the remarks of others then made, are admissible, to enable the jury to interpret any admissions made on the occasion.</p> <p>Same. — During a trial before a justice of the peace, one who was testifying as a witness left the stand to engage, with others, in violence against J. B. This breach of the peace put an end to the trial. The witness then resumed his place and said to an attorney: “We are ready to go on with the trial.” To which the attorney answered: “ You and your crowd have nearly killed J. B., and we can not go on with the trial. You have disabled him so that we can’t try the case now.” To which no response was made.</p> <p>Held, that this was proper evidence in a suit for the injury by J. B. against his assailants.</p> <p>Instructions. — Practice.—Error.—The refusal to give instructions can present no question in the Supreme Court, unless the record shows affirmatively that they were asked in apt time, and that they were not embraced in other instructions actually given, which must appear by setting out all of the latter.</p>

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

<p>Negligence.— Personal Injury on Account of Defective Tmwpike. — That a traveller had previous knowledge of the dangerous condition of a turnpike will not, alone, prevent him from recovering for injuries incurred in consequence of such dangerous condition. Seasonable care by him to avoid injury does not necessarily mean that he shall forego travel over places known to be dangerous, unless such travel is inconsistent with reasonable prudence.</p>

<p>Cbiminai, Law. — Nuisance.—Railroad.—Town.—Indictment against a-railroad company for a nuisance by obstructing tbe streets and public square of a town by its tracks, switches and buildings, and by the manner of their use. Special plea, that the defendant had lawfully acquired the right to use the locus in quo for the purposes of a railroad, and that in the use of its tracks, switches and buildings, it creates only such temporary obstructions as result from the reasonable and necessary transaction of its railroad business.</p> <p>Held, that the plea was good on demurrer.</p> <p>Nuisance. — Prescription.—A right to maintain a nuisance can not be acquired by prescription.</p> <p>Same. — Obstruction of Streets. — An unauthorized and illegal obstruction of the public ways of a town or city is a public nuisance.</p> <p>Same. — Railroad.—A railroad in the streets of a city is not of itself a nuisance, but an improper and unreasonable exercise of a right to use a street by a railroad company may become a nuisance.</p>

<p>County Superintendent. — ■Appointment.—Eligibility.—Office and Officer.— Alien. — Inhabitant.—Citizen.—An inhabitant of a county during one year preceding his appointment to the office of county superintendent is not ineligible thereto because not a citizen thereof during so long a time. A citizen is a native or naturalized person. An inhabitant is one having a fixed and permanent residence in a county.</p> <p>■Same. — Common Schools. — Township Trustees. — Cownty Auditor. — In the appointment of a county superintendent of common schools, under section 4424, R. S. 1881, the county auditor, although clerk of such election and authorized to give the casting vote in case of a tie, has no power to dictate the manner of voting, or to declare the result of a vote of the trustees.</p> <p>Same. — In making such appointment the means and mode of arriving at a result are to be determined by the trustees, without dictation from others.</p>

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

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

<p>Real Estate, Action to Recover. — Quieting Title. — General Finding May Show Basis. — Practice.—In an action to recover or quiet the title to real estate, when the general denial is pleaded, it is proper that a general finding or verdict show upon what ground it was based, as that the deed, under which the plaintiff claimed title, was made when the possession was held adversely to the grantor.</p> <p>Same. — Judgment, Clause Limiting Effect of. — Motion to Modify. — A clause in a judgment for the defendant, in an action to recover real estate, to the effect that the judgment shall not prejudice the rights of the parties as. to any other action, practically nullifies the judgment, and on motion, should have been stricken out or modified.</p>

<p>Sheriff’s Sale. — Purchase by Execution Plaintiff. — An execution plaintiff who purchases at the sale made on his own judgment is a bona fide pur- ' chaser in such a sense as to be protected against prior equities. Elliott, J., dissents.</p> <p>Same. — Mortgage.— Beformation.— Bight of Purchaser at Sheriff’s -Sale. — A mistake in the description of mortgaged premises can not be corrected against a bona fide purchaser at a sheriff’s sale who has acquired title without notice of the mistake.</p>

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

<p>Demurrer. — Form of. — A demurrer to an answer, assigning for cause that “neither of said paragraphs constitutes any defence to' this action,” is insufficient under the code, and should be overruled.</p> <p>Same. — Effect of. — A demurrer to a reply searches so much of the answer as the reply is addressed to, and, i£ the latter be bad, the demurrer should be sustained to it.</p> <p>Judgment. — Gourt of Common Pleas. — Presumption.—The act abolishing the court of common pleas (1R. S. 1876, p. 880) expressly continued the existence of terms thereof in session when it took effect, and a judgment thereof, alleged to have been rendered while such term might have been in session, will, in the absence of averment to the contrary, be presumed to have been rendered while the court was in session.</p> <p>Former Recovery.— Pleading. — An answer of former recovery is bad which merely avers that, in a former suit upon the same cause of action, the defendant, by agreement, recovered judgment for costs.</p>

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

<p>Supreme Court. —Judgment.—Res Adjudicate,. — The judgment of the Supreme Court upon a question directly presented by the record settles that question in all subsequent proceedings in that cause.</p> <p>Same. — Harmless Error. — Demurrer.—It is a harmless error to sustain a demurrer to a paragraph of answer which pleads a defence admissible under another paragraph not demurred to, or where the defence so pleaded is allowed to be proved on the trial.</p> <p>Coroner. — Authority to Employ Chemist.— The authority of a coroner to employ a chemist to discover whether poison caused the death of one on whose body he holds an inquest does not restrict him to the employment of a resident of the county.</p> <p>Same. — That a coroner was, by corrupt appliances of others, induced to employ a chemist, is no defence to a suit by the chemist to recover compensation for his services.</p> <p>Maintenance. — One having an interest in the result of a suit, as a guarantor, may lawfully assist in its prosecution.</p> <p>P arties. — Plaintiff.—Assignor and Assignee. — -Where a person receives money of another, and in consideration thereof agrees to assign to the latter any judgment he may obtain on a claim held by him against a third person, it is an equitable assignment of the claim, and the assignee only can sue therefor.</p>

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

<p>Slandee. — Pleading.—Complaint.—A complaint that the defendant spoke concerning the plaintiff the words, “ Perry stole my corn (meaning the plaintiff),” is not bad for want of an averment that the conversation was about the plaintiff, and was so understood by the hearer.</p> <p>Same. — In order to be slanderous and actionable per se, the words spoken need not in themselves constitute a technical charge of a crime.</p>

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

<p>County Auditob. — Mes and Salaries. — Statute Construed. — A county auditor can not recover from the county for services rendered since the act of March 31st, 1879 (Acts 1879, p. 130), took effect, in apportioning among the various funds allowances made to former county treasurers for collecting delinquent taxes. The salary allowed in such act must compensate for such services.</p>

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

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

<p>City.— Order on Treasurer. — Solder may Sue Upon. — Mandate.—A city, incorporated under the general laws of the State, may be sued upon a warrant drawn upon its treasurer by the proper officers, by the holder thereof, and he need not proceed by mandate.</p> <p>Same. — Smden.ee of Funds. — In a suit upon a city order, it is not necessary, to entitle the holder thereof to recover, that he should show that the city treasurer had funds with which to pay it, or that he endorsed it “ not paid for want of funds.”</p> <p>SAME.— Water-Works Trustees. — Authority to Issue Gity Orders. — Under sec- ■ tions 3272 et seq., B. S. 1881, the board of water-works trustees of a city, and not the common council, are the proper officers to audit, allow and direct the payment of claims against the water-works; but for debts incurred for water furnished a city, prior to the appointment and qualification of a board of water-works trustees, under section 3270, the common council may rightfully issue warrants on the city treasurer.</p>

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

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

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

<p>Descents. — Husband and Wife. — •Conveyance.—Consideration.—Reversion.— Statute Construed. — Where a husband, in consideration of love and affection, causes his lands to be conveyed to his wife, the whole of such lands, upon her death intestate, seized of the lands and without children, or their descendants, leaving the husband surviving, reverts to him, under section 2473, JR. S. 1881, between which and section 2489 there is no conflict.</p>

<p>Criminal Law.— Obtaining Money Under False Pretences.— Indictment.— Benevolent, Society. — An indictment, charging that the defendant, on, etc., at, etc., by falsely pretending to be a member of a certain Masonic lodge ■ in Ohio, that he was on his way to his father-in-law’s funeral, and was out of money to travel, and by exhibiting a forged receipt from the Ohio lodge for dues, obtained from M. lodge of Masons a sum of money named, upon a promise to repay the same, with intent to defraud M. lodge, knowing said pretences to be false and the receipt to be forged, is good on motion to quash. *</p> <p>Same, — Evidence.—Evidence, in such case, that the defendant had, by pretences somewhat similar, at another time and a distant place, defrauded another Masonic lodge, is not admissible. Elliott, J., dissents.</p>

<p>Evidence. — Claim.—Decedents’ Estates. — In an action against an estate for services rendered in boarding, caring for and waiting upon the decedent, by a cripple who moved about upon his hands and knees, it is not error to prove that he had been seen splitting rails, for the purpose of showing his ability to render the services in dispute.</p> <p>Bile op Exceptions. — Time of Filing. — Record.—A bill of exceptions tiled after the term, without any statement in the record other than such as is found in the bill, that time was given, is not a part of the record.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a judgment upon the mere weight of the evidence.</p>

<p>Promissory Note. — Defence by One who Negligently Signs. — One who is guilty of negligence in the execution of a promissory note can not defend against it in the hands of a bona fide holder who obtains it for value, before maturity and without notice.</p> <p>Same.— What Constitutes Negligence. — It is in general true that a man who does not read, or cause to be read to him, an instrument which he signs, is guilty of negligence; but there may be peculiar cases where such a failure is not negligence, and where the signer may rely on the representations of the person with whom he deals.</p> <p>Practice. — Instructions.—Unless the instructions given by the court are all in the record, no question will he presented on the refusal to give instructions asked by the parties.</p> <p>Same. — Argument of Counsel. — It is the duty of counsel to take the facts from the evidence, and not to place facts not proved by or inferable from the evidence before the jury.</p> <p>Same. — Reading of Extracts from Boohs. — Illustration.—It is not proper for a counsel to read extracts from books or newspapers; but, for the sole purpose of illustrating an argument, a printed slip of paper may, in some cases, he used. In the absence of a contrary showing, the presumptions are in favor of the conduct of the trial court.</p>

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

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

<p>Heal Estate. — Action to Recover.- — Possession Admitted by Appearance and Pleading. — By appearing and pleading to a complaint for the recovery of real estate, though by the general denial, a defendant admits for the purposes of the action his possession of the property.</p> <p>Same. — Disclaimer.—Practice.—Judgment.—In such an action a defendant may disclaim as to all or as to any part of the lands sought to be recovered, but if he join his co-defendants in a general denial of the complaint, he must stand or fall by the issue, and if the plaintiff prevails in respect to any part of the lands in question, he is entitled to judgment against sueh defendant though he had not in fact claimed or had possession of the land recovered.</p> <p>Supreme Court. — Special Verdict. — Evidence.—In determining whether or not the proper judgment was rendered upon a special verdict, the Supreme Court can not consider the evidence.</p>

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

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

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

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

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

<p>Promissoby Note. — Partial Answer to Complaint. — In a suit upon two promissory notes, an answer purporting to bar the action, which at most only alleges matter in defence of one of the notes, is insufficient on demurrer.</p> <p>Same. — Fake Representations. — In such action an answer that the makers of tlie note purchased a machine which failed to work as represented, etc., without averring that the note was given for the machine, is insufficient on demurrer.</p>

<p>Bnm ov Exceptions. — Where time is given at the term of trial, on over..ruling a motion for a new trial, for a bill of exceptions, and one is filed . in time, it embraces all rulings made during the trial.</p> <p>Win. — Contest of.— Undue Influence. — Evidence.—Conversation.—In the contest of a will, evidence of conversations with a legatee (a daughter) who is alleged to have exerted undue influence, showing a desire that a will be executed, or making predictions as to its contents, not realized, or that but for her no will would have been made, has no tendency to show undue influence, and may be excluded. So, evidence that the testator did not, for a period of seven years before his death, list his cash on hand for taxation, may be properly excluded.</p> <p>Same. — Sanity of Testator.— Witness. — Expert.—Opinion.—A person not an expert, after testifying that he had long known the testator, being a . neighbor, had often dealt with him, and conversed with him both before and after the. execution of his will, is a competent witness to give an opinion as to his soundness of mind.</p> <p>Instructions.— Verdict. — Harmless Error. — When it appears that the verdict is right, and that an instruction not applicable to the evidence certainly did no harm, the Supreme Court will not reverse for the error in giving the instruction.</p>

<p>Decedents’ Estates. — EstatesLess than$S00.— Widow Takes Free from Judgment Lien. — A widow to whom her husband’s whole estate, consisting in part of lands, is awarded, under the statute (E. S. 1881, sections 2419-2422), takes the lands free from the lien of judgments rendered against her husband in his lifetime.</p>

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

<p>Trial. — Issues.—Jury.—Count.—Fraud.—Contract.—StatuteConstrued.—Complaint by several separate creditors of S., averring their respective claims upon account, and that S., being insolvent, had transferred his goods and claims ($8,000) to other creditors, made defendants with S., upon a written agreement that after disposing of goods and collecting claims enough ■to satisfy their demands ($2,000) they would return the residue to 8. or his other creditors; that afterwards, without any new consideration, and without the knowledge or consent of the plaintiffs, and to defraud them, the written contract was so modified as to make the title of those other persons absolute, without any condition to return the property as was first agreed, and that they had converted all of it to their own use, and removed it beyond the reach of execution. Issues were made and tried by jury.</p> <p>Held,, that the suit was formerly of an exclusive equitable jurisdiction, and under section 409, R. S. 1881, should be tried by the court, and not by jury.</p> <p>.Supreme Court. — Appeal.—Parties.—After submission of a cause by agreement, in the Supreme Court, it is too late to object that the proper parties to the appeal have not been made.</p>

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

<p>Wills. — Construction.—Widow.—Annuity.—Contract.—The substance of a writing in the form of a will was, that the testator gave to a son-in-law certain personal property and a farm, to be held during the life of the testator and wife, and after their deaths the devisee to pay all taxes, take care of the testator and wife while they lived, pay their funeral expenses, take care of a daughter while she remained unmarried, and “ pay me $250 by the first of January in each year, * ® during the natural lifetime of myself and wife,” with interest after maturity, and to live on the farm with the testator while the latter and his wife lived; and the devisee accepted the provisions of the will, taking possession, etc.</p> <p>Meld, that the instrument, though having some elements of a contract, yet was a will, inasmuch as it was a testamentary disposition of property.</p> <p>Meld, also, that, upon the death of the testator, his widow became entitled to an annuity of $250, which was a charge on the land devised.</p>

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

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

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

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

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

<p>Criminal Law. — Public Indecency. — Pleading.—In a prosecution under section 1995, R. S. 1881, for using obscene language in the presence of women, an*affidavit or indictment which fails to state the language alleged to have been used by the defendant, or an excuse for not stating it, is insufficient.</p>

<p>Pbomissoby Note.— Principal and Surety.— Agreement.— Consideration.— Mortgage. — Pelease.— Judgment. — •Execution.—M. and D. executed their joint note to another, D. being in fact surety of M. Afterwards, in consideration that M. execute with D. a release of a mortgage held by both against another party, D. agreed to pay the note. D. received from the mortgagor lands to the amount of the mortgage so released; but liens on these lands were afterwards discovered which D. was compelled to pay, equal in amount to the price at which he took the lands, and therefore he never delivered the release to the mortgagor.</p> <p>Held, that the agreement of D. to pay the note was founded on a sufficient consideration ; that there was no failure of that consideration, and the agreement of D. with M. to pay the note so changed their relations that, in equity, M. became the surety of D.</p> <p>Held, also, that, in a suit against both on the note, M. might establish the facts and obtain an order under the statute (R. S. 1881, section 1212), that execution on the judgment should be first levied on D.’s property.</p>

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

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

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

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

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

<p>Pbactice. — Instructions.—Unless the instructions given by the court are all in the record, no question will be presented in the Supreme Court on ■ the refusal to give instructions asked by the parties.</p> <p>Pbomissoby Note. — Negligence.—One who negligently executes a note negotiable by the law merchant can not defend against it in the hands of a bona fide holder; and ordinarily one who executes a note without reading it or having it read to him is guilty of negligence.</p>

<p>Witn. — Construction.—Descents.—Tenants in Common. — A testator, contemplating a trip, made his will in 1849, devising certain real estate to his daughter “ A. and her children,” A. then having one child alive, which died in December, 1850. She had another, born November 20th, 1851, which died when three days old, and she afterwards had other children. The testator started on his trip in January, 1850, and on the 15th of November, 1851, on information of his death, .the will was probated, but the date of his death was never ascertained.</p> <p>Held, that it might be fairly inferred that the testator died while the second child was in venire sa mere, and that A^and that child then took under the will as tenants in_common, and the estateJ;hus_vested did not open to .admit the children ofTL born afterwards.</p> <p>Held, also, that uporfthe death of said second child its moiety passed to its parents.</p> <p>Statute oe Limitations. — Demurrer.—Practice.—The purchaser of lands from heirs can not invoke the statute of limitations, K. S. 1881, section 2575, by demurrer to a complaint for their recovery, unless the complaint shows that the case is not within any of the exceptions to the statute.</p>

<p>Supreme Court. — Evidence.—Conflict.—Where the evidence in a cause is in conflict, the Supreme Court must take as true that which the trial court by its finding declared to be true.</p> <p>Promissory Note.— Want of Consideration. — -The defence of want of consideration for a note sued on is sustained by evidence that the thing given the defendant for his note was utterly worthless.</p>

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

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

<p>Payment. — Evidence.—Presumption.—Agreement.— Judgment. — Stay of Executim. — Settlement.—Burden of Proof. — Instruction.—In an action for pasturage, evidence that at the date of a judgment against the plaintiff he agreed to pay the same in pasturage and thereby obtained a stay of execution, and further evidence that the judgment had been satisfied of record, raised a presumption of payment for the pasturage, and justified an instruction that “ the plaintiff can not recover unless it appears from a preponderance of the evidence that the claim sued on was omitted intentionally or by mistake from the settlement made when the judgment was settled.”</p>

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

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

<p>Practice. — Pleading.—Motion to Strike Out. — Demurrer.—Under the code, a; motion to strike out will not perform the office of a demurrer in testing the sufficiency of a paragraph of answer.</p> <p>Same. — New Trial.— Weight of Ploidence.— Verdict. — Supreme Court. — Where the verdict of the jury is against the party who has the burden of the issues, and the evidence is conflicting, the Supreme Court will not grant a new trial upon the mere weight or sufficiency of evidence.</p> <p>Same. — Instructions Asked and Refused. — Must be Signed by Party or Attorney. —Under the/ourt/i clause of section 324 of the civil code of 1852 (section 533, R. S. 1881), when, at the conclusion of the evidence, either party desires special instructions to be given to the jury, such instructions must be reduced to writing, numbered and signed by such party or his attorney, and delivered to the court. If the instructions are not thus signed and are refused, the party asking them can not be heard to complain of such refusal in the Supreme Court.</p> <p>Same.— Vague and Uncertain Causes for New Trial. — Reference to Bill of Exceptions not Signed or Filed. — Where the written causes for a new trial are ■too vague, uncertain and imperfect to present any question for the decision of the trial court or of the Supreme Court, such causes can not be aided or perfected by reference therein to bills of exceptions not signed by the judge or filed as parts of the record at the time of the filing of such causes for a new trial.</p> <p>Same. — Newly-Discovered Evidence. — Diligence.—Where newly-discovered evidence is assigned as cause for a new trial, the affidavits filed therewith must show that the party could not, with reasonable diligence, have discovered and produced such evidence at the trial, or they will not be sufficient to sustain such cause for a new trial.</p>

<p>Guabdian’s Bond. — Set-Off.—Pleading.— Principal and Surety. — Decedents’ Estates. — In an action upon the bond of a deceased guardian the sureties may plead, by way of set-off, an indebtedness of the estate of the relatrix to the estate of their principal.</p> <p>Demurrer.— Argumentativeness. — -Argumentativeness in a pleading is not cause of demurrer under the code.</p> <p>Practice. — Evidence.—Supreme Court. — Where there was evidence tending to support the finding, such finding can not be disturbed by the Supreme Court on the mere weight of the evidence.</p>

<p>Sheriff’s Sale. — Description.—Return on Execution. — A description, “ twenty-eight feet off of the west side of lot number five, in block L, in the city of Seymour, Jackson county, Indiana,” is sufficient, in the return on an execution.</p> <p>Same. — An imperfect description of one tract of land in a sheriff’s return on an execution of the sale of real estate does not invalidate the sale as to another separate and distinct parcel fully described in such return.</p>

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

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

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

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

<p>Affidavit. — Attorney and Client. — Notary Public.— Vei-ified Answer. — Motion to Strike Out. — There is no law in force in this State which forbids an-attorney, who is also a notary public, to administer an oath to his'client; and, therefore, there is no error in overruling a motion to strike out a verified answer, upon the ground that the affidavit was sworn to by the defendant before his attorney as a notary public.</p> <p>Promissoby Note. — Payable in Bank in this State. —Negligence.—Bona Fide Endorsee before Matwity. — The maker of a promissory note, payable to order or bearer in a bank in this State and negotiable as an inland bill of exchange, is liable to a bona fide endorsee thereof for value before maturity, if such maker was guilty of negligence in failing to use reasonable, care to inform himself of the contents of such note.</p>

<p>Bill of Exceptions. — Time of Filing. — Exceptions.—Where a cause is tried at one term and taken under advisement and decided at a subsequent term, a bill of exceptions signed and filed at the latter term is insufficient to bring into the record an exception to the court’s decision at the former term refusing leave to amend the complaint, and rulings excluding evidence, no time being given at such term to prepare and file a bill after the term.</p> <p>Same. — In such case, a bill filed on leave and within the time granted at the term when the case is decided brings into the record the evidence, but is not sufficient to save any exception taken at the prior term.</p> <p>Replevin. — Surrender of Property. — Nominal Damages. — Where, in an action of replevin, by the admission of the defendant, testifying as a witness, that he had surrendered part of the property sued for after the commencement of the suit, there being no other evidence, there should be a finding that the plaintiff is entitled to its possession and to at least nominal damages for its detention.</p>

<p>Criminal Law. — Ghange of Venue. — Practice.—Murder.—In the absence of a rule of court upon the subject, an application for a change of venue from the county may be hiade at any time before the jury is sworn to try the issue, and if the application is in proper form, founded on excitement or prejudice in the county, the statute, B. S. 1881, section 1771, requires, in capital cases, that the venue be changed.</p> <p>Trial. — Jwry.—A trial by jury can not begin until the jury is sworn, and in a criminal cause does'not include the arraignment or any other merely preparatory proceeding taken prior to swearing the jury to try the cause.</p>

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

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

<p>Sheriff’s Sahe. — Appraisement. — Return.- — ■ Evidence.— Presumption,— A sheriff’s sale of lands upon an execution subject to appraisement, where the return is silent as to the subject of appraisement, is supported prima fade by the presumption that the officer did his duty, and unless this presumption be overcome by sufficient evidence, the purchaser’s title will he held good.</p>

<p>Ven i) on and V endee. — Harried Woman. — -Vendor's Lien. — A woman’s right in land in virtue of her marriage is subject to the lien of the vendor for the purchase-money thereof.</p> <p>Same. — Remedy to Enforce Vendor's Lien. — A vendor of land, having an equitable lien thereon for purchase-money, may seek his legal remedy upon his money demand, together with the enforcement of his lien in one action ; but he may first pursue his remedy upon his legal claim alone,, without thereby waiving his right to afterwards resort, if necessary, to. the equitable enforcement of his lien.</p> <p>Same. — Complaint.—A vendor’s lien on land for unpaid purchase-money is; not an original and absolute charge on the land, but only an equitable-right to resort thereto if there be not sufficient personal assets; and in an action to enforce such lien, if the complaint do not allege and the evidence show that the vendee has no other property subject to execution, the judgment should not direct the sale of the land except in the event., that no other property of the vendee, subject to execution, can be found!, to satisfy the execution.</p> <p>Same. — Husband and Wife.— Widow of Vendee. — Partition.—Quieting Title.— Counter-Claim. — Sheriff’s Sale. — In an action by a widow for partition and! to quiet her title, as to an undivided third of a tract of land, an answer by the defendant, that he had sold the land, with other lands, on credit, to the; plaintiff’s husband; that for the unpaid purchase-money he obtained a. personal judgment against the husband, who had no personal property, and, with his consent and that of the plaintiff, he purchased the tract in controversy on execution issued on his judgment, bidding the full amount thereof, and received a sheriff’s deed therefor in 1855, and the husband died in 1866, is insufficient on demurrer; and the same facts are insufficient as a counter-claim, either to quiet the defendant’s title or to enforce a vendor’s lien.</p> <p>Same.— Waiver of Lien. — Taking a personal judgment for the purchase-money of land, and selling the land on execution to satisfy it, is a waiver of the vendor’s lien.</p> <p>Same. — When the purchase-money is in any manner satisfied, the vendor’s lien ceases, and can not afterwards be enforced.</p> <p>Quieting Title. — Complaint.—A complaint to quiet title, which fails to aver that the defendant makes any claim to the title or possession, is insufficient.</p> <p>Sheriff’s Sale. — Married Woman. — A purchaser at a sheriff’s sale in 1855 of a husband’s land on execution, under an ordinary judgment against him alone, took it free from any claim of the wife during the husband’s lifetime, and forever free therefrom upon her death leaving the husband surviving, but subject to her right to a one-third interest if she should survive the husband.</p>

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

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

<p>Conveyance. — Consideration.—Defeasance.—Condition Subsequent. — When a. conveyance is made upon no consideration except certain terms specified in a separate writing made by the grantee to the grantor, the terms stated must be regarded as expressive of conditions subsequent,- for a breach of'' which a forfeiture of the estate may be had.</p> <p>_Same. — Real Estate, Action to Recover. — Pleading.—Copy of Deed. — In an action to recover land for breach of conditions contained in a defeasance executed by the grantee of a deed, a copy of the deed need not be made a part of the complaint.</p> <p>Same. — Improvements.—Rents and Profits. — In an action for the recovery of land for breach of conditions subsequent, there may be an accounting as-to rents and improvements, and the fact of improvements can not be used as a bar to the action, though made by a subsequent purchaser-of the land.</p> <p>Same. — Defeasance.—Record.—Notice.— Volwnteer. — An unrecorded defeasance, notwithstanding section 2932, R. S. 1881, is good as against a volunteer who receives a conveyance of the land without notice of the defeasance. A volunteer stands in the shoes of his grantor.</p> <p>Witnesses. — •Evidence.—Constitutional Law.— Vested Rights. — Constitutional restrictions for the protection of vested rights do not affect legislation concerning the competency of witnesses.</p> <p>Same. — Husband and Wife. — Statute Construed. — The act-of 1879, Acts 1879, p. 245, malting husband and wife competent to testify for or against each other, applies to occurrences before as well as after the passage of the act..</p>

<p>Touts. — Infant.—Negligence. —Parent and Child. — -Liability of Parent. — Where a minor son, by contract with his father, cleared a parcel of land, and in doing so negligently set fire to and burned property belonging to a tenant, the father was not shielded by his contract from liability for the injuries resulting from his son’s negligence.</p> <p>Same. — Instruction.—Cmtributonj Negligence. — Question of Law or Fact. — An instruction, m an action for such injuries, which assumes that certain facts constitute contributory negligence, should be refused unless such facts show that the question of negligence is one merely of law.</p> <p>Same. — Lessor and Lessee. — In such case, the fact that the lessee, the plaintiff, had agreed to allow the lessor, the defendant and owner of the land, “ one-half the pasturage on said land,” did not entitle the lessor to enter for the purpose of burning logs, stumps and brush, thus endangering the tenant’s property.</p>

<p>Injunction. — Trespass.—Damages.—An injunction to restrain a threatened trespass, which can be compensated in damages, will not he granted.</p> <p>Same. — Illegal Tax. — Tax Duplicate. — County Treasurer. — Complaint.—A complaint, averring that a county treasurer has demanded and endeavored to collect from the plaintiff a certain illegal tax placed by the auditor unlawfully upon the tax duplicate of the county, but not averring that such duplicate had ever come to the hands of the treasurer, furnishes no ground for injunction against either the auditor or treasurer.</p>

<p>City.— Corporate Powers.— Water-Works.— Contract with Water Company.— The act of March 25th, 1879, to authorize cities and incorporated towns to construct, maintain and operate water-works, etc. (secs. 3265 to 3285, R. S. 1881), does not repeal either in terms or by implication the 26th clause of sec. 3106, R. S. 1881, which provides, in effect, that the common council of an incorporated city may authorize any incorporated company or association to construct water-works, and that, in such case, the city may become part stockholder in any such company or association. Therefore, the contract of the city with the water company is not ultra vires and void.</p>

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

<p>Bailroads.— Liability for Fires.— Negligence.— Pleading.— A complaint against a railroad company for setting fire to the plaintiff’s fences, etc., averring that the defendant carelessly permitted dry grass to accumulate on its right of way, which was set on fire by sparks’from its passing locomotive, that the fire escaped to the plaintiff’s lands adjoining, and destroyed his fences and grass, and that the fire and injury were not caused by the fault or neglect of the plaintiff, but wholly by the neglect and carelessness of the defendant, sufficiently shows that the escape of the fire from the locomotive, and its communication to the plaintiff’s property, were the result of the defendant’s negligence.</p> <p>Same.. — Bight of Way. — Adjacent Owner. — Possession.—Contributory Negligence. —The right of way of a railroad company is only an easement, the fee remaining in the owner of the soil, but the railroad company has the exclusive right of possession, so that the owner of the fee has no right to enter and remove combustibles ; that the company permits them to accumulate may warrant a finding of negligence by the company, and it is not contributory negligence for the adjacent owner to permit dry grass and stubble on his lands which will spread fires negligently set by the company.</p>

<p>Petition for mandate.</p>

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

<p>Bill oe Exceptions. — Evidence.—Omission.—-Supreme Court. — Verdict.—A bill of exceptions, purporting to contain all the evidence, which omits-documents which it states were in evidence, and does not designate them for insertion as the statute, B. S. 1881, section 626, requires, is not sufficient to present to the Supreme Court the question whether the verdict, or finding was supported by sufficient evidence.</p> <p>Same. — Exception.-—-Record.—An exception to the admission of evidence,, the record failing to show what objection was stated, is not available in the Supreme Court.</p> <p>Bankbtjftcy. — Set-Off.—Judgment.—The discharge in bankruptcy of one of two joint judgment debtors transforms the debt in equity into a several one against the other, so that an assignee may make it a set-off against a judgment held by the other against him, and thus obtain satisfaction of the latter judgment.</p> <p>Set-Oee. — Equity;—Whenever it is necessary to effect a clear equity or avoid irremediable injustice, set-off will be allowed though the debts be not mutual.</p>

<p>Witness. — Character.—A witness whose testimony has been contradicted, but who has not been impeached, can not be supported by proof of good character for veracity.</p>

<p>Replevin. — Joint Ownership. — Complaint.-—Demurrer.—Where the plaintiff sues to recover the possession of a specific share and certain quantity of wheat, of which he alleges that he is the owner and entitled to the possession, and that defendant has possession thereof without right, -and unlawfully detains the same from the plaintiff, the complaint is sufficient to withstand a demurrer thereto for the want of facts. The joint ownership of the wheat by the plaintiff and defendant, if it exists, is, not apparent on the face of the complaint, and is matter of defence to he shown by the answer.</p> <p>Supreme Court. — Judgment.— Objections to Form, or Substance. — Where no objections are made, nor exceptions taken, either to the form or substance of the judgment in the circuit court, they can not be made or taken for the first time in the Supreme Court.</p> <p>Same. — Evidence.—Testimony.—Bill of Exceptions. — Unless the bill of exceptions affirmatively shows that it contains ali the evidence given on the trial, the Supreme'Court will not consider the question whether or not the finding of the court is sustained by sufficient evidence. In such a ■case, the word “ testimony” is not the equivalent of the word “ evidence.”</p>

<p>Review or Judgment. — New Matter. — Diligence.—Complaint.-—Mamed Women. — A complaint for review of a judgment for newly-discovered matter, under section 617, R. S. 1881, must show, not merely by averring in the language of the statute, but by facts alleged, that the new matter could not, by reasonably active diligence, have been discovered before the rendition of the judgment. This rule applies to married women as well as to others.</p>

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

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

<p>Malicious Prosecution. — Measure of Damages. — For unsuccessfully prosecuting any civil suit maliciously and without probable cause, an action lies for whatever damages have accrued beyond the taxable costs, the measure of damages in such action being such sum as will recompense the plaintiff for his time, trouble, etc., in defending the suit.</p> <p>Supreme Court. — Transcript.—-Where a defendant appeals, it is his duty to bring up a perfect transcript of the record, and if his answer be omitted, the Supreme Court can not know what were the issues, and, therefore, can not decide the effect of the verdict or answers of the jury to interrogatories, or any question as to the admissibility or sufficiency of evidence, or the giving or refusing of instructions.</p>

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

<p>Injunction. — Delinquent Tax Sale. — Ownership of Personal Property. — Pleading. — Motion to Malee Specific. — Complaint by a purchaser of real estate at sheriff’s sale, to enjoin its sale for delinquent taxes, alleging that the delinquent owner had “ leviable personal property,” etc.</p> <p>Held, that a motion to make specific by a particular description of such personalty, and where situated, should have been granted.</p> <p>IBili. on Exceptions. — Time of Filing. — Presumption.—Where a bill of exceptions is filed on a subsequent day of the same term at which a ruling is made, stating when the exception was taken, it will be presumed that time was given in which to file the bill, and that it was filed within the time so given. •</p>

<p>Habeas Cobptjs. — Pleading.—Foreign Statute. — “Children’s Home.” — Custody of Child. — Complaint not Cured by Reply. — In an action by a foreign corporation to enforce a statutory right to the custody of a child, the complaint must set forth according to its tenor so much of the foreign statute as is relied on ; and defects of the complaint in this respect can not he cured by the reply.</p>

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

<p>Mortgage. — Indemnity.—Action by Mortgagee to Foreclose. — Judgment Against Principa!, and Surety. — A mortgage to a surety to indemnify him, which covenants to pay the debt and indemnify the surety, gives a right of action to the surety before payment to foreclose on failure to pay at maturity, if the debt has gone into judgment against the principal and surety, and there be no property of the former, except the mortgaged property, subject to execution.</p> <p>Same. — Mortgage not Satisfied by Renewal Note. — A mortgage to secure the payment of a certain note is not satisfied by the giving of other notes in renewal. The debt, and not the mere evidence of it, is the thing secured, .and so long as this subsists in any form, the mortgage remains to secure it.</p>

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

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

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

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

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

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

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