Volume 88 — Indiana Reports

<p>Decedents’ Estates. — Attachment for Contempt Against Executor. — Motion for New Trial. — Practice.—The question, whether or not a motion for an attachment for contempt against an executor should be verified, is not raised by a motion for a new trial.</p> <p>Same.— Will Construed. — Pull power conferred upon executors to sell and convey property without reporting the sales or conveyances for confirmation does not restrict the power of the court to require the application of the proceeds of such sales to the payment of the debts of the testator.</p> <p>Supreme Court. — Judgmenf Objection to Form. of. — Exception.—Objection to the form or substance of a judgment should be made the subject of a special exception or motion to modify, shown by a proper bill of exceptions. A general exception “ to the judgment and the fprm thereof ” is insufficient.</p>

<p>Criminal Law. — Intoxicating Liquor. — Keeping Disorderly House. — Evidence. —Proof of disorder in a single instance is not sufficient to support a prosecution under section 2097, E. S. 1881, for keeping a place, where liquors are sold, in a disorderly manner.</p>

<p>Criminal Law. — Penal Department of Indiana Reformatory for Women and Girls. — State Prison. — Repeal of Statute. — Statute Construed. — The penal department of theReformatory forWomen and Girls, established under the-act of May 13th, 1869 (sections 6162 to 6202, R. S. 1881), is a State prison within the meaning of that expression, as used in the act of April 14th,. 1881, “concerning public offences and their punishment”,- and the taking effect of the later act did not, in terms or by implication, repeal or abrogate any of the provisions of the older statute.</p> <p>Same. — Conspiracy.—Acts and Declarations of Co-Conspirator.— Original Evidence. — Trial Court. — Prima Facie Case. — When the trial court is satisfied that the offered evidence tends to establish prima facie the fact of a conspiracy between the parties, every act or declaration of any party to the-conspiracy, in furtherance of the common design, whether done or said before or after the formation of such conspiracy, is competent original evidence against each and all of the parties.</p> <p>Same. — Evidence.—Impeachment of Witness. — General Moral Character. — Belief of Impeaching Witness. — Where, in a criminal cause, either parly seeks. to impeach the evidence of any witness, the general moral character of such witness may be given in evidence; but, in such case, the opinion, of the impeaching witness, on direct or cross examination, as to whether or not he would believe the witness sought to be impeached under oath, is not competent evidence and ought to be excluded.</p>

<p>Practice.- — Complaint.—Good After Verdict. — A defective complaint will be beld good after verdict where it may be fairly implied from the verdict that the facts not alleged were nevertheless proved.</p> <p>Same. — Interrogatories to Jury.— Verdict. — It is error to refuse to send special questions to the jury as asked, material to the issues, to be answered with a general verdict, unless the court sends others covering- the same points.</p> <p>Malicious Prosecution. — Complaint.—Where, in the complaint in an action for a malicious prosecution, there are allegations of malice, want of probable cause and an unsuccessful prosecution, or allegations from, which these material facts may be inferred, the complaint may be held good after verdict.</p> <p>Same. — A complaint in such action, averring that “on motion and request of thq defendant, made in person, said affidavit, prosecution and charges were dismissed, and plaintiff was not required to go to trial thereon,” sufficiently shows that the prosecution has ended.</p>

<p>CbiminAL Law. — Murder.—Insanity.—Presumption,—Ssidence.—Instruction_ —Burden of Proof. — Where the question of the prisoner’s sanity is in issue, upon a trial for murder, it is error to instruct the jury that “The-law presumes sanity in all cases, and the burden of overthrowing the-presumption is upon the defendant; but it is not necessary that this presumption should be overthrown by a preponderance of evidence. If the-evidence given by the defendant has been sufficient to raise a reasonable doubt of the defendant’^ sanity, then the general question of his sanity is presented, and then, if upon the whole evidence on both sides a reasonable doubt exists of his sanity, he is entitled to the benefit of that doubt.” If the doubt is created solely by the State’s own evidence, the defendant is equally entitled to an acquittal.</p> <p>Same. — Instructions.—An erroneous instruction is not cured by another which contradicts it and is correct.</p>

<p>Highway.' — Location of. — Petitioners.—County Commissioners. — Where there is no question made at the time, the record of the county board as to the number and qualifications of the petitioners for a highway and the notice given, finding them sufficient, is conclusive, and can not be questioned in the subsequent proceedings.</p> <p>Same. — Practice.—Appeal to Circuit Court. — As to what questions may be litigated on appeal from an order of the county board establishing the highway, when there was no appearance to resist, quaere?</p> <p>Same. — Appearance.—In general, on appeal by one wlio appeared below, objections can not be made in the circuit court which were not made before the board.</p> <p>Same. — After an order establishing a highway, it is too late to make objections; the remedy then is by appeal.</p> <p>Same. — Filing Remonstrance on Appeal. — Damages.—In such case, where-it is shown by affidavit on appeal that the appellants did in fact appear before the county board, and were by the misconduct of said board prevented from filing remonstrances in time, it is error in the circuit court to refuse to permit them to file remonstrances claiming damages.</p>

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

<p>Arbitration. — Submission.—Award.—Cost.—An agreement to submit to-arbitration a pending cause confers authority upon the arbitrators to-mate an award concerning costs that have accrued in the cause though the submission is silent upon the subject. (</p> <p>Same. — Agreement.—Release of Demands. — Parties to a pending suit made a submission to arbitrators, wherein it was agreed that the plaintiff should dismiss his suit; that “ everything now in dispute between the parties”' should be submitted. The award required the defendant to pay $100 to the plaintiff, upon which the latter should execute to the former a release of all demands “ existing at the time of” the submission ; also, that the defendant should pay the costs of the suit. Upon the payment of the $100 the release required by the award was executed.</p> <p>Held, that the question of the costs of suit was embraced in the submission, and the award thereof was valid.</p> <p>Held, also, that the release did not embrace said award for costs.</p>

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

<p>Supreme Court. — Brief.—Appearance.—Notice of Appeal. — Dismissal.—The-filing of a general'brief in the Supreme Court is an appearance, after which a motion -to dismiss the appeal, for want of notice of the appeal, comes too late.</p> <p>Highway. — Petition.—Names of Owners of Land. — Notice.—Injv/neiion.—In a suit to enjoin the opening of a highway, it appeared that a member of the county board posted notices of the petition for the highway, but not that he acted in the matter as a member of pie board; also, that the plaintiff, by her name, at the time the notices were posted, was mentioned in the petition as an owner of lands to be affected, but her name was-changed by marriage before the petition was presented; that another land-owner was erroneously named.</p> <p>Held, that none of these facts justified a collateral attack on the validity of the order establishing the highway.</p>

<p>City. — Collection of Taxes. — City Treasurer. — Powers of Common Council. — Contract Ultra Vires. — Under sections 3085, 3087, et seq., R. S. 1881, of the general law for the incorporation of cities, the city treasurer of an incorporated city is alone empowered to enforce the collection of city taxes, delinquent, current and unpaid ; and any contract, made by the city or its common council, with any person other than such city treasurer, for the collection of any city taxes, is ultra vires and absolutely void.</p>

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

<p>Dhainage. — Action to Set Aside Sale of Land, by Auditor for Assessment.— County Commissioners: — Jurisdiction.— Collateral Attack. — A suit to set aside a sale of lands by the auditor, for non-payment of a charge for drainage under the act of 1875 (1 B. S. 1876, p. 428), on the ground that the contractor had not performed his work, or that the drain was not of public benefit or utility, or conducive to the public health, can not be maintained. Such questions are not open to enquiry in that manner, where •the ditch has been established by the tribunal having jurisdiction, and the work accepted by the officer charged with power to do so.</p>

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

<p>Makbied Woman. — Inchoate Interest in Land Sold on Execution. — Convey anee of. — Statute Consti-ued. — In an action by a married woman to recover for an undivided third of lands sold and conveyed to the defendant, an answer that she conveyed the land to pay her husband’s debt is good, the conveyance not being prohibited by section 10 of the act of 1879, concerning married women, Acts 1879, p. 160.</p> <p>Same. — Sheriff’s Sale. — Evidence.—Promise.—A creditor bought the lands of a husband at sheriff’s sale, whereby, under the act of 1875, the wife became seized of a third in fee thereof. The husband afterwards, at the request of the creditor, to whom he was still indebted, procured a deed of his wife’s interest, nothing being said as to the price to be paid, nor as to the purpose of the conveyance, nor was any credit given on the husband’s debt.</p> <p>Meld, in an action by the wife to recover the consideration named in the deed, that there was an implied promise to pay the value of the wife’s interest, the evidence not showing that the husband had any authority to deliver the deed on receiving a credit on his debt.</p>

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

<p>Subro&AtiOU. — Mortgage Liens. — Pleading.—'One who, in ignorance of a. junior encumbrance upon land, has paid and cancelled of record a prior lien and taken a mortgage upon that and other land to secure the repayment of the money so used, can not have the cancelled lien revived and enforced in his favor without showing that his security is otherwise insufficient.</p> <p>Same. — Subrogation is allowed only when necessary to the ends of justice.</p>

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

<p>Supreme Court. — Bill of Exceptions. — Dismissal.—The Supreme Court will not review a ruling of the court below refusing a motion to dismiss a-cause, when the bill of exceptions fails to show the reasons assigned for the motion.</p> <p>Same. — Defective Transcript. — Complaint.—Presumption.—The transcript filed in the Supreme Court did not give a material word in the complaint, the clerk testifying that he could not determine which of two words it was.</p> <p>Held, that the information could not be supplied by affidavits filed in the Supreme Court.</p> <p>Held, also, that the Supreme Court, on a question of its sufficiency, would presume the word which would support the complaint and the judgment below.</p>

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

<p>Landlobd and Tenant. — Contract.—Occupant.—Rent.—Statute Construed.— The statutory provision, that “ The occupant, without special contract, of any lands shall be liable for rent,” does not apply to one who lives with and as a member of the family of a tenant by contract.</p> <p>Same. — Possession.—Holding Over. — A tenant who, with the consent of the landlord, continues in possession after the expiration of his term, is a tenant by contract; and one who, as grandmother and governess of his children, makes her home with him, is not an occupant liable under the statute for rent.</p>

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

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

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

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

<p>Railroad. — Killing Stock. — Pleading.—A complaint against a railroad company for killing stock, otherwise sufficient, which avers that the animals entered upon the railroad “ at a point where said railway was not securely fenced,” is good on demurrer.</p> <p>Same. — Proof.—Amendment.—Supreme Court.— Variance. — A complaint for killing two colts alleged that each was of the value of $100. The evidence showed the value of one to be $150 and the other $50.</p> <p>Held, that the variance was not material, and could be cured by amendment, which, on appeal, will be considered as having been done.</p>

<p>Pleading. — Complaint.—Account.—Assignment.—Failure to Demur.— Waiver. —Supreme Court. — In a suit upon an open account, assigned in writing to the plaintiff, where a copy of the account and assignment follows the complaint in the record, but is not referred to or identified therein, an objection to the complaint on that ground is waived by the defendant’s failure to demur thereto, and can not be made available for the reversal of the judgment, by the assignment of the insufficiency of the complaint, as error, in the Supreme Court.</p> <p>Same. — Acceptance of Assignment. — Demand.—Evidence. —In such case, where the assignment of the account is not put-in issue by an answer under oath, formal proof of the assignment is unnecessary; nor is it necessary to show by evidence the plaintiff’s acceptance of the assignment or demand of payment, before the commencement of the action.</p> <p>Partnership. — Services of Partner.— Payment. — Agreement.—Ordinarily, a member of a partnership can not assert a claim against his co-partners for his services as such partner; but it is competent for his co-partners to agree to pay him for his services, and, in such case, he or his assignee may recover therefor.</p> <p>Practice.— Verdict. — Special Finding. — Judgment.—Presumption.—It is only when the special finding of facts is inconsistent with the general verdict that the former will control the latter, and the court will give judgment accordingly. Nothing is presumed in aid of the special finding of facts, but every reasonable presumption is indulged in favor of the general verdict.</p>

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

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

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

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

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

<p>Criminal Law. — Competency of Witness. — ■Credibility.—Under sections 1798, 496 and 497, B. S. 1881, any child over ten years of age is a competent witness in a criminal cause, so far as his age is concerned, whether he understands the nature and obligation of an oath or not, and his credibility is a question for the jury.</p> <p>Same.— Instructions.— Refusal of Special Instructions.— Legal Presumption.— Supreme Court. — In the absence from the record of the court’s instructions to the jury, the refusal of the court to give special instructions asked for, •even if they state the law correctly and are applicable to the case, will not •constitute an available error; for, in such case, the Supreme Court will presume that the trial court refused to give such instructions because it had already given the substance of them in its own charge to the jury.</p> <p>Intoxicating Liquor. — Sale to Minor. — Defence.—In a prosecution for the unlawful sale of intoxicating liquor to a boy eleven years old, the statement of the hoy at the time, or the belief of the defendant founded on .such statement, that the liquor was for the hoy’s sick mother, constitutes no valid or legal defence.</p>

<p>Bes Adjudicata. — Promissoi'y Note. — Judgment on Partial Defence. — Consideration. — Where, in an action on one of a series of notes, there is a plea of partial failure of consideration, the judgment does not necessarily determine any question as to the remaining notes. ■</p> <p>Same.— When Former Jiulgment Determines Entire Controversy. — Where, in such case, a defence is pleaded covering the whole subject-matter, and judgment is rendered thereon, it will be regarded as a complete adjudication of the entire matter, and maybe pleaded in bar of an action on any note of the same series executed for the same consideration.</p> <p>Same. — Judgment for Part of Note. — Effect of Recovery of Less than Face of Note.— Where a partial defence is pleaded to one of a series of notes, and a judgment is rendered for less than the face of the note, this does not, of itself, entitle the plaintiff to the apportionment of a like amount on the other notes of the series; nor, on the other hand, is the defendant entitled to claim that, it constitutes, in itself, a bar to a recovery of any sum on. the other notes.</p> <p>Same. — Estoppel by Judgment. — An estoppel by judgment is never inferred unless the basis on which it rests is such as to lead to the conclusion that the whole subject was litigated and adjudicated.</p> <p>Same.- — Former Adjudication. — Parol Evidence. — It is proper in some cases to-give parol evidence to show what was actually litigated in the cause-wherein the judgment relied on was rendered.</p> <p>Same. — Actions on Several and Distinct Contracts. — Where the action is on one of several distinct and independent contracts, the rule that whatever might have been litigated will be deemed to have been litigated, applies in its full force only to the particular contract sued on. Davis v. Drown, 94 U. S. 423," approved. ■</p> <p>Pbomissoby Note. — Assignment of. — Not Payable in Bank. — ■Recovery Against Assignor. — Presmnption.—The amount recoverable in an action oh the assignment of a promissory note not payable in bank is, as a general rule, the,amount paid by the assignee; and, in the absence of evidence to the contrary, this is presumed to be the face of the note.</p>

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

<p>Supreme Court.— Weight of Evidence. — Selling Intoxicating Liquor. — In a. prosecution for selling intoxicating liquor without license, the Supreme! Court will not disturb the finding of the trial court on the mere weight of the evidence or the credibility of witnesses.</p>

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

<p>Widow. — Decedents' Estates. — Administrator's Sale of her Interest in Lands to Pay Debts. — An administrator can not, without a widow’s consent, sell her interest in lands of which her husband died seized, to make assets to pay debts.</p> <p>Same. — Default.—Title.—If a widow be made defendant to a proper petition to sell such lands,' her default gives no power to sell her interest, and a purchaser does not acquire even color of title against her, and any attempt to sell her interest is a nullity.</p> <p>Same. — Action to Recover Land Sold by Administrator. — Statute of Limitations.— The fourth clause of sec. 293, B. S. 1881, does not apply to an action by a widow to recover from a purchaser at administrator’s sale her interest in lands of which her husband died seized.</p> <p>Same. — Estoppel.—Mere receipt of part of the proceeds of such sale as part of her distributive share of her husband’s estate will hot estpp her from asserting her right, as Widow, in the land.</p> <p>Same. — Partition.—There is no power to set off to a widow, without her consent, one of several tracts of land, of which her husband died seized, in lieu of her interest in each.</p>

<p>Supbeme Coubt. — Assignment of fflror. — Special Verdict. — An assignment of error, that “ the court erred in its conclusions of law on the facts found by the jury,” the jury having returned a special verdict, presents no question in the Supreme Court. Statements of conclusions »of law upon a special verdict can not properly be made.</p>

<p>Befebee. — Agreement of Submission. — A cause not at issue was, in 1879, referred by written agreement to one D., as a master commissioner, to complete the issues and take the evidence, report his conclusions on the proofs, and also his conclusions upon the law applicable to the facts' proved, and submit the same at a subsequent term of the court.</p> <p>Held, that this was a reference, under sec. 349, et seq., of the code of 1852, B. S. .1881, sec. 556-558.</p> <p>Same. — Report.—Evidence.—Record.—Rulings on Demurrer.— In such case the master had no authority to report the evidence, and the fact that he did so did not make it a part of the record; nor was it a defect in his report, that it did not show rulings upon demurrer to pleadings.</p> <p>Pbactioe. — Pleading.—Departure.—■Demurrer.—Objection after Verdict. — New matter in a reply, constituting it a departure, can be reached only by demurrer, and objection after verdict is too late.</p> <p>Same. — Bill of Exceptions.— Costs. — A bill of exceptions is required to make a motion for judgment for costs a part of. the record.</p>

<p>Beplevin.— Verdict. — Sheriff.—Execution.—In an action of replevin against a sheriff and execution plaintiffs for property levied on by virtue of an execution, a verdict for the defendants generally, as to part of the property, is not contrary to law. °</p>

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

<p>Bankruptcy. — Discharge.—A discharge in bankruptcy does not release the' bankrupt from his indebtedness to the United States.</p> <p>Same . — -Principal-and Surety. — Where a surety upon a bond to the United States has, as such surety, paid money to the Government, and afterwards the principal has been adjudged a bankrupt and discharged as such, the fact that the claim of the Government, if unpaid, would not have been barred by the discharge, will not, of itself, entitle the surety to an action against the bankrupt to recover the money so paid.</p> <p>Same. — Fraud.—Pleading.—A reply to an answer of discharge in bankruptcy, which seeks to avoid the discharge, upon the ground that the debt sued on was created by the fraud of the bankrupt (R. S. U. S., sec. 5117), must aver the facts which constitute actual fraud involving intentional wrong.</p>

<p>Wabbahty. — Breach of. — Sale.—Contract.—Rescission.—Promise.—Complaint. —Measure of Damages. — A complaint alleged a warranty of a mare, on sale, to be sound in every particular, that she was unsound, incurably -diseased, and died, was “ of little or no value,” but if “ sound and all right” would have been worth the price paid. A second paragraph averred the sale, warranty and breach, a rescission of the contract by agreement, and a promise to repay the price and a breach thereof.</p> <p>Held, that both paragraphs were good on demurrer.</p> <p>Held, also, that the first paragraph would admit a recovery of actual damages, which would be the difference between the value of the mare when purchased and what it would have been had she been sound.</p>

<p>■County Commissioners. — Judgment.—County commissioners can’ not annul ■ or set aside decisions made or judgments rendered, after the close of the term at which they were entered.</p> <p>Same. — Appeal.—Qravel Road. — An appeal will lie to the circuit court from an order of the board of county commissioners vacating an order made at a former term, granting the right to construct a gravel road upon a county highway.</p>

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

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

<p>From the Boone Circuit Court.»</p>

<p>Deed. — Title in Fee. — Condition Subsequent. — A conveyance of lands to a church generally, specifying no use or condition, passes an absolute title in fee simple, which is not forfeited by ceasing to use the property for religious purposes.</p>

<p>Railroad. — Injured Animal. — Action Assignable. — A right of action, under the statute, against a railroad company, for injury to an animal upon an unfenced part of the road, is assignable.</p> <p>Supreme Court. — Evidence.—Jury.—The Supreme Court will not reverse a judgment for want of direct evidence of a fact which the jury may have inferred; especially when it appears that the fact was not contested at the trial.</p>

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

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

<p>Supreme Court.^Submission of Cause. — Filing Appellant's Brief. — Bule 14.— Where a causéis submitted, either on call or by agreement of the parties,, in the Supreme Court, Hule 14 of the rules of the court imperatively requires that the appellant’s brief shall 1)0 filed in sixty days from the date-of submission, and provides that if such brief is not so filed the appeal shall be dismissed; and the filing of the appellant’s brief after the expiration of the sixty days will not prevent the dismissal of the. appeal.</p>

<p>Mabbxed Woman. — Morigage.—Judicial Sale of Husband’s Lands. — When Inchoate Interest Vests. — Descent.—Partition.—Statute Construed. — The lands of a husband -were sold on foreclosure, against him, of a mortgage- not signed by the wife. Before the purchaser was entitled to a sheriff’s deed she died, the husband surviving. After the sheriff’s deed was executed the husband sued, for partition.</p> <p>Held, that by the execution of the sheriff’s deed her absolute title, under the statute of 1875, R. S. 1881, sections 2508-2511, vested by relation at the date of the sale, and upon her death descended to the husband.</p>

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

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

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

<p>Vendob and Vendee.— Contract. — Decree of Specific Performance.' — Judicial Sale. — Married Woman. — Statute Construed. —A decree for specific performance of a husband’s contract for the sale of lands, executed-by a deed' to the purchaser by a commissioner appointed for that purpose, is not a. judicial sale, and does not, under the statute (B. S. 1881, sections 2508— 2511), convert the wife’s inchoate interest into a vested estate.</p>

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

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

<p>Criminal Law. — Corporation.— Gravel Road. — Directors.— Criminal Liability for Failure to Malee Financial Statement. — Office and Officer. — The directors in office, who are criminally liable, under section 3639, B. S. 1881, for failure to make the financial statement required by section 3638, are those in office at the time fixed by law for the statement. Their successors are not liable.</p> <p>Same. — Constitutional Law. — Title of Act. — Excessive Fine. — The subject of section 3639, B. S. 1881, is embraced within the title of the act, does not impose excessive fines, and is constitutional.</p>

<p>Refekee. — Master Commissioner. — Report. —Amendment.—Evidence.—Bill of Exceptions.— Verdict. — Upon a reference to a master commissioner'11 for finding,” he is a general referee, and must make a report on the whole case; such report has the effect of a general verdict, and, like a verdict, belongs to the record without any bill of exceptions or order of -the court. Such report can not include either the evidence or the facts, and a motion to require the master to add to his report the evidence should be overruled. Upon such a reference the facts can be brought before the court only by requiring the master to report the facts and conclusions of law separately. The power of the master ends with his report, and he can not amend it by a subsequent report.</p> <p>Same. — Judgment on the Report. — Costs.—Penalty.—Practice.—The court enters judgment on such report as upon a general verdict, with costs for the prevailing party. The report need not mention costs. The court can not render judgment for a sum greater than that reported, except by adding interest from the time of the report to the time of the judgment. Where the court added to the amount reported by the master the ten per cent, penalty given by the statute, a motion to modify the judgment by striking out the penalty ought to have been sustained.</p> <p>Same. — Special Reference. — Upon a reference to report the facts, or the facts and the evidence, the report is not-’part of the record unless made so by bill of exceptions, or by order of the court.</p> <p>Same. — Evidence.— Exceptions.— Trial.— Objections to evidence must be made before the master, and made part of the record, either by bill of exceptions signed by the master or by being included in his report. The trial before the master is like a trial before the court.</p> <p>Same. — Ekceptions to the Report. — Where the exceptions require the evidence to be considered there must be a bill of exceptions containing the evidence and signed by the master, otherwise such exceptions can not be considered.</p> <p>Same. — New Trial. — Evidence.—Seasons for a new trial, to wit, that the’ finding was not sustained by sufficient evidence, and was contrary to law and evidence, can not be considered without a bill of exceptions signed by the master, showing the evidence.</p> <p>Same. — Excessive Damages. — Where the record showed that the court added to the amount reported by the master, a penalty given by the statute, a motion for a new trial because of excessive damages ought to have been sustained.</p> <p>Same. — Short-Hand Reporter. — The statute, B. S. 1881, sec. 1410, authorizes the original long-hand manuscript of the reporter, when duly certified by the clerk, to be incorporated-in a bill of exceptions. “A mere transcript of the evidence” is not sufficient; and when the hearing is before a master commissioner such bill of exceptions, in order to bring the evidence before the circuit court, must be signed by him.</p> <p>Supreme Court. — Bill of Exceptions. — Evidence.—A bill of exceptions which shows that it does not contain all the evidence presents no question as to the sufficiency of the evidence, although it contains the statement, “This was all the evidence given in the cause.”</p>

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

<p>Public Wobks. — County Commissioners.— Bidder.— Bond. — An action for damages can not be maintained against a county upon the ground that its commissioners have erred in determining the question of the sufficiency of a bond tendered by a bidder for a public building.</p> <p>Same. — Disaretim.—County commissioners have broad discretionary powers in determining who is the “ lowest responsible bidder ” for a public work.</p> <p>Same. — Unsuccessful Bidder. — An unsuccessful bidder can not recov.er for time and money expended in preparing a bid, where lie knows there are to be competing bidders.</p> <p>Same. — Lowest Mesponsible Bidder. — The “ lowest responsible bidder” is one who complies with all the requirements of the statute, and not merely one whose bid is less than those of his competitors.</p>

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

<p>Practice. — Bill of Exceptions. — The filing of an amended complaint and answer thereto supersedes the original pleading, and where no motions are made in relation to the answer filed to such amended complaint, a bill of exceptions embracing' rulings upon motions made in respect to the original answer can not be available to raise any question upon the second answer filed.</p> <p>Same. — Demurrer.—Presumption.—Where a demurrer is overruled to a pleading, but is not in the record, no question is presented thereby to the Supreme Court, the presumption being in favor of the- action of the trial court.</p>

<p>Cbiminal Law. — Evidence of Accomplice. — A jury may convict on the testimony'of an accomplice.</p> <p>Same. — Practice.—Supreme Court. — The Supreme Court will not reverse a judgment against a defendant in a criminal action because the record does not affirmatively show that he was asked to show cause why judgment should not be pronounced upon the verdict, especially if it is shown that he had full opportunity to make all motions that could have availed him.</p>

<p>Conveyance.— Mistake.— Correction.— Action to Quid Title. — Demand.— Pleading. — A grantor in a conveyance of land may have a mutual mistake in the description thereof corrected, in a suit to quiet title against the devisee of the grantee to a portion thereof not intended to be conveyed, and no demand for a correction of the mistake need be averred in the complaint.</p> <p>Statute on Limitations.- — Exceptions to. — Complaint.—Demurrer.—A demurrer to a complaint ought not to be sustained on the ground that the complaint shows a case barred by the statute of limitations unless it also appears that the case does not come within any of the exceptions to the statute.</p>

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

<p>Review op Jubgiment. — Pleading.—Diligence.—Negligence.-—A complaint to review a judgment, for new matter discovered since its rendition, is insufficient, when it shows, by the facts stated, that such new matter could have been discovered before judgment by reasonable diligence, although the complaint contains the allegation that it could not have been so discovered. Facts may be shown constituting such negligence as will prevent such relief under the statute.</p>

<p>Mabbied Woman. — Judgment.—Lien on Her Beal Estate. — Execution.—Statute Construed.— Section 5117, B. S. 1881, does not prevent a judgment against a married woman from becoming a lien upon her real estate nor from the enforcement of such lien by execution.</p> <p>Same. — Contracts.—Property Liable for. — Under section 5122, B. S. 1881, coverture is no bar to a married woman contracting debts in carrying on any trade, labor or business, on her sole and separate account, or as partner with another, and her real as well as her personal property is liable for such debts the same as if she were unmarried.</p> <p>Same. — Partnership.—Injunction.—Where a judgment is rendered against a married woman and a copartner for debts contracted in carrying on a partnership business, the levy and sale of her separate real estate for the collection of the judgment will not be enjoined.</p>

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

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

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

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

<p>Highway. — Petition to Change. — A petition to change a highway need not state that such highway will be of public utility, nor need it state the length of such proposed change.</p> <p>Same.— Vacation and Location. — Practice.—A proceeding to change a highway requires the vacation of a portion of the highway and its location upon another line, and this may be done in the same proceeding.</p>

<p>Taxes.— Omitted Property.— Assessment.— County Treasurer.— Injunction.— Under the statute, 1R. S. 1876, p. 72, section 94, a treasurer has no authority to assess taxes upon omitted property except for the current year, and the collection of taxes so assessed may he enjoined.</p>

<p>Examination of Pabty. — Impertinent Questions. — Practice.—Under the provisions of section 509, B. S. 1881, a party to an action may be examined by bis adversary, as a witness, concerning any matter stated in the pleadings, but he may refuse to answer questions, which are not concerning any matter stated in the pleadings, as irrelevant and impertinent.</p> <p>Same. — Punishment as for Contempt. — Striking out Pleading. — Error.—Under section 513, B. S. 1881, it is only where a party refuses to attend and testify that he may be punished as for a contempt and his pleadings struck ■out. If it appear that he did attend and testify, and merely refused to answer' irrelevant and impertinent questions, it will be error to punish him as for contempt, or to strike out his pleadings.</p>

<p>Cbimiítal Law. — Drunkenness.—Indictment.—Public Place. — An indictment for drunkenness in a public place, under section 2091, R. S. 1881, is not sufficient if the place be only generally stated as “a certain public place; ” but the place should be shown by such description, that it may appear to be a place where the public has a right to go.</p>

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

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

<p>Pleading. — Sufficiency of Complaint. — Demurrer.—An objection to the sufficiency of the complaint, that “part” of the damages sought to be- re- • covered are too remote, is not reached by a demurrer for the want of facts.</p> <p>Supreme Court. — Requiremerds of Brief. — Under the rales and decisions of the Supreme Court, the appellant’s brief should contain a statement of the points or questions in the record upon which he relies for the reversal of the judgment, and the citation of his authorities, if any, and a. perspicuous and concise argument.</p>

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

<p>Official Bond. — Death of Surety before Approval. — That an official bond was not approved, or that the officer did not take office until after the death of a surety thereon, or an irregularity as to time of approval, does not affect the validity of the bond as his contract.</p> <p>Same. — Pleading.—Surety.—In a complaint on an official bond against the sureties, it is not necessary to allege that the officer took the oath of office, if it appear that he entered upon the duties of the office, and when so acting broke any of the conditions of the bond. 1</p> <p>Same. — Demurrer.—-Cause for. — A demurrer to separate breaches of a bond, assigning for cause that the allegations thereof do “not entitle the plaintiff to the relief,sought,” raises no question, and may be overruled without error.</p> <p>Same. — Cities.—-Vacancies in Office. — Oity Treasurer. — Where the council declares the office of treasurer vacant, and appoints one to fill the vacancy, the treasurer acquiescing, ihe appointee becomes treasurer de facto, and the fact that no vacancy existed can not be pleaded by his sureties to a suit for breach of his bond for failing to perform his duties while in office, or failing to pay over money belonging to the city.</p> <p>Same. — Execution by Surety. — Cases Followed. — That a surety signed an official bond upon a promise of the principal, not fulfilled, that others not named in the bond should sign it, or that others signed as sureties later whose names were not in the bond, is no defence; the doctrine held in reference to those questions in Deardorff v. Foresman, M Ind. 481, and Slate, ex rel., v. Pepper, 31 Ind. 76, adhered to.</p>

<p>•City. — Inability for not Preventing Unlawful Use of Streets. — Coasting.—Personal Injury. — A municipal corporation is not liable for a personal injury oecasioned on its streets by persons making an unlawful use of its streets, as by “ coasting.”</p> <p>¡Same. — Failure to Enforce Laws and Ordinances. — A municipal corporation is not liable for failure to exercise governmental powers, as for failure to enforce the State laws or its own ordinances.</p> <p>Same. — Negligence of Police. — A municipal corporation is not liable for the negligence of its police officers ; they are not. its agents, but are public officers.</p>

<p>Cuerb: of Circuit Court. — Successor in Office. — Duties and Liabilities as to Money Received. — Official Bond. — Deputy.—It is the duty of the clerk of the circuit court in each county, at the expiration of his term of office, under section 5850, R. S. 1881, to pay over all moneys remaining in his hands as such clerk, to his successor in office, and, upon such payment, he will he released from liability therefor, and his successor and his sureties will be chargeable therewith; and the rule will not be different where the successor was the deputy of the outgoing clerk, and, as such deputy, received the moneys in controversy, if it appear that he-still had such moneys in his hands when he qualified as such successor and took possession of the office.</p>

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

<p>Criminal Law.— Assignment of Mr or. — In the absence of an assignment of error, in criminal as well as civil causes, no question is presented for the decision of the Supreme Court, and the appeal will be dismissed.</p>

<p>Bill oi? Exceptions. — Practice.—Exceptions must be reduced to writing at the term at which they are taken, unless, at that term, further time be given.</p> <p>Boundabies. — Establishment of Lines by Agreement and Occupancy. — Fences.— Evidence. — Notice to Purchasers. — Owners of conterminous lands may, by oral agreement and occupancy, so fix the boundary line between their lands as to bind themselves; and if such line be marked by a fence, and each occupies to the fence, it will be notice to purchasers.</p> <p>Deed.--Description. — Construction.—Survey.—A deed describing the lands conveyed as “the north half of the southwest undivided quarter of section,” etc., means the half, in quantity, of the quarter section, and not the north half as determined by the survey of the U. S. Government.</p>

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

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

<p>"Wills. — Oonsti'uction.— Widow. — Descent.—A testator, by one item of his will, gave certain real estate to his wife, remainder in fee to his children, and also certain personal property; and by the next item he gave the residue of his real and personal estate to his children, “ after my beloved wife has taken her portion according as the law provides.”</p> <p>Held, that the provision made in the first item was plainly in addition to the right in his estate given by law to the widow, and, by virtue of the statute (B.- S. 1881, section 2505), she was entitled to both.</p>

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

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

<p>Practice. — Harmless Error. — It is harmless error to either sustain demurrers to or strike out answers which would not have entitled the defendant to any benefit not secured by the general denial also pleaded.</p> <p>Same. — Bill of Exceptions. — Time of Filing.— Presumption. — Time must be ■ granted within which to reduce exceptions to writing; but where the bill is filed during the term, it will be presumed that time was given when the exception was taken.</p> <p>Same. — Refusal to Instruct Jury to Answer Interrogatories. — A jury can be directed to answer interrogatories only on condition that they find a general verdict, and the refusal of a request to unqualifiedly instruct the jury to answer interrogatories is not error.</p> <p>Railroad. — Passengers.—A passenger upon a railroad train has a right to act upon the conduct and directions of the agents of the corporation.</p> <p>■ Same. — Damages for Ejecting Passenger from Train. — In an action against a railroad company to recover damages for the ejection of the plaintiff from one of its trains by an agent, the conductor thereof, the evidence showed that the plaintiff had purchased a round-trip ticket of the defendant’s agent at one of its stations, entitling him to a passage to and from another station on the line of the defendant’s road; that shortly after entering the car a man came along, asked for the ticket, which was given him, tore it in two, handing back one and keeping the other part thereof; at about eleven o’clock the same night the plaintiff entered a car on the defendant’s road to return to the station at which he had purchased the ticket, handed the conductor the part of the ticket returned to him by the man on the first train, which the conductor refused to accept, and upon the plaintiff’s refusal to pay the fare demanded, notwithstanding his explanation and remonstrance, forcibly ejected him from the train. The man who took the ticket on the first train was a brakeman in charge thereof instead of the conductor, who was in concealment on the engine. The brakeman testified that he supposed that one-half of the ticket was good for a ride either way. The behavior of the plaintiff was orderly and gentlemanly.</p> <p>Held, that the plaintiff was entitled to damages; and that $600 was not excessive.</p> <p>Same. — Measure of Damages. — In estimating the damages' in such case, it is. proper to consider the humiliation and degradation imposed upon the-injured person by the wrong done him; and if such wrong is done under circumstances of peculiar indignity and degradation, that fact is to be considered as an element of compensation even in cases where vindictive damages can not he given.</p>

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

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

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

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

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

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

<p>J udgment.— Appearance. — ■ Warrant of Attorney. — Foreclosure.— Title Under Sheriff’s Sale. — A j udgment of foreclosure rendered on personal appearance is sufficient in ejectment to sustain the title of a purchaser at sheriff’s sale under the decree, though there may have been a warrant of attorney authorizing a decree by confession, which warrant is not put in evidence.</p> <p>Same. — Jurisdiction.—Evidence. -An entry at the end of a decree thus: “It is agreed by the parties that execution shall not issue herein,” etc., shows a personal appearance which gives jurisdiction of the person.</p> <p>Ejectment. — Complaint.—Description.—■Evidence.— Variance. — -Where lands were described in a complaint in ejectment as “lot No. 4, in block No. 3, in Burnham’s subdivision of lot No. 7, as designated in the recorded plat thereof, in Vigo county, Indiana, situated in the city of T.,” ánd the evidence disclosed that the lot, otherwise properly described, was not in the city of T., no fatal variance is shown in the pleading and evidence.</p>

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

<p>Cities. — Damages for Change of Grade of Streets. — Statute Construed. — Town, —An incorporated town, having established a grade of a street and improved it accordingly, afterwards became a city and changed the grade, much to the injury of an abutting lot.</p> <p>Held, that the proviso to section 3073, R. S. 1881, did not require the city to pay damages.</p>

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

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

<p>Highways.— Change of.— Remonstrance.— Damages. — Costs.— Witness. — A. and others joined in a remonstrance against the change of a public highway, questioning its public utility, and A. separately claimed damages. Reviewers reported against the public utility of the change, whereupon the county commissioners dismissed the petition. One of the petitioners, alone appealed to the circuit court, where it was found and adjudged that the change was not of public utility. Damages were also found for A. , should the change be made.</p> <p>Held, that the petitioner who appealed was prima facie liable for all costs.</p> <p>Held, also, that if A. used other remonstrants as witnesses, in support of his. separate remonstrance for damages, they were entitled to fees as witnesses.</p>

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

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

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

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

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

<p>X/Andlobd and Tenant. — Rents.—Emblements.—Replevin Rond. — Damages_ —Instruction to Return Verdict. — A deed of lands was to M., “ with the; possession, rents and profits to his use and benefit, until the said H. shall arrive at the age of twenty-one years, when the said real estate shall become hers in fee simple.” After IT. reached full age she conveyed to-C., who replevied from M. two-fifths of the crops planted by M. and growing on the land when H. became of age, being reasonable rents. Thereplevin suit was dismissed because the bond was insufficient, but C. did not return the property. In a suit by M. on the bond there was some-evidence tending to show the relation of landlord and tenant between-M. and C., and the court instructed the jury to return a verdict for the-plaintiff for nominal damages.</p> <p>Held, that the instruction was correct.</p> <p>Held, also, that M. was not entitled to the emblements.</p> <p>Justice op the Peace. — Evidence on Appeal. — Title to Land. — Jurisdiction.. —On the trial in the circuit court of an appeal from a justice of the peace, when the pleadings do not put the title to land in issue, evidence is admissible from which it appears that such title really is in question, and the court is not thereby deprived of jurisdiction by reason of sections, 1433 and 1434, K. 8. 1881.</p>

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

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

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

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

<p>City. — Restriction as to Debts. — Constitutional Law. — Injunction.—A city, being-indebted to an amount equal to two per centum of its taxable property, is, under article 13 of the State constitution, prohibited from issuing an order on its treasury even for current expenses, where there are no funds in the treasury which may be applied to its payment, and may be enjoined from issuing such an order when one is about to be issued and no provision has been made for its payment.</p>

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

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

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

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

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

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

<p>Practice. — Demurrer.—Supreme Court. — The Supreme Court can not consider whether there was error in overruling a demurrer which is not in the record.</p> <p>Same. — Bill of Particulars. — The want of a bill of particulars with a complaint can not be reached by motion to make the complaint more specific.</p> <p>Same. — New Trial. — Bill of Exceptions. — Evidence.— Verdict. — Where the bill of exceptions does not contain all the evidence, the Supreme Court will not consider whether the verdict is contrary to law, or supported by sufficient evidence, or whether the damages are excessive.</p> <p>Evidence. — Agent.—Conversations.—Res Cestce.— Contract. — The conversations of an agent of the defendant authorized to make and modify the; contract sued on, had at the time concerning it and its terms, are proper evidence for the plaintiff; so, also, the conversations of others which are; part of the res gestee.</p> <p>Same. — Answers to Intemgatories. — Corporation.—The answers made by a: defendant corporation to interrogatories filed with the complaint are. proper evidence for the plaintiff.</p>

<p>Decedents’ Estates. — Suit on Contract. — Appeal.—Statute Construed. — Tho provisions of section 2455, R. S. 1881, concerning appeals to the Supreme Court, do not apply to a civil suit by an administrator to recover a money demand on contract.</p> <p>Same. — Costs.—An administrator omay sue in the circuit court, upon a money demand on contract for any sum, and if he recover any-sum he will also recover costs, section 591, R. S. 1881, not being applicable to such suits.</p>

<p>Mortgage. — Foreclosure.—Sheriff’s Sale. — Statute of Dimitaiioiis. — Descents.— Widow’s Rights. — Notice.—Jurisdiction.—Case - Criticised. — • Inchoate Interest of Wife. — In 1854 B., a non-resident, took title to lands, giving the vendor a mortgage for unpaid purchase-money. In 1855 he married, and in 1875 died, his wife surviving, who, September 15th, 1881, brought suit for her interest, as widow, in the lands. In 1857, in a suit against B. alone, the mortgage was foreclosed, upon default of B., the notice to him being by ' publication upon affidavit showing merely that B. was not a resident of the State. The land was sold under the decree, and a sheriff’s deed made .to the purchaser, who subsequently conveyed it, and from 1860 possession, was continuously held by the purchasers, claiming.title under the sheriff’s, sale. Suit in 1881 by widow to quiet title to one-third of the land.</p> <p>Held, that the decree of foreclosure was void, for want of jurisdiction, in the court which rendered it.</p> <p>Held, also, that the sheriff’s sale and deed were void.</p> <p>Held, also, that the possession under the sheriff’s sale for ten years was, by virtue of the statute of limitations, R. S. 1881, section 293, clause 3, a harto any suit by B. or any one claijning under him by title acquired after the decree. . . !</p> <p>Held, also, that B.’s wife acquired her interest inchoate in the land by the marriage; by his death this became vested by virtue of section 2491, R. S. 1881, and not by inheritance as his heir, under' section 2483, and she was not barred by the statute of limitations. Talbott v. Armstrong, 14Ind. 254, criticised.'</p>

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

<p>Wabash and Erie Canal. — Title of State in Land Appropriated. — Stare Decisis. — Supreme Court. — The decision of the Supreme Courtin Water Works Co. v. Burkhart, 41 Ind. 364, that the State acquired a title in fee simple to the lands appropriated for the construction of the Wabash and Erie Canal, is adhered to under the rule of stare decisis.</p> <p>Same. — Construction of Canal in Public Street. — Abandonment of Canal. — Revival of Original Basement. — Where the State entered upon and constructed the Wabash and Erie Canal in and through a public street in the town, now city, of Logansport, the easement of the public and abutting lot owners in such street was not thereby destroyed, but remained in abeyance merely during the occupancy and use of the street for the purposes of such canal; and upon the subsequent abandonment of the canal, when the street was no longer occupied or used by or for such canal, the original easement of the public and the private rights of abutting lot owners at once revived and became effective in, on and over such street.</p>

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

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

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

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

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

<p>Bepeevin. — Complaint.—Description of Property. — The description of the goods in a complaint in replevin, as “ One stock of dry goods, notions, fancy articles, and so forth, now in store occupied by” the defendant^ “on Main street, in the city of Valparaiso, Porter county, Indiana,” is good after verdict, and it seems on demurrer.</p> <p>Same. — Evidence.—Record.—Offer of Proof. — In replevin the question was whether the plaintiff purchased the goods to aid A. in defrauding his creditors. The defendant offered in evidence the record of a suit against A. to recover a debt, offering in connection therewith “ to prove ” that the plaintiff employed attorneys to appear and delay the judgment until the plaintiff could consummate his purchase of the goods from A.; that, accordingly, sham and false answers were filed, causing a delay of several days, during which the purchase was consummated. The court excluded every part of the record offered save only the complaint and the judgment entry, and it also excluded the evidence offered in connection.</p> <p>Held, that the exclusion of parts of the record was a harmless error.</p> <p>Held, also, that the exclusion of the proof offered in connection was proper, for the reason that the offer was merely “ to prove ” the facts, instead of to prove them by competent evidence.</p> <p>Held, also, that it was not error to exclude the original notes sued on, copies of which were contained in the record admitted.</p> <p>Evidence. — Depositions.—Agreement.—On the trial a whole deposition taken in another cause was offered in evidence, with an agreement of the parties endorsed that certain parts of it, if proper evidence, might be used in the trial of this cause.</p> <p>Held, that its exclusion was not error.</p> <p>Same. — Instructions.—Fraud.—An instruction, assuming the existence of a fact which, upon the evidence, it is the province of the jury to determine, should not be given.</p>

<p>■Criminal Law. — Intoxicating Liquor. — Sale to Minor. — Evidence.—Contradictory Statements. — In a criminal prosecution for selling intoxicating liquor unlawfully, the defendant, as a witness, testified that the sale was of Catawba cider, which looked like beer, but was milder and not intoxicating, denying also that he had said at a former trial that it also tasted like beer.</p> <p>Meld, that it was competent for the State to prove that he testified on the former trial that it both looked and tasted like beer.</p> <p>Same.' — Instructions.—Instructions of the court to the jury in a criminal case are merely advisory and not absolutely obligatory.</p> <p>Same. — Conduct of Judge. — New Trial.. — The statement of the judge, in ruling upon a question of the admissibility of evidence as to the nature of Ca-’ tawba wine, as a reason for his decision, that “It may be another name for lager beer, for all I know,” is not cause for a new trial.</p> <p>Same. — Misconduct of Counsel. — -Jury.—The summoning and consequent presence of ladies, members of a temperance society, as witnesses on the trial of a cause for unlawfully selling intoxicating liquor, is not misconduct of the prosecuting attorney, which can be presumed to have improperly influenced the jury.</p>

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