Volume 89 — Indiana Reports

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

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

<p>Married Woman. — Mortgage.—Husband and Wife. — Suit against husband and wife to foreclose a mortgage made by them while the act of 1879 (Acts 1879, p. 160) was in force. Answer by the wife, that she owned the land by gift, and that the mortgage was made to secure a debt' of the husband. Beply that the mortgage was made in consideration of the release of the land from a former mortgage, and the extension of the time of payment.</p> <p>Held, that the reply was good.</p> <p>New Triad. — Error.—The granting of a new trial is available error only when it is plain that flagrant injustice has been done thereby.</p> <p>■Same. — Effect of. — Anew trial sets aside not only a general verdict, but also answers of the jury to interrogatories.</p> <p>Trust and Trustee. — Innocent Purchaser. — Parol Trust.— Mortgage. — As against a mortgagee in good faith a trust in favor of another than the mortgagor can not be established by parol.</p> <p>Practice. — Evidence.—Objection.—Supreme Court. — Only such objections to evidence admitted as have been stated below can he made in the Supreme Court, and the objection must be specific and not vague or too general, as that a deposition “ was not properly and legally certified.”</p> <p>Same. — Evidence.—A party can not divide his evidence in proof of a fact, and give part of it in chief and the other part in rebuttal.</p> <p>Same. — Gross Complaint to Quiet Title. — In a suit to foreclose a mortgage, if a defendant file a cross complaint to quiet title, the general denial will,, under the statute, admit proof of any defence to the cross complaint.</p> <p>Depositions. — Notice.—Judicial Knowledge.- — The Supreme Court takes judicial knowledge, that a notice at Ft. Wayne, served December 20th, to take depositions at Topeka, Kansas, on the 26th of the same month, gives sufficient time.</p> <p>Atxobneys’ Fees. — A party undertaking to pay attorneys’ fees, with the principal debt, is liable for such increase thereof ás he causes by making, defence.</p>

<p>New Tkiae. — Application for as of Right. — Action to Quiet Title. — What is.— New Trial. — The nature oí a suit depends on the complaint and judgment, and not on the judgment alone. A complaint by heirs at law to set aside a deed of their ancestor, and praying to quiet their title to the lands, is a complaint to quiet title, in which a new trial as of right may be granted, under section 1064, R. S. 1881.</p> <p>Same. — Practice.—Case Overruled. — A new trial as of right, under the statute, may be applied for either orally or in writing. Crews v. Ross, 44 Ind. 481, overruled.</p>

<p>Contract. — Conveyance.—Condition Subsequent. — Consideration.—Agreement to Maintain Grantor and Wife. — Husband and Wife. — Divorce.—lAen.—Judgment.- — -Prayer of Complaint. — Performance.—A husband and wife joined in a conveyance of lands of which the husband was seized in fee, to a son of the husband by a former marriage, which the son' accepted. In the deed it was declared that the land was thereby encumbered with one-half of the expenses of maintaining the grantors and each of them during the life of each, in a. manner comporting with their station in life and former mode of living, and that on failure by the grantee to furnish such maintenance the land should revert to the husband. Afterwards the grantors were divorced. The wife sued the son, averring these facts, and that one-half the cost of her support, provided for in the deed, since thé execution thereof, was $50 per annum; that the defendant failed to furnish such support, to her damage $250, which is due and unpaid, for which she demand’s judgment, etc.</p> <p>Held, that the" grant was subject to a condition subsequent which the husband only could enforce, and also to a lien upon the land which either could enforce against the land, but not by personal judgment against, the grantee.</p> <p>Held, also, that the prayer for a personal judgment did not, under the statute (R. S. 1881, sec. 385), render the complaint bad on demurrer.</p> <p>Held, also, that the divorce, though granted for the fault of the wife, did not terminate her right to the maintenance provided for in the deed.</p> <p>Held, also, that the facts averred were sufficient on demurrer to justify a. judgment enforcing the lien.</p> <p>Held, also, that <an answer to the whole complaint, averring performance’ of the condition by the defendant until the plaintiff abandoned her husband, who obtained a divorce for such abandonment, and that he had at all times been ready to support her at her husband’s home, was had on demurrer.</p>

<p>From the Hendrick's Circuit Court.</p>

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

<p>Assignment on Error. — Names of Parties. — It is unnecessary for a cross assignment of errors to contain the full names of the parties.</p> <p>Mortgage. — Foreclomre by Assignee. — Complaint.—Parlies.—Endorsement.—• A complaint by an assignee to foreclose a mortgage, which merely avers that the mortgage was endorsed to him, without stating by whom, is not good as against a demurrer for defect of parties, because the mortgagee is not made a defendant.</p> <p>Same. — Endorsements.—Exhibit.—Where several endorsements appear upon the mortgage, but the complaint makes no reference to them, its averments can not be aided by them.</p> <p>Same. — Allegations of Complaint Against One Claiming Title. — The mere averment in a complaint to foreclose a mortgage against a person other than the mortgagor, that “ he is now the owner of the land,” is not sufficient to show that the mortgage constitutes a lien upon theland as against him, as he may have acquired the land before fhe mortgage was executed.</p> <p>Same. — Record.—Index.—Constructive Notice. — -A mortgage which is spread upon the mortgage record, and duly indexed in such book, is constructive notice to a subsequent purchaser for value, though it is not entered in the entry-book or indexed in the general index.</p>

<p>Default. — New 'Trial. — That a party has been improperly defaulted is no-cause for a new trial; and if the party defaulted afterwards plead without objection (the default having beea vacated), he has no cause for any form of complaint.</p> <p>Witnesses.- — Competency.—Parties.—Decedents’ Estates.- — -Under the act of March 15th, 1879 (Acts 1879, p. 245; R. S. 1881, sec. 499), a plaintiff, being incompetent as a witness, could not call as a witness a defendant who had a common interest with the plaintiff, adverse to the other defendants.</p> <p>SAME. — -Requirement of Court to Testify. — Case Orel-ruled. — The action of the court in overruling an objection to the competency of a witness is not equivalent to a requirement by the court that the witness shall testify. Smith v.' Smith, 76 Ind. 236. overruled.</p>

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

<p>Bastabdy. — Escape.—Constable’s Bond. — A constable, negligently suffering the escape of a defendant in a bastardy prosecution, who has been committed to his custody by a justice of the peace, breaks the condition of his bond.</p> <p>Same. — Measure of Damages.' — Insolvency.—Prima facie, the recovery on the bond in such case should be the amount adjudged against the defendant in bastardy on trial in the circuit court, and the insolvency of the defendant in bastardy is no mitigation.</p> <p>Same. — Action on Constable’s Bond. — Answer.—In a suit on the constable’s bond, a plea that the defendant in bastardy was not guilty is bad.</p>

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

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

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

<p>Cbimistal Law. — Cause for New Trial — Improper Evidence. — Misconduct of Jury. — Under section 1842, E. S. 1881, where it is shown that the jury has received and considered any evidence, paper or document, not authorized by the court, such misconduct of the jury will constitute a sufficient cause for a new trial.</p> <p>Same.— Verdict. — Affidavits of Jurors. — In such a case, the affidavits of the jurors are not competent for the impeachment of their verdict; but they are admissible for the purpose of showing that they had not, in fact, been guilty of the apparent misconduct charged against them, in order to sustain their’ verdict.</p>

<p>Default. — Setting Aside Judgment. — Amendment of Summons. — Name.— Judgment by default was taken against a railway company, the summons. and return naming it as a railroad company; at the same tevm the default and judgment were set aside and the plaintiff permitted to amend the summons and return by inserting the name of the defendant as a railway company and judgment then again taken on default.</p> <p>Held, on appeal, that no error was committed in setting aside the default- and judgment and permitting the amendment of the writ and service, the record showing that the proper representatives of the company had. due notice of the action by such summons.</p>

<p>Will. — Construction.—Supreme Court. — Evidence.—Bill of Exceptions. — Complaint by an administrator with the will annexed, to have the will construed. There was a trial by the court and a finding. .The terms of the will were such that parol evidence might have been admitted to aid in its construction, and it appeared by the record that evidence was heard, but there was no bill of exceptions containing it.</p> <p>Held, that the Supreme Court could not review the action of the court below in refusing a new trial, nor could it consider whether or not the court had erred in construing the will.</p>

<p>Railroad.— Killing Animals. — Fence.— Burden of Proof. — In an action against a railroad company for killing stock at a place on its track where the fence enclosing it was not securely maintained, the burden is upon it of showing reasons for its failure to properly maintain a secure-' fence at that place.</p>

<p>Promissoby Note. — Principal and Surety. — Estoppel.—Where one signs a note containing'a stipulation that all whose names are signed thereto agree to be held as principal debtors, he is estopped from asserting as against the obligee that he is a surety.</p> <p>Same. — Set-off.—A claim in favor 'of one only of several defendants can not be set off against a note executed by them in a suit by the payee thereon.</p> <p>Same. — Statute Construed. — -Where one executes a note, agreeing therein that he is a principal, he can not claim a right to a set-off under the statute, E. S. 1881, section 349.</p>

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

<p>Railroad. — Tax.—Donation.—Public Aid. — Forfeiture.—-Statuses Gomstrued.— Section 18, 1R. S. 1876, p. 740, and section 3, Acts 1872, p. 56, concerning the forfeiture of aid to the construction of railroads, apply only in cases of donation, and not where stock has been subscribed. Nor do they apply where a portion of the tax levied has been collected and paid to the railroad company.</p> <p>Law of Case. — The law as stated by the Supreme Court remains the law of the case, as between the parties, upon a second appeal.</p>

<p>Promissory Note. — Evidence.—Declarations.—Decedents’ Estates. — In an action upon a promissory note executed by a decedent, payable out of his estate after his death, it ,is error to admit evidence of declarations of . the decedent in reference to the note made after its execution, and in the absence of the payee.</p> <p>Same. — Consideration.—In such case evidence of a valuable consideration is necessary to support the note.</p>

<p>Judgment. — Principal and Surety. — Pleading.—Error in presenting an issue-by answer, as to the question of suretyship in an action upon a note, instead of by cross complaint, does not make the judgment establishing-the suretyship void; nor does the fact that such pleading was not properly signed affect the validity of the judgment.</p> <p>■Same. — Jurisdiction.—•Presumption.—Where the record of a court of general jurisdiction is silent upon the subject, jurisdiction will be presumed.</p> <p>Same. — Where a plaintiff takes judgment, in an action upon a promissory note, on the same day that one of the defendants files an answer of suretyship, and a judgment is entered accordingly, such plaintiff can not afterwards question the jurisdiction of the court on account of want of legal service of process.</p> <p>.Same. — Notice.—Collateral Attack. — -The judgment of a court of general jurisdiction can not be collaterally attacked where there has been some service of notice, although such notice and service may be materially defective.</p>

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

<p>Corporation. — Franchise.—Forfeiture.—A cause of forfeiture of a franchise can not be taken advantage of collaterally, or otherwise than by a direct proceeding for that purpose, and this can be brought only by the government which granted the franchise.</p> <p>Lotteries. — Contract.—Vested Ric/ht. — Constitutional Law. — Case Overruled. —• A State may, in the exercise of its police power and in the interest of good morals, take away and abrogate a lottery privilege previously granted, without impairing the obligation of a contract within the meaning of the Constitution of the United States. ILettum, v. State, 66 Ind. 588, overruled.</p> <p>Same. — Sale of Lottery Tickets.— Vincennes University. — Criminal Law. — The lottery privilege conferred on.the Vincennes University by the Territorial Legislature in 1807 was taken away by section 8, art. 15, of the State Constitution, and the statute (R. S. 1881, section 2077,) makes the sale of lottery tickets a crime.</p>

<p>Fraudulent Conveyance.— Consideration.— Where the grantor and grantee of real estate combine in a fraudulent design to defraud creditors, the conveyance will not be protected as against theift, though a full consideration was paid by the grantee.</p> <p>Same. — Bestilling Trust. — Property fraudulently conveyed is held by the grantee in trust for the creditors of the grantor.</p> <p>Same. — Complaint.—Mortgage.—A complaint averred that C. induced V., the plaintiff, to become surety for her on an appeal bond, representing that she was the owner of unencumbered real estate, and by executing-thereon a mortgage, securing him from loss ; that he was compelled to pay, as surety, a certain amount; that at the time of the execution of ■the mortgage the real estate was encumbered by a judgment in favor of B. &T.; that on this judgment the property was sold and bought in by them; that the sale was fraudulently made for the purpose of keeping the property out of the reach of the creditors of C.; that she retained possession of it; that there was an agreement that B. & T. should hold the property for the use of C. until she desired a reconveyance; that V! had no knowledge of the judgment until after the sheriff’s sale, and that he had tendered the full amount of the judgment, interest and costs to B. & T.</p> <p>Held, in an action to foreclose such mortgage and to redeem from the sale under the judgment, that the complaint was sufficient.</p>

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

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

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

<p>Chubches. — Courts, Ecclesiastical and Civil. — Jurisdiction.—Religious Society. —Civil courts in this country have no ecclesiastical jurisdiction. They can not revise or question ordinary acts of church discipline, and can only interfere in church controversies when civil rights, or the rights of property, are involved.</p> <p>Same. — Civil and Ecclesiastical Rights. — Adjudication by Ecclesiastical Tribunal. —When a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil right, and nothing more, taking the ecclesiastical decisions out of which the civil right has arisen as it finds them, and accepting those decisions as matters adjudicated by another jurisdiction.</p> <p>Same. — -Determination of Doctrinal Questions. — The civil courts act upon the theory that the ecclesiastical courts are the best judges of merely ecclesiastical questions, and of all matters which concern the doctrines and discipline of the respective denominations to which they belong.</p> <p>Same. — Ecclesiastical Jurisdiction. — When a person becomes a member of a church, he becomes so upon the condition of submission to its ecclesiastical jurisdiction, and, however much he may be dissatisfied with the exercise of that jurisdiction, he has no right to invoke the supervisory power of a civil court so long as none of his civil rights are involved.</p> <p>Same. — Schism.—Manner of Determining Right to Property of Organization.— Where a schism occurs in an ecclesiastical organization, which leads to-a separation into distinct and conflicting bodies, the respective claims of such bodies to the control of the property belonging to the organization must be determined by the ecclesiastical laws, usages, customs, principles and practices which were accepted and adopted by the organization before the division took place.</p> <p>Same. — Society of Erlends. — Organization.—Meetings.—Jurisdiction of. — The Society of Friends has a regular organization, consisting of a series of religious bodies, holding certain, relations to each other, and known as Meetings. The first of these Meetings is the Preparative, organized primarily for worship. The next in grade is the Monthly Meeting, made up of delegates from the Preparative Meetings. The third is the Quarterly Meeting, composed of delegates "or representatives from the Monthly Meetings. The fourth is the Yearly Meeting, consisting chiefly of representatives from the Quarterly Meetings, and having a final and controlling jurisdiction in all matters of faith, religious duty, administration and discipline, within its territorial limits.</p> <p>Same. — Separation of Yearly Meeting. — Recognition by Oivil Courts. — When a. Yearly Meeting separates into two distinct and competing bodies, the body which adheres most closely to the ecclesiastical laws and usages under which such Yearly Meeting was brought into existence, and to the acknowledged organism of the Meeting as it existed before the separation took place, and which is recognized by its co-ordinate Yearly Meetings, will be accepted by the civil courts as the true Yearly Meeting.</p> <p>Same. — Quarterly Meeting. — Decision of Yearly Meeting as to Property Rights Binding on Civil Courts. — When a Quarterly Meeting divides into two separate and conflicting bodies, and one of these bodies, to the exclusion of the other, is recognized by the proper Yearly Meeting as constituting the true Quarterly Meeting, the decision of the Yearly Meeting in tiiat respect, when established as a fact, is binding upon the civil courts as regards questions of property arising out of the division between such separate and conflicting bodies.</p> <p>Same. — Eleemosynary Corporation. — An eleemosynary charity is, in the general scope of its benevolence, essentially unsectarian, and can only be made sectarian by having such limitations and restrictions placed upon it by the donor as make it so.</p> <p>Same. — Trust and Trustee. — The mere making of an ecclesiastical organization a trustee for an ordinary eleemosynary charity does not of itself give a sectarian character to the charity.</p>

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

<p>Negligence. — Street.—Reckless and careless riding or driving upon a public street, whereby another, without fault, is injured; is actionable. Same. — Street Crossing. — Contributory Negligence. — The fact that a footman crosses a street elsewhere than at the usual crossings is not per se contributory negligence which will defeat air action against another who injures him by recklessly riding or driving against him.</p> <p>Same. — Eddenee.—Municipal ordinances regulating the speed of driving may be considered in determining whether the defendant was guilty of recklessness in driving against the plaintiff.</p>

<p>Execution. — Exemption.—Schedule and Affidavit. — In the absence of the execution defendant, the affidavit of his wife claiming exemption of property from execution under the act of 1861 (Acts 1861, p. 119), her affidavit for that purpose, verifying the schedule, showing that the schedule contains “ a full and true account of all * * • property ” of her husband “ and held by him at the date of the issuing of the execution,” is sufficient without the words “ or in which he then had any interest.”</p> <p>'Same. — Statute Construed. — Statutes exempting property from execution are to be liberally and reasonably construed.</p> <p>Same. — Replevin.—Evidence.—Instruction.—Where a schedule and affidavit, made to claim property exempt from execution, showed some chattels sold after the execution issued, but did not account for the proceeds thereof, it is not error to instruct the jury in an action of replevin by the execution defendant against the sheriff, for the goods seized, that if it was shown by the evidence that the goods sold and not sold did not exceed §300 in value, that would be a sufficient accounting for the proceeds of the goods sold.</p> <p>Same. — Evidence.—In replevin against the sheriff for goods levied on by execution, claimed as exempt, the schedule and affidavit made by the wife, of an absent debtor and presented to the sheriff, with a demand for exemption pursuant to the statute, are admissible in evidence.</p> <p>.Same. — Householder.— Housekeeper.— Statute Construed. — A householder, in the sense of the statute exempting property from execution, is not necessarily a housekeeper; it is sufficient if he be the head of a family to whose support he contribute^. ’’ - -—</p> <p>RESiDENCE.i-TFíwiitírpiíioS. — Where residence is shown in this State for a number of years, it will be presumed to continue unless the opposite party show that it has been lost; and it is not lost by going to another State and engaging in business there with the intention ultimately of residing there.</p> <p>Peactice. — Interrogatories.—New Trial. — Error of the court in refusing to require specific answers to interrogatories sent to the jury is only available as a cause for a new trial.</p> <p>Same. — Supreme Court. — Where the record does not show that interrogatories have been sent to the jury in the manner contemplated by the statute, R. S. 1881, section 546, no question upon a refusal to require more specific answers thereto will be considered by the Supreme Court.</p> <p>Same. — Instructions.—An instruction to the jury which is correct as far as it goes; but not full enough, can not he questioned in the Supreme Court, unless the lower court has refused, on request, to give a fuller one on the subject.</p> <p>Same. — Evidence—li the plaintiff fail to prove some essential fact, and the-defendant supplies the omission, it is sufficient.</p> <p>Same. — Instruction.—An instruction which assumes a fact which is conclusively shown by the evidence is not objectionable therefor.</p>

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

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

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

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

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

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

<p>Drainage.— Assessment. — Work and Labor.— A paragraph of complaint, averring that the plaintiff had instituted proceedings for the establishment and construction of a drain, which was defective, that the defendant and others benefited had executed a written waiver of irregularities, that on the request of the defendant the plaintiff constructed the drain, and the defendant promised to pay Ilia share, which benefited the defendant $600, and that the defendant stood by and saw the work done, is good on demurrer.</p> <p>Practice. — Pleading.—General Denial. — Where the general denial is.pleaded, a special paragraph, averring facts which merely controvert the complaint, is needless, and it is not available error to sustain a demurrer to it.</p> <p>Same. — Record.—Supreme Court. — A motion to strike out a pleading, and the pleading struck out, unless made part of the record by bills of exceptions or other proper proceedings, can not be noticed by th£ Supreme Court.</p>

<p>Beoeiveb. — Appointment of. — Collateral Attach. — An order of court appointing a receiver can not be collaterally attacked.</p> <p>Same. — Mortgage.—Bents.—Where mortgaged property is insufficient to pay the debt, and the debtor is insolvent, the creditor may have a receiver appointed to collect and apply the rents to the payment of the mortgage debt.</p> <p>■Same. — Bes Adjudicata. — Where a decree has been rendered adjudging that the mortgagee is entitled to the rents accruing from the mortgaged property, and a receiver is appointed and directed to collect and apply the rents to the mortgage debt, the mortgagor can not afterwards claim that he is entitled to such rent.</p> <p>■Same. — Execution.—Exemption. —Where the mortgagee, in a suit to foreclose, asks for the appointment of a receiver, claiming the application of rents to the payment of his debt, the proper time for the mortgagor to claim such rent as exempt from execution is upon the hearing of the motion for the appointment of a receiver.</p> <p>¡Same. — Answer.—Judgment.—Collateral Attack. — Suit by a rhortgagor against a mortgagee to recover rents collected by a receiver appointed in a suit to foreclose the mortgage. Answer, that the money belonged to W., who had been appointed receiver to collect the rents, and was directed by decree of the court to pay the same to the defendant upon his demand, for the reason that the mortgaged premises were not sufficient to pay the debt, and that the plaintiff was insolvent; that the sum realized on sale of the mortgaged property, with the rents collected as decreed, is not enough to satisfy the mortgage debt.</p> <p>Meld, that the answer was good on demurrer, and that the decree directing the receiver to pay the rents to the mortgagee was an adjudication which ■could not be attacked collaterally.</p>

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

<p>Husband and Wife. — Tort of Wife. — Judgment.—Execution.—Exemption.— At common law, the husband is liable for the tort of his wife, not on account of any breach of the marriage contract, but as an incident of the marriage relation or status. Therefore, whore judgment was rendered against a husband for the tort of his wife, and an execution was issued thereon, he could not claim any part of his property as exempt from sale on such execution upon the ground that his liability for his wife’s tort resulted from his marriage contract with her.</p> <p>Same.— Wife’s Tort. — Statutory Rule. — -Under section 5120, R. S. 1881, in force since September 19th, 1881, husbands are not liable for the torts of their wives.</p>

<p>Corpobation. — Name.—Pleading.—Where the name 'of the plaintiff imports a corporation, it is not necessary to aver in the complaint that the plaintiff is a corporation.</p> <p>Same. — Endorsement.—-The endorsement of a note to “ The trustees of the Indiana Asbury University ” does not vest title in the persons who are trustees, and where there is a further endorsement, “ Trustees of Indiana Asbury University, by John W. Ray, treas.,” it will not be assumed, contrary to averment,that Ray had no authority to make such endorsement.</p> <p>Pleading. — -Complaint.—Amendment.—A complaint on a note, and to foreclose a mortgage securing it, may be amended, without leave, at any time before trial, by the withdrawal of so much as relates to the mortgage.</p> <p>Same. — Answer After Issue. — The refusal to permit the defendant, after the issues are closed, to plead an additional defence, which, if true, must have been known before, is not error.</p> <p>Same.— Variance. — Name of Bank. — The variance between “ 1st Nat. Bank of Crawfordsville, Ind.,” and “ First National Bank of Crawfordsville,” is amendable on the trial, and will not be regarded in the Supreme Court.</p>

<p>Sheriff’s Beturn. — Amendment.—Record.—Practice.—A motion by a sheriff for leave to amend his return to a writ, so that the return may speak the whole truth, is not a civil action; pleadings, issues, a jury trial and change of venue are improper, but the court should grant the leave, on a showing by affidavit or otherwise, whenever the truth and justice require it, and may direct the clerk so to amend the record of the return that it will be as the amended return.</p> <p>Same. — A sheriff’s return to a writ is made on his official responsibility, and he only can afterwards amend it, but it must be on leave. The court can not compel him to correct it.</p>

<p>Judge. — Appointment Pro Tern. — On the first day of the term a judge pro tem., duly appointed, held the court. On the second day another judge pro tem., appointed on that day, appeared and held the court, and did so for several days, the record during those days being silent as to the one first appointed. Semble, the second appointee had due authority.-</p> <p>Intoxicating Liquob. — Gift on Sunday. — Evidence.— Witness. — Cross-Examination. — Prosecution against a bartender at a drinking shop, for giving away liquors on Sunday in violation of section 2098, R. S. 1881. As a witness for himself the accused testified that he had orders from his employers, which he obeyed, not to do the thing charged.</p> <p>Held, that he might be asked on cross-examination whether he had not done the same thing on other Sundays.</p> <p>'Ckiminal Law. — Seasonable Doubt.- — Jury.—Duty.~Imtructions.—Ea,eh juror should act for himself upon his individual convictions, and if, in a criminal case, he have a reasonable doubt of the defendant’s guilt, he should not convict, but his doubts should not control the action of other jurors, and an instruction to that effect is proper.</p>

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

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

<p>Pbactice. — -Admission of Evidence. — Cause for New Trial. — Supreme Court.— The admission of improper evidence is an error of law occurring at the trial, and must be assigned as such in the motion for a new trial, to present any question for the decision of the Supreme Court.</p> <p>Decedents’ Estates. — Trial of Claim. — Interrogatories to Jury. — Instructions. —Under section 2325, R. S. 1881, the trial of a claim against a decedent’s estate is to be conducted as the trial of' an ordinary civil cause, and therefore it is proper for the court, on the trial of such a claim by a jury, to instruct them at the request of eifher party, if they render a general verdict, to find specially upon particular questions of fact to be stated in writing. In such case an exception to such instruction will present no objection to either the form or substance of any interrogatory.</p> <p>Husband and Wife. — Earnings of Wife. — Sole Property of Wife. — Under section 5130, R. S. 1881, the earnings and profits of a wife, accruing from her trade, business, services or labor, other than labor for her husband and family, are her sole and separate property, and the common law rule to the contrary is superseded and abrogated.</p>

<p>Town. — School Trustees.— Township Trustee. — ■ School Fund. — Mandate.—Relator. — Where money has been apportioned to a school township and received by the trustee thereof, some of which belongs to a school town afterwards organized, and he refuses to pay it over, he may be compelled by mandate to do so, and the school trustees of the town are the proper relators in such a suit.</p> <p>Same.- — Organization of Corporation. — The regularity of the organization of the town as a corporation can not be questioned in such a proceeding, nor is it necessary to prove more (if anything on that subject) than the exercise of corporate functions.</p> <p>Peactice. — Error.—The sufficiency of a reply can not be questioned for the first time in the Supreme Court, but objections thereto must he properly presented to the trial court.</p>

<p>Pbactice. — Open and Close. — Burden of Issue. — On appeal from proceedings before a board of commissioners in reference to the location of a highway, where the remonstrance, having been amended in the circuit court, is for damages only, the remonstrant is entitled to open and close, because he has the burden of the issue.</p>

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

<p>Pleading.— Uncertainty. — Demurrer.—Mere uncertainty in a pleading can not be reached by demurrer.</p> <p>Line Instjbance. — Forfeiture.-—Fraud.—Contract.—Performanee.—ComplainL —Premiums.—A complaint, in an action to recover premiums paid on a forfeited life insurance policy, alleged that a life policy had been assigned to the plaintiff with the approval of the insurance company. The premiums were to be $155 per annum, payable quarterly, and were so paid for six years, when the plaintiff, being ready to pay, could find no agent of the defendant, at the usual place, to receive the money, and the defendant then declared the policy forfeited for non-payment of that premium. It was offered the next day to an agent elsewhere. There was no averment that the plaintiff had performed the conditions of the contract, nor what such conditions were.</p> <p>Held, on demurrer, that the complaint was insuificient.</p> <p>Held, also, that if fraud in declaring the policy forfeited was relied on, the facts constituting it should have been alleged.</p> <p>Held, also, that where a risk attaches premiums paid during its continuance can not be recovered back.</p>

<p>Constitutional Law. — Appropriation, of Money. — Auditor of State. — Treasurer of State. — Under section 3 of article 10 of the State Constitution of 1851 (sec. 195, R. S. 1881), no money can be drawn from the State treasury except in pursuance of appropriations made by law; and, under section 5639, R. S. 1881, the Auditor of State is prohibited from drawing a warrant, and in section 5638, R. S. 1881, the Treasurer of State is expressly prohibited from paying a warrant, unless there be money actually in the treasury specifically appropriated by law to the purpose for which such warrant is drawn.</p> <p>Mandate. — Justice of Claim. — The justice of the relator’s claim, which is apparent and unquestioned, does not authorize the courts to require by mandate the Auditor of State to issue his warrant, or the Treasurer of State to pay such warrant, for the amount of such claim, where no money is set apart for such purpose by an appropriation made by law.</p> <p>Same. — Appropriation for Future Purposes. — Antecedent Debt. — The act of February 23d, 1883, making specific appropriations for the completion and furnishing of the department for women of the Indiana Hospital for the • Insane, and for the construction of a warehouse and two coal-houses for such institution (Acts 1883, p. 25), makes appropriations for future purposes, and the moneys thereby appropriated can not be diverted from such future purposes and applied to the payment of an antecedent debt of such institution.</p>

<p>Practice. — New Trial. — A motion by a defendant for a new trial, upon “ his paragraphs of counter-claim and set-off,” though they were the only pleadings upon which issues were made, raises no question. The motion should be ft>r a new trial generally.</p> <p>Same. — Exceptions.—An exception to two or more rulings in gross reserves no question.</p>

<p>Subvey. — Appeal.—Practice.—Pleadings in tlfe circuit court, on appeal from a suiVey by a county surveyor, are unnecessary and inappropriate. Same. — Judgment on Appeal. — If in sucb case tlie survey be found incorrect, the court may order a re-survey and appoint a competent person to make it (E. S. 1881, section 5955), but it is error to direct him how to make it.</p>

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

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

<p>Intoxicating Liquors. — Sale as Medicine. — Statute Construed. — Section 5320, R. S. 1881, is not violated by selling less than a quart of intoxicating liquor without license, in good faith, for medicinal purposes, but prudence and caution are required of the seller.</p> <p>Same. — -Eddence.—As to the evidence sufficient to sustain a finding that intoxicating liquor was sold unlawfully and not for medicinal purposes, see opinion.</p>

<p>Cbimxnae Law. — Imperfect Transcript. — Dismissal of Appeal. — Certiorari.—In criminal law, as a general rule, the fact, though apparent, that the trant script is imperfect, affords no sufficient ground for the dismissal of the-appeal; but in such case the remedy of the complaining party is by writ of certiorari, to correct the transcript.</p> <p>Same. — Duplicity in Criminal Pleading. — Motion to ■ Quash.— In criminal pleading, there can be no joinder of separate and distinct offences in one and the same count. Where the information or indictment charges the defendant in a single count with two or more substantive offences, it is bad for duplicity, and the defendant’s motion to quash the same should be sustained.</p>

<p>Gbavel Roads. — Competing Lines. — Injunction.—A gravel road company,, organized under the general laws of this State, can not prevent by injunction the construction of another competing line of turnpike, which is to be free from tolls.</p>

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

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

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

<p>Pleading. — Demurrer.—Form.—A demurrer assigning as cause “ that said paragraphs, nor either one of them, contain facts sufficient to constitute a cause of action,” is sufficient under the code.</p> <p>Same. — Statute of Limitations. — The statute of limitations is not available on demurrer to a complaint, unless the complaint affirmatively shows that the case is not within any of the exceptions to the statute.</p> <p>Decedents’ Estates. — Administrator’s Sale of Deal Estate. — Master Commissioner. — Bond.—Consideration.—Common Law. — An administrator, on proper petition in 1876, obtained an order to sell real estate of the decedent; a master commissioner was appointed to make the sale, and he gave bond, with sureties, conditioned for the faithful discharge of his duties. He sold the land and converted a part of the proceeds to his own use. •</p> <p>Held, that the appointment of the commissioner was without authority of the statute and void, that the sale was void, and that the bond was void by statute, and, being without consideration, it was also void as a common law bond.</p>

<p>Special Findings. — A special finding of facts by the court, which fails to find as to a fact in issue, is equivalent; to finding it against the party having the burden of that issue.</p> <p>Same. — New Trial. — If pertinent and material facts be proved, and there be no finding upon them, the remedy is by motion for a new trial and not for a venire de novo.</p> <p>Fraudulent Conveyance. — Intent.—Notice.—When a conveyance is assailed as fraudulent as against the creditors of the grantor, the grantee-not being a volunteer, both the fraudulent intent of the grantor and notice thereof to .the grantee must be shown.</p> <p>Same. — Sheriff’s Sale.— Agreement. — Consideration.— Husband and Wife.— Notice. — Creditor’s Bill. — One insolvent and largely indebted, in order to defraud his creditors, procured an uncle of his wife to buy at sheriff’s sale his lands worth $12,000, at that sum, upon an agreement that the uncle should, as he did, actually pay off the execution, $1,559.92, and give the land to the debtor’s wife. The debtor, as agreed, receipted for the excess of the bid, and the uncle assigned the sheriff’s certificate to» the wife, who took a sheriff’s deed.</p> <p>Held, that, it not appearing that the uncle or the wife had notice of fraud, creditors could not subject the land to the payment of their demands.</p>

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

<p>Award. — Fraud.—Contract.—Set-Off.—In a suit for work-and labor in the building of a house, the defendant pleaded, as a set-off, that the work was done under a special contract to build the house for $375; that after it was done a dispute arose as to the character of the work, which was referred to arbitrators, who had awarded the defendant $25, and given notice of their award. Reply, that at an adjourned meeting of the arbitrators the defendant, the plaintiff being absent, by false statements as to the facts, procured the award.</p> <p>Held, that the reply was bad on demurrer.</p> <p>'Contract. — Abandonment.—Evidence.—Instruction.—In a suit for work and labor in erecting a house, it was in question whether a special contract therefor had been abandoned. The jury was instructed that if, by direction of the defendant, the house erected was so different from that contracted for that all traces of the latter were so far lost that the one can not serve as evidence to identify the other, the fact might be considered as a circumstance tending to prove that the special contract had been mutually abandoned.</p> <p>Meld., that the instruction was erroneous.</p>

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

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

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

<p>Pleading. — Answer.—An answer filed to the entire complaint, but only answering a part thereof, is had on demurrer.</p>

<p>Gbavel Boads. — Tolls.—There is nothing in the statute concerning the organization of gravel road companies which prohibits them from inserting in their articles of association a clause that their roads shall be free. R. S. 1881, section 3624</p>

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

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

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

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

<p>Demurrer. — Answer.—Complaint.'—A demurrer to an answer reaches the complaint, and, if the complaint is insufficient, it is error to sustain the demurrer, whether the answer is good or bad.</p> <p>Drainage. — Commissioner.—Suit for Assessment. — Lien.—Notice.—Complaint. —Demurrer.—A complaint by a drainage commissioner, under section 4277, R. S. 1881, to enforce a lien upon lands for benefits assessed, is insufficient unless it avers that notice of the establishment of the work by the court has been recorded in the recorder’s office of the county, as a lien for such assessments does not attach until such notice has been recorded, and this question is presented by a demurrer to the answer.</p>

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

<p>'Conveyance.— Condition Subsequent.— Construction.— A condition subsequent is not favored, and is therefore very strictly construed.</p> <p>Same. — Forfeiture.—A conveyance of lands recited that it was made “ expressly for the use and purpose of depot grounds for the M. & I. railroad,” and that if there should be afailure to erect buildings and occupy it for that purpose, the land should revert to the grantors. After the erection of buildings and use of the land for the purpose specified for thirty-three years, it ceased to'be so used, and a new location was made.</p> <p>Held, that the condition was performed, and there was no forfeiture.</p>

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

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

<p>Interest.— Usury. — Recoupment.—Statute Construed — Usury paid while the-act of 1861 (1 R. S. 1876, p. 600) was in force, can not be recouped in a suit brought for the debt after the act of 1879 (Acts 1879, p. 43) took effect.</p> <p>Supreme Court. — Reversal of Judgment. — Error.—Affirmance on appeal, notwithstanding hurtful error, pursuant to sections 398 and 658, R. S. 1881, is justified only when it affirmatively appears by the record that the merits of the cause have been fairly tried and determined; but if this be uncertain there will be a reversal.</p>

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

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

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

<p>Dbaiítage. — Commissioner of. — Petition for Drain. — Notice.—Statute Construed. —The circuit court has no power, under the provisions of the act of April 8th, 1881, R. S. 1881, sections 4273, 4284, to refer a petition for the location of a ditch to a commissioner of drainage until an affidavit has been filed showing that notice has been given as required by the 3d section of said act, section 4275, R. S. 1881.</p> <p>Same. — Defective Affidavit. — A defective affidavit will not authorize the reference, nor will a sufficient one subsequently filed cure the defects, as the requirement that notice must he shown by affidavit filed is a condition precedent to the power to make the reference.</p> <p>Same. — Service of Process. — Where an insufficient affidavit is filed, the service of process must be deemed defective, and this is good cause for reversal upon appeal.</p> <p>Same. — The 8th section of said act, section 4280, R. S. 1881, which provides that the judgment shall be deemed conclusive, that all prior proceedings were regular and according to law, can not apply to such prior proceedings as confer jurisdiction, and, hence, can not cure a defect in the service of process.</p> <p>Same. — Presumption.—Where proof of the service of process is in the record, its sufficiency is in no manner aided by any presumption.</p> <p>Same. — Constitutional Law. — It does not follow because certain provisions of said act may be invalid, that the entire act is unconstitutional, and as appellant’s personal property was not sold, and he was not denied a trial by jury, the constitutionality of these particular provisions does not arise and can not be considered.</p> <p>Same. — The act in question is not unconstitutional, for the reason that no provision is made for personal service of notice upon the owner of the laud affected by tlie location of sucli ditch, nor for the further reason that the commissioners of drainage discharge their duties under the control and subject to the order of the court.</p>

<p>Judgment. — Evidence.—Jurisdiction.—Former Recovery. — Record of Justice.— The record of a judgment of a justice of the peace, or other court of inferior and limited jurisdiction, in order to be valid evidence of a former recovery, must show affirmatively that jurisdiction was acquired.</p> <p>Same. — Attachment.—Garnishment.—Notice.—Publication.—In an attachment case before a justice of the peace, wherein the summons against the principal defendant has been returned unserved, and no property has been attached, there can not be entered a valid judgment against a garnishee until after due notice by publication to the principal defendant has been had; and that it has been had must be shown by the record.</p> <p>Same. — In such case, the record being silent, it is not competent to supplement it by proof that the proper notice was published, and that the principal defendant had knowledge of the action before judgment was taken against the garnishee. 11</p> <p>Pbactice. — Depositions.—Motions to quash depositions should be made before the commencement of the trial.</p>

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

<p>■Statute of Frauds. — Contract.—Whenever so much of a contract as would otherwise be within the statute of frauds is executed, the remaining stipulations may be enforced.</p> <p>Vendor and Vendee. — Contract.—Title.—When a vendor actually secures to his vendee the title contracted for orally, the purchase becomes valid, and the purchaser is bound for the purohase-money, according to the '.terms of his promise.</p>

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

<p>Vendob and Vendee. — -Fraud.—Contract.—Sheriff’s Sale. — Redemption.— Deed. — Consideration.—Agreement.—O., a weak-minded, confiding old man, owned 300 acres of land, worth $18,000, which had been sold on execution for$2,138.92, subject to a mortgage of $5,000, and the sheriff’s certificate was held by L., who, with S. and F., confederated for the purpose of swindling O. out of the land and dividing its proceeds amongst themselves. The plan was to prevent O. from redeeming from the sheriff’s sale. S., who was wealthy and had the unbounded confidence of O., became his adviser, and professing much friendship and sympathy for O., who was embarrassed financially and also in domestic trouble, and by orally agreeing to purchase 180 acres of the land at a price and terms, for cash, which would afford money in time to redeem, and more than- enough also to discharge the mortgage, he prevented O. from making another arrangement to redeem, and then by divers falsehoods and tricks avoided the performance of his agreement until the year for redemption had expired and L. had obtained a sheriff’s deed. Then, by like fraudulent devices, he obtained from O. a quitclaim of all his land, upon the agreement that if he succeeded in getting in the title conveyed by the sheriff he would still comply with his parol contract to purchase. Upon learning how he had been cheated, O. brought suit to vacate his deed to S., but was defeated because he had not tendered the money paid to the sheriff.</p> <p>Held, that upon these facts O. would Recover from S., as in indebitatus assumpsit, the price of the 180 acres as agreed by the oral contract, and the value of the residue of the land less the encumbrances.</p>

<p>Review oe Judgment. — Where a judgment sought to be reviewed was on default, after due service of process,’the complaint being sufficient to withstand a demurrer, a complaint for review can not be maintained.</p> <p>Mortgage. — Husband and Wife.— Wife’s Inchoate Interest in Beal Estate. — • Appearance.— Waiver. — -A wife whose inchoate interest in real estate has become absolute by ajudicialsale, under sec. 2508, R.S. 1881, is entitled, in a suit to foreclose a mortgage which she joined her husband in executing, if she appears and demands it, to an order in the decree directing that the husband’s interest be first offered for sale, and that, if it brings a sufficient sum to pay the debt, her interest be not sold.</p> <p>Quaere, whether she waives such right by failing to appear and assert it.</p>

<p>Execution. — Lien.—Where judgment liens on land accrue at the same time, the execution first issued and levied gives priority.</p> <p>Same. — Sheriff’s Sale After Return Lay. — If an execution be levied on land before the return day, a sale afterwards will be valid.</p>

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

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

<p>Common Carrier. — Delay in Transportation. — Special Contract. — Evidence.— Variance. — Where an action is brought against a common carrier to-recover damages for an alleged delay in the transportation and delivery of live-stock, and the complaint counts upon a breach of the common law duty of such cSrrier, if the evidence show a special contract, which was not declared upon for the transportation of such stock, the variance is fatal and the plaintiff can not recover.</p> <p>Same. — Delay Caused by Mob. — Insurrection and Riot. — In such case, where the delay in transportation of stock is caused, not by the negligence or wrongful act of the carrier or its employees, but solely by the violence and riotous conduct of a lawless mob, which the carrier and the civil authorities of the State are alike unable to resist or control, the defendant is not liable for the damages resulting from such delay.</p>

<p>Real Estate. — Action to Recover. — Description.—A description of real estate which furnishes a starting point and gives the boundary line by admeasurement is not void for uncertainty, though the monuments given are-not fixed, and the distance between certain points is given as so many feet, more or less, as in such case the monuments may be disregarded and the phrase “ more or less ” treated as surplusage.</p> <p>Same. — A statement, following such description, that .the land described is the same acquired from “ S., excepting a tract 25 feet wide by 651-feet long, conveyed to I.,” does not show that any portion was excepted from the description given, but shows that all the land described, except the lot named, was acquired from S., and does not render the description given indefinite.</p>

<p>Decedents’ Estates. — Claims.— Practice.— Statute Construed. — Two days after a claim was filed against an estate, it was brought to trial over the objection of the administrator.</p> <p>Held, that, under the statute, Acts 1883, p. 155, section 7, this was error. Same. — Liability for Attorney’s Services. — An attorney employed by residuary legatees, performing services beneficial to the estate, can not maintain a claim against the estate therefor. It is otherwise where the employment is by the administrator.</p>

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

<p>Guardian and Ward.— Settlement. — Appeal to Supreme Court. — -Until a guardian has finally settled and been discharged, so that he has nothing more to do as guardian, an appeal will not lie from an order of the court concerning the settlement of the guardianship.</p>

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

<p>Deed. —Estoppel.—A deed of real estate, with covenants of warranty, will, as. a rule, estop the vendor from asserting an after-acquired title against his vendee or those claiming under him, but where such a deed simply purports to convey the right, title and interest of the vendor, it will not he such an estoppel.</p> <p>Same. — Covenant of Warranty. — Estoppel.—Vendor and Vendee. — A general covenant of .warranty, contained in a deed by which A., B. and W. convey two separate parcels of land in the northeast quarter of a certain section, is not limited to the interest that W. may have in the first described parcel by the following clause, inserted near the close of said deed, viz.: “And it is the express intention hereby to convey the entire interest of the said Micajah W. White in and to the said northeast quarter of said section,” and said W. is thereafter estopped, by the. execution of such deed, from asserting an after-acquired title to such land as against his vendee, or those claiming through him.</p> <p>'Same. —Action to Beeover Beal Estate. — Answer.—In an action by W. and others to recover such parcel of land from the assignee of the vendee, an answer setting up such conveyance in bar of the action upon the part of W. was sufficient, and the court erred in sustaining a demurrer to it.</p>

<p>Partnership. — Dissolution.—Contract.—■’Where, on dissolution of a partnership, all matters between the partners are settled, one of them agreeing to pay an outstanding note of the firm, which he fails to do, and the other is compelled by suit to pay it, the latter may recover the amount from the former.</p> <p>Same. — Agreement.—Partners may sue each other for breach of an express agreement made between them, e. g., as where, upon a consideration, one fails to pay a partnership debt which he had agreed to pay, and the other is compelled to pay it.</p> <p>Contribution. — One of two joint debtors, who is compelled to pay the whole debt, may maintain a suit against the other for contribution.</p> <p>Statute oe Limitations. — Set-Off.—A set-off is not barred by the statute of limitations, though the full time had elapsed when the plaintiff’s cause of action accrued. R. S. 1881, section 867.</p> <p>Judgment. — Service of Process. — Presumption.—Jurisdiction.—The presumption that there was service of process, which attaches to the silent record of a judgment of a court of general superior jurisdiction, is rebuttable, and when rebutted by evidence the judgment is avoided.</p> <p>Counter-Claim.— Process. — A defendant seeking relief against a co-defendant should file a counter-claim, and bring the co-defendant in by service of process unless he appears.</p> <p>Contract. — Voluntary Seniees. — For voluntary services, without an express-promise to pay, or circumstances from which the law implies a promise, there can be no recovery.</p> <p>Promissory Hote. — Payable in Bank. — Payment.—Presumption.—A promissory note given and received as payment discharges a debt; nor is there any legal presumption that a note so given was not payable in bank.</p>

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

<p>Telegraph Company. — Failure to Transmit Message. — Penal Statutes. — Conflict of Laws. — -The statute (R. S. 1881, section 4176), giving aright to recover a penalty for failure of a telegraph company to transmit a message as required, has no extra-territorial force, and, therefore, is not applicable where the contract was made at an office in another State to-send the message to this State.</p>

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

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

<p>Railroads. — Aid.—Election and Returns. — Infonnality.—Mere informalities in the returns of an election concerning aid to a railroad, which can not possibly prejudice any substantial right, or a failure to conform to any requirement of the statute which is directory only, or an error which is clearly clerical, are not sufficient to defeat the appropriation voted.</p> <p>Same. — • Forfeiture.— Conditions.— County Commissioners. — When a petition for aid is upon conditions, expressed in the petition, that the road shall be completed through the township, and a depot erected thereon, by a day named, a failure to perform the conditions forfeits the aid voted; under the provisions of the statute, R. S. 1881, sections 4045 and 4062 ; and, after such forfeiture, the aid so voted will be no obstacle to voting-aid to another railroad upon proper petition under section 4045.</p> <p>Same. — Cities.—Constitutional Law. —It is no impediment to granting aid by a township that it includes a city which is in debt to the extent permitted by the constitution.</p> <p>Same. — Appeal.—Practice.—On appeal from an order of the county commissioners, levying a tax to meet an appropriation in aid of a railroad, the questions to be tried are those only which have been put in issue before the board.</p> <p>Brief. — Merely calling the attention of the Supreme Court to a question, and asking its judgment upon it, is no such argument of the question as, under the rules of the court, will secure its decision thereon.</p>

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

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

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

<p>Practice. — Carnes for New Trial.— Verdict or Finding. — •Judgment.—Under the sixth clause of section 559, R. S. 1881, the causes for a new trial therein mentioned are predicated upon the verdict of the jury, or the decision in the sense of finding of the court, and not upon the judgment.</p>

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

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

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

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

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

<p>Bill op Exceptions. — Time of Filing. — A bill of exceptions will not be regarded as part of the record unless filed within the time limited by the court.</p> <p>Same. — Fmidence.—Where the evidence is necessary to enable the Supreme Court to properly consider and decide the questions argued, a bill of exceptions containing the evidence must he properly made a part of the record.</p>

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

<p>Beplevin. — Justice of the Peace. — Jurisdiction.—Statute Construed. — The jurisdiction of a justice of the peace, in an action of replevin, is governed by the provisions of section 1433, R. S. 1881, and not by the provisions of section 1547, R. S. 1881.</p> <p>Same.— Bond or Undertaking.— Dismissal of Action. — Error. —Where the plaintiff in replevin, before a justice of the peace, files with the justice an undertaking, as provided in section 1270, R. S. 1881, instead of the penal bond required in section 1547, supra, such undertaking is in substantial compliance with the requirements of the latter section, and is a valid, legal and binding obligation; and in such case it is error to sustain a motion for the dismissal of the action for the want of a penal bond.</p> <p>Same. — Affidavit.— Writ of Bepleuin. — Motion to Quash. — In such a case, where the justice has issued a writ of replevin, the proper remedy of the defendant, if he claims either that the affidavit is defective or that the bond is insufficient, is a motion to quash the writ for either or both of such causes.</p>

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

<p>.KailroAd. — Action Against for Stock Killed. — Fencing.—Where an animal is killed by cars, having entered upon the railroad at a place not fenced <on either side, but where it is practicable to fence only on one side, the railroad company is not liable under the statute. R. S. 1881, sections 4025-4032.</p>

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

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

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

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