Volume 90 — Indiana Reports

<p>Practice. — Filing Bill of Exceptions. — Certificate of Clerk. — It sufficiently appears that a bill of exceptions was filed within the time limited, if the certificate of the clerk authenticating the transcript containing it bears date within the time.</p> <p>-Criminar Law. — Poor Person. — Power of Supreme Court. — The Supreme Court has no authority to appoint or pay an attorney to prosecute an appeal for a defendant in a criminal case, and an attorney so appointed by the court below has full authority to prosecute the appeal.</p> <p>Same. — Cause for New Trial. — That the court admitted “ irrelevant, incompetent and immaterial evidence,” or rejected “competent, material and relevant evidence,” will not be sufficiently specific as causes for a new trial, to present any question; so, also, that the court refused to permit . the defendant to prove by A., B., C., and other competent witnesses, “ the diseased condition of his mind at the time of and before the homicide.”</p> <p>Same. — Competency of Juror. — Constitutional Law. — Section 1793, R. S. 1881, is constitutional, and a juror having an opinion based only on rumor or newspaper statements, but who says upon oath that he can give an impartial verdict on the evidence, may, in the discretion of the trial court, be sworn as a juror, and in such case the Supreme Court will reverse only where it appears that this discretion has been abused.</p> <p>Same. — Practice.—The jury may properly have the indictment when retired to consider of their verdict.</p> <p>Same. — Instructions.—A statement by the court to the jury, that the venue1 of the cause has been changed from another county, is harmless to the1 defendant, as well as unobjectionable.</p> <p>Same. — Evidence.'—On a trial for murder, a general instruction concerning the law of homicide, some parts of which have no application to the evidence, will not be available error, unless in the particular case it seems probable that it might have confused or misled the jury, and this can not be supposed where the verdict is clearly right upon the evidence.</p> <p>Same. — Manslaughter.—An instruction, that “ Voluntary manslaughter is the unlawful killing of a human being, without malice, express or implied — voluntary, upon a sudden heat, as upon adequate provocation the passion has been aroused, and the fatal act is unlawfully and voluntarily committed before sufficient time has elapsed to allow the passion to cool and for reason to resume its sway,” is not erroneous.</p> <p>Same. — Reasonable Doubt. — Jarrell v. State, 58 Ind. 293, followed as to what is a reasonable doubt.</p> <p>Same. — A careful and impartial admonition to the jury of the importance of the cause, in a trial for murder, as well to the rights of the defendant as to the interests of society, is not error.</p> <p>Same.— Verbal Inaccuracies. — An instruction containing, by evident inadvertence or clerical error, a word which is merely inaccurate, as the use of “ description ” instead of “ discretion,” but which could not possibly mislead, is not available error.</p>

<p>County Commissionees. — Frroneous Payments by County Treasurer. — Certificate of County Auditor. — Duty of Auditor of State. — Duty of State Treasurer. —Under the provisions of sections 6510 and 6511, R. S. 1881, whenever it axipears to the board doing county business, in any county, that improper or erroneous payments have been made by the county treasurer to the State Treasurer, the county auditor is required, under the order and direction of the county board, to certify, under his seal of office, such improper or erroneous payments to the Auditor of State, whose duty it is to audit’ and allow the same as a claim against the State Treasurer, and he is required to pay such claim out of any moneys not otherwise appropriated.</p> <p>Same. — Judicial Duties. — Ministerial or Administrative Functions. — In ascertaining that improper or erroneous payments have been made by the county treasurer to the State Treasurer, the county board does not sit as a court nor discharge judicial duties, but merely performs the ministerial or administrative functions of such county hoard, under sections 5916 and 5917, R. S. 1881, in the inspection and examination of the office and books of such county treasurer.</p> <p>Same. — Ministerial Duty. — Judicial Power. — -Mandate.—Where the county auditor, under the direction of the county board, has certified to the Auditor of State that improper or erroneous payments have been made by the county treasurer to the State Treasurer, the Auditor of State has no judicial power, unde'r the statute, over the claim so certified; but it is the plain ministerial duty of the State Auditor to audit and allow such payments as a claim against the State Treasurer, and if, upon reasonable request, the State Auditor refuse to issue his warrant for such payments so certified, he may be compelled by mandate to perform his duty.</p> <p>Same. — ■Certificate of Cownty Auditor. — Defence.—Fraud or Mistake. — Where the county auditor, under his seal of office and by the direction of the county board, certifies that improper or erroneous payments have been made by the county treasurer to the State Treasurer, such certificate is prima fade right and correct and binding upon the Auditor of State, and it can not be impeached or successfully defended against, except upon the grounds of fraud in its procurement or issue, or of mistake therein.</p>

<p>'Constitutional Law. — Special Laws. — ■Mandamus.—Toumship Trustee. — Special laws for the relief of local officers, without whose fault public funds for which they are responsible have been lost, are constitutional and valid; and where the officer, a township trustee, has supplied the lost funds, a special act directing that the amount be refunded to him out of the funds of the township may be enforced by mandamus.</p>

<p>Supreme Court. — Exception.— Witness. — A question was put to a witness, and answered without any objection thereto so far as appeared by the bill -of exceptions, save that after the answer it was stated that “ the plaintiff excepted to the ruling.”</p> <p>Meld, that this presented no question for the Supreme Court.</p> <p>Harmless Error. — Instruction.—An instruction, which is erroneous because it is without the issues and too favorable to the appellant, is harmless as to him.</p> <p>New Trial. — Newly-Discovered Evidence. — Surprise.—Newly-discovered evidence, or surprise, which concerns a matter merely incidental, and which would exert but the slightest, if any, effect upon the cause, is not sufficient ground for a new trial.</p>

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

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

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

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

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

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

<p>Cbiminal Law. — Keeping Devices for Gaming. — Indictment.—An indictment for keeping a device for gaming, under section 2086, B. S. 1881, averring “ that the defendant did, at the county and State aforesaid, unlawfully keep and exhibit a certain' gaming apparatus, to wit, a faro bank, and then and there unlawfully kept the same for the purpose of wagering, winning and gaining thereon money and other articles of value,” sufficiently charges the offence. It is not necessary in such case to describe the particular building or precise spot where the device was kept; properly naming the county and State is sufficient.</p> <p>Same. — Change of Venue. — Jurisdiction.—Jurisdiction vests in the court to which the change is taken in a criminal case, upon the deposit with its clerk of the original papers and a transcript of the proceedings of the court in which the indictment was found.</p> <p>Same. — Presumption.—Where a defendant, who obtains a change of venue, appears in the court to which the case was sent, and goes to trial without objecting to the jurisdiction or suggesting any defects or irregularities, it will be presumed, in the absence of a contrary showing,' that jurisdiction was properly obtained.</p> <p>Same. — Grand Jury. — Where the record'certified shows a due empanelling of the grand jury, it is sufficient without a specific statement of that fact in the clerk’s certificate.</p> <p>Supbeme Coubt. — Evidence.—Leading Questions. — The Supreme Court will not reverse a case because leading questions were permitted, unless it appears that there was an abuse o'f discretion that did substantial injustice.</p>

<p>Decedents’ Estates.— Mortgage of Real Estate by Heir. — Foreclosure.—Sale of Real Estate by Administrator. — Where an heir executes a mortgage upon the real estate inherited by him, and the same is afterwards sold by the administrator of the ancestor for the payment of debts, the mortgagee is entitled to the excess of money arising therefrom, if any, and may, •by foreclosure, before the settlement of such estate, obtain an order against the administrator, requiring him to pay such excess upon the mortgage.</p> <p>Same. — Set-Off by Administrator. — Lien.—In such case, the administrator can not, as against the excess, set off any sum the mortgagor may owe him or such estate, as the mortgagee has a lien upon the money superior to any claim of the administrator.</p>

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

<p>Jud&meht. — Payment.—Payment by one primarily liable as a judgment debtor extinguishes the judgment.</p> <p>.Same. — Sheriff’s Sale. — Assignment of Certificate. — Joint Judgment Debtor.— The land of one of two joint judgment debtors, both principals, was bid in by the plaintiff, whereupon the other debtor paid the debt and took an assignment of the sheriff’s certificate, and afterwards caused a sheriff’s deed to be executed to his wife.</p> <p>Held, that the wife took no title, the payment made having extinguished the judgment. •</p>

<p>Contract.— Waiver of Condition. — A written contract provided that the plaintiff should furnish the defendant 1,000,000 feet of lumber, described, 150,000 feet deliverable per month, commencing at a date fixed, at J., to be paid for on arrival -with bill of lading, etc.; a single shipment only was made, three months after the time fixed for the first delivery, no bill of lading accompanying it, but the lumber was received without objection.</p> <p>Held, that the receipt of the lumber was a waiver of the conditions concerning time of delivery arid bill of lading, and that the plaintiff could recover upon the contract.</p>

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

<p>Indictment.— Venue. — Keeping Owning Apparatus. — In an indictment for keeping gaming apparatus, in violation of section 2086, B. S. 1881, it is sufficient to aver that the offence was committed in the proper county and State, no more particular averment of place being necessary.</p> <p>Same. — Change of Venue. — Clerk’s Duly.— Transcript. — Where a change of venue has been taken, it is unnecessary and impossible to show by the transcript sent to the county to which the change is taken, that the original indictment has been transmitted. It must be sent however.</p>

<p>Keal Estate, Action to Becover. — Ejectment,—Complaint,—Jurisdiction. — Presumption.—Where a complaint in ejectment does not disclose the county in which the land is situated, and a court of general jurisdiction, without objection, proceeds to judgment, it will be presumed after judgment that the land is in the county where the suit was begun.</p> <p>Same. — Description of Lands. — A description of lands in a complaint for possession is sufficient if, by the aid of a competent surveyor and persons knowing the location of monuments mentioned as points in the boundaries, the lands can be found.</p> <p>Same. — Evidence.—Declarations.—Fence.—Boundaries.—Whether a certain fence was the correct boundary between the lands of the plaintiff and defendant, viz., the line between the southeast and southwest quarters of section 19, was in question. The same line of fence continued south beyond the lands of these parties, the plaintiff’s ancestor, from whom he had inherited, once owning lands of which the fence extended south was apparently the western boundary, viz., the northeast quarter of section 30. Evidence of the declarations of the ancestor that this fence in section 30 was too far west was held to be immaterial, and, therefore, properly rejected.</p> <p>Same. — Survey.—Change of Boundaries by Partition Commissioners. — A survey fixing a corner, made by a private surveyor, and not at the instance of any of the parties to a suit or their privies, and without notice to them, is not evidence against either of them; nor can commissioners making partition, by a survey, change the boundaries of the lands parted, to the-profit of the adjacent owners.</p> <p>Same. — Title by Oeaupaney. — Adverse Possession. — Statute of Limitation. — Prescription. — Continuous occupancy and use of land as owner for twenty years to a fence really not upon the true boundary line, takes away the-title of the real owner, and transfers it to such occupant, so that he may maintain ejectment.</p> <p>Instbuctions. — Errors Cured. — An instruction, incorrect by reason of the omission to state a proper qualification of a rule of law, is not available error, if the omission be supplied by other instructions.</p>

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

<p>Supreme Court. — Assignment of JSrrors. — Defect of. Parties. — A complaint can not.be attacked on account of a defect of parties for tlie first time in‘the Supreme Court by a specification in the assignment of errors.</p> <p>Same. — New Trial. — An assignment of errors can not be made to serve the purposes of a motion for a new trial. Rulings admitting or excluding evidence are proper specifications in a motion for a.new trial, but are not in an assignment of error.</p> <p>Guardian and Ward. — Conversion.—Interest.~A ward who has attained his majority may either sue his guardian individually or upon his bond for a conversion of the ward’s money received during the guardianship, and the highest rate of legal interest which the guardian could reasonably have obtained for the use of the money may be allowed.</p>

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

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

<p>■ Jtjby. — Evidence.—Admissions.—Where there is no impeaching or contradictory evidence, and the admissions testified to are corroborated by the other testimony in the case, the jury have no right to arbitrarily disregard them.</p> <p>Same. — Amomt of Recovery. — Where a prima, facie case, entitling plaintiff" to recover a much larger sum than that allowed, is shown, and no contradictory evidence is offered, the jury should base the amount of recovery upon the case thus made.</p>

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

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

<p>Chattel Mortgage. — Foreclosure.—Parties.—In a suit to foreclose a chattel mortgage, the mortgagor, having sold the chattel and having no-interest therein, is not a necessary party defendant.</p> <p>Payment. — Collateral Security. — Pleading.—Where a creditor, holding a claim as collateral security, collects it and applies the proceeds to his own use, it is a payment pro tanto, and the fact may he shown under an answer alleging payment.</p>

<p>Drainage.— Ditch Assessment. — Jurisdiction.— Collateral Attach. — When a petition ior the location of a ditch is sufficient to give the county board jurisdiction of the subject-matter, an assessment thereunder can not be collaterally attacked for mere irregularities, the remedy therefor being by an appeal from the order of the board.</p>

<p>'Schools. — School-Houses.— Township Trustee.— Mandate.— County Superintendent. — A school trustee has no lawful authority to provide furniture for a room for school purposes, or employ teachers for service therein, unless such room is owned or leased by the school township, and even if the county superintendent,, on appeal, direct him to do so, he may properly disobey the order, and mandate will not lie to compel him to obey it.</p> <p>Same. — Abolishing School Districts. — After a school trustee has, on appeal, been ordered by the county superintendent to provide furniture for the school-house of a district, he may at once abolish the district and provide proper school facilities for the people thereof in other districts, and then disregard the order of the superintendent.</p>

<p>Supreme Court.— Practice„ — Assignment of fflror. — If the assignment of errors do not contain the full names of the parties, the appeal may be dismissed on motion made in apt time, and if it can not be found from the whole record who the parties are, the Supreme Court will, of its own motion, strike the case from the docket.</p>

<p>Will. — Contest of. — Statute of Limitation. — Complaint.—-Amendment.—Parties. —Where new parties are brought in by amendment of the complaint, and such amendment involves any question as to the statute of limitations, such action, as to such parties, as a general rule, is deemed to be-commenced at tifii time such amendment is made; but this rule does not apply where no judgment can be rendered till all the parties are before the court, and, hence, where an action to contest a will is brought within three years from its probate against some of the persons beneficially interested therein, and others are made parties by amendment of the complaint after three years, such action is deemed commenced against all the parties from the time the complaint was filed, and is not barred as to any of them.</p> <p>Same. — Legatee.—Estoppel.—In an action by several persons to ■ contest a will, an answer that one of such persons is a legatee, and that he has received and retains his legacy is insufficient, as the action is not joint, but. is a proceeding in rem, where the interests of the parties are several, and though one may have estopped himself to maintain the proceeding, this fact does not preclude the others who have united with him in such proceeding.</p> <p>Same. — Amendment of Record. — Practice.—An objection to the complaint, upon the ground that it appears to have been filed more than three years after the will is alleged to have been probated, is removed by an amendment of the record showing that the original complaint was filed within three years from such probate.</p>

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

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

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

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

<p>Habeas Cobfus. — Sufficiency of Petition. — Ovrnl Action. — Assignment of Error.. —An application for a writ of habeas corpus is not a civil action, and, therefore, an assignment of error, that the petition for the writ does not state facts sufficient to constitute a cause of action, does not call in question the sufficiency of such petition.</p> <p>Same.' — Motion to Quash. — Answer or Return. — Exception.— Demurrer. — The' sufficiency of the petition is questioned, not hy a demurrer for the want of facts, but by.a motion to quash the writ; nor can the sufficiency of the answer or return to the writ be questioned by a demurrer, but only by an exception.</p> <p>Same. — Parent and Child. — Where, however, the petition of a father shows that he is deprived of the custody of the person of his legitimate child, of the tender age of eleven years, by the acts of the defendant, in whatever form the question is presented, the petition is sufficient.</p> <p>Same. — Practice.—Summary Proceeding. — Hearing.—Under section 1118, B. S. 1881, a proceeding by habeas corpus is to be heard and determined in a summary way, and neither the court nor judge can be required, as in a civil action, to make a special finding of the facts or state conclusions of law thereon.</p> <p>Same. — Father and Child. — Custody of Infant. — The general rule is that the father of a legitimate infant child is entitled to the'possession and control of the child’s person, as against any other claimant, and under section 2518, E. S. 1881, this is the statutory rule in this State.</p> <p>■Same. — Judgment for Costs. — Error.—Supreme Court. — There is no error in adjudging costs against the unsuccessful party in a habeas corpus proceed ing, and certainly none, where the judgment for costs is complained ot for the first time in the Supreme Court.</p>

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

<p>Negligence. — Physician.—Gomplaini for Malpractice. — A complaint against a physician for negligence in treating a patient should allege specifically the things concerning which negligence is imputed, and, if it fail in this, it is error to overrule a motion to make more specific.</p>

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

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

<p>New Trial. — Motion, when Made.— Verdict. — Practice.—Where a verdict is rendered on the last day of the term, a motion for a new trial made on the first day of the succeeding term is in time. R. S. 1881, section 561.</p> <p>Instructions. — If instructions taken together are without conflict, and properly and fully express the law, a single one, incomplete standing alone, is not, on that ground, liable to objection.</p>

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

<p>•Conveyance. — Infant Married Woman. — Interest in Husband’s Beal Estate.— By the provisions of sections 2939, 2940 and 2941, B. S. 1881, a married woman less than twenty-one and more than eighteen years of age has been authorized to execute a valid conveyance of her interest in her husband’s lands in this State, by uniting with him in a deed, with the consent of her father — if no father, with the consent of the mother, and if neither father or mother, with the consent of the circuit judge, to be manifested in accordance with the formalities of the statute.</p> <p>Same. — Disaffirmance.—Action to Becover Beal Estate.- — Complaint.—A complaint by such woman to recover her interest in the lands of her husband, conveyed by them in 1863, on the ground that after her husband’s death, and after she attained full a^e, she disaffirmed such conveyance, is insufficient on demurrer, when it is not averred that such conveyance was made without the consent of father, mother or circuit judge.</p>

<p>Vendob and "Vendee. — Constitutional Law. — Contract, Obligation of.— Vested Sights. — The obligation of an executory contract to convey land gives to the vendee the vested right to a conveyance of such title as the vendor had when the contract was made, and any subsequent legislation which diminishes such title, and thereby puts it out of the vendor’s power to perform his contract, impairs its obligation, and is therefore void.</p> <p>Same.— Widow. — Dower.—Conveyance.—Stare Decisis. — A., when the statute gave the wife dower, contracted to convey lands to B., and made conveyance after the statute had given the wife one-third in fee, she not joining in the conveyance.</p> <p>Held, that, upon the death of A., his widow was not entitled to a third in fee.</p> <p>Held, also, that Strong v. Qlem, 12 Ind. 37, and subsequent cases, holding that in such ease the widow is not entitled even to dower, have established a rule of property which can not now be questioned.</p>

<p>Prom the Superior Court of Tippecanoe county.</p>

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

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

<p>Husband and Wipe. — Beal Estate. — Contract.—Jointure.—Antenuptial Agreement. — Besaimon by Parol After Marriage. — An antenuptial agreement in writing, duly acknowledged, whereby fair provision is made for the wife in case of widowhood, in consideration of which she agrees to forego all interest in his estate which would otherwise accrue by virtue of the mar-, riage, such provision embracing, amongst other things, an estate for her ■own life in a tract of land described, to take effect upon his death, creates & jointure within the meaning of section 2500, E. S. 1881, and vested in her an estate in lands which can not be divested by parol, and a mutual agreement pi the parties, by parol, after marriage, that the contract •should not be enforced, can not annul it. E. S. 1881, section 2919.</p>

<p>Statute. — Repeal by Implication. — Bepealby implication occurs only where1 there is an irreconcilable repugnancy between two statutes, in which case the earlier in point of time is repealed by the later so far only as is necessary to bring the two into harmony.</p> <p>Husband and Wife. — Estates by Entireties. — Conveyance.—Repeal of Statute. —Tenancy by entirety was not abolished, nor the statute recognizing it, R. S. 1881, section 2923, repealed by the act of 1881, enlarging the rights of married women. R. S. 1881, section 5115, et seg.</p> <p>Same. — Execution.—Lands conveyed to husband and wife are not subject to-the levy of an execution against either while both are living.</p>

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

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

<p>Married Woman. — Trustee.—Conveyance.—Parol Trust. — Mddence.— Wife’s Separate Deed. — Where a husband, and his wife convey his real estate to their son, who conveys the same to the wife in pursuance of a parol agreement that the wife will hold such land in trust for the husband, and the wife thereafter, in execution of such trust, by her separate deed, conveys such land to the son who conveys the same to the husband, proof of such facts is admissible for the purpose of showing that the wife held said land in trust for her husband, and her separate deed, in execution of such trust, is sufficient to convey such land.</p> <p>Same. — Husband and Wife. — A parol trust concerning lands can not be enforced, nor is the separate deed of a married woman sufficient to convey lands of which she is the beneficial owner.</p> <p>Same. — A parol trust may be shown, not for the purpose of enforcing it, but for the purpose of showing that it has been fully executed, and when a married woman holds lands in trust she may execute the same by her separate deed.</p>

<p>Mistake.— Voluntary Payment. — Legal Compulsion. — Without L'raud.- — Money voluntarily paid under no mistake of fact, without fraud or imposition upon the party paying it, can not be recovered, although it was not legally due, and it makes no difference that the money was paid under compulsion of legal process. It may still he lawfully retained by the party receiving it, if there was no fraud on his part and no undue advantage-taken by him of the situation of the other party.</p> <p>Same. — Mistake of Lam. — Equity.—A mistake of law is no ground of relief even in equity, yet it may he connected with such circumstances as will entitle a party to relief.</p> <p>Same. — Fraud.— Void Judgment. — "Justice of the Peace. — Arbitration.—Jurisdiction. — Recovery of Money Extorted. — Pleading.—In a suit before a justice of the peace, the defendant pleaded a set-off, orally stating that he did not wish for any excess of the set-off over the plaintiff’s demand. There was then a reference of the dispute to arbitrators, hut no award was made, and the justice afterwards rendered a judgment in favor of the defendant for $130, and eight months thereafter an execution was issued thereon, which was the first knowledge the plaintiff had of the judgment. At that time the plaintiff was sick, in distress, because of ..the recent death of several children, and ignorant of her rights, and it ■was then represented to her by the defendant and the justice that she had no remedy, who threatened to levy upon and sell all her property. She believed them and in consequence paid the judgment.</p> <p>Meld, upon these facts, that she could maintain a suit to recover the money paid.</p> <p>Held, also, that the judgment was void, because the justice had no jurisdiction to render it, and that it was not necessary to a recovery to aver or prove that the plaintiff did not owe the debt for which the judgment was rendered.</p>

<p>Mobtgage. — Foreclosure.—Plea of Former Recovery. — Judgment Outside of Issues. — -Where suit is brought upon a note and mortgage before their maturity, and it is alleged in the complaint that by reason of the mortgagor’s non-payment of certain assessments, dues, interest and fines, the note and mortgage had become due, and the only issue in the cause is formed by a general denial, and there is a finding and judgment upon the issue for the defendant, such judgment is conclusive oii'ly upon the question that the mortgagor was not in default at the commencement of such suit in the payment of any assessments, dues, interest or fines, and not as to the payment or satisfaction of the mortgage.</p> <p>Same. — Satisfaction of Mortgage. — Judgment as Evidence. — The judgment so rendered upon such issue will not constitute sufficient evidence, in a subsequent suit by the owner of the mortgaged premises, to entitle him to a judgment for the satisfaction of the mortgage, or to quiet his title against such mortgage.</p>

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

<p>Towns. — Justice of the Peace. — Jurisdiction.—The jurisdiction of a justice-of the peace of suits to recover penalties for the violation of town ordinances extends to the sum of $200, as in other civil actions.</p> <p>Same. — Liquor Selling. — lácense*—Statute Construed. — It is not an offence against the laws of the State to sell intoxicating liquor without a town license,'and hence section 1640, R. S. 1881, does not prohibit the recovery of a penalty for violation of a town ordinance on that subject.</p> <p>Same.; — Ordinances.—Pleading.—Exhibits.—A complaint to recover a penalty for violation of a town ordinance must exhibit or copy so much of the ordinance as relates to the subject, e. g., where one section provided a penalty for selling liquor without a town license, while another made-provisions for obtaining such license and the amount to be paid, both, sections should be shown.</p>

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

<p>Gbavel Road Company. — Subscription to Capital Stock. — Sufficiency of Complaint. — In a suit by a gravel road corporation against a subscriber to its capital stock, upon his stock subscription, wherein he has agreed to pay a certain sum per share for a certain number of shares of its capital stock, at such times and in such manner as required by its directors, it is not necessary to the sufficiency of the complaint that it should allege the completion of its line of gravel road as described in its articles of association, or that, it has constructed or will construct a gravel road upon the line or route described in its articles of association.</p> <p>Pleading. — Answer.—Demwrrer.—Harmless Error. — Where a demurrer is. sustained to a paragraph of answer, and it appears that all the material facts alleged therein could have been given in evidence under another paragraph of answer, which remains in tbe record, the error in sustaining such demurrer, if it be an error, is harmless, and will not authorize the reversal of the judgment.</p> <p>Same. — Nul Piel Corporation. — Continuance of Corporation. — Presumption.— Where an answer of nul tiel corporation admits the previous existence of a corporation, and alleges no facts sufficient to show that it has ceased to exist, it will he presumed that it is still a corporation and in the possession of its corporate rights, property and franchises.</p> <p>Same. — Additional Paragraph. — Discretion of Court. — Prejudice or Injury.— Supreme Com-t. — It is within the discretion of the trial court to allow the plaintiff, after the cause was at issue and set for trial, to file an additional paragraph of complaint; and where the record fails to show that the defendant was prejudiced or injured by such action of the court, the Supreme Court can not say that it was injurious or erroneous.</p>

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

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

<p>Railroads. — Killing Stock. — Complaint.—A complaint against a railroad company for killing an animal, which, with the other necessary averments, alleges that the railroad “ was not securely fenced,” is good, and if the railroad could not properly be fenced at the place, the fact is matter of defence, concerning which the complaint need not make any averment.</p>

<p>AppeabAítce. — Jmüdietion.—Abatement.—After demurrer to a complaint, a plea in abatement questioning jurisdiction over the person will not be entertained, and a demurrer to such plea will be sustained.</p>

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

<p>Office and Officer. — Judicial Office — Constitutional Law. — Eligibility to Office. — One holding a judicial office by election may, under the constitution of the State, R. S. 1881, section 176, be elected to an office, not judicial, the term of which will begin after his judicial term expires.</p> <p>Same. — One elected, with his consent, to a judicial office, but who does not accept the office, may, under the constitution, sec. 176, supra, be afterwardselected to an office, not judicial, the term of which will run during the judicial term to which he was elected.</p> <p>Same. — Definition.—Eligible.—The word eligible, in section 16, art. 7, of the State Constitution, means legally qualified.</p> <p>Same. — Cases Limited. — Language found in the opinions in Waldo v. Wallace, 12 Ind. 569, Culick v. New, 14 Ind. 93, Howard v. Shoemaker, 35 Ind. Ill, must be limited to cases where the judicial term would run beyond the commencement of the term of the office, not judicial, to which the person is chosen. Eddiott, J., dissents.</p>

<p>Instruction. — Evidence.—Question for Jwry. — Error.—Where, on the trial of a civil action, the plaintiff introduces evidence tending to sustain the material allegations of his complaint, it is error for the court to invade the province of the jury and instruct them to return a verdict for the defendant.</p>

<p>Pbactice. — Production of Articles Used, as Evidence.- — A motion, based on matters not within judicial knowledge, for the production of certain named articles in open court for inspection, should be supported by affidavit showing the facts and some reason for invoking the action of the court.</p> <p>JtJBÓB. — Competency of. — Alien.—Statute Construed. — The statute, R. S: 1881, section 1793, which makes alienage a cause of challenge of a juror, requires only that he be a citizen of this State, and not that he shall be a citizen of the United States.</p> <p>Witness. — Impeachment of — Evidence.—Where a witness testifies in his examination in chief that the reputation of a party is good with respect to some quality or disposition, it is competent to show by cross-examination that he has heard reports at variance with the reputation he has given the party. Oliver v. Pate, 43 Ind. 132, distinguished.</p> <p>Cbiminal Law. — Evidence.—A denial by one accused of crime, of a fact which tends to show guilt, is itself a criminating circumstance, and proper evidence against him.</p> <p>Same. — Inspection of Weapons by Juror. — It is entirely proper, as part of the res gestee, to allow the jury to inspect a weapon by which an offence is alleged to have been committed.</p> <p>Pbactice.— Witness.— Misconduct of Gomad.— Persistence of counsel in putting proper questions to a witness, which the court erroneously refused to allow, is not subject to criticism in the Supreme Court.</p>

<p>Practice. — Issue and Trial.— Withdrawal of Appearance and Answer. — Motion to Set Aside Default. — Error.—There' is no error in overruling a motion to set aside a default, when the record shows there was no default, but that after issue joined and trial had, and before the announcement of the finding, the defendant’s counsel merely withdrew their appearance and. the answer to the complaint.</p>

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

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

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

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

<p>School Funds. — Tuition.—Misappropriation.—Statute of'Limitations. — Office and Officers. — Fees.—The statute of limitations of 1852 does not bar a recovery against a county for misappropriation of funds donated by the ■Constitution and laws exclusively to tuition in the common schools; and the appropriation of any part of it to the payment of officers’ fees for collecting or managing the funds is wholly unauthorized, and a violation of a trust which it is not in the power of a county to deny.</p>

<p>Board or Commissioners.. — Statement of Claim. — Itemized Account. — Pleading. — Under section 5761, B. S. 1881, in force since May 6th, 1853, in presenting a claim to the board of commissioners for allowance, no formal complaint is necessary in the statement of such claim; but an itemized account, giving “ a detailed statement of the items and dates of charge,” is sufficient. On this point Board, etc., v. Hon, 87 Ind. 356, is overruled.</p> <p>Same. — Township Trustee. — Overseer of the Poor. — Medical or Surgical Services to Paupers. — Contract hy County Board with Physicians and Surgeons. — Duty of Township Trustee. — Defence.—Under the statutes of this State, the paupers of each county must, in any event, receive necessary medical or surgical attention at the expense of the county. It is the duty of the county board to contract with physicians to attend upon the poor generally in the county; but the township trustee, as overseer of the poor, has the oversight and care of all poor persons in his township, so long as they remain a county charge, and must see that they are properly relieved and taken care of. Where a physician or surgeon is employed by a township trustee to attend upon a pauper in his township, if the county board had at the time of such employment and service a contract with some other physician or surgeon.to attend upon the poor of such township, this is matter of defence, to be shown by the county board, to any claim presented for allowance by the physician or surgeon employed by such township trustee.</p> <p>Same. — Contract with Physician or Surgeon. — Judicial or Administrative Duties. —Parol Evidence. — In making a contract with a physician or surgeon for attendance upon the poor generally of the county, the county board does not act judicially, but in the discharge of an administrative duty; and while the minutes of the county board ought to show a memorandum at least of such contract, yet, if they fail to do so, the contract is not thereby invalidated, but may be established by parol evidence.</p> <p>Practice. — Certificate of Township Trustee. — Competent Evidence.- — Error.— Where the certificate of a township trustee is made a part of the claimant’s demand, as presented to the county board, the admission of such certificate in evidence is not an error available for the reversal of the judgment. °</p>

<p>Landlord and Tenant.— Use and Occupation.- — Agreement.—Husband and Wife.— A widow and widower, each owning a farm and having children, married, and thereafter the two families were merged, the husband supporting both, cultivating and improving and paying taxes on both farms, and the unconsumed profits going into his personal estate. There was no agreement to pay rent to the wife.</p> <p>Held, that the relation of landlord and tenant did not exist, and that upon the death of the husband the wife could not recover from his estate for his use and occupation of her lands.</p>

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

<p>Pleading. — Sufficiency of Complaint. — Defective Allegations of Fact. — Failure to Object Below. — Defects Cured by Verdict. — Supreme Court. — Where the sufficiency of the complaint, or of any of its averments, is not called in question in the trial court, either by demurrer or by motion, and the complaint, though defective in some of its averments, states facts sufficient to render the judgment thereon a bar to another suit for the same cause of action, such defects are cured by the verdict, and can not be made available for the reversal of the judgment by an assignment of error, in the Supreme Court, that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Railboad Tbacks. — Secure Fences. — Animals Filled or Injured. — Private Way. — Under section 4025, R. S. 1881, a railroad corporation is liable for stock killed or injured by its locomotives, cars or other carriages run on its road, unless it be shown that the road was securely fenced in, and the fence properly maintained, by the company or other person running the same, at the point where the stock entered upon the road; and the fact that the stock entered upon the road through an open gate at a private crossing will not exempt the corporation or other person from such liability.</p>

<p>Pbomissoey Note. — Principal and Bwrety. — Agreement.—Delivery.—Where a promissory note, perfect on its face, containing no indications that it is delivered in violation of an agreement, is taken in good faith, and for a valuable consideration, the taker will not be affected by any agreement made between the principal and the surety of which he has no notice.</p> <p>Same. — Pleading.—Answer.—An answer by a surety on a promissory note, ■ that the principal had delivered'it in violation of an agreement, made between them, that the latter would procure an additional surety, but not alleging notice of such agreement by the payee, is insufficient on demurrer.</p>

<p>Estoppel. — Promissory Note. — Assignor and Assignee. — Defence.—If the maker of a promissory note knows that another person is about to purchase it, and he informs such person, upon enquiry, that he has no defence and will pay the note, and such person purchases the same upon the faith of such promise, such maker is estopped to assert any defence against such purchaser, though he was ignorant of his defence at the time his promise was made.</p>

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

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

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

<p>. Demueeer to Evidence. — Practice.—Where, upon a demurrer to evidence, there is evidence tending to sustain the party having the burden of the issue, the demurrer should be overruled, and, if no such evidence, sustained.</p>

<p>Bill op Exceptions. — Filing.— When Part of Record. — Supreme Court.— Under section 629, B. S. 1881, a bill of exceptions, when filed, becomes a part of the record, and, unless the transcript shows, in some manner, the filing of the bill, it can not be considered in the Supreme Court as constituting a part of the record.</p>

<p>Criminal Law. — Indictment.—Perjury.—Perjury can not be assigned upon the testimony of a witness, before a grand jury, that certain named persons “ did not unlawfully sell intoxicating liquors to him,” inasmuch as the opinion of the witness upon such a question of law is immaterial.</p>

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

<p>Mabried Woman. — Deed.— Wife. — Inchoate Interest. — Judicial Sale. — Partition. — A husband’s lands were sold on execution to satisfy a personal judgment against him, and, not being redeemed, the purchaser took a sheriff’s deed. During the year for redemption the husband and wife joined in a conveyance, with covenants, of the lands to H.</p> <p>Held, that H. was seized of an undivided one-third of the land, which would have vested in the wife by virtue of the statute, B>. S. 1881, section 2508, and could maintain suit for partition.</p>

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

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

<p># Prom the Superior Court of Marion county.</p>

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

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

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

<p>'Mandamus. — Bill of Exceptions. — Motion to Compel Judge to Sign. — Master Commissioner. — Practice.—A cause was referred to a master commissioner with direction to report the evidence, which he did not do, but reported his finding of the facts. The petitioner, who now seeks a mandate to compel the judge below to sign a bill of exceptions containing the evi- * dence, made no objection to the report, but upon his motion the judge stated conclusions of law upon the facts so reported, and rendered judgment accordingly. On the first day of the next term, the finding of the master was first questioned by a motion for a new trial, which was overruled at a subsequent term, and the bill of exceptions tendered.</p> <p>Meld, that, by his motion for conclusions of law upon the facts stated in the report, the petitioner affirmed the correctness of the facts as found, and was not afterwards at liberty to question them, and so the judge ■could not be required to sign the bill.</p>

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

<p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb a verdict on the mere weight of evidence.</p>

<p>Criminal Law. — Affidavit and Information. — In a prosecution by affidavit and information, the omission of the name of the affiant in the body or commencement of the affidavit is not a sufficient reason for quashing the information, when it appears that the affiant’s name is signed at the close of the affidavit, and that he was sworn to the matters stated therein.</p> <p>Office and Officer. — Court.—Courts take notice of the names and official signatures of their officers.</p> <p>Instruction. — Evidence.—Presumption.—An instruction, correct as a general statement of the law, will, in the absence of the evidence, be presumed to have been applicable to the evidence adduced. If a defendant desires a more specific instruction he must ask it.</p>

<p>Injunction. — Supplemental Complaint. — Practice.—Where a party, after fil'~ s ing his complaint, files a supplemental complaint seeking to obtain an injunction, and the court issues an order without notice, and upon motion refuses to dissolve the injunction, and an appeal is taken from such order, it will be considered as an injunction and not a mere temporary1 restraining order.</p> <p>Same. — Demurrer.—Where the defendant appears without notice and files a demurrer to such supplemental complaint, the court does not err in issuing an injunction without first passing upon the demurrer, as a demurrer to such pleading is unknown to the practice.</p> <p>Same. — Fraudulent Conveyance.- — Judgment.—A oreditor under our statute may enjoin his debtor from transferring his property fraudulently without first obtaining a judgment.</p> <p>Same. — Partnership.—Averment in Complaint — Where two persons constitute one firm, and are members of another, and an action is brought to, restrain them from fraudulently disposing of the property of the latter firm, it is error to enjoin them from disposing of the property of the1 former firm, or of their individual property, without any averment that, they are threatening to do so, and when such order is made it is error to refuse, upon motion, to modify it as to the property of such last named firm, or their individual property.</p>

<p>Estoppel. — Plea of. — Location of Gravel Road. — Injénction.—A plea of estoppel must clearly and fully set forth, all the facts essential to the existence of an estoppel, leaving nothing to intendment; and an answer of estoppel to an action to enjoin the location of a gravel road on a line different from that ordered by the board of county commissioners must show, with sufficient certainty, the acts constituting such estoppel.</p>

<p>Common Gabbier. — Special Contract. — Evidence.— Variance. — Where suit is brought against a common carrier to recover damages for the non-delivery of goods received by it for carriage, and the complaint merely alleges a breach of the common-law duty of such carrier, if the evidence show that the goods were received for carriage under a special written contract, which was not declared upon, the variance is fatal, and the plaintiff can not recover.</p>

<p>Witness. — Opinion.—Evidence. — Utility of Highway. — In a proceeding to-establish a highway, on trial in the circuit court, the opinion of witnesses-that such highway will or will not be of public utility is not admissible in evidence, even when the facts upon which the opinion is based are stated.</p>

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

<p>Partition. — Widow.—Antenuptial Agreement. — Answer.—In an action hy a widow against her deceased husband’s children by a former marriage^ for a partition of the land of which he died seized, in which she claims one-third in fee and an additional third for life, an answer which merely alleges that such widow and her deceased husband made an antenuptial contract, whereby her interest in his land, in case she survived him,, should be limited to one-third for life, is insufficient upon demurrer, unless it also avers that she has no title to the one-third in fee other than such as she claims, as widow.</p> <p>Same. — Interest of Widow in'Husband’s Lands. — Antenuptial Contract. — Where an antenuptial contract is thus made, limiting the interest of the wife, in case she survives the husband, to one-third of his land for life, she is' not entitled also to one-third in fee. •</p> <p>Supreme Court. — Evidence.—Record.—Where a question depends upon the evidence, the record must, as a general rule, contain all the evidence, in order to present the question; but where a question does not depend upon the entire evidence, and it affirmatively appears that all the evidence upon which it does depend is in the record, the question is properly presented.</p> <p>New Trial. — Partition.—Finding.—Evidence.—Where the court in a partition suit awards the plaintiff too much of the common property, a motion for a new trial on the ground that the finding is not supported by the evidence will present the question.</p>

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

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

<p>Justice oe the Peace. — Entry of Judgment in Criminal. Cases. — Where-there is no statute prohibiting, a justice of the peace may enter judgment in favor of the defendant, in a criminal prosecution, at any time after it is rendered.</p> <p>Same. — 1lights of Defendant. — A defendant, acquitted of a criminal charge, can not be deprived of his rights by the failure of the justice of the peace to enter of record the judgment of acquittal at the time it was rendered.</p> <p>Same. — Statute on Subject of Entering Judgments. — The statute on the subject of entering judgments by justices of the peace applies only to civil proceedings.</p> <p>Malicious Prosecution. — Effect of Acquittal. — A judgment of acquittal is prima facie evidence of innocence.</p> <p>Instructions. — Construction.—Instructions are to be taken as an entirety, and are not to be judged by detached sentences.</p>

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

<p>Pbincipal and Agent. — Ratification.—Judgment, Assignment of.— If the owner of a judgment (holding either by legal or equitable title) receives, and with a knowledge of the facts retains, the price paid for an unauthorized assignment of the judgment, made in the name of the owner by one who assumed to have authority thereto, the assignment is thereby ratified.</p>

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

<p>Real Estate, Action to Recovee. — Title by Sheriff’s Sale. — In an action to recover real estate by a purchaser thereof at a sheriff’s sale, against the execution defendant, the plaintiff must show, to support his title, a judgment, execution, sale and deed.</p> <p>Same. — Mortgagor.—A mortgagor in possession can not, after a decree of foreclosure against him, set up a title in a third person or himself to defeat the title of the purchaser of the land under the decree.</p> <p>Bill of Exceptions. — Judgment.—Evidence.—Presumption.—Where a bill of exceptions shows an offer of the record, of a judgment as evidence, and that an objection thereto was overruled, and immediately thereafter in the bill there appears a transcript of such a judgment, it will be presumed, in the absence of anything to the contrary, that the record of the judgment was read in evidence.</p>

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

<p>Decedents’Estates. — Fraudulent Conveyance. — Creditor.—A single creditor, as well as an administrator or an executor, may maintain an action to set aside a sale of lands fraudulently made by a deceased debtor.</p> <p>Same. — Petition of Creditor for Sale of Land to Pay Debts. — Statute Construed.— Section 2342, R. S. 1881, which authorizes a creditor to obtain an order requiring the administrator or the executor to file a petition for a sale of the decedent’s lands, only authorizes such order for the sale of lands owned by him at the time of his death, and not such as may have been fraudulently conveyed.</p> <p>Same. — Creditor May Set Aside Sale of Land Fraudulently' Conveyed. — A single creditor may maintain the action, and after the sale is set aside the land becomes assets in the hands of the administrator or executor, who thereafter settles the estate in the usual way.</p> <p>Same. — Complaint.—Insolvency. —Where the complaint in such case avers that the decedent, at the time of such conveyance, had no other property, and there are no assets in the hands of the administrator, the complaint’is sufficient in this respect, as it is not necessary to aver that the decedent did not thereafter acquire property.</p> <p>Same. — Motion to Annul Order to Sell. — Practice.—A motion to strike out an order requiring the administrator to sell the land and apply the proceeds upon the creditor’s debt was too broad, as the direction to sell the land was right though the direction to apply the proceeds was wrong.</p>

<p>Promissory Note. — Exeeution.—The execution of a promissory note includes both a signing and delivery, and implies a complete contract.</p> <p>Same. — Material Alteration. — The material alteration of a promissory note made at the instance of the payee, and without knowledge of the maker, releases the latter from liability.</p> <p>Same. — After a promissory note is signed and delivered, the procurement by the payee of an additional signature, without the knowledge of the maker, releases the latter.</p>

<p>Peincipal and Sübety. — Land of Surety Sold on Execution and Purchased hy Principal. — A principal debtor who buys the lands of his surety upon execution issued against them jointly, merely pays his own debt, and in ■ equity takes no title to the lands.</p> <p>Pbactice. — Harmless Error. — There is no available error in sustaining a demurrer to a good paragraph of complaint, if the same facts might be proved under another paragraph upon which there is issue and a trial.</p>

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

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

<p>Injunction. — Harmless Error. — Practice.—The refusal to dissolve a temporary restraining order is not available error upon an appeal from a judgment for a perpetual injunction; to present any question upon such ruling the grounds of the motion must be shown by bill of exceptions.</p> <p>Same. — Joinder of Parlies. — Location of Highway. — Trespass.—Where a supervisor, claiming to act under an order of the board of county commissioners locating a highway, attempts its location on a line deviating from that named in the order, he is guilty of a trespass, and each land-owner over whose lands he is threatening to open the road, if he has no adequate remedy at law, may maintain an action to enjoin such trespasser, but such land-owners, having separate and distinct causes of action for such trespasses, can not join as plaintiffs in such an action; but where the proceedings of the board are void, and irreparable damage would be done to the property of each of a number of persons by the acts of the supervisor in opening the road on the line designated by such proceedings, a joinder is permitted to avoid a multiplicity of suits.</p> <p>Highway. — Report of Viewers. — Public Utility. — Presumption.—It is not necessary to the validity of the order of the board of county commissioners locating or changing a highway in a proceeding for such purpose', that the viewers should report the proposed road of public utility, •or that the board should expressly so find. If the report be favorable, and silent as to the public utility of the location or change, or if they do not report that the location or change is not of public utility, it should be presumed that they deemed it of public utility.</p> <p>Same. — The report of viewers appointed to locate or change a highway will be presumed to have been made in conformity with the statute, where nothing to the contrary appears.</p> <p>Same. — Notice.—Collateral Attach. — Jurisdiction.—That the notice of the presentation of a petition for the location or change of a highway was given, is- a jurisdictional fact to be determined by the county board, and where it has found that notice was given, and proceeded to act by the appointment of viewers, its decision is conclusive of such notice as against collateral attack.</p> <p>.Same. — Injunction.—Complaint.—For complaint and allegations held insufficient to restrain by injunction the location of a highway under an order of a county board, see opinion.</p>

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

<p>Railboad. — Appropriation of Lands.— Trespass. — Answer.—Mortgage.—Foreclosure and, Sale. — License.—To a complaint for trespass upon real estate, an answer is good which alleges that on the 6th of June, 1872, a certain railroad, duly incorporated, appropriated the land in controversy, and paid the amount assessed to the heirs who owned the land, one of which was the plaintiff, which payment was accepted and money retained; that on the 2d day of October, 1871, the said railroad executed a mortgage, to secure its certain bonds, on its entire main line and branches, “made or to be made, *' * and all lands * * acquired or appropriated, or which may hereafter be acquired or appropriated by said company, for the purposes of rights of way or for any other purpose ”; that said mortgage was foreclosed and the property sold to A., to whom a deed was executed; that the defendant, another railroad organized under the laws of Indiana, by its contractor, also a defendant, by leave, license and direction of such owner under said sale, entered upon the said land for the purpose of constructing a railroad.</p> <p>Same. — Abandonment and Forfeiture. — Pleading.—Collateral Attaelc. — A pleading which seeks to set up an abandonment and forfeiture of the road for failure to perform the acts mentioned in section 3980, R. S. 1881, but which does not allege that the forfeiture had been judicially declared in a suit for that purpose at the instance of the State, by information on the relation of the prosecuting attorney, as contemplated by sections 3331, 1132, is bad. A cause of forfeiture, not judicially declared in a direct proceeding, can not be taken advantage of collaterally.</p>

<p>Replevin Bond. — Parties.—Joinder of Plaintiffs. — Holders of separate judgments, whose executions have been levied on personal property which has been taken from the sheriff by replevin, may unite as plaintiffs in a suit for breach of the replevin bond, and the assignee of one of the judgments, the assignment of which is technically defective, is a real party in interest as plaintiff.</p> <p>Same. — Breach.—Damages.—Judgment.—Where in replevin there is a trial and verdict for the defendant and that the property be returned, but no judgment of return, the sureties in the bond are not liable for failure to return the property.</p>

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

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

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

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

<p>Pleading.— Practice.— Harmless Error. — That a paragraph of complaint contains more than one cause of action, justifies amotion to require them to be stated separately; but to overrule the motion is not available error.</p> <p>Railroads. — Killing Stock.— Pleading. — Eermrrcr.—Practice.— Evidence.— Jurisdiction. — A paragraph of complaint against a railroad company for killing stock, contained two causes of action, of one of which the court had no jurisdiction.</p> <p>Held, that a demurrer, for want of facts, did not reach the defect.</p> <p>Held, also, that evidence in support of the cause of action of which the court had no jurisdiction should have been excluded on objection.</p> <p>Same. — A complaint under the statute, R. S. 1881, section 4025, against a railroad company for killing stock, which avers that the act was done by “ the defendant, or some lessee thereof, or other person unknown to the plaintiff,” is bad on demurrer.</p>

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

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

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

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

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

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

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