Volume 91 — Indiana Reports

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

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

<p>Bankruptcy. — Discharge.—Judgment.—Injunction.—A discharge in bankruptcy does not affect the judgment of a State court, rendered against the defendant in an action pending at the time of the adjudication, hut rendered after he was adjudged a bankrupt (the pendency of the proceedings in bankruptcy not being interposed), and its collection can not be ■enjoined.</p>

<p>Divorce. — Setting Aside Decree. — A. decree of divorce can not be reviewed under the statute authorizing the review of judgments in ordinary civil actions.</p> <p>Same. — New Trial. — Practice.—A new trial in an action for a divorce can not be had after the term at which the decree may have been rendered, under the statute providing for new trials in other civil causes.</p> <p>Same. — Judgments, Power of Courts to Set Aside. — The power of courts to set aside judgments are not restricted by the statutory provisions in relation to the vacation of judgments to the causes and modes therein specified, to the exclusion of all other causes and modes.</p> <p>•Same. — Fraud.— Courts have power, in a direct proceeding, to set aside and vacate judgments obtained by a fraud upon the court, and this power extends to decrees of divorce. McQuigg v. MeQuigg, 13 Ind. 294, and cases following it, overruled.</p> <p>Same. — Diligence.—It is necessary, in order to set aside a decree of divorce on account of fraud in obtaining it, that the party complaining should commence the action therefor without unreasonable delay upon discovery of the fraud, so that innocent third parties may not suffer.</p> <p>Same.— When Court Will Not Set Aside. — A decree of divorce, valid upon the face of the record, will not be set aside for fraud if the party asking it, with knowledge of the fraud, has delayed bringing an action therefor for nearly fifteen years after the decree, the other party having entered into a marriage with an innocent party, and having children born of such marriage.</p> <p>Judgment.— When Void and Voidable. — A judgment by a court of competent jurisdiction is not void in a legal sense unless the thing lacking or making it so is apparent upon the face of the record. If the infirmity do not so appear, the judgment is voidable but not void.</p>

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

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

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

<p>Practice. — Bill of Exceptions. — That time was given for the preparation of a bill of exceptions must appear by the record, otherwise than in the-bill itself, else the bill filed during vacation will not be available.</p> <p>Same. — New Trial. — Partition.—A. motion for a new trial in partition, to be available, must be made during the term at which the finding was made or verdict rendered, except in special cases or by consent. R. S. 1881, sections 561, 1188.</p>

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

<p>Bastardy. — Evidence.—Paternity of Ghild. — The defendant in a bastardy proceeding may ask the relatrix whether she has had sexual connection with others about the time the child was begotten, and when the relatrix testifies that she had connection with him at several different times within four or five days of each other, about a certain time, and a fully developed child is born in less than nine months thereafter, the court should not limit the time within which such enquiry may be made to-two weeks preceding the time she thinks the child was begotten.</p>

<p>Life Insurance. — Civil, Action. — Mandate.—Sufficiency of Complaint. — Demand. — In a suit upon a contract of life insurance, wherein the insurance association agrees to pay the beneficiary therein named a certain sum of money, upon the happening of certain contingencies, a complaint in an ordinary civil action affords an adequate and specific legal remedy, and, in such case, the beneficiary can not resort to a proceeding by mandate. Where the contract stipulates that proofs of death shall be furnished to the secretary of the association, the complaint is sufficient if it show that such proofs were furnished to the association, and it is not necessary to aver therein a demand before suit brought.</p> <p>Same. — Defence.—Fraudulent Concealment of Truth. — Reply.— Waiver of Forfeiture. — "Where, in such suit, the defence is that the party, whose life was insured, had falsely answered certain questions, and had fraudulently concealed the truth in answering other questions, in relation to his health and previous sickness, in his application for the policy of insurance sued upon, although the matters thus pleaded were such as avoided the contract of insurance, by its terms, yet, in legal effect, they merely rendered the contract voidable, at the election of the insurance company, and it was competent for the company to waive the forfeiture and continue the policy in full force. A reply of such waiver of forfeiture, alleging knowledge of all the facts stated in the answer, is a good reply to such a defence.</p> <p>Same. — Physician and Patient. — Confidential Relation. — Competency of Fhiidence. — Witness. — Under section 497, E. S. 1881, the relation between the physician and his patient is confidential, and the physician can not be permitted to give in evidence, in a court of justice any information acquired by him in the discharge of his professional duties, to the prejudice or injury of his patient or of his representative.</p>

<p>Deed. — Covenants.—Encumbrance.—-Agreement.—Delinquent Taxes. — A. conveyed lands to B. by deed with covenants, upon which»there were delinquent taxes, which B. afterwards paid. To a suit for breach of the covenants A. answered: 1. A written contract, contemporaneous with the deed, whereby it was agreed that-the covenants of the deed should only he deemed to warrant the title against all conveyances and incumbrances made by A., and all acts done or suffered by him; 2. That A. had abundant other property out of which the treasurer could have made the taxes., Held, that both defences were bad on demurrer.</p>

<p>Fraud. — Pleading.—Intention.—The use of epithets in a pleading is not sufficient to show fraud, but the facts constituting the fraud must be distinctly averred. An intention to deceive must appear, and that in reliance upon the facts, with use of ordinary care, they were acted upon in good faith and the deception accomplished, to the prejudice of the other party.</p> <p>Pbomissoby Note.— Cancellation. — Forged Instrument. — Equity Jurisdiction. —Fraud.— Want of Consideration. — Negligence.—A court of equity has jurisdiction to compel the cancellation of a forged instrument. So, also, of a promissory note procured by fraud; but not where the maker has been led to execute it by his own inexcusable negligence or folly, nor where it is merely without consideration.</p> <p>Same. — Law Merchant. — Bank.—A note payable at the bank at A. in this State, though there be only one bank there, it being a bank of discount and deposit, is not by our statute negotiable according to the law merchant.</p>

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

<p>Sheriff’s Sale. — Execution.—Exemption.—Where an execution defendant claims real estate as exempt from execution in the manner required by statute, the sheriff can not make a valid sale thereof, by disregarding the claim of exemption and neglecting to have an appraisement of the property claimed as exempt, nor will the fact that perjury was committed in swearing-to a false schedule give validity to such sale.</p>

<p>Constitutional Law. — Construction of Statute. — Supreme Court. — When the constitutionality of a statute is called in question, it is the uniform rule of the Supreme Court to construe and interpret its provisions, if possible, so as to sustain and not defeat the law; and even where the constitutionality of the law seems to be doubtful, the doubt will be solved in favor of its constitutionality.</p> <p>Dbainage Law. — Special Proceeding. — Failure to Remonstrate. — Assessment. —Relief From. — Statute Construed. — A proceeding under the drainage act of April 8th, 1881 (sections 4273 to 4284,’ R. S. 1881), for the construction of a ditch or drain, is not a civil action, and the provisions of section 396, R. S. 1881, of the civil code, are not applicable to such a proceeding.</p>

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

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

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

<p>Landlobd and Tenant. — Complaint to Recover. — Possession.—Rent.—Lease.. —Exhibits.—Demurrer.—A complaint by a landlord against his tenant who fails to pay rent, to recover possession and damages for unlawful detention, is not founded on the lease, and the lease, if made an exhibit,, will not be examined on a demurrer to the complaint.</p> <p>Same. — Description of Premises. — Evidence.—A tenant can not escape payment of rent, according to the terms of the lease, for the time he occupied thereunder, upon the ground that the premises are not described in the-lease as to their location; and such lease is admissible in evidence, in. an action for rent accrued, to show the contract as to rent, and in an action for possession, to show the amount of damages for detention after-notice to quit; and evidence of the location of the premises corresponding to the description in the complaint is proper in such action.</p> <p>Same. — Notice to Quit. — A notice to quit, from a landlord to a tenant, is sufficient if it apprise the latter as to what premises are demanded.</p> <p>Same. — Damages.—Instruction.—When, in an action by a landlord against his tenant, unlawfully holding over after the termination of the tenancy, for possession and damages for unlawful detention, a claim for rent-accrued is joined,in the complaint, and the cause goes to trial upon such complaint, it is not error,"in instructing the jury as to the amount of recovery, to treat such joinder as proper.</p> <p>Supbeme Coubt. — Modification of Judgment. — BiU of Exceptions. — The overruling of a motion to modify a judgment will not be reviewed by the Supreme Court, unless the reasons, which were given in support of the motion, are shown by bill of exceptions.</p>

<p>Railroads. — Highway Crossings. — Duty of Mailroad Company. — Construction of Statute. — Under a fair construction of section 3903, E. S. 1881, it is the duty of a railroad company to construct its road, where it intersects with any public highway, in such manner as to afford security for life and property; and this is so, whether the highway is laid out and opened before or after the construction of the railroad.</p> <p>Supreme Court.— Weight of Evidence. — Where there is evidence in the record tending to sustain the verdict on every material point, the Supreme Court will not reverse the judgment on the weight of the evidence.</p> <p>Same.— Questions to Witness. — ■ Objection and Exception. — Exclusion of Evidence. — Error.—The error of the court, if such it be, in sustaining an objection to a question to a witness, though an exception be saved to the ruling, is not an available error in the Supreme Court for the reversal of the judgment, unless it appear from the record that the party informed the trial court at the time what evidence he expected to elicit by -the answer to the question, and that the court erred in the exclusion of .such evidence.</p>

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

<p>Execution. — Proceedings Supplementary. — Practice.—In proceedings supplementary to execution, formal pleadings are not required, and rulings thereon are immaterial and harmless.</p> <p>Same. — Evidence.—Proceedings supplementary, based on the averment that the execution defendant conceals his .property and wrongfully refuses to apply it, etc., are not sustained by proof only that he has real estate within reach of execution, and that debts are due him.</p>

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

<p>Easement. — Bight to Overflow Land.— Ownership of Ice Formed There. — Tlie owner of an easement to overflow another’s land is not entitled to the ice which forms on the water covering the land; such ice belongs to the owner in fee.</p> <p>Same.— While Water Valley Ganal.— Bight to Take Ice Found on Overflowed Land. — In constructing the "White Water Valley Canal, a large pond producing ice on low lands adjoining and beyond the canal was formed by the flow of water from the canal, the lands covered by which pond had been used by the State and its grantee, the canal company, only for the purpose of overflow. The plaintiff was the grantee of the “ canal and its appurtenances.”</p> <p>Held, that only the right to overflow, and not the" land overflowed itself, was appurtenant to the canal, and that the right to gather ice upon the pond did not belong to the plaintiff, but to the owner of the soil, subject to the condition that no injury should be done to the easement of the plaintiff, and that the quantity of water should" not be materially lessened.</p>

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

<p>New Tbial. — Transcript.—A cause assigned for new trial appeared in the transcript thus: “ The court erred in admitting in evidence the following executions, in these words, to wit: (These executions are inserted at full length on pages 69, 70, 75, 77. Clark W. Weesner, clerk.)” The reference in parenthesis was to a bill of exceptions made and filed long after the motion.</p> <p>Held, that the motion presented no question to the court below.</p> <p>Pkincipal and Agent. — ■.Statements of Agent. — Evidence.—The statements of an agent while acting as such, concerning the matter in which he is acting as agent, are admissible in evidence against his principal.</p> <p>Evidence.— Writing, Contradicting by Parol. — Fraud.—One not a party to a written instrument, and who seeks to impeach it as being a means adopted by the opposite party to defraud him, may contradict it byparol evidence.</p> <p>Supbeme Count.— Witness. — That a party was not permitted to put certain questions to a witness, is not available as error in the Supreme Court, where' it does not appear that the lower court was informed of the facts expected to be elicited.</p>

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

<p>■Judgment. — Lien on Decedent’s Lands.— Statutes Construed. — Death, Presumption of. — J. obtained a judgment against R., which became a lien on the lands of the latter on the 18th of March, 1868. In November, 1867, R. disappeared and was not afterwards heard of, but no administrator of his estate was appointed until November, 1879, and after that a suit was begun, under section 621, R. S. 1881, to enforce the lien of the judgment against lands of which R. was seized when the judgment was rendered.</p> <p>Held, that the lien, as given by section 608, R. S. 1881, was lost by delay.</p> <p>Held, also, that the death of R., presumed to have occurred in November, 1872, R. S. 1881, section 2232, did not restrain proceedings to enforce the lien until after his administrator was actually appointed in 1879, but only until an administrator might have been appointed at the instance of the judgment creditor as provided by section 2227.</p>

<p>Highway. — Public Utility.— Witness.— Opinion. — The opinion of a witness as to the public utility of a proposed highway, is not admissible in evidence under any circumstances.</p> <p>Same. — Practice.—Appeal.—On appeal from an order of the board of county commissioners establishing a highway, a motion to set aside the proceedings of the board is unwarranted and useless.</p> <p>Same. — Petition.— Uncertainty. — Arrest of Judgment. — Uncertainty in a petition for a highway as to the names of owners of lands affected, is no cause for arrest of judgment on appeal in the circuit court.</p>

<p>Partnership. — Receiver.—It is only in exceptional eases that a receiver : for a partnership will be appointed, unless a dissolution is about to occur or has occurred.</p> <p>Same. — Dissolution.—Complaint.—A complaint, by a partner against his copartners, for a dissolution, which shows wilful acts of fraud by the defendants, tlie application by them of the partnership funds to their own uses, the making by them of false entries upon the books, the preventing of the plaintiff from having access to such books, and the wilful concealment from him of the condition of the partnership business, is sufficient for that purpose, and, upon such a state of facts, a receiver may be appointed pendente lite.</p> <p>Bui op Exceptions. — Affidavits.—Beceiver.—Affidavits, read on the hear- ' ing of a motion for an interlocutory order appointing a receiver, become a part of the record only by bill of exceptions, or proper order of court.</p>

<p>Teomissoey Note. — Endorser and Endorsee. — Law Merchant. — Fraud.—Negligence. — Answer.—Consideration.—To a suit by the endorsee, against the maker, of a note payable at a bank in this State, an answer showing by proper averments that the note was without consideration, and the execution thereof obtained by fraud while the defendant was so under the influence of medicines administered by the person who received the note that he was incapable of comprehending the riature of the transaction, Is good on demurrer. So, also, an answer that the note was without consideration and was obtained by fraud, properly alleged, and that the plaintiff and prior endorsees had notice thereof before taking the note.</p> <p>Same. — Note Procured by Fraud. — Bona Fide Purchaser.' — Where a promissory note governed by the law merchant is procured by fraud, and without consideration, of one who without negligence signs it under the belief that he is executing a contract of agency, the maker is not liable even to a purchaser in good faith.</p> <p>Same. — Burden of ProofWhere, in a suit by the endorsee against the maker of a note payable at a bank in this State, the defendant shows that the note was procured by fraud, the burden is on the plaintiff to show that he is a bona fide holder, for value, by endorsement before maturity, in the regular course of business.</p> <p>SAME. — Party.— Witness. — Bross-Examination.—Where a plaintiff submits: himself as a witness to prove that he took innocently commercial paper shown to have been procured by fraud and without consideration, considerable latitude should be allowed in his cross-examination.</p> <p>Suebeme Cottbt. — Instructions.— Verdict. — Where all the instructions given to the jury do not appear, there can be no reversal merely because it appears that the court instructed the jury to consider.all the facts and render such a verdict as they should deem just and right.</p>

<p>Highway. — Free Turnpike Boads. — Act of Mareh 3d, 1877. — County Board.— Engineer. — Error in Contract.— Complaining Party. — Under section 5095, E. S. 1881, after an order is made for the construction or improvement of a free turnpike or gravel road, or for any change in the same, it is the duty of the county board to appoint a competent engineer to superintend the work, who shall, with the approval of the county commissioners, make a contract for the performance of the work; but, under'section 5102, E. S. 1881, no person is permitted to take advantage of any error committed by the county commissioners, or by the engineer or surveyor, or of any informality, error or defect appearing in the record of such proceedings, unless it is shown that the complaining party is injuriously affected thereby.</p> <p>Same. — Pleading.—Demurrer.—Incapacity to Sue. — Defect of Parties. — A demurrer to a complaint, assigning as cause that the plaintiff has not legal capacity to sue, has reference only to some legal disability of the plaintiff, such as infancy, idiocy or coverture; and where a defect of parties is the cause assigned, the demurrer must specifically point out and name those who should have been, but were not, made parties.</p> <p>Same. — -Duty of County Board.— Contract for Work.— Contractor's Bond.— Under section 4246, E. S. 1881, it is the duty of the county board to let no contract for any county building or work until the contractor has first given a good and sufficient bond, payable to the State of Indiana, signed by at least two freehold sureties, guaranteeing the accomplishment of two purposes, namely: 1. The faithful performance and execution of the work; and, 2. The prompt payment by the contractor of all debts incurred by him in the prosecution of the work, including labor, materials furnished, and for boarding the laborers thereon. As to the second of these purposes, for any breach thereof by the contractor, the right of action is in the laborer, the material-man, or the person boarding the laborers, and can not be defeated by any act done, or omitted to be done, by the county board.</p> <p>Practice. — Amending Complaint After Issue Joined,. — Affidavit of Prejudice.— Discretion of Court. — It is within the discretion of the trial court to allow the plaintiff to amend his complaint, after the cause is at issue and set for'trial; and, unless the contrary is shown by affidavit or other proof, it will be presumed by the Supreme Court that the defendant was not prejudiced by the amendment.</p>

<p>Gbavel Road.— Tolls.— Injunction. — Complaint.—A complaint to enjoin a turnpike company from collecting tolls shoAved that the pike was six miles long, all of Avhich Ayas in good condition and finished, except two miles which were not finished so as to authorize the collection of tolls thereon, and it was not averred that tolls Avere exacted upon the two miles, or that the plaintiffs Avere hindered from passing over the same unless tolls Avere paid, but merely that tolls Avere demanded and had been paid therefor by the plaintiffs; nor was it averred that the plaintiffs had in the use of that part of the road any interest beyond that of the general public.</p> <p>Held, that the complaint was bad on demurrer.</p> <p>Same. — Injunction Avill not lie to prevent the wrongful collection of tolls by a turnpike company which merely demands the tolls Avithout hindering the passage of those who do not pay.</p>

<p>Judgment. — Jurisdiction.—Justice of the Peace. — A judgment of a justice of the peace, rendered on summons against a resident of another county, without notice or appearance, though the record shows service, is void for want of jurisdiction, and a suit to declare it void may be maintained.</p> <p>Pbactice. — Harmless Error. — Pleading.—Demurrers to several paragraphs of a complaint were overruled, the issues on which were all afterwards found for the defendant; but there was a finding for the plaintiff1 and judgment upon another paragraph.</p> <p>Held, that the rulings upon the demurrers were harmless.</p>

<p>Deed. — Mistake.—Description.—Deformation by Purchaser at Sheriff’s Sale.— Equity in Lands. — By reason of a misdescription of lands in a deed, a grantee did not obtain the legal title, but was put in possession. Before the mistake was discovered the lands were sold on execution against the grantee, and A. became the purchaser and took possession.</p> <p>Held, that A. acquired no title either at law or in equity, and could not maintain a suit to reform the deed.</p>

<p>‘Contbact.— Wager. — Public Policy. — Marriage Benefit Company. — A contract to pay a sum of money on condition that the payee do not marry within two years, and if he do then to pay a certain sum per day during the time he shall remain single, is contrary to public policy, and, therefore, illegal and void, and money paid in consideration of such contract can not be recovered back, the parties being in pari delicto.</p>

<p>Gravel Boads.— By-Laws.— Non-Payment of Toll. — A gravel road company has no power, under section 3642, to fix a greater penalty for the non-payment of tolls than $3, which is fixed by section 3644.</p>

<p>Sheriff’s Sale.— Fraudulent Conveyance.— Mortgage. — Notice.— Fkecution Docket. — Quieting Title. — A judgment creditor became the purchaser, on execution, of lands fraudulently conveyed by the debtor; proper return of the execution was made, and the return recorded in the execution docket as the statute requires. R. S. 1881, section 677. Before the time for redemption had expired, the-person holding the legal title mortgaged the lands for a loan of money, the mortgagee having no actual notice of the fact that the conveyance to the mortgagor was made to defraud creditors.</p> <p>Held, that the record upon the execution docket was constructive notice to the mortgagee.</p> <p>Held, also, that after obtaining a proper sheriff’s deed the judgment plaintiff could maintain a suit against the mortgagee to quiet title.</p>

<p>Wim.. — Devise.—Power to Convey. — How Executed and Shown. — Deed.—Intention. — Where there is a devise of some estate in lands, coupled with a power to convey the fee absolutely, the deed of the devisee made with intent to execute the power will convey the fee, and this intent is matter in pais to he collected from all the circumstances of the case, and does not depend wholly upon the terms or recitals in the deed, as a deed of general warranty, purporting to convey the fee upon a consideration fairly equal to the value of the estate.</p>

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

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

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

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

<p>Contbact. — Beal Estate. — Broiler.—Commission.—A contract with a real estate broker to pay him a certain sum in case he finds a purchaser for designated real estate at a price fixed, need not be in writing, and the broker, upon producing a purchaser ready, able and willing to purchase > at the price and on the terms fixed, with notice thereof to his employer, is entitled to his commission, though the employer may refuse to sell.</p>

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

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

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

<p>, Mortgage. — Equity.—Foreclosure.—A deed, in form absolute, if intended to be a mere security, is in equity a mortgage, and a suit to foreclose may be maintained upon it.</p> <p>Misjoinder. — Error.—By express statute, E. S. 1881, section 341, a misjoinder of causes of action can never be available error on appeal.</p> <p>Bill of Exceptions. — Practice.—Record.—Motions to strike out pleadings and to separate causes of action, and the rulings thereon, are brought upon the record only by bill of exceptions or special order of the court.</p> <p>Married Woman. — Mortgage.—Consideration.—Husband’s Debts. — Foreclosure. — That a wife, prior to 1879, mortgaged her lands without other consideration than to secure her husband’s debt, is no defence to a suit against her to foreclose the mortgage.</p>

<p>Promissory Note. — Indorsement.—Assignor and Assignee. — Forgery.—Notice*. —A forged assignment' of a promissory note by the payee gives no right to a subsequent assignee as against the payee, though he he a bona fide holder for value.</p> <p>Pleading.— Evidence.— Insolvency.— Eeoree.— Vendor's Lien. — A vendor’s. ' lien may be established without averment or proof of the vendee’s insolvency, but the decree can only be for the sale of the land after exhausting other property of the vendee.</p> <p>Same. — Oro ss Complaint. — Mortgage.—Judgment.— Witness. — Evidence.—Promissory Note. — Suit on a note and mortgage against the maker and several endorsers, including the payee, judgment by default and foreclosure against all, but the payee, having afterwards got the default set aside, pleaded that she had sold the land to the maker, taking for the purchase-money other notes without security, and that the note and mortgage sued on were never executed to her, and that her assignment was a forgery. She also filed a cross complaint averring the same facts, that the notes taken by her for purchase-money were unpaid, that the maker was insolvent and had no property save the land, and praying that a vendor’s lien be declared in her favor, having priority over the plaintiff’s judgment; copies of the notes taken were not filed, and the original plaintiff only was made defendant.</p> <p>Held, that the answer was good on demurrer.</p> <p>Held, also, that the cross complaint was good against a demurrer for want of sufficient facts.</p> <p>Held, also, that the defendant was a competent witness for herself.</p> <p>Held, also, that the notes described in the cross complaint were proper evidence for the defendant.</p> <p>Supreme Court. — Amendments.—Discretion.—The refusal of the court to permit amendment of pleadings after issues have been formed will not be reviewed by the Supreme Court, save when it appears that there has been an abuse of discretion.</p> <p>Evidence. — Judge's Notes. — The judge’s notes of evidence are not ordinarily admissible as evidence in the trial of another issue.</p> <p>Same. — Harmless Eh-ror. — The admission of improper evidence which tends only to prove a fact which is fully established by all the other evidence, is a harmless error.</p>

<p>Instructions. — An instruction, so indefinite upon some point that it might mislead, is not error if another given is definite and correct upon the same point.</p>

<p>Criminal Law. — Public Nuisance. — Slaughter-IIouse.—Noisome and Offensive Smells. — Instruction.—Error.—Where the proprietors of a slaughter-house are prosecuted for maintaining a public nuisance by allowing the offal of slaughtered battle and other animals to there accumulate, and noisome and offensive smells are emitted therefrom, the fact, if it be the fact, that such smells are blended with like smells emanating from another slaughter-house and other offal there accumulated, owned by other parties, is no defence in a prosecution against the defendants only, and can not justify or excuse their offence; and an instruction of the court to that effect is not erroneous.</p> <p>Same. — Information.—Matter of Description.— Variance.- — In a prosecution for the maintenance of a public nuisance, matter of description in the,information, as to the location of the nuisance, must be proved as charged, and a variance will be fatal; and an instruction to the jury, to the effect that it will be sufficient if they find a part only of such matter of description, is erroneous.</p>

<p>.Railroad. — Killing Stock. — Fencing.—Complaint.—Demurrer.—In ah action against a railroad for killing stock, the complaint alleged that the defendant, while running its cars over the road, at a place where their road was not securely fenced, ran over and killed'certain stock; that at the place where such stock entered on the defendant’s road was not at the •crossing of any public highway or in the corporate limits of any city or town, hut was at a place where the company was required by law to fence .and could have fenced. On demurrer,</p> <p>Held, that the complaint did not aver that the road was not fenced securely at the place where the stock entered.</p> <p>Same. — Presumption of Law. — If the place at which the stock entered was one which the road was required to fence and was capable of being; fenced, as alleged, the presumption is that the company had done its duty in regard to fencing it.</p>

<p>Fike Insurance. — Cancellation of Policy. — In a suit upon a fire policy containing a condition authorizing the underwriter to cancel the policy upon repayment of a ratable part of the premium; it was answered that this-had been done before the fire; that the parties agreed upon §13 as the return premium, which had been paid and accepted. The evidence showed that a ratable part of the premium was §13.83, and there was a verdict for the plaintiff, though the evidence showed the agreement to receive and the payment of §13 as pleaded.</p> <p>.Held, that the answer was good, and a new trial should have been granted.</p>

<p>Vendor and Vendee. — Statute of Frauds. — Possession.—Notice.—The purchase of lands hy parol, payment of the price, possession given and taken under the purchase, make a valid contract, notwithstanding the statute of frauds, and such possession is notice to a subsequent purchaser, so that an action by him for possession will be defeated.</p> <p>Read Estate, Action to Recover. — Counter-Claim.—Quieting Title. — To a suit for possession of lands and to quiet title, the defendant may by way of counter-claim set up a title in equity in himself, and pray to have his title quieted.</p>

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

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

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

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

<p>Raiijroads. — Public Aid. — Taxes.—Statute Construed. — Section 4062, R. S. 1881, so far as it provides for a forfeiture of taxes levied to aid in the construction of railroads, has been repealed.</p> <p>Same. — Mandate.—Pleading.—In an alternative writ of mandate to compel the auditor to place on the duplicate taxes levied in aid of a railroad, it is sufficient to aver as a fact that the railroad has been permanently located in the township, without alleging that the fact has been judicially . determined.</p> <p>Same. — Evidence.—Records.—Maps.—A proper record of a county board, appropriating money to aid a railroad company named therein, and showing all the facts necessary to give jurisdiction, is sufficient evidence of the appropriation and of the corporate existence of the railroad company, in a proceeding by mandate to have the tax put upon the duplicate. So, that the railroad has been permanently located is sufficiently shown by the map and profile filed in the clerk’s office, with proof of the actual construction of the road accordingly.</p>

<p>Pleading. — Recovery of Real Estate. — Complaint.—Demurrer.— In an action to recover the possession of real estate, the complaint is insufficient on demurrer, under section 1054, B. S. 18S1, if it fails to show that the defendant unlawfully keeps the plaintiff out of possession.</p> <p>Same. — New Parties. — Amendment of Complaint. — Where, in the progress of a suit, new parties are admitted as defendants, it is incumbent on the plaintiff to amend his complaint by inserting therein the names of such new parties, and by making proper averments concerning them.</p>

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

<p>Office and Officer. — Information for Usurping Office. — Eligibility of Relate»'. — Demurrer.—An information for usurping an elective public office,, filed on the relation of one claiming the office by election, is bad on demurrer, if it fail to show that such relator is eligible to the office.</p> <p>Same. — County Recorder. — Term of Office. — Filling Vacancy by Appointment of" One Who Had Theretofore Been Elected to Succeeding Term. — Statute Con- • strued. — A. was elected county recorder at the October election, held in 1878, to fill the four years term commencing November 1st, 1879, and ending November 1st, 1883. B.’s term of office of four years commenced November 1st, 1875, and ended November 1st, 1879; B. resigned November 4th, 1878, and A. was appointed to fill B.’s unexpired term.. November 1st, 1879, A. entered upon the term for which he was elected. C. was elected as A.’s successor at the election held November 7th, 1882,. and thereupon claimed that A.’s term of office commenced immediately upon the resignation of B., and expired at the end of four years from that date.</p> <p>Held, that the resignation of B. created a vacancy, and that the appointment of A. to fill such vacancy did not alter the length of the term for which he was elected, commencing on the 1st day of November, 1879.</p>

<p>Sheriee’s Sale oe Beal Estate.— Written Memorandum. — Bights of Purchaser. — Where, upon proper notice of the time and place of sale, the sheriff offers and sells, according to law, a tract of land to the highest • and best bidder for a reasonable price, and at the time makes a written memorandum of such sale, the purchaser will be entitled, upon payment ■or tender of the amount of his bid, to the sheriff’s certificate of such sale, and, at the proper time, if there be no redemption from the sale, to the sheriff’s deed of such real estate.</p> <p>•Same. — Sale in Parcels. — Sale in Solido. — On a sale of real estate by a sheriff, upon execution or order of sale, if such real estate consist of two or more lots, tracts, or parcels, it is the imperative duty of the sheriff to offer each of them separately; and if he receive a fair and reasonable bid for a single lot, tract, or parcel, when separately offered, it is also his duty to separately sell the same to such bidder, although the amount of the bid be not sufficient to satisfy the execution or order of sale. In such case, the fact that the sale of all the lots, tracts, or parcels, may be necessary to satisfy the execution or order of sale, will not authorize the sheriff to sell the same in solido.</p>

<p>Bastardy. — Escape of Defendant. — Re-Arrest.—Where a defendant in a ■ bastardy case has been arrested and escapes, and the case certified to the circuit court, the defendant may thereafter be arrested though more than four years have elapsed since the institution of the-proceedings before ■ the justice.</p> <p>Same. — Assignment of Eiror, — Judgment.—Justice of the Peace. — Jurisdiction.— Where the relatrix in such case makes application to the circuit court for a warrant for the arrest of the defendant, and the defendant on appeal assigns as error that the court had no jurisdiction, because it appears upon the face of the application- that proceedings were instituted more than two years after the birth of the child, such assignment can not be supported by insisting that the court had no jurisdiction, because the justice did not adjudge him to be the father of the child. An assignment of error based on one ground can not be supported by another. Practice. — Emdence.—New Trial. — Without a motion for a new trial, the action of the court in disregarding certain evidence is not presented.</p>

<p>Bill of Exceptions. — Motion to Strike Out.— When Alleged Error Considered. —Supreme Court. — It is not necessary to file a motion in the Supreme Court to strike out a hill of exceptions; when such .an objection is pointed out, or appears in the record, the court will consider it when deciding the case.</p> <p>Same. — Presentment to Judge. — Filing.—When time is given within which to file a bill, of exceptions, and it appeal's from the bill of exceptions in the record, that it was presented to the judge within such time, this is sufficient-under section 629, B. S. 1881, although the bill of exceptions was not filed within the time.</p> <p>Agbeement. — Action on Contract Made with Ancestor. — Evidence.—Testimony-of Parties, — Statute Construed. — A father and mother conveyed lands to a son; thereafter, in consideration of such conveyance, and the transfer of certain'personal property, the son agreed, in writing, with the father, that after the death of the father and mother he would pay each of his sisters $100; after such death a sister sued on the contract.</p> <p>Held, that such sister did not claim as heir or devisee within the meaning of section 499, B. S. 1881, which prohibits parties so claiming from testifying, and the plaintiff had a right to testify that she accepted such contact.</p> <p>Same. — Modification, of by Father and Son After Acceptance, and Without Sister’s Consent. — Wlien,in such case,the sister has accepted such agreement, it becomes an executed contract so far as she is concerned; and her rights thereunder can not be altered by any new agreement between father and son; and it is not error to exclude evidence as to such new agreement.</p>

<p>Decedents’ Estates. — Growing Crops. — Widows Mights.- — Complaint.—Adjacent to the dwelling of an intestate was, when he died, a field of twenty acres of growing wheat — part of his farm.. His widow, a second wife, made no selection of forty acres, as her quarantine, under the statute, R. S. 1881, section 2492, which did not include the wheat field. The administrator, as such, took the wheat, too, and she sued him as administrator to recover its value.</p> <p>Held, that her complaint averring these facts was good on demurrer.</p> <p>Same. — Statute Construed. — The widow’s right of quarantine, under the statute, belongs to any widow, and does not depend upon the existence of minor children.</p>

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

<p>Cbim&AL Law. — Appeal.—Question Reserved. — Record.— Verdict. — Judgment. —In case of an appeal, upon the part of the State, from a question reserved, in a criminal case, no question is presented to the Supreme Court where the record does not contain the verdict and judgment of acquittal.</p> <p>Same. — Statute Construed.— Certiorari. — Under section 1883, E. S. 1881, it is not the duty of the Supreme Court, in such case, on its own motion, to-direct the clerk to certify up a correct record. The writ of certiorari can issue only upon motion sustained affidavit, showing a diminution of the record.</p>

<p>Statute oe Limitations. — Guardian and Ward. — When a ward reaches full age, money in the hands of his guardian is due without demand, and the statute of limitations, which is six years, then begins to run.</p> <p>Decedents’ Estates. — Appeal to Supreme Court. — By the statutes in force March 11th, 1881, an administrator might appeal to the Supreme Court from the allowance of a claim without bond, and file the transcript within one year.</p>

<p>Supreme Court.— Verdict.— Weight of Evidence. — Where the evidence tends to establish the material averments of a good complaint, the Supreme Court will not disturb the verdict on the weight of the evidence.</p> <p>City. — Defect in Public Alley. — Constructive Notice. — A city is chargeable with constructive notice of the existence of a dangerous defect in a public alley.</p> <p>Same. — Damages.—Evidence.— Verdict. — In an action for damages for an injury resulting from dangerous defects in a public alley, one witness testified that the defect had existed for six weeks prior to the injury; other witnesses, in some measure, corroborated this testimony. The verdict of the jury indicated that the jury believed and acted upon this testimony.</p> <p>Held,' that from the length of time the defect had existed, and the other facts and circumstances of the case, the jury was warranted in inferring knowledge on the part of the city of the existence of such defect.</p> <p>Practice. — Instructions.—Presumption.—Where the error assigned is the refusal of the court to give certain instructions asked by appellant, and the record does not contain general instructions, the presumption on appeal is that the court did its duty under the code (section 533, R. S. 1881), and gave general instructions covering the issues in the case.</p> <p>Same. — Failure to Object to Refusal to Give Instructions. — Where no objection or exception is taken to the refusal to give instructions asked, no question is presented on such refusal in the Supreme Court.</p>

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

<p>Contract. — Execution.—Complaint.—The signing alone by one party of a writing purporting to be an agreement, without delivery to or acceptance by the other party, is not an execution of the agreement, and in an action by the latter thereon a complaint which fails to aver an acceptance or delivery is insufficient on demurrer.</p>

<p>Supreme Court.' — Appeal.—Plea in Bar. — Demurrer.—Estoppel by Record.— Estoppel in Pais. — Two Actions for Same Cause. — A plea in bar of an appeal set forth, that before the commencement of the action in which the judgment was rendered from which the appeal was taken, the appellant had appropriated land for the use of a railway corporation; that an appraisement was made according to law; that exceptions were filed to the appraisement; that trial was had in the A. Circuit Court and judg-ment rendered for appellee’s testator in a sum in excess of the appraisement; that the case was appealed to the Supreme Court and the judgment reversed; that after the reversal the venue was changed to W. county, where appellant, over appellee’s objection, dismissed the condemnation proceedings; that thereupon appellee instituted this action in the superior court of A. county, and recovered the judgment from which this appeal is prosecuted; that an appeal was taken by appellee from the order dismissing the condemnation procedings; that after the appeal of appellee had been perfected, the appellant, in the present case, filed a plea in bar of appellee’s appeal, alleging therein the recovery of the judgment in this cause; that it was for the same cause of action involved in the condemnation proceedings; that this plea of appellant was held good on demurrer, and appellee failing to reply, the Supreme Court gave appellant judgment on demurrer arid dismissed the appeal.</p> <p>Held, on demurrer to such plea, that the facts pleaded do not constitute an estoppel by record, or in puis.</p> <p>Held, also, that what appellant did do was simply to assert the legal right to be relieved from the- burden of waging two suits for the same cause of action.</p>

<p>Guardian and Ward.— Compensation for Education of Ward. — Judgment.— A guardian has no claim to credit against his ward’s estate for money expended for board and education, unless it appears that there was no parent of the ward able or willing to provide therefor, and that the ward’s estate justified the expenditure; and an answer to an action on the guardian’s bond, claiming credit for such expenditures, which fails to aver such facts, although a judgment by confession had been taken for such a claim against the guardian, is insufficient.</p> <p>Practice.— Cost Rond. —Non-resident relators, for whose use suit is brought, may be compelled to give security for costs.</p>

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

<p>Pleading. — Practice.—Harmless Error. — Where a demurrer is erroneously overruled to an answer, and the complaint is thereafter amended, such ruling is thereby rendered harmless.</p> <p>Vendob and Vendee.: — Encumbrance.—School Fund Mortgage. — •Release by County Auditor. — The auditor of the county has no authority to release a school mortgage unless the money is paid, and where a party is entitled by his contract to an unincumbered title, he is not compelled to accept a conveyance 'of land thus encumbered, though the auditor has: released the mortgage of record.</p> <p>Assignment of Ebrob. — Pleading.—Estoppel.—Where the court erroneously sustains a demurrer to the reply to a single paragraph of the answer, and the defendant thereafter offers to withdraw such paragraph,, but the court, at the instance of the plaintiff, refuses to allow such withdrawal, the plaintiff will not thereafter be allowed to assign error upom such ruling.</p>

<p>Intoxicating Liquoe. — Sale on Sunday. — Indictment.—Time.—An indictment for selling liquor on Sunday charged that the act occurred “on the 20th of June, 1883. * * Said 20th of June being the first day of the week, commonly called Sunday.” The date given was Wednesday. Held, that the indictment was good.</p>

<p>Bill of Exceptions. — Practice.—Pleading.—A motion to make a pleading more specific can come into the record only by bill of exceptions or order of court.</p> <p>Same. — Time of Filing. — -A bill of exceptions filed after the term, on time given upon overruling a motion for a new trial, can not embrace matters occurring before the beginning of the trial. .</p> <p>Same. — Presumption.—When a bill of exceptions is filed within the term at which the ruling excepted to was made, it will be presumed to be in accordance with leave given at the time of the. ruling.</p> <p>Damages. — Landlord and Tenant. — Zease.—■Complaint.—Parties.—Statute of Frauds. — A complaint averred that the plaintiff leased a tract of land of W., who had pnt him in possession; that defendant had a prior lease of part of it which expired March 1st, 1881, and that he thereafter wrongfully and unlawfully kept the plaintiff out of possession, well knowing that he was entitled to the possession, and so used said part as to render it valueless for that year to plaintiff, to his damage.</p> <p>Held, that the facts alleged constituted a cause of action.</p> <p>Held, also, that W. was not a necessary party plaintiff or defendant.</p> <p>Held, also, that the defendant could hot invoke the statute of frauds against the plaintiff’s lease.</p> <p>Evidence. — Title.—Proof by the plaintiff of his title as alleged is always admissible.</p> <p>Same. — When both parties claim title derived from the same person, it is sufficient proof of the plaintiff’s title if he trace it from that person to himself.</p> <p>Pleading. — Demurrer.—Measure of Damages. — If a complaint show the plaintiff entitled to damages, it is good against a demurrer, and the measure of damages can not be settled bythe demurrer.</p> <p>Same. — Striking Out. — The general denial, and a special paragraph embracing only matter admissible under the denial, being pleaded, the special paragraph should be struck out on motion.</p>

<p>Judgment.— Void and. Voidable. — A judgment by a court of competent jurisdiction is not void unless the thing lacking or making it so is apparent in the record. If the infirmity do not so appear the judgment is not void, but may be voidable.</p> <p>Same. — Delay of in Criminal Cases. — Under section 1767, E. S. 1881, upon a plea of guilty, the court is not bound to pronounce judgment eo instanii, but may delay it for the purpose of hearing testimony as to aggravating or palliating circumstances.</p> <p>Same. — Collateral Attach. — Where an appeal or other direct mode for the correction of errors in a judgment is provided, that mode must be pursued.</p> <p>Same. — Habeas Corpus. — A judgment by a court of competent jurisdiction, valid on its face, is an unanswerable return to a writ of habeas corpus issued for the release of a person imprisoned by virtue of such judgment.</p>

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

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

<p>Constitutional Law. — Legalizing or Curative Statutes.— Validating Unauthorized Judgments. — Act of March 2d, 1877. — The General Assembly might provide by law before the rendition of judgment, that the written waiver by the defendant of the issue and service of a summons, and his written appearance in or to an action, endorsed on the complaint therein, should be equivalent to the issue and service of a summons on him in such action. This being so, the General Assembly may also provide by law, after the rendition of the judgment, that any judgment rendered in good faith, upon the written waiver by the defendant of the issue and service of a summons on him in the action, “ shall be deemed legal and valid in all respects, the same as if a summons had been duly issued and served.” Therefore the act of March 2d, 1877, “legalizing certain judgments rendered without the formal service of process, and sales thereon,” etc., (Acts 1877, Beg. Sess., p. 93), is not repugnant to any provision of the Constitution, and is a valid law.</p>

<p>Promissory Note. — Assignor and Assignee. — Assignment.—The assignment by one of two holders of a note of bis half to the other is a good assignment in equity.</p> <p>Same. — Pleading.—•Endorsement:—A complaint by an assignee against the maker of á promissory note need not exhibit a copy of the endorsement. Same. — Lex Loei Contractus. — Place of Payment. — A note payable in another State, but made in this State, is presumed to be made with reference to-the laws of that State, and its effect will depend on such laws.</p>

<p>Dbainage. — Constitutional Law. — Trial.—Jury.—Section 4276, B. S. 1881, which provides that questions [of fact in proceedings for drainage shall he tried hy the court without a jury, is constitutional.</p>

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

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

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

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

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

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

<p>City. — Street.—Dedication.—Injunction.— Complaint. — In a suit to enjoin a city from using a strip of ground as a street, the complaint must not only show that there has been no grant or condemnation of the land for a street, but, also, that there has been no implied dedication.</p>

<p>Judgment.— Former Adjudication.— Mortgage.— Foreclosure.— Injunction.— ■ Priority of Lien. — U. was the equitable owner, by its term's, of a judgment, which, standing in the name of N., was a lien upon lands of H., which H. afterwards mortgaged to W. To a suit by W. against IT. to foreclose, U. was made a party defendant, and appeared and pleaded that the mortgage to W. was fraudulent, it being alleged against him that he held liens upon the lands subsequent to the mortgage; but he did not set up the judgment as a lien prior to W.’s mortgage. A trial by jury in 1876 resulted in a verdict for W., and a decree of foreclosure against all the defendants, including U., and under this decree W. purchased the lands, and at the proper time received a sheriff’s deed. An execution upon the first named judgment was afterwards levied upon the lands, and B. H., the heir of W., then dead, brought suit against the sheriff and N., the nominal plaintiff in the judgment, to enjoin a sale under the execution.</p> <p>Meld, that the decree in favor of W. concluded U., and, also, N., from as: serting the priority of the lien of the first named judgment, and that B. H. was, upon the facts stated, entitled to an injunction.</p> <p>Practice. — Failure to Require Reply. — Where a defendant goes to trial without requiring a reply to his answer, its allegations will be regarded as controverted by a general denial.</p>

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

<p>’Cbimikai, Law. — Recognizance.—Forfeiture.—Justice of the Peace. — Change of Venue.- — One who is under recognizance in the form prescribed by statute, E. S. 1881, section 1644, to appear before a justice of the peace to answer a criminal charge, and who, upon obtaining a change of venue, fails upon the order of the justice to enter into a new recognizance for .his appearance before the justice to whom the venue is changed, forfeits his recognizance.</p> <p>Same. — Complaint.—Erhibit.—In a complaint upon a recognizance taken and forfeited before a justice of the peace in a criminal case, it is not necessary to exhibit a copy of the justice’s certificate of forfeiture.</p> <p>Same. — Judgment.—Entry of. — The statute, E. S. 1881, section 1489, prescribing the time when a justice of the peace shall enter his judgment, does not apply to criminal cases.</p>

<p>Jttdoe Pro Tem. — Appointment.—Supreme Court. — Presumption.—Where no* objection to a judge pro tem. was made in the court below, the Supreme Court will presume that his appointment was valid unless it affirmatively appears otherwise by the record.</p> <p>Deed. — Consideration.—Evidence.—Parol evidence is admissible to show that the consideration of a deed, recited therein to be one dollar, was in fact natural love and affection.</p> <p>Same. — Statement of Grantor. — Bes Gestae. — The statements of the grantor-in a deed, which is in evidence, made at the time of its execution, are always admissible in evidence as part of the res gestee.</p> <p>Same.— Witness. — Agent.—Statute Construed. — A scrivener employed to prepare a deed is not an agent contemplated by section 500, E. S. 1881,. which makes a living party a witness to a transaction with one deceased when an agent of the deceased has testified concerning it.</p> <p>New Trial. — Evidence.—Supreme Court. — The admission or exclusion of evidence can not he questioned on appeal to the Supreme Court, unless assigned as cause for a new trial.</p> <p>Descents. — Beversion.—An estate, granted in consideration of love and affection, reverts to the grantor, if living, upon the death of the grantee intestate, without issue, and unmarried. E. S. 1881, section 2473.</p> <p>Pabtition. — Title.—Estate for Life. — Former Adjudication. — A judgment in partition, assigning a share of the land to one for life, who is really seized of the share in fee simple, gives the share in fee simple, having the effect merely to part the land, without otherwise affecting the title, unless an issue had been made and directly decided as to the title.</p>

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

<p>BiAIIíROAD. — Killing Stock. — Complaint.—A complaint before a justice of the peace, under tbe statute, B. S. 1881, section 4025, to recover the value of a mare, which, with the other necessary allegations, avers that “where said mare entered upon said defendant’s railway and was killed, said railway was not fenced at all,” is sufficient on demurrer.</p> <p>¡Same. — Evidence.—■ Value. — Identification.—In a suit to recover the value of an animal killed by the defendant, 'evidence of the value of the animal a month before the killing is admissible, though the witness can identify the animal only as one belonging to the plaintiff, said to baVe been killed.</p>

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

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

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

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

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

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

<p>Railroad. — Conveyance.—Condition Subsequent. — Right of Way, — Hile.— Statute Construed. — The 21st section of the charter of the Indianapolis and Bellefontaine Railroad Company does 'not give to a conveyance of the right of way upon a condition subsequent the effect of a conveyance of land in fee simple absolute.</p> <p>Same. — Breach of Condition in Deed. — Consideration.— Abandonment. — Release. — A conveyance to a railroad company of the right of way for its road, the consideration of which is shown to be the construction and permanent maintenance of the road upon the line so granted, and the erection and maintenance of its depot upon adjoining lands, is upon condition subsequent, and if such depot and track be afterwards abandoned, it is a breach of the condition, which defeats the grant. And if, upon such abandonment, the grantor, for a valuable consideration from the railroad company, grant the right of way to another person and release the company of all damages and rights of action by reason of the removal of the depot, no title to the land will he or remain in the railroad company.</p>

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

<p>Promissory Note. — Execution.—Delivery. — Possession. — Complaint. — In a complaint upon a promissory note alleged to have been executed by the defendant, and to be in his possession, it is not necessary to also allege that he delivered the note.</p> <p>Same. — Excuse for Failure to File Copy as Exhibit. — Fraud.—In such case the averment that the defendant has possession of the note is a sufficient excuse for failing to file the note or a copy of it with the complaint; nor was it necessary to allege that one S., in whose custody the-note was, and from whom it was alleged the defendant fraudulently procured the note, was the plaintiff’s agent, as the onus of showing that-the plaintiff had parted with the note was on the defendant.</p> <p>Same. — ■Consideration.—In a suit on a note, it is not necessary to aver a consideration.as the note imports it.</p> <p>Same. — Evidence.—Statements.—Res Gestee. — Where, in such case, the defendant obtained from S., who had the custody of such note, its possession by virtue of an order which purported to have been executed by the decedent, he can not prove by S. what he said to S. at the time he obtained the note, about the decedent having executed such order. These statements were not a part of the res gestee, and as they were made by himself, they were inadmissible.</p> <p>Practice. — Motion to Strike Out Pleadings. — Overruling a motion to strike out a part of a pleading is not an available error.</p> <p>Same. — Evidence.—Notes of Judge. — Record.—The notes of the evidence ma,de and signed by the judge and made a part of the record can not supply tlie evidence, especially when it does not purport to be all the evidence, and in such case the record can not be deemed to contain the evidence.</p>

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

<p>Mabbied Woman. — Contract.—Promissory Note. — Under the act of 1879, . Acts 1879, p. 160, the promissory note of a married woman, given for money borrowed to carry on a business in which she was engaged on her own account, was valid.</p> <p>Payment. — Promissory Note. — Former Adjudication. — Decedents’ Estates. — In a suit by an administrator upon a note, it was pleaded and proved that the defendant had filed a larger claim against the estate, giving credit thereon for the money which was the consideration of the note, and recovered the balance of the claim, after deducting the credit, there having been no question as to the credit either by pleading or proof.</p> <p>Ideld, that this constituted a payment of the note.</p>

<p>Municipal Corporation. — Street Improvement. —Sewers. —Errors in Judgment. — Liability to Lot-Oioner. — -Where, in the improvement of a public' street, a municipal corporation constructs a sewer in a skilful and careful manner, and keeps the same in good repair, it will not be liable in damages, as a general rule, to the owner of an abutting lot, for the errors-in judgment or mistakes of the municipal authorities in regard to the-capacity of the sewer to perforin the work for which it was intended.</p> <p>Jury.— View of Properly. — Evidence—Supreme Court. — Whether or not the trial court has made a proper order for the view of property, which is the subject of litigation in any case, under the provisions of section 538, E. S. 1881, is a question the Supreme Court can neither consider nor decide when the evidence is not in the record.</p> <p>Supreme Court. — Transcript.—Refusal of Instruction. — Statute Construed,.— The proviso in section 650, R. S. 1881, is only serviceable or advantageous, when a party desires to present to the Supremo Court an alleged error of the trial court, intits refusal to give instructions at his request.</p>

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