Volume 92 — Indiana Reports

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

<p>Crimina! Law. — Affidavit and, Information. — An affidavit stating the necessary facts upon information and belief is sufficient to warrant an information.</p> <p>Same. — Information.—Obstructing Public Drain. — Description.—An information for obstructing a drain, under B. S. 1881, section 2153, which so describes the drain in general terms that it can be identified with reasonable certainty, is sufficient in that respect.</p> <p>Same. — An information charging that the defendant obstructed a drain described, at, etc., on, etc., “by unlawfully removing a tile therefrom, thereby causing said ditch to fill up with mud, dirt and other substances, and did then and there and thereby unlawfully divert the water in said ditch from its proper channel, and did unlawfully injure, obstruct and destroy said ditch,” sufficiently charges a public offence under section 2153, E. S. 1.881.</p> <p>Same. — Evidence.—Construction of Drain. — If the evidence in a prosecution under section 2153, E. S. 1881, show that the drain was constructed under an order of the county board, it is sufficient proof that the drain was established in accordance with the law, without showing that the requirements of the drainage laws have been complied with.</p> <p>Same. — Phidence.—Malice.—In a prosecution for obstructing a public drain,, malice is not an element of the offence, and need not be shown.</p> <p>Same. — Connecting Private with Public Drain. — One may, on his own land, connect a private drain with a public one, only provided he do not. thereby impair or destroy the public utility of the latter.</p> <p>Practice.— Fitness. — Argumento/Counsel.—When the defendant testifies as-a witness voluntarily, his testimony is subject to such comment as is proper concerning that of any other witness.</p> <p>Same. — Instructions.—The court is not bound to modify or correct an instruction which, as written, ought not to be given, but may, without error, simply refuse to give it.</p> <p>Same. — Reasonable Doubt. — An instruction that evidence is sufficient to remove a reasonable doubt which convinces the judgment of a man of ordinary prudence of the truth of a fact with such force that he would act upon it, without hesitation, in his own most important affairs, is not. erroneous.</p>

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

<p>Libel. — Ghureh Gensures. — The publication of written statements concerning a church member, charging him with having disturbed the peace of his church by circulating false statements about the pastor, and containing a censure therefor, if untrue and malicious, is per se actionable.</p> <p>Same. — Church Jurisdiction. — Notice.—Evidence.—In an action for libel the defendants answered that the publication was made by the defendants without malice, as a church council having, by the constitution and rules of the church, power to discipline members, the plaintiff being such, and in the regular administration of such discipline. Eeply, that the defendants had no authority as a church council, because their action was without notice to the plaintiff, which notice was required by the constitution of the church. The plaintiff, having proved the publication by reading from the church record, then offered to read parts of the church constitution, showing that without notice to appear a member of the church was not subject to discipline by the council, and orally that such notice had not been given, and he had no knowledge of the proceedings till afterwards, but the court below rejected the evidence.</p> <p>Held, that the evidence was admissible.</p>

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

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

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

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

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

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

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

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

<p>Bastardy. — Fmfeited Recognizance Rond. — Measure of Damages. — Pleading. —Principal and Surety. — Insolvency of Principal. — Fraud.—Suit on a forfeited recognizance to appear before a justice upon a charge of bastardy, abide tlie order of the justice, and not depart without leave; breach, failure to give bond for his appearance at the circuit court as ordered, and departing. On trial of the bastardy case in the circuit court in the absence of the accused, notice to him being by publication, he was found guilty and adjudged to pay $300.</p> <p>Held, that an answer by the sureties that the accused was insolvent was bad, either as a bar or in mitigation.</p> <p>Held, also, that an answer that, the justice “ made up a fraudulent record,” showing a forfeiture of the recognizance, was bad.</p>

<p>Liens. — Priority.—Judgment on Administrator’s Bond. — Mortgage.—A judgment on an administrator’s bond is .a lien on the real estate of the defendants thereto from the commencement of the suit thereon, and will have priority over a mortgage executed after that time. K. S. 1881, section 609.</p> <p>Same. — Notice.—Title of Cause. — Misnomer.—The priority of lien to which a judgment on an administrator’s bond is entitled, over a mortgage executed after the beginning of the suit, is not affected by the fact that the clerk had so misnamed the parties in the order-book and dockets that they would not indicate the pendency of such a suit, if the mortgagor was not misled thereby.</p>

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

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

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

<p>Criminal Law. — Jury.—Challenge for Cause. — Competency.—A juror having au opinion from newspaper reports, not shown to contain a statement of the evidence, and who thinks his opinion would readily yield to the evidence, and would not hinder him from giving an impartial verdict, was deemed competent by the trial court in a criminal case.</p> <p>Held, no error under section 1793, K. S. 1881.</p> <p>Same. — Evidence.—Practice.—In a criminal case a letter of the defendant was put in evidence by the State. He asked leave to explain, as a witness the circumstances under which it was written, but this was refused, and no statement of the evidence thus proposed was made at the time. Held, that no question upon the ruling could be made in the Supreme Court.</p> <p>Supreme Court. — Evidence.—Objection.—Where the ground of objection to evidence has not been stated to the lower court, its admission can not be questioned in the Supreme Court.</p>

<p>Promissory Note. — Partnership.—Pleading.—Partners’ Authority to Bind Each Other. — To a suit against partners upon a promissory note by tbe payee, an answer by one that his copartner, without his consent, executed the note in the firm name, of which the plaintiff, at the time, had notice, is bad on demurrer. Aliter, if it be averred that the defendant, at the time of the execution of the note, did not consent and objected thereto, of which the plaintiff then had notice.</p> <p>Same. — Interest.— Usury. — An answer to a suit on a promissory note, alleging that it was given for interest on other notes which were drawing interest at the highest rate allowed by law (ten per cent.), does not show usury.</p>

<p>Pleading. — Complaint.—Demurrer.—A complaint which entitles the plaintiff to some relief is good against a demurrer for want of facts.</p> <p>Same. — Practice.—Where a plaintiff is not entitled to all the relief granted, the error can he reached only by a motion to modify the judgment.</p>

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

<p>'City. — Streets.—Removal of Obstructions. — Though a city have the power by its own act to remove obstructions from its streets, it may nevertheless by suit prevent them or obtain their removal.</p> <p>Same. — Ron- User of Street. — Laches by a city or its officers can not deprive the public of its right to a street.</p> <p>Same. — Private Occupation of Street. — Statute of Limitations. — The statute of limitations operating alone can not deprive a city of the right to its streets as trustee for the public; nor is the occupancy by a private party of a portion of a street by temporary and inexpensive structures for whatever time, inconsistent with the right of the public.</p> <p>‘Supreme Court. — Instructions.— Verdict. — Evidence.—-No error in instructions to the jury will be available in *the Supreme Court, when the verdict is unquestionably right upon the evidence.</p>

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

<p>Criminal Law. — False Pretences.- — Sale of Note Obtained By. — The sale of a note, the signature to which is known by the seller to have been obtained by any false pretences, was a crime under section 2204, B. S. 1881, though the pretences were verbal misrepresentations, and not of a nature which would have made the'act of obtaining the signature a criminal act.</p>

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

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

<p>Assignment op Errors.— Waiver of Compliance with Buies of Supreme Cowl— Informalities in the assignment of errors or any failure to comply with the rules of the Supreme Court concerning the preparation of the transcript by numbering its lines are waived by agreeing to submit the cause.</p> <p>Mandamus. — Parlies.—Belator.—Demurrer to Answer. — In mandate, the relator is the real party, and a demurrer by him to an answer, instead of by the State on his relation, though informal, is nevertheless sufficient.</p> <p>Railroad.— Public Aid.— Election, — Tax Levy. — -Where there are two voting precincts in a township, an election for public aid to construct a railroad, when the polls are not opened in both precincts, is void under R. S. 1881, section 4048, and in such case no tax for aid can be levied.</p>

<p>Decedents’ Estates. — Sale of Lands. — Fraud of Administrator. — Where an administrator conceals his intention to sell certain lands from the heirs and strangers who would bid, in fraudulent collusion with one to whom he sells for an inadequate price, equity will set aside the sale.</p> <p>Same. — •Lien of Purchaser. — Subrogation.—A purchaser in good faith of lands from an administrator, where the purchase-money paid by him is applied to the payment of the intestate’s debts, will, if the sale be set aside, be entitled to a lien on the land for the amount of money paid; and this is so though there may have been sufficient personal property to pay the debts; and though no additional bond was filed by the administrator ; and though another tract was sold for a sum sufficient to pay the debts.</p>

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

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

<p>Judgment. — Assignment of by Sureties. — Principal and Surety. — Evidence.— Payment. — Where a judgment is rendered against several defendants, some of whom are sureties, and a number of such sureties transfer a portion of such judgment, the assignee can not recover from the other sureties the portion of said judgment so assigned to him, without proof that the sureties making the assignment paid the judgment.</p> <p>Promissory Note.— Notice to Maker of Endorsement. — Purchase of Claim as Set-Off. — If. the maker of a promissory note has notice that his note has been assigned, such notice will preclude him from thereafter acquiring claims against the payee as set-offs, though the notice was not given by the assignee, as it is immaterial from whom the information is received.</p>

<p>1 bed. — Conditional Conveyance. — Maintaining Toll-House. — Seal Estate, Action to Secover. — A farm was conveyed, reserving a strip of land until a gravel road, which then had its only toll-house and gate at that place, should remove its “ place of collecting toll ” from said land. Before the suit in ejectment was begun against the gravel road company by a subsequent purchaser, to recover the strip, the company had erected one other toll-house and gate at another place, where its principal tolls were collected, but still maintained a toll-house at the old place at which only a trifling amount was collected, being only from persons passing to or from one direction upon the gravel road to or from an intersecting road which crossed it, and who would not pass the new toll-house. For said house and strip of land the keeper paid the company S25 per annum, besides collecting the toll. These facts were found specially by the trial court, with the conclusion of law that the plaintiff owned the strip and was entitled to its possession.</p> <p>Held, that the conclusion of law was correct.</p>

<p>KailboAD. — Tax.— Public Aid. — Order of County Commissioners.— Notice.— Record. — Collateral■ Attack. — Injunction.—The order of the board of county commissioners directing the. levy of a tax to aid in the construction of a railroad can not be attacked collaterally, in a suit to enjoin the collection of the tax, for any cause which was available when the order was made, not even for want of the notice required by law, unless the record shows affirmatively that there was no notice whatever.</p> <p>Same. — Witness.— Expert. — Opinion.—Whether a railroad was finished at a certain date is a question of fact involving science and skill, and not a mixed question of law and fact, and the opinion of experts is admissible concerning it.</p> <p>Injunction. — Complaint.—Demurrer.—Eractice.—When a complaint for injunction in a single paragraph specifies several independent reasons for-granting the relief sought, a demurrer may be addressed to any such separate specification.</p> <p>Witness. — Leading Questions. — Supreme Court. — A leading question, the answer to which shows that the witness was not led, affords no reason for complaint, nor will the Supreme Court regard the permitting of such, questions as error, unless it appears that injury resulted.</p>

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

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

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

<p>Surety op the Peace. — Reasonable Doubt. — Jury.—A proceeding for surety of tlie peace is not a prosecution for crime, the doctrine of reasonable doubt does not apply to it, nor are the jury the judges of the law, but they must take the law from the judge.</p> <p>Same. — Evidence.—Proof that the defendant had been informed that the complainant had slandered his wife on the same day of, and just prior to, the menacing conduct which gave rise to the proceeding, is not admissible for the defendant.</p> <p>Same. — Instructions.—Where the court informs the jury that the proceeding is based on section 1606, B. S. 1881, which is then read, and then in the next instruction tells them that the issue to be tried is whether the complainant has just cause to entertain the fears expressed in the affidavit, there is nothing which can mislead the jury, and no error.</p>

<p>Husband and Wipe. — Purchase of Land with Wife’s Money. — Conveyance.— Resulting Trust. — Where a husband purchases land with the money of his wife, and takes the conveyance in his own name without her'consent, he thereafter holds it in trust for her, though she knew that he had so taken the title.</p> <p>Same. — Agreement.—Conveyance Taken in Husband’s Name. — Where land is thus purchased, and the title is taken in the name of the husband, in pursuance of a verbal agreement, made without any fraudulent intent, that he will hold it in trust for her, a valid trust is created in her favor.</p> <p>Same.— Heirs of Wife. — Injunction.—Sale of Land by Administrator of Husband. —Pleading.—Notice.—Creditors.—In an action by the heirs of-the wife to restrain the administrator of the husband from selling the land, an answer that the wife had permitted the husband to retain the legal title, and contract delhs, without giving notice of her claim, is bad for not alleging that such creditors had given credit to the husband in ignorance of the wife’s claim.</p> <p>Same.-— Order of Sale. — Estoppel.—Descents.—An answer in such case, that the plaintiffs had been made parties to an application1 by the administrator to sell said land, and that in such proceeding an order was obtained which is in full force, is insufficient, as the court possessed no power in such proceeding to order sold the interest they inherited in said land from their mother; they were only concluded as the heirs of the father.</p> <p>Same.— Counter-Claim. — Payment of Mortgage by Administrator.— Exhibit.— Subrogation. — In such case a counter-claim alleging that the administrator had paid off a mortgage which existed upon the land when it was' purchased, and that the sum paid was paid to protect the title, is not good unless the mortgage, or a copy, accompanies the pleading, as the: administrator can only enforce a lien by foreclosing the mortgage.</p> <p>Same. — Evidence of Trust. — In such case, where there is no direct proof that, the wife furnished the purchase-money, or that the husband agreed to hold the land in trust for her, the manner in which he used and improved it, such as clearing and cultivating it, is admissible in evidence: to enable the jury to determine how he in fact held it.</p>

<p>City. — Street Improvement. — Sale of Real Estate. — Injunction.—Injunction lies to restrain a sale of real estate upon a void precept issued on account of a street improvement.</p> <p>Same. — Estimate for Improvement. — Without an estimate for work done in improving a street, as required by section 3164, R. S. 1881, no valid precept for the collection thereof can be issued.</p>

<p>Supreme Court. — Motion to Strike Out Pleading. — The overruling of a motion to strike out part of a pleading, even though erroneous, is not regarded by the Supreme Court as an available error for the reversal of a judgment.</p> <p>Gravel Bo ad Company. — '-Judgment and Execution. — Incorporeal Rights and Franchises. — Sheriff’s Sale. — Ratification.—Where a sheriff, by virtue of an ordinary execution issued on a judgment against an insolvent gravel road company, has levied upon and sold its entire property, including its incorporeal rights and franchises, for a sum more than sufficient to satisfy such execution, the acceptance of the surplus of the proceeds of such sale, though it be illegal, by the assignee of such company, for the benefit of its creditors, is a ratification and affirmation of such sale, and neither the assignee nor assignor can be heard to question or controvert its legality or validity.</p> <p>Pleading. — Denial in Affirmative Answer. — Demurrer.—Harmless Error. — It is a harmless error to sustain a demurrer to an affirmative paragraph of answer containing a general denial, where the facts stated affirmatively are insufficient, when it appears that the general denial is also pleaded in another paragraph of answer.</p>

<p>Negligence. — Oomplaint for Personal Injury. — Town.—Street.—A complaint against a town to recover for a personal injury, in consequence of falling . into an excavation in a street, which fails to show that the town was chargeable with fault at the time of the injury, or that the injury was caused by the wrongful act or omission of the town, is bad on demurrer-</p>

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

<p>Taxes. — Personal Property. — Situs.—Domicile.—The situs of personal property for the purposes of taxation does not follow the domicile of the owner.</p> <p>Same. — -Town.—Injunction.—'-^Residence.—Where a person resides in a town in this State, and his personal property belongs elsewhere, such town has no authority to assess taxes upon such property, and the collection of the same will be enjoined.</p>

<p>Pleading. — Partial Answer. — Demurrer.—Where a paragraph of answer is addressed and limited to a part only of the complaint, and to that portion constitutes a good defence, there is no error in overruling a demurrer to such partial answer.</p> <p>Practice.— Evidence. — Admission of Record.— Township Trustee. — • Want of Jurisdiction. — Where a record of the township trustees is offered in evidence, and the trustees’ want of jurisdiction of the subject-matter is apparent, there is no error in the exclusion of such record.</p> <p>Obstruction op Highway. —Action for Damages. — Sufficiency of Evidence.— To maintain a civil action for the recovery of damages, by reason of the obstruction of a public highway, the plaintiff must show by a preponderance of the evidence the existence of the public highway, its obstruction by the defendant, and that by reason of the obstruction he has sustained damages, different in kind and degree from those sustained by the public generally.</p>

<p>County Commissioners. — Glaims.—Pleadings.—In filing claims for allowance before a county board, the formalities of a complaint in other courts are unnecessary, but it is enough to state the claim in the form of an account.</p> <p>Same. — Refunding Taxes. — The statute, B. S. 1881, section 5813, makes it the duty of the county board to refund to taxpayers county taxes wrongfully assessed, and to certify State taxes so assessed and collected to the Auditor of State.</p> <p>Same. — Wrongful Assessment of Taxes. — Presumption.-—State taxes wrongfully collected by reason of the illegal increase of valuations made by the State Board of Equalization in 1869 will be presumed to have been refunded to the counties as required by the act of March 8th, 1873, and in such cases it is the duty of the county to refund to the taxpayers.</p> <p>Statute op Limitations. — Demurrer.—A statute of limitations containing exceptions is not available on demurrer to a complaint, unless the complaint shows a case not within any of the exceptions.</p>

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

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

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

<p>Former Adjudication.— What Evidence Will Sustain Plea of. — An issue joined on a plea of a former recovery is not sustained by putting in evidence the entry of judgment, without any other part of the record.</p>

<p>Judgment. — -Assignor and Assignee. — Pleading.—Fraudulent Conveyance.— Trust and Trustee. — Resulting Trust. — ■Agreement.—The plaintiff assigned promissory notes held by him, and to secure payment mortgaged his own lands to the assignee, who obtained a personal judgment against the makers, and a foreclosure of the mortgage, and a satisfaction of the debt by sale of the lands mortgaged, and then assigned the judgment to the plaintiff, who sued the makers and the wife of one of them, alleging these facts and a conveyance by one maker to the wife of the other of certain land to defraud creditors.</p> <p>Held, that the complaint was good against such defendants.</p> <p>Held, also, that an answer by such grantor in bar of the whole complaint, which merely met the averments concerning the fraudulent conveyance, was bad on demurrer.</p> <p>Jffeld, also, that answers by the wife, 1. That she originally bought and paid for the land wholly with her own means, and by agreement, without fraudulent intent, the deed was taken to her grantor to hold for her .benefit; 2. The same, except that the conveyance was made to her grantor without her knowledge or consent, and the land held by him in trust, until the conveyance to her, — were both good on demurrer, by virtue of R. 3. 1881, sections 2974, 2976.</p> <p>Held, also, that upon proof of the personal judgment, and its payment as alleged, the plaintiff was entitled to a personal judgment against the makers.</p> <p>Same. — Collateral Attack. — Promissory Note. — A judgment upon a note, rendered before it is due, upon due service of process and default, is not void, and can not be questioned collaterally.</p> <p>Practice. — Pleading.— Waiver. — By voluntarily replying to a pleading,, while a demurrer is pending thereto, the demurrer is waived.</p>

<p>Bepeevin. — Complaint.—In an action for the recovery of personal property in the circuit court, it is not necessary to aver in the complaint that the property has not been taken for a tax, assessment or fine, or seized under an execution or attachment, against the property of the plaintiffs.</p> <p>Same. — Conditional Sale. — • Title. — Contract. — Promissory Note. — Evidence.— Where personal property is sold upon the condition that the title does not vest until payment is made, and notes are executed for the price, an action for its recovery for failure to pay the price is not based upon the notes, and they need not be made a part of the complaint, nor their execution proved, in order to read them in evidence.</p> <p>Same. — Bona Fide Purchaser. — A bona fide purchaser of property from a person having no title can not hold such property as against the rightful owner.</p> <p>Same. — Recovery from Bona Fide .Purchaser. — The owner of personal prop/ erty, who holds the same upon the condition that the title does not vest until the price is paid, may, upon the purchaser’s failure to pay, recover the property from a bona fide purchaser.</p> <p>Same . — General Finding. — Ownership.—A general finding, in an action of replevin, for the plaintiffs is equivalent to a finding that the plaintiffs are the owners and entitled to the possession of the property.</p> <p>Deposition. — Signature.—Names.—Where a deposition contains any relevant testimony, it is not error to refuse to suppress it, and the fact that the deponents subscribed their names by initials is no reason for suppressing the deposition.</p> <p>Supreme Court. — Instruction.—Evidence.— Verdict. — An error in giving or refusing to give an instruction will not work areversal of the case, where it appears that the verdict was clearly right upon the evidence.</p> <p>Same. — Harmless Error. — A judgment will not be reversed on account of irrelevant evidence, where it is entirely harmless.</p>

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

<p>Married Woman. — Contract.—Case Overruled. — A married woman is not personally liable on a contract made for the purchase of lands jointly with her husband in August, 1881. Emmett v. Yandes, 60 Ind. 548, overruled so far as in conflict with Searle v. Whipperman, 79 Ind. 424.</p>

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

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

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

<p>, Sheriff’s Sams —Appraisement.—Quieting Title. — -An execution requiringappraisement was levied on lands of the debtor. The lands were appraised at $1,100 with this proviso: “ But if there are any liens they are to be deducted from the above value.” No schedule of liens had been furnished to the appraisers, and they deducted none. There were in fact liens to the amount of $2,500, and upon a bid oE $1 by the judgment plaintiff he obtained a sheriff’s deed.</p> <p>Held, that the sale was void, and one acquiring title from the execution debtor after the sale, possession not having changed, could maintain a. suit to quiet title upon a complaint generally asserting title in himself,, and that the defendant claims some interest in the lands adverse to him..</p>

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

<p>Recognizance. — Forfeiture.—Duties of Attorney General and Prosecuting Attorney. — If for the period of a year after a recognizance for the appearance of one indicted has been forfeited, the prosecuting attorney neglects to enforce the collection, the Attorney General has authority to-do so, and after he has brought suit for that purpose, the prosecuting-attorney has no right to interfere to embarrass or defeat the suit, nor will he be permitted to do so professionally after he goes otit of office. Appearance by him to a motion to set aside the forfeiture is a nullity, and an order setting it aside without notice of the application to the Attorney General, is erroneous.</p>

<p>Judgment. — Relief freon. — Default.—Excusable Neglect. — Attorney and Client. —A defendant’s attorney, compelled to absent himself from court, made-an agreement with all the other attorneys, that none of his business should be taken up in his absence, not, however, particularly specifying; this case. Default and judgment were taken in his absence.</p> <p>Held, that the facts sufficiently showed excusable neglect under the statute, R. S. 1881, section 396.</p>

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

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

<p>Promissory Note. — Endorsement.—Delivery.—A negotiable promissory note1, payable to the order of the maker, is a nullity until it is endorsed by him; and a writing on the back of such note signed by him, stating the amount of property owned by him, is not an endorsement giving the note validity, nor will the mere delivery of such a paper make the maker liable thereon to the person to whom it is delivered.</p>

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

<p>Deed. — Law of Place of Execution. — Seizin.—"Whether a deed contains covenants of seizin is to he determined by the law of the place of its execution.</p> <p>Same. — Contract for. — Covenant for General Warranty Deed. — A contract for a warranty deed entitles the covenantee to a deed with a covenant of seizin.</p> <p>Same. — Covenant of Seizin, Personal One. — Fweign Law. — The covenant of seizin is a personal one, and as to such a covenant a deed may be reformed, although the land upon which it operates is situated in a foreign State.</p> <p>Same. — Suit to Deform. — A suit to reform a deed is in personam, and may be brought where the person resides, although the land lies ij. another State or country.</p> <p>Same. — Executory Contract for. — Fraud in Preparation. — A person who contracts to prepare a deed with full covenants is guilty of a fraud if he prepares a deed without covenants, and delivers it as prepared in accordance with the terms of the preliminary agreement.</p> <p>Same.— Vendor and Vendee. — Action for Failure of Title. — The general rule is that in cases where there is no covenant and no fraud, a vendee can not recover although there is a complete failure of title. Beal v. Beal, 79 Ind. 280, limited.</p> <p>Same. — After-Acquired Title. — Where a covenantee has been evicted by the rightful owner, he can not be compelled to accept a newly acquired title of the grantor, but may sue for the purchase-money.</p> <p>Foreign Law. — Presumption.—Where the statute of another State is relied on, it must be pleaded, otherwise the presumption is that the common law prevails.</p> <p>Same. — Knowledge of. — Pleading and Proof — A man is not bound to know the laws of another State or country, and such laws must be pleaded and proved as matters of fact.</p> <p>Same. — Representation of — A party who professes to know what the foreign law is, is guilty of fraud if he falsely represents the law and misleads the person with whom he is dealing.</p> <p>Fraud. —Misrepresentation of Existing Fact. — Where a party merely promises to do a thing in the future there can be no fraud, but where there i» a delivery of an instrument materially different from that required by a contract, with intent to deceive, there may be fraud.</p> <p>Same. — Knowledge of Falsity of Statement Not Essential. — Where a party professes to possess knowledge of a fact, and for the fraudulent purpose of inducing another to act makes a statement of the fact, which is untrue, and thereby misleads the person with whom he is dealing, he is guilty of fraud, although he did not know the statement to be false.</p> <p>Practice. — Demurrer to Evidence. — A demurrer to evidence admits all inferenees that may be drawn from the evidence against the party who demurs, and evidence favorable to him can not be considered if there is. any conflict.</p>

<p>Evidence. — Harmless Error. — The admission of improper evidence, when! without it the same verdict must have been rendered, is a harmless error.</p> <p>Contract. — Merger of Oral Agreement. — Where a contract in writing is executed, all oral stipulations accompanying it are merged, and the writing must be treated as containing the whole contract, and in such case an action can not be maintained upon the oral agreement.</p>

<p>Dbainage. — Petition for Location of Ditch. — Names of Owners of Land Affected.— A petition for the establishment of a ditch under the provisions of the act of March 9th, 1875, need not contain the names of the owners of the land affected by such proposed ditch.</p> <p>Same. — Remonstrant.—Costs.—When, in such proceeding, a remonstrator remonstrates on the ground that the same will not be of public utility, and such issue is found against him in the circúit court, he is properly-taxed with the costs of such issue.</p> <p>Same. — Damages.—When he remonstrates on the ground that he will sustain damages, and such issue is found against him before the board of commissioners, and in his favor on appeal, he is entitled to costs upon such issue.</p> <p>Practice. — Interrogatories to Jury. — Verdict.—In order to predicate a mo, tion for judgment upon answers of the jury to interrogatories notwithstanding the general verdict, it must affirmatively appear that such interrogatories were.submitted to the jury by the court.</p>

<p>Mandamus. — Meturn.—Practice.—Where no objection is made to the sufficiency of the return to a writ of mandate in the trial court, none can be urged against it on appeal.</p> <p>New Trial. — Assignment of Carnes for. — An assignment of a cause for a new trial on account of error in the admission of evidence must show with reasonable certainty the particular portion of evidence objected to.</p>

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

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

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

<p>Oommon School Fund. — Es trays and Property Adrift.— Unclaimed Proceeds of Sales. — .4ci of January 15th, IS44. — Under the first clause of the schedule annexed to the Constitution of 1851, the act of January 15th, 1844, entitled “An act converting the moneys arising from the sale of estrays and property taken up adrift into the common school fund ” (Acts 1844, p. ■86), not being inconsistent with the Constitution, and not having expired or been repealed, has remained and is in force; and under its provisions and those of section 4325, B. S. 1881, all moneys arising from the sale of estray animals and property taken up adrift, “so soon as the same shall have vested absolutely in any county,” become a part of the common school fund of the State.</p> <p>'Same. — Attorney General. — Relator.—Where suit is brought by the State for the recovery of any part of its common school fund, the Attorney General is the proper officer to wage such suit, and is a proper relator therein.</p>

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

<p>Erom the Speneer Circuit Court,</p>

<p>Railroads. — Duties to Passengers. — Negligence.—Instructions.—Railroads are required to provide safe places and seats for their passengers, and a statement of this or any general principle to the jury, in a suit by a passenger for an injury, if not strictly necessary under the evidence, is not improper, and is certainly harmless.</p> <p>Same. — Liability to Passenger for Acts of Servant. — In a suit by a railroad passenger for injury caused by a careless or wilful act of a brakeman, an instruction that it was the duty of the defendant to carry its passengers safely and properly, that it was responsible for the manner in which its servants executed that duty, and bound to protect its passengers from their violence and from violence from any other source, is correct as far as it goes, and could not mislead the jury.</p> <p>Same. — It is the duty of a passenger to obey reasonable directions of the conductor of the train as to passing from one car to another to find a seat while the train is in motion unless he knows that to do so would be dangerous ; and the passenger may assume that the conductor has reasonable knowledge that obedience in that respect will not beodangerous.</p> <p>Same. — A carrier is responsible for acts of agents performed in the line of their duty, whether the particular act is authorized or not.</p> <p>Instructions. — Practice.—If instructions, taken all together, express the law of the case correctly, there can be no available error in the fact that, taken singly, some one of them is found to be imperfect.</p>

<p>Criminal Law. — Information.—Affidavit.—In a prosecution by information, if the affidavit be not as certain in charging the offence as is required of an indictment, the information based on it should be quashed.</p> <p>Same. — Rape,—Where the affidavit stated that the defendant, at, etc., “ upon one A., a female child, * * did then and there, unlawfully, feloniously and forcibly make a violent assault upon her, the said A., then and there, unlawfully and feloniously did ravish and carnally know,” the information founded thereon should be quashed.</p>

<p>Landlord and Tenant.— Omtiplaint to Recover Possession. — A complaint against a tenant holding over, to recover possession, need not allege that the holding over is by force.</p> <p>Practice. — Interrogatories, Time of Filing. — Until a defendant has pleaded he can not obtain an order that the plaintiff answer interrogatories filed.</p>

<p>Ejectment. — Complaint.—Description.—A complaint in ejectment, describing the lands as “ the northeast part of the northwest quarter of,” etc., “ containing thirty-five acres,” is bad on demurrer.</p> <p>Same. — Partition—Practice.—Upon a complaint in ejectment, where the answer is a general denial, partition can not be awarded.</p>

<p>Pleading. — Demurrer.—Practice.—Uncertainty or indefiniteness in a pleading can be reached only by motion, and not by demurrer.</p> <p>Principal and Surety. — Bond.—Assignment of Action. — Parlies.—One of several obligees in a bond may, after breach, assign his interest in the cause of action accrued, to a stranger, who may then join as a plaintiff with the remaining obligees.</p> <p>Same. — Contract.—Sureties.—Notice.—Sureties for the performance of a contract, unlike guarantors, are not entitled to notice of the default of the principal.</p> <p>Same. — Answer.—An answer by sureties on a bond conditioned for the performance of work and labor by the principal, that by the terms of the; contract the plaintiffs were to retain from time to time, as payments were-made for the work, ten per cent, of the sum earned, until the completion of the work, which was not done, but that the full amount earned, was paid.</p> <p>Held, that as a defence to the whole action the answer was insufficient. Supreme Court.— Transcript. — Instmctions.— Bill of Exceptions — -Instructions, not shown by the record to have been filed, are no part of the record unless made so by bill of exceptions.</p> <p>Same. — Evidence.—Leading Questions. — The allowance of leading questions-. is not available error unless injury resulted.</p> <p>Same. — Incompetency.—That evidence is incompetent, stated as an objection! to its admissibility, is too general to present any question.</p> <p>Same. — Immateriality.—Presumption.—Where evidence is wholly immaterial,, it will, on appeal, be presumed not to have influenced the verdict, and. its admission is not available error.</p>

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

<p>Criminal Law.' — Statute Construed. — Felony or Misdemeanor. — Indictment or Information. — Where the indictment or information charges that the defendant on, etc., at, etc., unlawfully and feloniously, in the day-time, entered the office of, etc., there situate, and then and there unlawfully and feloniously attempted to commit a felony, to wit, etc., the offence charged is the felony defined in section 1930, and not the misdemeanor defined in section 1931, R. S. 1881.</p> <p>¡Same. — Motion ¿q Quash. — Practice. —Error.—Where an indictment or information states facts sufficient to constitute a public offence, there is no substantial error in overruling a motion to quash the same upon the ground that it states other facts .which may be improper or insufficient.</p> <p>¡Same. — Discretion of Trial Court. — Supreme Court. — Whether or not the State should be required to elect on which one of two or more counts it will put the defendant on trial, is a question for the decision of the trial court in its discretion, and its decision will not be reviewed by the Supreme Court.</p> <p>¡Same. — Improper Joinder of Counts. — No Ground for Reversal. — Practice.— Where two or more counts are joined improperly, or without authority of law, in an indictment or information, if it appears that the conviction was had and the punishment assessed on one count only, the misjoinder of the counts will afford no ground for the reversal of the judgment.</p> <p>Same. — Transcript of Former Conviction. — Competency of Evidence. — Collateral Attack. — Where the transcript of the former conviction of the defendant of petit larceny is offered in evidence, the judgment of conviction can not be attacked collaterally, nor can its competency as evidence be questioned upon the ground that it does not contain a copy of the appointment of the special judge before whom such judgment was rendered, or the reasons for such appointment, nor upon the ground that the transcript failed to show that the judgment was signed by the judge of the ' court.</p> <p>Same. — Motion for New Trial. — Newly-Discovered Evidence. — Affidavit and Counter Affidavit. — Supreme Court. — When newly-discovered evidence is assigned as cause for a new trial and is relied upon for the reversal of the judgment, the record must contain the affidavits and counter affidavits in relation thereto, in, order to present the question for the decision of the Supreme Court.</p>

<p>Pleading. — Practice.—Infant.—Next Friend. — Demurrer.—A complaint in an action by an infant who sues by next friend is not insufficient on demurrer for failure to aver that the plaintiff is an infant.</p> <p>Witness. — Impeachment.—.Evidence.—Where there is an attempt to impeach a witness by evidence of contradictory statements, the party calling the witness may prove statements made by him about the time the contradictory statements are testified to have been made, agreeing with those made by the witness on the trial, and it is error to refuse to permit this to be done.</p>

<p>Contribution. — Payment by One of Several Legatees of Claims for Which Land of Testator is Liable. — Where one of several devisees of a tract of land liable to be made assets to pay legacies and other liabilities of the testator pays them off even after partition, and thereby relieves the land, the other devisees are liable for contribution, though they protested against the payment.</p> <p>Legacies. — Filing as Claims. — Lien.—A legacy for which the lands of the testator are liable need not be filed as a claim in order to hold the lands for payment.</p>

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

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

<p>Married Woman. — Inchoate Interest in Real Estate. — Judicial Sale.— Voluntary Assignment. — Rents.—A voluntary assignment of real property by a husband for the benefit of creditors, under section 2662, R. S. 1881, is not a judicial sale within the meaning of section 2508, R. S. 1881, in reference to the inchoate interest of married women; and the assignment will not vest in the wife a right to recover from the assignee one-third' of the rents accruing from the property from the date of the assignment to the date of the sale of the land by the assignee.</p>

<p>Evidence. — Practice.—Harmless Error. — Whore, in view of the whole evidence, a fact offered to. be proved is immaterial, there is no error in rejecting the offer.</p> <p>Same. — Where a fact is clearly proved and not disputed by countervailing evidence, a refusal to admit still further proof in its support will be harmless.</p>

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

<p>Judgment. — Mistake.—Record. — Correcting Clerical Error. — Evidence.—A. judgment, rendered in December, 1875, appeared by the record to have been rendered on a note dated in May, 1875, bearing interest at- ten per cent, per annum and waiving appraisement laws, but the judgment did ■ not waive appraisement, nor was it made to bear ten per cent, interest as'the statute then in force required. Upon motion to correct the record in these respects on account of clerical misprision,</p> <p>Held, that the record alone was sufficient evidence to support the motion.</p>

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

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

<p>Money Had and Eeceived.— Voluntary Payment. — A widow, to avoid foreclosure of a mortgage given by lier husband, and of a vendor’s lien, upon lands of which her husband died seized, made payments thereon, wholly-covering a note representing the vendor’s lien, which was delivered to her, and obtaining credits, endorsed on the mortgage note. She made these payments expecting to be reimbursed out of her husband’s estate, and was told by the creditor and her own son that that would be done in the end. There was no offer to return the note.</p> <p>Held, that she could not maintain a suit against the creditor for money had and received.</p> <p>Supreme Court. — New Trial.— Weight of Evidence. — The rule that the Supreme Court will not award a new trial on the evidence; where there is evidence tending to support the verdict, does not authorize an affirmance upon isolated statements of a witness in conflict with other statements of the same witness, and with the other evidence in the cause.</p>

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

<p>Habeas Corpus. — Scope of Inquiry. — One under arrest upon a proper warrant, to answer a criminal prosecution pending against him in a court of competent jurisdiction, can not, upon a writ of habeas corpus, have an inquiry as to his guilt or innocence, with a view to his discharge.</p>

<p>Mortgage. — Satisfaction.— Waiver of Vendor’s Idem. — Decedents’ Estates.— Widow. — F. died holding several notes and a mortgage on lands given for purchase-money. After his death, by arrangement between his administrator, the widow and the mortgagor, a new note with personal security was made by the mortgagor, and accepted by the widow as her distributive share of her husband’s estate, and the mortgage was formally satisfied. Later, this note was surrendered and a new one taken, executed by the mortgagor alone, and while solvent he sold the land in good faith.</p> <p>Held, that the widow had no lien on the land, either by virtue of the - mortgage or in right of the vendor.</p> <p>Same. — Judgment.—Estoppel.—One who is made defendant to a suit to foreclose a mortgage, to answer as to his interest, is estopped by a decree against him from again asserting an interest in another suit.</p> <p>Same. — Parties.—One who holds a lien on lands is a proper party defendant to a suit to foreclose a subsequent mortgage, and being made-such is bound by the decree.</p>

<p>Practice. — Hcamination of Hostile Witness. — Instruction.—In a prosecution for rape, the presence of the female assaulted was procured only by attachment, and, being examined for the prosecution, she refused to testify until threatened with punishment, and then contradicted other evidence for the State. In response to questions by the court, she disclosed that she had received money from Mrs. L. to stay away from court. She was then asked, over objection, what relation Mrs. L. was to the defendant, and answered, “his mother,” and afterwards said that the defendant knew nothing of this. The court instructed the jury that the answer objected to could only be considered in determining the credit due to this witness.</p> <p>Held, that without a motion to strike out the defendant could not complain of error.</p> <p>Held, also, that the error, if any, was cured by the instruction.</p> <p>Same. — Bill of Bxceplions. — Transciipt.—Affidavits to support or resist a motion for a new trial are brought into the record only by order of court or bill of exceptions.</p> <p>New Triax,. — Incompetent Juror. — -Diligence.—A motion for a new trial because of the incompetency of a juror will not be overruled, unless it'appears that proper effort was made to discover the juror’s want of competency, and that the party complaining did not kntfw it before the jury was sworn.</p>

<p>RaiusoAds. — Complaint.—Arrest of Judgment. — Killing Stoek. — A complaint for killing an animal, under section 4025, R. S. 1881, good in other respects, which avers that the defendant “ran against and over said mare and killed her,” not showing that the injury was done by the locomotives, cars or other carriages run upon the road, is good after verdict.</p>

<p>Negligence. — Railroad.—Personal Injury. — Complaint.—Motion to Male Specific. — A complaint against a railroad company for a personal injury alleged that the plaintiff, without his fault or negligence, was injured, thus: “Being on one of said defendant’s trains, the servants of the defendant, while said train was in motion, ordered and compelled him to jump from said train, the coaches of which passed over his lower limbs,” whereby, etc., “that said injuries were committed and perpetrated upon him by the carelessness and negligence of the defendant’s servants,” etc.</p> <p>field. that the refusal of a motion to make more specific, by showing by what right the plaintiff was on the train, and also more particularly the negligence of the defendant’s servants, was error.</p>

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

<p>IBastardy. — Evidence.—Letters.—In a prosecution for bastardy, letters of the defendant, written before the child was begotten, stating the intimacy of their relations, referring to the fact that he had taken indelicate liberties with her person, and expressing a desire for sexual intercourse thereafter, are proper evidence against him.</p>

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

<p>Decedents’ Estates. — Denise.—Widow.—Life-Estate.—Sale to Pay Debts. — . A widow, taking by her husband’s will a life-estate in his lands, instead of the title in fee to a part, which she might have taken under the law,, takes subject to sale to pay debts and legacies if necessary; and one who acquires her life-estate also takes it subject to the same burden, and his title will be defeated by such a sale properly made afterwards.</p>

<p>Foreclosure oe Railway Mortgage. — New Sailway Company. — Debts of Old Company. — Where a mortgage given by a railroad company is foreclosed, and all the property, rights, franchises and effects of such company are duly sold under the decree of foreclosure, and a new company is thereupon organized under the laws of this State, for the purpose of owning and operating the line of railway previously owned by the old company, with all its franchises, rights and property, the new railway company is not liable at law for the general debts of the old company, except such debt or debts as it may assume.</p> <p>Same. —Judgment for Condemnation Money. —Lability of New Company. — Buy where the old company has appropriated land for the purposes of its railroad, and a judgment has been rendered against it for the value of the land appropriated or condemned, which judgment is unpaid, if the new company enters upon and occupies such land, it will be liable in equity for the payment of such judgment upon the principle that it has adopted and ratified the original appropriation.</p> <p>Suit in Equity. — Trial by Court. — Questions of Fact. — Framing Questions for Trial by Jury. — Verdict for Information Only. — Under section 409, R. S. 1881, issues of law and of fact in causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, must be tried by the court, and it is error to refuse such trial. The court may in its discre-tion, for its information only, cause any question of fact to be tried by a jury; but, in such case, the court must frame or cause to be framed such question or questions of fact as it desires to be tried by’a jury, and the jury should be sworn to try such question or questions of fact. The verdict of the jury is for information only, and the court may or may not use such information in rendering such final decree in the cause .-as equity may require.</p>

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

<p>Baii/boad.— Tax Aid.— County Commissioners.— Subscription for Stock. — A general order made by the board of commissioners to invest a donation voted to aid in the construction of a certain railroad in the stock of such company, and the approval by said board of an assignment of an unpaid balance of such donation, operate as a subscription to the stock of the company of such portion of said donation.</p> <p>Same. — Forfeiture of Aid. — The failure of such railroad company to complete its road within three years from the time such donation is made does not work a forfeiture of such donation, in the absence of an order of the county commissioners, made in pursuance of the act of March 11th, 1875.</p>

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

<p>Decedents’ Estates.— Wills. —Descents.— Heir’s Interest.— Attachment.— Garnishment. — A will gave lands for life to the testator’s wife, which at her death were to he sold and the proceeds equally divided amongst his five children. At the suit of a creditor of one of the children, his share of the lands was attached and the executor garnished, a judgment obtained, order to sell the attached lands, and that the executor garnishee pay on final settlement of the estate, of the debtor child’s distributive share, to the creditor, a sum sufficient to satisfy the judgment. The creditor bought the attached land at sheriff’s sale, and took a sheriff’s deed. The executor died, and an administrator de bonis non, upon death of the widow, sold the land, by order of court, as the will directed.</p> <p>Held, that the share of the debtor child in the proceeds should be paid to his creditor, who, by the sheriff’s sale, had become the owner of the child’s interest in the land, and, consequently, was entitled to the proceeds thereof.</p> <p>Same. — Distribution.—An administrator is liable to garnishment by a creditor of a legatee or distributee of the estate, and the unascertained share of such debtor may thus be applied to the payment of the debt, and an order for payment thereof hinds a subsequent administrator, so that he can not, in the settlement of his trust, take credit for payment thereof to such distributee or legatee.</p>

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

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

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

<p>County Becokdek. — Indexes.—Compensation.—Where, for any cause, a recorder fails to'keep up the indexes of his office as required by law, it is the duty of 'his successor, under sections 5938 and 5939, B. S. 1881, to do the work, and without contract he is entitled to the compensation specified in section 5941, B. S. 1881.</p>

<p>Contract. — Place of Payment. — Custom. — Evidence.— Usage. — In an action upon a contract made by telegram, whereby merchants in Baltimore purchased of a merchant in this State five car-loads of wheat, and the telegram was silent as to the time when, and the place where, payment was to be made, a custom among merchants in this State may be proved to show that payment was to be made in Baltimore upon the arrival of the wheat.</p> <p>Supreme Court. — Reversal of Judgment. — Instructions.—A judgment which is clearly right upon the evidence will not be reversed because eri'oneous instructions were given.</p>

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

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

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

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

<p>Contract. — Real Estate Brokers. — Commission.— Complaint. — Principal and Agent— A complaint, alleging that the defendant employed the plaintiffs to sell his farm, agreeing to pay therefor whatever sum could be realized above $1,090; that in forty days thereafter the defendant, who had not. reserved any right to find his own buyer, sold the farm for $1,200, without the plaintiffs’ consent; that the plaintiffs could in a reasonable time have found a buyer for $1,200, and were ready and willing to perform, is bad on demurrer.</p> <p>Supreme Court. — Refusal to Gire Instructions. — Exceptions.—The refusal to. give an instruction prayed, there being no exception, can not be questioned in the Supreme Court.</p>

<p>Becorder. — Liability.—Mortgage.—Negligence.—Entries.—On the back of a mortgage of lands the mortgagee endorsed, “ Beceived payment for the within mortgage this 19th day of July, 1871,” and signed and acknowledged it before a notary, as was duly certified. This the recorder recorded on the margin of the record of a different mortgage between the same parties upon other lands. Misled by this A. made a loan to the mortgagee, taking as security a mortgage upon the lands last referred to, and suffered loss in consequence.</p> <p>Held, that the recorder was liable to A.</p> <p>Same. — Breach of Contract. — Damages.—A false certificate given by a recorder, that there are no recorded mortgages unsatisfied upon certain lands, creates no liability upon the recorder as such, the act not being official, but if he contract to examine and certify the truth, then he is liable for breach of his contract. ' ' '</p> <p>Statute oe Limitations. — Statute Construed. — The proviso to section 297, B. S. 1881, applies only to the second clause of the section, so that, where the cause of action arose in this State, the time during which the defendant was a non-resident or absent on public business is not to be computed in the period of limitation.</p>

<p>Township Trustee. — PubHe Office. — Books and Becords. — Open for Public Inspection. — The office of a township trustee is a public office, and the records and other boohs of such trustee are always open for public inspection.</p> <p>Pleading.— Written Instrument. — Filing of Copy. — Sufficient Excuse. — Demurrer. — Where a pleading is founded on a written instrument, section 362, B. S. 1881, imperatively requires that the original or a copy be filed with such pleading; and if this be not done, and a sufficient excuse for such omission be not shown in the pleading, it will be bad on demurrer for the want of sufficient facts. Where the pleading is founded on a written instrument, which is of record or on file in a public office, it is not a sufficient excuse for a failure to file the original or a copy, to allege that the custodian of the original refuses to surrender it.</p>

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

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

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

<p>Supreme Court. — Error.—A refusal to strike out a pleading is not available error.</p> <p>Same. — The overruling of a demurrer to a pleading which is afterwards amended is not available error.</p> <p>Rules oe Court. — Ghange of Venue. — A rule of court which requires motions for change of venue in civil cases to be made not later than the day set for trial, unless excuse for delay be shown, is valid.</p> <p>Replevin.— Complaint. — Defect Oared After Verdict. — A complaint in replevin, which does not allege that the property is detained in the county where the suit is brought, is not for that cause bad after verdict.</p> <p>Same. — Insane.—Guardian and Ward. — Case Distinguished. — A complaint in replevin, by one suing as guardian of an insane person, need not aver that the ward has been judicially adjudged insane, or that the plaintiff has been duly appointed his guardian. “A., guardian of B., a person of unsound mind, says,” etc., is sufficient. Ilardenbrook v. Sherwood, 72 Ind. 403, distinguished.</p> <p>Same. — Description of Properly. — If a complaint in replevin show a sufficient. reason why the plaintiff can not give a specific description of the property, a general description will be sufficient on demurrer, and it is so after verdict even if no such excuse be shown.</p> <p>Same. — Averment of Title. — In replevin by a guardian, an averment that “ the plaintiff, as guardian, is entitled to the possession,” etc., sufficiently shows the plaintiff’s title.</p> <p>Same. — Revocation of Gift. — Answer.—Reply.—To a complaint in replevin by the guardian of one insane, it was answered that the ward gave the property to the defendant. Reply, that the ward was insane, and that since his. appointment the guardian had demanded the property and revoked the gifts.</p> <p>Held, that the reply was bad for not alleging a continuance of the ward’s insanity, a judicial determination that he was insane, and that the guardian was lawfully appointed and qualified.</p>

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

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

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

<p>From the Owen Circuit Court. •</p>

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

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

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

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