Volume 93 — Indiana Reports

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

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

<p>County Commissioners —Appeal.—Free Gravel Roads. — County Auditor.— Mandamus. — -Mandate to compel a county auditor to issue his warrant for an allowance made by the county board to a contractor for constructing a gravel road under the act of 1877. R. S. 1881, sections 5091-5103. Answer, that before demand for the warrant a resident taxpayer of the county gave notice of his intention to appeal, and within proper time filed “his affidavit and bond for an appeal,” whioh bond the auditor had approved.</p> <p>Held, that the answer was bad on demurrer, because it did not show that the affidavit for appeal was such as the statute, R. S. 1881, section 5772, requires.</p>

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

<p>Pbomissoby Note. — Judgment.—Estoppel. —Res Adjudieata. — Where several-notes are given for different instalments, under such circumstances that a defence good as to one of them is necessarily good as to the others, a judgment for the defendant in a suit upon one, sustaining that defence, is an estoppel as to the others.</p>

<p>Maebied Woman. — -Quieting Title. — Husband and Wife. — Mortgage.—Trust and Trustee. — Notice.—-Where a husband, holding lands in implied trust for his wife, mortgages the same to secure his own debt, the wife refusing to join in the mortgage, she can not quiet her title as against the mortgagee, unless the latter had notice of the trust, and her residence on the land with her husband and family would not be notice.</p> <p>Same.— Wife’s Inchoate Estate. — The inchoate interest of a wife in her husband’s lands can not be the subject of a suit by her to quiet title.</p> <p>Same. — Complaint.—Prayer for Belief. — Where by her complaint no demand is made by a wife for equitable relief as to her inchoate interest in her husband’s lands, but she claims that her husband held the lands in trust for her, and seeks to quiet her title as against a mortgagee, the complaint is not good on demurrer, to remove the cloud upon such inchoate interest.</p> <p>Contbact. — A contract to which one is not a party, and with which he had nothing to do, can not affect his rights in the thing to which the contract relates.</p> <p>Judgment. — One who was not served with process, and did not appear, is not bound by the judgment rendered in the cause.</p>

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

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

<p>Promissory Note. — Complaint.—A complaint on a promissory note, which avers its execution and gives a copy of the note, need not otherwise show a promise to pay.</p> <p>Same. — Demumr to Evidence. — Practice.—Complaint on a promissory note providing for the payment of attorney’s fees; answer, want of consideration ; reply, general denial. The plaintiff introduced witnesses to prove the valué of the attorney’s services, and the defendant introduced his evidence which had no tendency to support his answer, whereupon the plaintiff demurred to the evidence, embodying in the demurrer not only the defendant’s evidence but also his own as to attorney’s fees, and the defendant joined in the demurrer without objection, and the jury was discharged, the parties agreeing that in case the demurrer was sustained the court should assess the damages. The demurrer was sustained, and the plaintiff had judgment.</p> <p>Held, that there was no error in sustaining the demurrer,</p>

<p>Fbaudulent Conveyance.— Decedents’ Estates.— Parties. — Gmnplaimt.—A complaint by a judgment creditor to set aside a fraudulent conveyance of lands by a deceased debtor, which fails to make the administrator a party, or, if there be a valuable consideration, does not aver a fraudulent intent and knowledge thereof by the grantee, and that the estate is insolvent, is bad on demurrer.</p>

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

<p>Husband and Wide. — Married Woman. — Infamy.—Conveyance.—Pleading. —Mortgage.—Suit against husband and wife to foreclose a mortgage given in 1872. Answer by the wife, that when she executed the mortgage she was an infant, without alleging that the land was her separate property, or that her husband was an infant.</p> <p>Held, that the answer was bad on demurrer because of section 2943, R. S. 1881.</p> <p>Same.— Vendor’s Lien.— Waiver. — Taking the note of a husband for land conveyed to his wife is not a waiver of the vendor’s lien.</p> <p>Same.— Vendor and Vendee. — An insolvent,husband, whose wife had taken a conveyance of land without any valuable consideration save an agreement to satisfy a vendor’s lien for unpaid purchase-money, of which she had notice, induced the original vendor to take his note and a mortgage of the land in due form, apparently executed by himself and wife, but which she never executed, and she was besides an infant, of which the -mortgagee was ignorant.</p> <p>Held, that there was no waiver of the vendor's lien, and that it could be enforced.</p>

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

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

<p>Bailboad. — Fencing.-—Evidence.— Witneas. — Opinion.-—Where it is in question whether a railroad could properly be fenced at a certain place, it is not competent to take the opinion of witnesses upon the question, but the jury must be left to decide that question upon the facts proved.</p>

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

<p>Partition. — Counter-Claim.—Decedents’ Estates. — Where a suit for partition is pending between the heirs of a decedent, the administrator has no right to intervene with a counter-claim praying for a sale of the land to make assets, nor to interfere with the proceedings in any manner.</p> <p>New Trial. — Practice.—Special Finding. — Where the court finds the facts specially, and states its conclusions of law, error in the conclusions of law is not cause for a new trial.</p> <p>Supreme Court. — Assignment of Eror. — An assignment of error, that the court erred in rendering judgment for the appellee when it should have been for the appellant, or that the court erred in the judgment rendered, is too general to present any question.</p> <p>Same. — Exceptions.—Where no objection has been made in the court below to the form of a judgment, and no motion to modify it, no question can be made in the Supreme Court concerning it.</p>

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

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

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

<p>Special Finding. — Conclusions of Law. — Practice.—Harmless Error. — The facts having been found specially by the court with four conclusions of law, two of which were erroneous and excepted to, a judgment was rendered which would have been proper upon correct conclusions of law,</p> <p>Held, that there was no available error.</p>

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

<p>Telegbaph. — Failure to Transmit Message. — Penally.—Complaint.—A complaint to recover a penalty given by statute for failure to transmit a telegraph message need not aver non-payment of the penalty.</p> <p>Same.— Contract. — Limiting Liability. — In a suit against a telegraph company for the penalty of §100 given by statute for failure to deliver a message, an answer, alleging a contract with the plaintiff stipulating that the liability should be limited to twenty-live cents, is bad because the contract is invalid.</p> <p>Pleading. — Construction of. — A pleading must be considered with reference to the general theory on which it proceeds, and if not good in that respect it is bad.</p> <p>Instructions. — Practice.—Instructions must be considered as a whole, and if together they present the law of the case correctly and without contradiction, objections to any of them separately will not be available.</p>

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

<p>Bastardy. — Evidence.—When the testimony in a bastardy case shows that a fully developed child was bom eight months after the defendant had connection with the relatrix, and fails to show any connection with any other person about that time, the court can not say from the appearance of such child that it must have been begotten before the defendant had connection with the relatrix, and consequently was not begotten by him.</p> <p>Same. — The admission of testimony, that the defendant had connection with the relatrix a year or two before the child was begotten, is rendered unnecessary when the defendant admits, his connection with the .relatrix about the time the child was begotten.</p> <p>Same. — A mere inquiry of the defendant as to an excuse for leaving the relatrix at a certain time does him no injury when such act is denied.</p> <p>Same. — Cross-Examination of Relalrix. — An inquiry upon the cross-examination oE the rolatrix as to the color of the child’s hair and eyes was properly excluded, as such evidence was affirmative in its character and not within the scope of the cross-examination.</p> <p>Same. — -Witness.—Impeachment.—When the defendant in such case calls a witness to prove that the witness had connection with the relatrix about the time the child was begotten, and the witness denies such intercourse, the defendant can not impeach such witness by proving that he has made statements in contradiction of his present testimony.</p>

<p>Decedents’ Estates. — Removal of Administrator. — Pleading.—Practice.— Case Overruled. — An application for the removal of an administrator, under section 2245, B. S. 1881, may be verified by the oath of the applicant or any competent person, and by section 2246 an answer and other pleading necessary to form an issue are required, and a trial by the court without a jury. Williams v. Tobias, 37 Ind. 345, overruled.</p> <p>Same. — Excuse for Failure to File Inventory. — Discretion of Court. — Evidence.. —Where the answer in such case admits a failure, as charged, to file an inventory and reports, and sets up matters in excuse, no evidence is necessary on behalf of the applicant, and the court may consider the sufficiency of the excuse and adjudge the case thereon, and the Supreme Court will not review the exercise of discretion therein unless abuse appears.</p>

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

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

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

<p>Cbiminal Law. — Intoxicating Liquor. — Premises Where Sold.— Uncertainty in Description. — Duplicity.—Where the indictment charges the defendant with but one unlawful sale of intoxicating liquor to be drunk on the premises where sold, it is not bad for duplicity merely because of uncertainty in the description of such premises, as “ the house, out-house, yard, garden, and the appurtenances thereunto belonging” of the defendant.</p> <p>Same. — Signing Indictment. — Deputy Prosecuting Attorney.— Under sections 5568 and 5569, B. S. 1881, a prosecuting attorney is authorized to appoint a deputy, and such deputy is authorized to perform all the official duties of his principal, including the signing of an indictment.</p> <p>Same. — Empanelling Grand Jury. — Recital in Indictment. — Record.—Where it is shown by the record that the indictment was returned by the grand jury into open court, and the indictment itself recites that the grand jury were duly empanelled, charged and sworn, the empanelment of the grand jury is sufficiently shown to withstand a motion to quash the indictment.</p> <p>Same.— Premises and Appurtenances. — Question of Fact. — Evidence.—Supreme Cowt. — What constitutes the appurtenances of the premises of the defendant, who is charged with an unlawful sale of intoxicating liquor to be drunk on the premises, is a question of fact for the court or jury trying the cause, and where the evidence fairly authorizes and sustains the finding, it will not be disturbed by the Supreme Court.</p>

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

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

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

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

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

<p>Decedents’ Estates. — Distribution.—Practice.—When, upon the settlement of an estate, there is money in court for distribution, a petition filed by a claimant thereof, which shows that he is entitled thereto, ought not to be stricken out.</p> <p>Pbactkje. — Immaterial Evidence. — Harmless Error. — The admission of evidence which is wholly irrelevant will not be presumed to have influenced the verdict if there was other evidence tending to sustain it, and, unless it is shown to have injured the party objecting, it is a harmless error.</p>

<p>Execution. — Proceedings Supplementary to. — Affidavit.—Evidence.— In proceedings under sections 816 and 819, R. S. 1881, it is required that the affidavit and proof shall show, in order to reach funds of the debtor in the hands of another, that the debtor has property which he unjustly refuses to apply in satisfaction of the judgment.</p>

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

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

<p>IsrjuJfCTiON. — Complaint to Enjoin Prosecution of Action. — A complaint to enjoin tlie prosecution of a pending suit against the plaintiff, which is based on facts which, if true, constitute a good defence to that suit, is bad on demurrer.</p>

<p>Appeal. — Change of Venue. — Transcript.-—Where there was an appearance in the court below, and no objection to its jurisdiction, a motion to dismiss the appeal because the record does not contain a transcript of the proceedings of the court in which the cause was begun, and from which the venue was changed, will be denied.</p> <p>Same. — -Void Judgment. — An appeal lies from a void judgment.</p> <p>Negligence. — Complaint.—A complaint for negligence, which does not show the absence of negligence by the plaintiff contributing to the injury, is bad on demurrer.</p>

<p>Highways. — Petition and Notice. — Name of Owners. — Description.—Collateral Attack. — Proceedings of county commissioners establishing a highway can not be attacked collaterally by one on -whose lands the same will pass, merely because the name of the owner, occupant or agent of that land was not stated in the petition, notice or any of the proceedings, and that neither of them had actual notice, unless the description of the proposed route was such that one reading the notice would not learn its location.</p>

<p>Boundaries. — Survey.—Evidence on Appeal. — Occupancy.—Adverse Possession. —Estoppel.—On appeal from a survey to establish a boundary line between adjoining land-owners, evidence of occupancy, under claim of title, for more than twenty years, to a line different from that fixed by the survey, is admissible.</p>

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

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

<p>Practice. — Law of tli£ Case. — Where the Supreme Court, on appeal, holds a complaint to be good and reverses the judgment and remands the cause, the question is irreversibly settled for that suit, in all its subsequent stages.</p> <p>Same. — Bill of Exceptions. — Transcript.—Sixty days were given to file a bill of exceptions, and a transcript, made out and duly certified within that period, contained a bill, but it did not appear therein by words that the bill had ever been filed.</p> <p>Held, that the bill must be regarded as properly filed in time.</p>

<p>'Witness. — Examinationof.—Practice.—No error is committed in permitting a proper question to be propounded, though the answer is irresponsive and improper.</p> <p>Same. — If a proper question will probably elicit an improper statement, the opposite party should elicit such fact from the witness before the answer is given and then object, or move to strike out the answer when given.</p> <p>Evidence. — Admissions.—An admission made during a negotiation for a compromise, if not made for such purpose, may be proved.</p> <p>Highway. — Location of. — Benefits and, Damages. — Evidence and Jmy. — In a proceeding to establish a highway, the jury is not bound by nor limited to the estimates of witnesses as to the quantity of fence required, its cost, the amount of land and its value, but they determine the damages from all the evidence. The benefits are likewise considered.</p> <p>Same. — Sufficiency of Petition. — Defects After Verdict. — An averment in the petition, that the petitioners are citizens of the county, is sufficient after verdict.</p> <p>Same.— Width of Hoad. — The petition in such case need not state the width of the proposed road.</p>

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

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

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

<p>County Commissioners. — Contempts.—Attorneys.—The power of the board of.county commissioners to punish for contempt is limited by statute, B. S. 1881, section 5744, to a fine of three dollars or imprisonment for twenty-four hours, and they are not authorized to suspend an attorney from practice before them.</p> <p>Same. — Dismissal of Appeal. — Practice.—Where, on appeal from the county commissioners to the circuit court, in proceedings for contempt against an attorney, the case is dismissed as to the charge for contempt, it ends the whole proceedings, and a subsequent trial and judgment of suspension from practice before the board, is without authority.</p> <p>•Contempt. — Right of Trial by Jury. — A jury trial for contempt is not proper.</p>

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

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

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

<p>Intoxicating Liqttoe. — Sale on Sunday. — Beer.—Evidence. — Gases Overruled. — The courts know judicially that beer is a malt liquor prepared by fermentation, and in view of section 5313, B. S. 1881, proof of a giving of beer, in a prosecution under section 2098, must be held sufficient evidence that intoxicating liquor was given. Lathrope v. State, 50 Ind. 555; Schlosser v. State, ex rel., 55 Ind 82; Shaw v. State, 56 Ind. 188; Plunkett v. State, 69 Ind. 68; Kurz v. State, 79 Ind. 488, overruled on this point.</p>

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

<p>Pieading. — Complaint.—A complaint stating facts constituting a cause of action, but also stating facts which constitute a defence, is insufficient on demurrer.</p> <p>Diyoece. — Antenuptial Agreement. — Presumption of Adjudication.— Questions concerning property rights growing out of the marriage relation are deemed to have been adjudicated by the decree in a suit for divorce, and hence a complaint in an action by a divorced wife upon an ante-nuptial contract, which shows that there has been a decree of divorce, is insufficient on demurrer.</p>

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

<p>Pabtition. — Suit by Widow.— Grantee of Administrator. — Defence.—Statute of Limitations. — Decedents’ Estates. — Where the widow of a deceased owner of land brings an action of partition against the grantee of the administrator of her husband’s estate, answers, setting up that the plaintiff’s, cause of action did not accrue either within five years or within twenty years before the commencement of her suit, are not applicable thereto, and are bad on demurrer for the want of sufficient facts; but, in such suit, an answer of 'the limitation of fifteen years, under section 294, B„ S. 1881, is a good defence to the action.</p>

<p>Dubess.— Voluntary Payment. — Comity Auditor. — A complaint averred that a county auditor drew warrants on the treasury for allowances which had been really made by the county board, to attorneys for services in procuring the location and construction of free gravel roads, and the warrants were paid. Afterwards the board refused to approve the auditor’s annual report of settlement with the treasurer and his statement of the financial affairs of the county, unless the auditor would pay into the treasury the amount of such warrants, the board claiming that it had not made the allowances. Under the influence of threats of prosecution and arrest, and a fear that the board would in the future refuse to allow him proper compensation for official services, and not having time to fully ascertain the condition of the records as to the allowances, he paid the amount under protest.</p> <p>Held, that the payment was voluntary and he could not recover it back.</p>

<p>Jury. — Drawing Panel. — The statute does not require that the jury commissioners shall draw from the box the jury panel, nor that it shall be done in their presence.</p> <p>Same. — New Trial. — Objection to the mode of drawing the panel of jurors is not available on motion for a venire de novo, but can only be made in support of a motion for a new trial.</p> <p>Criminal Law.— Venire de Novo.— Verdict. — A. verdict in a criminal case, which finds the defendant guilty of a crime embraced in the indictment, and affixes a definite punishment authorized by law, is not defective or ambiguous.</p> <p>Same. — Assault and Battery. — Phidence.—Husband and Wife.— Witness. — In a prosecution against a husband for assault with intent to murder the wife, evidence that he married her under a false name, which fact, when it became known to her, was a cause of domestic trouble, is admissible against him. So, also, conversations between them respecting their disagreements.</p> <p>Same. — Experts.—A surgeon, who has examined wounds inflicted by the accused upon the prosecuting witness, may, after testifying to the facts thus ascertained, give his opinion concerning the wounds.</p>

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

<p>Husband and Wine.— Decedents’ Estates. — Income from Wife’s Land. — Husband’s Liability to Wife. — Case Limited. — Where a husband receives- and applies the income of the wife’s lands to the common use of the family, with her consent and under circumstances indicating no purpose by either that he shall be charged therewith, she can not, after his death, maintain a claim therefor against his estate. Hileman v. Hileman, 85 Ind 1, limited.</p>

<p>Instbijctions. — Misuse of Words. — The misuse of words in an instruction, as “plaintiff” instead of “defendant,” when the mistake could not mislead the jury, is not available error.</p> <p>Negligence. — Gravel Hoads. — Defect.—Injury to Traveller. — To pass over a defective highway with knowledge of the defect, is not conclusive evidence of negligence on the part of the traveller, if such passage may be attempted consistently with ordinary care; but in such case greater care is due from the traveller than when he is ignorant of the defect, and if with proper care he is injured in consequence of the defect, he may recover, if those responsible for the road negligently permitted the defect.</p>

<p>Pbactice. — Demurrer to Answer. — Error, How Bendered Harmless. — Error in overruling a demurrer to a paragraph of answer is cured by subsequent, refusal to admit any evidence-tending to support it.</p> <p>Same. — When Court may Direct Verdict. — Where there is no evidence whatever in support of a necessary averment of the complaint, the court may direct the jury to find for the defendant.</p> <p>Schools. — Trustees.-—Defalcation.—Liability.—A trustee of schools who has. had no part in the misapplication of tuition funds is not liable therefor.</p>

<p>Pbomissoby Note. — Signature of Makers.- — Private Corporation. — Descriptio Personal. — Where a promissory note, in the usual form “we promise to pay,” etc., given for money loaned to a private corporation, is executed by certain persons in their individual names, with the addition thereto of “ Trustees of Greenwood. Lodge No. 192, F. and A. M.,” such addition is ■ mere descriptio personarme,, and the note is the individual note of such persons and not the note of such lodge.</p> <p>Same. — Defence.—Novation.—In an action upon such note a paragraph of answer, which states such facts as the former validity of the note, the agreement of all the parties to a new contract in lieu of such note, the extinguishment of the prior contract evidenced by the note, and the validity of such new contract, shows a novatioh of the note in suit, and is a good defence to the action.</p>

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

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

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

<p>Costs. — Judgment in Tort. — Execution.—Exemption.—The costs recovered by • the plaintiff in a suit for tort, being an incident of the judgment for damages, are collectible on execution in the same way; the judgment is an entirety, and no property is exempt from the execution.</p>

<p>Landlord and Tenant. — Lease.—Contract.—A. was the tenant of B., but his term had expired. A. proposed to continue the lease at $35 per month, which B. refused, but proposed to pay that rent until he could find another place, to which B. made no reply, but took $35 for the current month, and at once put up cards announcing the place for rent, and otherwise offered to rent it.</p> <p>Held, that this constituted a tenancy at $35 per month until A. found another place, and no longer.</p>

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

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

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

<p>Replevin Bond. — Pleading.—Ownership.—Res Adjudícala. — Suit on a1 replevin bond, averring a judgment of return of the property, or, on failure, for its value found, and for breach a failure to return or pay the value.</p> <p>Held, that an answer by a surety on the bond, that the plaintiff’s ownership of the property was subject to a mortgage thereon held by the surety, due and unpaid, was bad; so, also, an answer of property in the principal in the bond, the question of ownership and right to possession being res adjudicada.</p> <p>Evidence.' — Record.—Dismissal.—The dismissal of a cause does not take from the record the papers belonging thereto, and such papers may be used as evidence.</p>

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

<p>Dkaixage. — Irregularities. —Injunction.—Complaint. —County Commissioners. —Jurisdiction.—Collateral Attack. — A complaint to enjoin the collection of an assessment for drainage alleged that a petition for the construction of tlie drain was filed before the board of county commissioners, and that afterwards, in the course of proceedings which resulted in an order establishing the work and directing its construction, numerous flagrant irregularities occurred, which were specified.</p> <p>.Held, that the filing of the petition invoked the jurisdiction of the hoard, and that no subsequent error or irregularity in the proceedings would justify a collateral attack upon the validity of the final order.</p> <p>Held, also, that the complaint was bad on demurrer.</p>

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

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

<p>Criminal Law. — Souse of Ill-Fame. — Indictment.—An indictment for violation of section 1994, R. S. 1881, is sufficient if it follow the terms of the statute.</p> <p>Same. — Reputation.—Fhidence.—Evidence of reputation as to the character of the house is admissible for the prosecution upon the trial of an indictment for keeping a house of ill-fame, and proof of particular acts of lewdness in the house is not absolutely necessary to establish guilt.</p>

<p>FKATrDtJi.ENT Conveyance. — Bfiectmmt.— Fraud. — Purchaser at Sheriff's Sale. — Burden of Proof. — PMdence.—One who claims title to real estate through a sheriff’s sale upon the ground that a previous conveyance of the land by the execution defendant was made to defraud creditors, has the burden of proving fraud, and without evidence that at the time of the levy there was not sufficient oilier property of the defendant subject to execution, and that when the conveyance was made he did not retain sufficient, to pay his debts, he must fail.</p> <p>Same. — Possession.—That the grantor retained possession of lauds conveyed by Mm, is not sufficient evidence to prove that the conveyance was made to defraud creditors.</p> <p>Deed. — Description.— The description of lands in a deed is sufficient if,by applying the rules of surveying thereto, it can be located.</p> <p>ííame. — Adverse Dossession. — Adverse possession will not avoid a convey-. anee by the real owner, unless the tenant in possession entered and holds, believing that he had title.</p>

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

<p>Married Woman. — Sale of Personal Property to, by Husband. — Consideration. —Principal and Surety. — The assumption by a married woman of the payment of the debt of her husband for which she was surety constitutes a valid contract under section 5115, R. S. 1881, and is a valuable consideration for the sale to her of personal property by her husband; nor does the fact, in the absence of fraud, that the property remained in the possession of the husband as her agent to sell it, invalidate the sale. .</p>

<p>Partition. — Suit by Widow. — Qnmtee of Administrator. — Defence.—Estoppel in Pais.- — In an action oí partition, brought by the widow of the deceased owner of land against the grantee of the administrator of such owner’s estate, an answer to the effect that the defendant was induced to purchase the land at administrator’s sale by the representations of the plaintiff' to him that lie would get a good title to the entire land, that she, as widow, would claim no interest in such land,'and that she would take her interest in the other lands owned by her deceased husband, is a good defence to the action as an estoppel in pais.</p>

<p>Intoxicating Liquor. — License.—Sale Pending Appeal. — An appeal from a judgment of the circuit court granting a license to sell liquor does not suspend the right of the applicant to the license pending the appeal, and if he tender a proper bond and the license fee he may sell, though the county auditor unlawfully refuse to issue the license.</p>

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

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

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

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

<p>Guardian and Ward.' — Parties.—Capacity to Sue. — Insane Person. — A person under guardianship as of unsound mind can not sue to impeach sales of his property made by his guardian.</p> <p>Same. — Discharge of Guardian. — Pleading.—A complaint in such case which avers that the matters of which the plaintiff complains occurred “ before the plaintiff was released from the disability under which he was held,” does not thereby show an end of the guardianship.</p> <p>Practice. — Dill of Exceptions. — Motions.—Without a proper bill of exceptions, or other proper showing of the reasons therefor, and of exceptions, the dismissal of a cause on motion, or .the overruling of a motion to reinstate the cause, can not be questioned in the Supreme Court.</p>

<p>Married Woman. — Infancy.—Disaffirmance of Deed. — Estoppel.—Limitations. ■ — In 1859 an infant married woman aged seventeen years joined her husband in the execution of a deed conveying his lands. The husband died in 1880, and nineteen months thereafter she gave notice of disaffirmance to the grantees of the husband’s vendee, and four months later sued them for partition, alleging the above facts in her complaint. Answer that the conveyance was for full value, and that the defendants were purchasers for full value, without knowledge of the plaintiff’s claim ; that her husband, with the proceeds of his sale, bought other lands near those in controversy, and resided thereon with the plaintiff from 1859 until his death, since which she has resided thereon, and took a third thereof as widow; that with her knowledge defendants made valuable improvements, and for twenty-three years paid all taxes, yet she failed to disaffirm or give notice of her intention until March, 1882.</p> <p>Held, that the auswer was bad on demurrer.</p> <p>Held, also, that the widow could disaffirm at any time after her husband’s death within the period that would bar her suit.</p> <p>Held, also, that until her husband’s death the statute of limitations did not begin to run against her.</p> <p>Held, also, that the facts pleaded did not constitute an estoppel.</p> <p>.Appeal. — Notice of Attorney. — Service of notice of an appeal to the Su- ■ preme Court under section 610, R. S. 1881, may be made on the attorney of record, though he has been discharged, unless the appellant had notice of such discharge, and where there are two persons for whom the attorney appeared below, his acknowledgment of notice signed as attorney for one only is sufficient as to both.</p>

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

<p>Wmii.— Widow. — Estate for Life. — Power of Distribution. — Advancement.—The will of a testator, who devised all his property, both real and personal, to his wife during life, and directed at her death that it should be equally divided between his four children, contained a clause authorizing the . wife to divide such property, or any portion of it, between said children during her life.</p> <p>Held, that this clause did not authorize the wife to advance to one of the children $2,000 in money without any division among the other children, and thereby divest the title of the others to such money.</p> <p>Same. — Decedents’ Estates. — Special Finding. — In an action by such children against the mother’s estate to recover sdch money, a general verdict in their favor was not controlled by answers of the jury to interrogatories, that the mother had advanced the identical $2,000 to one of the children, as it was not found that the others consented to such advancement, and hence the court erred in rendering judgment against them upon such answers.</p> <p>Same. — Heirs.—Parties.—Such an action is not joint, but may be maintained by one, or any number, and hence a defence as to one will not defeat the action as to all.</p> <p>Same. — Administrator.—Estoppel.—The administrator of the mother’s estate, in a former action brought by the children to recover a large sum received by her from the personal estate, having obtained a credit for the $2,000 advanced to one of the children, is in this action estopped to say that such sum was so advanced.</p> <p>Same. — Appeal.—The children were not compelled to appeal from the order allowing the credit upon their claim for the personalty, but they may acquiesce in such order, and maintain this action to recover the money received from the land.</p>

<p>Decedents’ Estates. — Descents.—Heirs.—Widow's Rights in Real Pstate.— Sale of Land for Debts. — Partition.—An intestate left as heirs a widow and father, between whom partition was afterwards .made, giving her three-fourths and the father one-fourth of the lands of the deceased, according to section 2489, E. S. 1881. Afterwards the land thus allotted to the - father was properly sold by the administrator to pay debts, and upon his death his heirs brought partition, claiming one-fourth of the lands allotted to the widow.</p> <p>Held,, that the action would not lie, because her three-fourths could not he reduced unless it was necessary to pay debts, and then only so far as it might be required after exhausting the father’s share, but not below ■one-third, as provided by section 2483.</p>

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

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

<p>Bill op Exceptions. — Filing.—Time Beyond Term. — Record.—When time is given beyond the term in which to file a bill of exceptions, and it appears to have been filed within the time given, under section 629, R. S. 1881, such bill is a part of the record.</p> <p>Negligence. —Fish-Brine.— Public Street. —Intervening Agency.— Remote Damages. — Where the defendant negligently placed and left exposed an open barrel of fish-brine upon a public street in a city, where the plaintiff’s cow was lawfully running at large, such defendant is guilty of an actionable wrong; and where it appears that sucl\ cow, without fault of its owner, ate or drank of such fish-brine and was thereby poisoned and killed, the act of an intervening agent, between the original wrong and the injury, in pouring the brine from the barrel into the street, will not prevent a recovery from the original wrong-doer, where such act is a natural or probable consequence of the original wrong.</p>

<p>Contbact.' — Promissory Note. — Assignor and Assignee. — A contract, in form a promissory note, but payable in services, containing a promise from the payee to the maker, is not a note, and is subject to all defences of the maker in the hands of an assignee.</p> <p>Same. —Cancellation. —• Performance.— Tender of.— Time. — Quieting Title. — Forfeiture. — Mortgage. — A complaint averred the execution by the plaintiff to one of the defendants of several instruments promising to pay certain sums in painting, and a mortgage on real estate as security, which had been assigned to another defendant; that contemporaneously the payee had executed to the plaintiff a written agreement reciting that the conveyance of a city lot was the consideration for the plaintiff’s contract, fixing the price of the painting, agreeing to furnish the work, and a larger amount to be paid for in cash within three years, or the plaintiff’s agreement should be void ; that plaintiff had been ready to do the work, of which the defendants were notified, but they failed to furnish it; that the three years had expired, and praying that the plaintiff’s contracts and mortgage be cancelled.</p> <p>Held, that the complaint was good on demurrer.</p>

<p>Chubches. — Power of Trustees. — Contract.—Custom.—Evidence.—The power of trustees of a cbureb to contract is given by statute, R. S. 1881, section 3824, and the custom of a particular church can not abridge this power; hence, in a suit against the church as a corporation upon a contract made by the trustees, evidence that by the custom of the church the trustees could not make the contract is immaterial.</p> <p>Practice. — Evidence. — Causes for New Trial. — The admission of certain evidence, over objection, was assigned as cause for a new trial. The record showed that the evidence was admitted without objection; but a motion to strike it out was overruled.</p> <p>Held,, that the cause assigned did not exist.</p>

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

<p>Negligence. — Liability of Fair Managers. — Injury by Target Shooting. — The proprietors of fair grounds and managers of a public fair, making a charge for admission, had allotted a part of their grounds to target shooting, but gave no notice thereof to the plaintiff, who was an attendant at the fair with horse and carriage. Ignorant of the danger, he hitched his horse where others were hitched, and his horse, worth $200, was shot and thereby killed.</p> <p>Meld, that these fact's, the plaintiff being without fault, constituted a good complaint against such proprietors for the value of the horse. Instbuctions. — Repetition.—It is not error to refuse to give instructions which, in another form, had been substantially given.</p>

<p>Pbactice. — Special Finding. — New Trial. — Evidence.—Where a special finding is silent upon a material fact, it is deemed a finding as to that fact against the party who has the burden of proof, and if it is against the evidence the appropriate remedy is by a motion for a new trial.</p> <p>Same. — Effect of Exceptions to Conclusions of Law. — The effect of an exception to the conclusions of law stated on a special finding is to concede the correctness of the finding for the purposes of the exception, but it does not cut off a motion for a new trial.</p> <p>Same. — Motion for New Trial. — Time of Filing. — The code of 1852 required that the motion for a new trial should be filed at the term at which the special finding of facts was filed.</p> <p>Same. — Effect of Adding to Special Finding. — Where the appellant procures an addition to be made to special finding at a former term, he can not complain of the action of the court, and where the additions are made by directing that the record of the former term be interlined, they will be deemed, as against the party procuring the order, to have been made _ at that term.</p> <p>Pbomissoby Note. — Sale of. — Estoppel.—Representations of Assignor of Mortgage. — The holder of notes secured by mortgage who represents to a person to whom he offers such notes for sale, that the mortgage by which they are secured is a paramount lien, and thereby induces the person to whom such representations are made to buy the notes, can not afterwards assert, to the injury of the buyer of such notes, that there was a prior mortgage.</p> <p>Same. — Extent of Estoppel. — One who represents a fact to exist and thereby induces another to act is estopped not only to deny that such a fact does exist, but he is also estopped to dispute any of the legal consequences of the fact represented to exist.</p> <p>Fraud. — Representations of Matters of Record. — Mortgage.—A party who represents that the mortgage which he offers for sale is the only mortgage of record is bound by such representation, although an examination of • the record would have disclosed the existence of a prior mortgage.</p>

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

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

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

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

<p>Subrogation. — Sheriff’s Sale. — Bights of Purchaser where Sale is Set Aside.— Where a sheriff’s sale of land is adjudged invalid and set aside, the purchaser in good faith is, by statute, R. S. 1881, section 1084, subrogated to the lien of the judgment creditor on the land, for the amount paid by him.</p>

<p>Railroad. — Fencing.-—-Stock Killed. — A railroad company is not required by the statute, section 4031, R. S. 1881, to fence its road at places where such fence interferes with its own rights in operating its road or transacting its business, nor where the rights of the public in travelling or doing business with the company are interfered with, or where such fencing would imperil the lives of its employees, and no recovery can be had under the statute for stock killed by its locomotives or cars at such places on the line of its road.</p>

<p>Rab'kkdptcy. — Effect of Discharge. — Extinguishment of Pre-existing Judgment. — Lien on After-acquired Real Estate.- — A discharge in bankruptcy operates as an actual extinguishment of all pre-existing debts, claims, liabilities and demands against the bankrupt, which were or might have been proved against his estate in bankruptcy, whether they had been reduced to judgments or otherwise; and when a judgment is discharged and extinguished, the legal incidents, liens and priorities of the judg-. ment are lost or destroyed, as to all real estate acquired by the bankrupt after his discharge in bankruptcy.</p>

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

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

<p>City. — Law of Incorporation. — •Presumption.—Where a city is a party to a suit, and nothing is shown to the contrary, the presumption is indulged that such city is incorporated under the general law of the State for the incorporation of cities.</p> <p>Same.— Vacation, of Streets. — Owner of Abutting Land. — Outride of City Boundary/. — Competent Objector. — Where a petition is presented to the common council of a city, praying for the vacation of a street, the owner of land which is outside of, but abuts upon, the boundary line of such city, and upon the terminus of such street,-is a stranger to the city and has no such interest in the street as makes him, under the provisions of section 3187, B. S. 1881, a competent objector to defeat the vacation thereof.</p> <p>Same. — Objection of Adjacent Lot-owner. — Owner of Outside Land.— Cause of Action. — .Injunction.—The fact, if it be the fact, that the owner of an adjacent lot objects to the vacation of the street, does not give the owner 'of land outside of the city boundaries a sufficient cause of action for enjoining the proceedings of the city in the proposed vacation of the street.</p>

<p>Principal and Surety. — Injunction.—Execution.—Judgment.—Presumption of Jurisdiction. — Where, in an action by the principal against the surety in a joint judgment to enjoin an execution thereon issued against the principal in favor of the surety, the complaint alleged that the surety had appeared in the cause resulting in such judgment, and “filed his cross complaint, setting up that he was surety only, and that the court so found and rendered judgment,” it will be presumed that such court had obtained jurisdiction over the principal before rendering such judgment of suretyship.</p> <p>Bankruptcy. — Must be Pleaded. — Injunction. — Execution. — Pending proceedings in bankruptcy, if not pleaded as. a defence to an action in a State court, are not grounds for enjoining execution on the judgment rendered in the latter court.</p>

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

<p>Criminal Law. — Supreme Gowrt. — Judgments in criminal cases will not be reversed unless such error is shown as would materially injure the accused.</p> <p>Same. — Instruction.—Possession of Stolen Goods. — Evidence.—On the trial of an accused for larceny, the court instructed the jury that the recent possession of stolen goods should be deemed evidence of guilt.</p> <p>Eeld, that the failure to instruct that such possession should be shown to have been exclusive was not error, when the evidence showed that a portion of the goods were concealed about the person of the accused.</p>

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

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

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

<p>Mill-Dam. — Action by Land-Owner Against Mill-Owner. — Back-Water.—Answer of Estoppel. — Era.ud. —Negligence.— In an action by a land-owner against a mill-owner to recover damages tor injuries caused to plaintiff’s land by water backed thereon by the defendant’s mill-dam, alleged to have been raised to an unlawful height, the defendant answered that the dam was of no greater height than it was when he purchased the mill property from its former owners; that when he so purchased he .was an entire stranger in that neighborhood, and knew nothing as to the height at which such dam might lawfully be maintained, but that the plaintiff did; that, before he purchased, defendant, upon inquiry with a view to purchasing, was informed by numerous residents of the vicinity, whose lands were affected by the mill-dam, that it was of no more than a lawful height, and had been of that height for more than twenty years; that plaintiff then knew that defendant was making said inquiry, •>nd had been so informed, with a view to purchasing said mill property, but had never informed the defendant that such mill-dam was too high and injured plaintiff’s land; and-that defendant, relying upon said information, and having no notice that it was incorrect, was permitted by die plaintiff “to purchase said mill property for the sum of,” etc.</p> <p>TTh], on demurrer, that the facts alleged constitute an estoppel, but that, for want of an averment that the defendant had paid any purchase-money, the answer was insufficient.</p> <p>lidd, also, that estoppel in pais may arise without a design to defraud.</p> <p>Same. — Joint Tort.— Venire de Novo. — Records—Such owner would not be liable for damages arising during "a former ownership of the dam; but where they are sued jointly for an alleged joint wrong, and a joint verdict is rendered against them, and the evidence is not in the record, and no motion for a venire de novo is interposed, no question is presented to the Supreme Court.</p> <p>Same. — Special Finding upon 'Answers to Interrogatories.■ — Practice.—Where, in such case, there being both a general verdict and answers to interrogatories, the court, at the request of the defendants, found specially as to whether the dam should be abated as a nuisance, a venire de novo should have been directed to the verdict and not to the special finding.</p> <p>Same. — A mere reference in such special finding to the answers to interrogatories was sufficient without copying them in the finding.</p> <p>Same. — Qonfiict between Verdict and Ansivers. — Motion for New Trial• — A motion for a new trial presents no question as to a conflict between the general verdict and answers to interrogatories.</p>

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

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

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

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

<p>Promissory Note. — Action by Assignee. — Accord and Satisfaction. — Accord and satisfaction between tbe maker and payee of a promissory note not payable in bank, agreed upon before notice to the maker of assignment of the note, is a good defence to an action thereon, by tbe assignee, against the maker.</p> <p>Same. — Notes Secured by Mortgage. — Agreement.—Statute of Frauds.— Waiver of Right to Redeem. — Where one of a series of such notes secured by mortgage has been assigned to one who, in an action against tbe mortgagor and mortgagee, procures a decree of foreclosure as to such note only, and buys in the mortgaged property, a contract between the mortgagor and mortgagee that the latter will release the former from liability on the other notes if the mortgagor will not redeem from such sale, is not within the statute of frauds, and, if performed 'by the mortgagor, is a good defence to an action upoq such notes by a subsequent assignee.</p> <p>Same. — Representations of Value. — Fraud.—Misrepresentations made by a vendor to his vendee, as to the value of the thing sold, do not constitute fraud.</p> <p>Same. — Admissions of Holder.^-Evidence. — The admissions of the holder of a non-negotiable note, made while lie holds the note, are admissible in evidence against bis assignee. p</p> <p>Supreme Court. — Objections to Evidence. — Record.—Bill of Exceptions. — To present any question to the Supreme Court upon the admission or rejection of evidence, the record must show that specific grounds of objection were made to the trial court.</p>

<p>Venire DeNovo.— Verdict. — Practice.—When the verdict contains no finding upon the matters in issue in favor of either party, and is so imper-feet or defective that no valid judgment can be rendered thereon, a motion for a venire de novo is the pi'oper remedy, and must be sustained.</p>

<p>Promissoby Note. — Allowance of, Against Estate of Principal no Bar to Action Against Sureties.- — In an action on a joint promissory note, against part of the makers, an answer by the defendants, that they were sureties only on the note, and that the other maker, who had not been sued, was the principal, and that, before the bringing of the suit, such note had been filed against such principal’s estate and allowed, and that judgment thereon liad been rendered by the court against such estate, is insufficient.</p> <p>Same. — Joint Obligors. — The death of any maker of a joint promissory note ■ renders the same joint and several, and a suit and judgment against part of the makers, or their representatives, is no defence to a subsequent action against other makers or their representatives.</p>

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

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

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

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