Volume 94 — Indiana Reports

<p>BailkoAd. — Aid Appropriation. — Complaint to Enjoin Tax. — Objections.— Separate Clauses. — Demurrer.—In a suit to enjoin the collection of a township tax levied for an appropriation to a railroad company to aid in the construction of its road, it is good pleading to state in a single paragraph of complaint all the facts le'ading to and resulting in the levy of the tax, and then to set forth in the same paragraph, but in separately numbered clauses or specifications, each several ground of objection to the validity of the tax, and the sufficiency of each clause or specification may be tested by a demurrer for the want of facts.</p> <p>Same. — Sufficiency of Petition. — Ambiguity or Uncertainty. — Mere ambiguity or uncertainty in the phraseology of the petition for an appropriation will not vitiate or avoid the levy of the tax, when it is apparent that no interested party was or could bo misled or deceived thereby, or could misapprehend the intention and purpose of the petitioners.</p> <p>Same. — Incorporated Oily Within Township Limits. — Part of Township. — City Voters are Township Voters. — City and Township Taxables. — For the purpose of a township tax in aid of a railroad, an incorporated city within the limits of a civil township is a part of such township, the qualified voters of the city are voters of the township, and the taxable property within the city is also taxable property within the township and is sub-, ject to taxation for township purposes.</p> <p>Same. — Consolidated Company. — Where an appropriation has been lawfully made by a township to a railroad company to aid in the construction of its road, the company acquires such a right to and interest in the appropriation, and the obligation of the township to pay the same, as, upon its subsequent consolidation with another railroad corporation, will pass to and vest in the consolidated company.</p>

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

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

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

<p>Criminal Conversation. — Complaint.—Certainty as to Time. — Trespass.— Evidence. — In an action for damages, for criminal intercourse with the-plaintiff’s wife, the complaint may, as in actions of trespass, lay the-time of the alleged wrongful acts with a continuando, and the evidence-may be directed to any time within that covered by the complaint.</p> <p>Same. — Motion to Make More Specific. — Continuando.—Where, in such action, the complaint lays the wrongful acts with a continuando, a motion to require the times of the alleged acts of adultery to be more specifically stated should be overruled.</p> <p>Same.- — Bill of Particulars. — As a general rule, in complaints for torts, a bill of particulars will not be ordered.</p> <p>Same. — Instructions.—Harmless Error. — In such action, in the instructions, to the jury as a whole concerning the material facts which the plaintiff must establish, by a fair preponderance of the evidence, to entitle him to recover, their attention was fairly directed to all of the evidence and circumstances adduced on the trial; but in one of such instructions they were told “ If these facts are made out by the plaintiff’s evidence, to your satisfaction, then you should find for the plaintiff.”</p> <p>Held, that, though such instruction was improper standing alone, it did not mislead the jury, and the error was harmless.</p> <p>Same. — Falsus in Uno, Falsus in Omnibus.— Witness. — The rule “Falsus in uno, falsus in omnibus,” applied to the evidence of a witness, must be directed to material evidence; and an instruction which asks the court to apply that rule to the testimony of a witness should be refused unless it so applies the rule.</p> <p>Same. — Answer to Interrogatory. — Place of Sexual Acts Immaterial. — Where, in such action, there was no question rendering the venue of any particular acts of illicit intercourse material to the plaintiff’s right to recover, the jury committed no available error, in their answer to defendant’s interrogatory, in failing to specify the exact place where such acts were committed.</p>

<p>Railroads. — Pleading.—Negligence.-—Personal Injury. — In a suit against a railroad company by a passenger for personal injury, a complaint which alleges that the injury was the result of an act of the company’s servant performed in a “ wilful, reckless, careless and unlawful manner,” and fails to aver that there was no contributory negligence by the plaintiff, is good on demurrer.</p> <p>Same.— Wilful Injury. — Evidence.—In such case, if there be no evidence tending to prove that the injury was wilful, the plaintiff can not recover.</p>

<p>'Contbact. — Sale.—Delivery.— Tender. — Measure of Damages. — Pleading.—A. contracted in writing with B. for the purchase of a monument, to be manufactured and put up at a future time, at a fixed price, payable on delivery. B. fulfilled the contract so far as A. would permit, but A. refused to allow him to do so; he was ready fully to comply, and so notified A., but tbe latter would not receive the monument or permit B. to put it. up; and A. refused to comply with bis agreement.</p> <p>Held, that the complaint alleging these facts was good on demurrer.</p> <p>Held, also, that the measure of damages, under the facts alleged, could only be the difference between the contract price and the market price at the' time and place fixed for delivery; inasmuch as no delivery or tender was alleged, and no proof of facts not alleged could authorize greater-damages.</p> <p>Pleading. — Abatement.—Practice.—Under B. S. 1881, section 365, if an answer in abatement be filed with paragraphs in bar, it may be stricken-, out, but sustaining a demurrer to it is not available error.</p>

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

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

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

<p>County Commissioners. — Pleading.—Formal pleading is not necessary in> presenting claims in the court of county commissioners, and a claim is. sufficient if it fully apprise the board of the nature of the claim, and state it with such certainty that a judgment upon it would bar another suit for the same cause.</p> <p>Negligence. — Personal Injury. — Evidence.—Bes Gestee. — In a suit for personal injury resulting from negligence, what is said at a time of suffering as to the character of the pain or hurt is admissible for the plaintiff, not extending to a narrative of a past transaction.</p> <p>Same. — Bridges.—Evidence.—Highway.—In a suit against a county, on account of injuries resulting from a defective bridge, evidence of the condition of the highway connecting with the bridge, and the frequency of its use by travellers, is admissible, so that the jury may have knowledge of the place where the injury occurred.</p> <p>Same. — Damages.—In a suit for injury caused by negligence, the state of the injury as it exists at the time of trial may be shown, and damages may be given for permanent injury.</p> <p>Same. — County Commissioners. — Care of Bridges. — Ordinary care is required of a county in constructing and maintaining its bridges, that is, such care as a prudent man would use in his own affairs where the whole risk would be his own, and the degree of this care must be in proportion to the magnitude of the injury likely to result from neglect.</p> <p>Same. — Notice.—In such cases actual notice of defects is not essential to liability, but their existence for such a period that they ought to have been discovered will be sufficient.</p> <p>Same. — The use of a bridge by one who knows its defects does not forbid his recovery for injury if the danger be such that it could be prudently encountered, and if he use care proportioned to the known danger.</p> <p>Leading Questions. — The permission of leading questions is not available error, unless it is plain that there was an abuse of discretion to the injury of the party objecting.</p>

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

<p>Intoxicating Liquob. —Sale by Agent. — Instruction.—Where, in a prosecution for an unlawful sale of intoxicating liquor, the evidence tends to show that the sale was made by the bartender of the defendant in his-presence, it is not error to instruct the jury, that if an agent of the defendant, in his presence and with his knowledge and consent, made such a sale, the defendant would be liable.</p>

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

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

<p>Practice. — Objections to Evidence. — Supreme Court. — Objections to evidence not stated to the court below will not be considered by the Supreme Court.</p> <p>Same. — An objection below to evidence, that it is “irrelevant, incompetent and immaterial,” will not warrant -the Supreme Court in considering whether or not it expressed merely the inadmissible opinion of the witness.</p> <p>Same. — Motion for New Trial. — A ruling admitting evidence, unless stated ' as a cause for a new trial, can not be questioned in the Supreme Court.</p> <p>Instructions. — Credibility of Witnesses. — An instruction, that when evidence can not be reconciled the jury have the right to believe the witnesses deemed most worthy of credit, and disbelieve those least worthy of credit, and that in weighing evidence it is proper to consider the circumstances surrounding the witnesses, and from a preponderance of the evidence determine the rights of the parties, is not objectionable on behalf of the defendant, if the jury is also told that the plaintiff has the burden of the issue, and can not recover unless by a preponderance of the evidence he proves the averments of his complaint.</p>

<p>Criminal Law. — Rape.—Force without Consent. — Under section 1917, R. S. 1881, whoever unlawfully has carnal knowledge of a woman forcibly, against her will, is guilty of rape, and where, in such case, there is a carnal connection and no consent in fact, there is in the wrongful act itself all the force which the law demands as an element of the crime.</p> <p>Same. — Conviction.— Sufficiency of Fkidence. — Where the evidence tends to prove that the prosecutrix “ had been afflicted with epileptic fits since she was a year old, which came oftener and harder the older she got," that the defendant, as a physician, under the employment of her parents, made an examination of her person in the presence of her mother, and informed them that she had a terrible womb disease and was losing her mind, and that, as her physician, he afterwards obtained possession and control of her person for the purpose of making a further examination of the alleged disease of the womb, and not for the purpose of sexual intercourse, and that by this means he unlawfully had carnal knowledge of the prosecutrix without her consent in fact, through fraud or otherwise, to the sexual connection, the judgment of conviction will not be reversed by the Supreme Court, on the ground of the insufficiency of the evidence to sustain the verdict, or because it is contrary to law.</p>

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

<p>Mortgage. — Release of. — Principal and Surety. — When the principal in a note executes a mortgage to his surety to secure the payment of such note, and the surety, afterwards becomes the owner of the land, releases the mortgage, executes another to his creditor, who is the payee’s attorney, and who transfers such mortgage to another, the payee of such note may foreclose such mortgage against such surety and the holder of such second mortgage.</p> <p>Same. — Estoppel.—In such action an answer by the holder of such second mortgage, that the mortgagee was informed by the payee of the note, before he took such mortgage, that such payee did not have nor intend to claim any lien upon said land by virtue of the first mortgage, does not constitute an estoppel.</p>

<p>Railroads. — Killing Stock. — Fencing.—Burden of Proof. — In a suit against a railroad company for killing an animal, on account of the want of a sufficient fence, if the company relies upon the fact that its road could not be fenced at the place in question, it has the burden of proof as to-that matter.</p>

<p>Married Woman. — Judicial Sale of Husband’s Equitable Interest in Lands.— Where lands of a husband, held by equitable title, are sold under judicial proceedings, the inchoate interest of the wife is vested, by the statute, section 2508, R. S. 1881, upon the execution of a sheriff’s deed to the purchaser.</p>

<p>Highway.— Vacation of. — Location of Bridge.— County Commissioners. — Injunction. — Pleading.—Complaint to enjoin the erection of a bridge upon plaintiff’s land. Answer that the locus in quo was a public highway; that a proper order had been made vacating the highway upon certain conditions to be performed by the petitioners therefor, which had not been performed. Keply showing by proper averments a lawful petition to vacate that part of the way and establish it elsewhere, notice thereof, and an order by the board granting the prayer upon report of viewers, and that the new way was opened by the proper authority, and made as good as the old.</p> <p>Held, that the answer was good, also the reply.</p> <p>Same. — In a proper case wrongful entry on land to make a public way or bridge may be prevented by injunction.</p>

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

<p>Replevin. — Judgment cm, Dismissal. — Possession.—A replevin suit before a justice was dismissed for want of a sufficient bond, and a judgment of return rendered, the plaintiff having had the property delivered to him by virtue of the writ. Without first restoring the property the plaintiff began another suit.</p> <p>Held, that when the second suit was begun the property was constructively in the defendant’s possession.</p> <p>Costs.— Witnesses. — Change of Venue. — Where witnesses are subpoenaed and attend before a justice of the peace, but are not used because of a change of venue taken by the defendant, the costs thereof are taxable to the de- ' fendant where he is the losing party.</p> <p>Same. — Practice.—The Supreme Court will not consider the action of the court below in refusing to tax the fees of certain witnesses of the appellee to him, where the record does not show that fees were claimed by such witnesses or taxed at all.</p>

<p>Judgment. — Lien.—Priorities.—Sheriff’s Sale.— Leed. — Title.—Lands were conveyed in good faitli by A., but the purchaser neglected to have the deed recorded. Two judgments were afterwards rendered against A., and upon execution issued upon the junior judgment there was a sale of the land to a purchaser who had no notice of the conveyance, and in proper time a sheriff’s deed was made to him, which was recorded. A like sale and deed were afterwards made under the senior judgment to a purchaser without notice.</p> <p>Meld, that the judgments were not liens upon the land. B. S. 1881, sections 608, 752.</p> <p>Meld, also, that the purchaser at the first sheriff’s sale took title, and the purchaser at the.second sale, though under the senior judgment, took nothing.</p>

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

<p>Railkoad. — Bight of Way. — Deed.—Condition.—Failure to Build,. — Mortgage. —Subsequent Condemnation. — A deed to a railroad company recited that, “ in consideration of the location and construction of ” its railway, right of way was granted “ so long as it shall he required for the uses * of said ” company. The latter mortgaged the right of way ; the railroad was never constructed, and, upon foreclosure, the mortgaged premises were sold to T., who conveyed to I. Subsequently, another company condemned the right of way and paid the money into court, when suit was brought by I. against the administrator of the estate of the grantor, to recover the money so paid into court.</p> <p>Held, that the administrator is, and I. is not, entitled to recover.</p>

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

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

<p>CeimiktaIi Law. — Insanity.—Presumption.—Instructions.—It is not error to instruct, in a prosecution for murder, that every man is presumed to be sane and to intend the natural and usual consequences oí his own acts. Same. — Intoxication.—Voluntary intoxication is no excuse lor crime. Same. — Insanity.—Ungovernable passion is not insanity,-and one whose power oí will is not impaired by disease, and who, yielding to passion, slays another, is subject to the punishment fixed by law.</p> <p>Same. — Presumption.—Evidence.—The legal presumption of sanity stands until the defendant has put in some evidence tending to overthrow it. Same. — Evidence. —Evidence in support of the defence of insanity should be scrutinized with care.</p> <p>Same. — Direct evidence is not essential, but any fact may be inferred from sufficient circumstances in criminal as in civil cases.</p> <p>Same.— Witness. — Expert.—Jury.—The jury is not required by law to give greater weight to the testimony of medical experts than to other witnesses who state facts within their knowledge, but it is'for the jury to judge of the weight which each shall receive.</p>

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

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

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

<p>Divorce. — Pleading.—Pándeme.—Decree.—Under section 1040, B. S. 1881, the defendant in a divorce suit may not only file an answer, but also a cross petition, and the court may decree the divorce to the defendant upon evidence introduced by the plaintiff only.</p> <p>Same. — Alimony.—-Where such cross petition is filed by the wife, asking a divorce and for alimony, the burden of proof as to the alimony is upon her, and if no proof be introduced bearing on that question, she can not complain that no alimony is awarded her.</p>

<p>"Will. — Contest of. — Instructions.—Evidence.—Delusion.—Admission of 'Legatee. —Suit to contest a will on the ground that the testator was of unsound mind.</p> <p>Held, that evidence that the testator had expressed the opinion that some of his children contestants had mistreated him, stating no fact, and an opinion expressed by such children, as witnesses, that they had not mistreated him, was too intangible to justify an instruction that if the testator was influenced in framing his will by such belief, and that it was a delusion, the fact would justify a verdict for the contestants.</p> <p>Held, also, that an admission by one of several contestees that the testator was of unsound mind was not admissible in evidence.</p> <p>Held, also, that evidence that a tract of land devised to one of the contestees was purchased with money of the testator’s first wife, and the title taken by mistake in his own name, was not admissible.</p>

<p>Practice. — Motion for New Trial. — A motion for a new trial, assigning for cause that the court “ admitted improper evidence ” and excluded “competent evidence, as shown by bill of exceptions No. 2, now exhibited to the court,” is too indefinite to present any question where the bill of exceptions is not filed-until afterwards.</p> <p>Same. — Bill of Exceptions. — Instructions.—Under the code of 1852 no question as to instructions could he saved by a bill of exceptions filed at a subsequent term unless time was given to file the hill at the term at which the cause was tried.</p> <p>Same. — Brief.—Waiver.—A brief which merely states a question, but fails to so discuss it as to show any reason for questioning the action of the court below, is a waiver of the question.</p> <p>Fraud. — False Representations. — Lease of Goal Mine. — Pleading.—A complaint by the lessee against the lessor of a coal mine, which could not be examined, showing that by representations of material matters known by the lessor to be false, he induced the plaintiff to take the lease which was of less value than if the statements had been true, specifying the particulars, contains a good cause of action.</p>

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

<p>Judgment. — Default.—Ten Days’ Service. — Statute Construed. — Where a judgment hy default was rendered on the tenth day after the day on which the summons in the cause was served, computing the time hy excluding the day of service, and including the return day of the writ, the service was sufficient under section 315 of the civil code of 1852, as amended by the act of March 6th, 1877 (Acts 1877, p. 105).</p> <p>Pbomissory Note. — Interest After Maturity. — Measure of Damages. — Interest on Judgment. — An interest-bearing promissory note, which is silent as to interest after its maturity, will thereafter bear the same rate of interest as it lawfully bore before maturity, and such rate of interest will be the proper measure of damages in an action upon the note. While the act of February 5th, 1873, regulating interest on judgments (1 R. S. 1870, p. 600, note 1), remained in force, it was lawful to provide in the judgment that it should bear the same rate of interest expressed in the note-upon which it was rendered.</p> <p>Sheriff’s Sale.- — Real Estate. — Execution.—Inadequacy of Price. — Setting Aside Sale. — A sheriff’s sale on execution of real estate of. the alleged value of $6,400, subject to a mortgage of $4,000, for the sum of $5, will not be set aside merely on the ground of inadequacy of price.</p>

<p>Specific Performance. — Complaint.—Agreement.—Statute of Frauds. — A complaint for the specific performance of a parol contract to convey land is good without averring an agreement to convey, if it allege facts from which the law will imply such an agreement, and also facts which, take the case out of the statute of frauds.</p> <p>Same. — Possession.—Where a parol contract for the conveyance of lands-is taken out of the statute of frauds by the delivery of possession to the vendee and the making of improvements, the right to specific performance is not lost by a temporary cessation of actual possession under circumstances which, however, indicate an intention not to surrender the right..</p> <p>Same.-t-.Husband and Wife. — Contract.—Evidence.—-The rights of a married woman acquired by contract can not be affected by another contract made by the husband not in her presence, nor shown to be by her authority, and evidence thereof is not admissible.</p> <p>Pleading. — Denial.—Harmless Eror. — Where the general denial is pleaded, there is no injury in sustaining a demurrer to an argumentative denial.</p> <p>Instruction. — Fhidence.—Harmless Eror. — A mistake in stating to the jury that a fact is averred in the complaint, which only appears by necessary implication, is harmless. So, also, in enumerating the facts necessary to entitle the plaintiff to recover, the omission of an essential fact, which is, however, shown by the evidence without conflict, is harmless.</p>

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

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

<p>Taxes. — Tax Title. —Evidence. — Deed. — Description. —Decedents’ Estates.— Tender.— Warranty Deed. — Estoppel.—Petition by an administrator to sell lands, and to quiet the title thereto against a tax title.</p> <p>Held, that in such case it was not necessary to tender the money paid by the purchaser in discharge of the taxes.</p> <p>Held, also, that the description “West part.of the N. E. N. E., section 35, town. 23 N., E. 6 E., 30 acres,” was good.</p> <p>Held, also, that a defendant holding a tax title, prima fade good, need not show anything as to the levy of the taxes, or the meeting of the board of equalization.</p> <p>Held, also, that a failure by the county auditor properly to transfer lands</p> <p>• for taxation, or to charge them on the duplicate to the proper owner, or that some of the taxes accrued during a former ownership, are not objections to the validity of a tax title.</p> <p>Held, also, that a sale of lands for taxes is invalid, if there be personal property liable to be seized therefor.</p> <p>Held, also, that one who conveys lands with general warranty is estopped from claiming title by virtue of a tax sale, if any part of the taxes for which it was sold were upon it at the time of his conveyance.</p>

<p>Bankruptcy. — Jmisdietion to Collect Assets. — The State courts have no jurisdiction of suits by an assignee in bankruptcy to collect assets of the bankrupt, such jurisdiction being exclusive in the bankruptcy court, by reason of the bankruptcy act of 1867.</p>

<p>Practice. — Motion in Arrest. — • When Made. — A motion in arrest must be made before the rendition of judgment; otherwise it comes too late to present any question.</p> <p>Same. — Motion by Plaintiff. — Sufficiency of Complaint. — A motion in arrest of judgment calls in question the sufficiency of the complaint, after verdict ; and where the only issue for trial was formed by a general denial of the complaint, and the finding- or verdict was for the defendant, the plaintiff’s motion in arrest of judgment will present no question for decision.</p> <p>Same. — Record.—Bill of Exceptions. — Supreme Court. — Under the civil code of 1852, where time was given beyond the term in which to file a bill of exceptions, unless the record affirmatively showed such filing within the time given, the bill could not be considered a part of the record by the Supreme Court.</p>

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

<p>Jurisdiction. — •Demurrer.—A demurrer to a complaint for want of sufficient facts presents no question as to the jurisdiction of the court.</p> <p>Railroads. — Killing Stock. — Fences.—Cattle-Guards.—An instruction, that if an animal enter upon the track of a railroad from a highway by reason of insufficient cattle-guards, the company is by statute made liable for injury to the animal received from the locomotives or cars, is not objectionable.</p> <p>Practice. — Harmless Error. — Instructions.—Special Interrogatories. — Where it appears by the answers of the jury to special interrogatories, that an erroneous instruction did not influence the verdict, the error is not available.</p>

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

<p>Railroads. — Killing Stock of Employee. — Negligence.—Fencing.—To a complaint under the statute for killing the plaintiff’s mare, the road not being fenced, etc., it was answered: 1. That the plaintiff was the defendant’s servant; that as such it was his duty to keep the railroad track, near a certain station, free from trespassing animals; that, in violation of such duty, he turned his mare out at such a place, near which the track was not fenced, whereby, etc. 2. That a certain station was a public place, with side-tracks and switches where large shiphients of goods were made and received, and that plaintiff turned his mare loose in that immediate vicinity, and she went upon the track at a place where it was not securely fenced, etc.</p> <p>Held, that both paragraphs were bad on demurrer; the first, for not averring that at the place where the animal entered upon the track and was killed, the employee was required by contract to keep off trespassing animals, and the second, for failure to show that the animal was killed at the station, where no fence was required.</p>

<p>Nuisance. — Complaint for Damages for Obstructing Street. — Nominal Damages. — Harmless Error. — In an action by a lot owner, against an adjoining proprietor, for damages resulting from an obstruction alleged to have been placed by the defendant in a public street used by the plaintiff, and to abate the alleged obstruction, the complaint should allege special injury to the plaintiff, beyond facts showing merely nominal damages; and, in such an action, the sustaining of a demurrer for insufficiency to a complaint showing merely nominal damages is not available error in tbe Supreme Court.</p>

<p>Winn. — Rule for Construction. — Testator’s Intention. — The intention of the testator is to he ascertained, in construing the provisions of his will, and, if possible, carried into effect. This is the primary rule in the interpretation of a will, and, for the purpose of ascertaining the testator’s intention, all the provisions of the will relating to the subject of the inquiry should be construed together.</p> <p>Same. — Devise of Life-Estate. — Povier to Sell and Convey in Fee. — Execution of Power.— Warranty Deed. — Consideration.—By his last will and testament, which was duly admitted to probate, A. G. S. gave and devised all his estate, real and personal, to his mother, M. E. D., “to hold and enjoy the same during her life, with full power to sell the same, or any part thereof, and appropriate the proceeds to her own use and benefit; and all deeds and conveyances of real estate, by her made, shall pass a title in fee to the purchaser, it being my will that she shall enjoy the same as though it were devised to her in fee.” In the second item of his will, the testator further said: “ After the death of my mother, I devise all of the said estate to my half brother, Charles Lindley Downie.” Afterwards, on November 18th, 1874, the testator’s mother, M. E. D., by her deed of that date, sold, conveyed and warranted a part of the real estate so devised to her to the defendant C. B., who paid her therefor the full consideration and value of the fee simple thereof, and accepted her deed as conveying to and vesting in him the fee of the real estate described therein, and took and held possession thereof, making valuable and lasting improvement thereon. Upon the foregoing facts,</p> <p>Held, that in the execution of such warranty deed as aforesaid, the devisee, M. E. D., manifestly intended to execute the power of disposition conferred on her by the testator’s will, and that, by such deed, she conveyed to the defendant C. B., not merely her life-estate in the real estate, described in the deed, but also the absolute title in fee simple in and to such real estate, which she had “ full power ” to do, under the will.</p> <p>Same. — Declaratory Deed. — Evidence.—Practice.—On the trial, the court admitted in evidence, over the plaintiff's objections, a deed executed by the devisee, M. E. D., on September 25th, 1875, wherein she declared, among other things, that it was her purpose and intention, in the execution of her previous deed to the defendant C. B., to convey to him the real estate therein described in fee simple, in execution of the power conferred on her by the testator’s will,</p> <p>jHeld, that there was no error in the admission of such deed in evidence.</p>

<p>Highway. — Location of. — County Commissioners. — Order not Fixing Width Void. — An order by a board of commissioners, locating and directing the opening but not fixing the width of a public highway, is void.</p> <p>Same. — Injunction Against Supervisor. — Trespass.—A board of commissioners ordered a change in a certain highway, but their order did not fix the width of the new road, and a copy of the order was placed in the hands of a supervisor, to be executed, whereupon the owner of a farm brought suit to enjoin the supervisor from so doing, alleging in his complaint the foregoing facts, and also that the new road would cut his farm into irregular shaped tracts, cut in two.his orchard, change the frontage of, his buildings and necessitate the .construction of much npw fence.</p> <p>Held, on demurrer, that injunction will lie, that the injury alleged in the complaint is not a mere trespass, and that under the provisions of section 1141, R. S. 1881, it is not necessary that the injury contemplated be irreparable, but such only as would produce great harm to the plaintiff during the litigation.</p>

<p>Judgment. — Relief From. — Fkcusable Neglect. — Attorney’s Negligence. — The neglect of an attorney to plead a valid and proper defence, or to attend the trial, either intentionally or through forgetfulness, and his failure for like reasons to notify his client of the time of trial, whereby a judgment is wrongfully obtained against the client, furnishes no ground for relief against the judgment.</p> <p>Same. — The inadvertence, mistake or neglect of an attorney affords no ground'for relief against a judgment unless it would have been excusable if imputed to the client.</p>

<p>Pleading. — Practice.—1There is no available error in sustaining a demurrer to a special denial, if the general denial be also pleaded.</p> <p>Chattel Mortgage. — Assignment.-—The assignment of a chattel mortgage without the debt secured by it passes no right whatever to the assignee.</p> <p>Beplevin. — Parties.— Verdict. — Judgment.—In a joint suit in replevin, there may he a verdict and judgment for one plaintiff and against the others. B. S. 1881, section 568.</p> <p>Same. — Demand.—Where the property has been wrongfully taken by the defendant from the plaintiff’s possession, no demand is necessary to maintain replevin.</p>

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

<p>Negligence. — Action by Parent Against Employer of Child. — Injury, Besultmg in Death. — Evidence.—Declarations of Deceased. — Bailroad Company. — Envployment of Minor. — In an action by a widowed mother against a railroad company for damages for the death of her minor son, employed by the defendant without her consent, wherein the complaint alleged that the deceased came to his death by reason of injuries received by him while performing certain dangerous work at which he had been put by the defendant, and in which he was unskilled, declarations by the deceased, made prior to the accident, that he was skilled in such labor, are inadmissible in evidence against the plaintiff.</p> <p>Same. — Presumption.—Employment of such minor, without the parent’s consent, will, in the absence of other evidence, be presumed to be against the parent’s will.</p> <p>Same. — Instruction Assuming Negligence Prom Dangerous Employment. — Machinery. — An instruction is erroneous in such case, which assumes that the defendant was culpably negligent merely because the employment in which the deceased was engaged was dangerous, and the different parts of the machinery were not adapted to each other.</p>

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

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

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

<p>Fraudulent Conveyance.— Action Against Debtor’s Heirs by Creditor.— Limitation,. — Administrator a Necessary Party. — Pinal Settlement Unrevoked.— Collateral Attack. — In an action by a judgment creditor against the heirs of a deceased insolvent debtor, to set aside an alleged fraudulent conveyance by the debtor to said heirs, the debtor’s administrator is a necessary party to the action ; and where, in such action, it appears from the complaint, that, more than three years prior to the commencement of such action, the debtor’s estate had been finally settled, in due course of administration, and that such settlement remains unrevolced, the action can not he maintained, and the complaint is insufficient.</p> <p>Same. — Even if such settlement had been made within less than three years prior to the commencement of such action, as long as it remains unrevoked such action will not lie.</p>

<p>PbACTICE. — Harmless Striking Out of Part of Pleading. — The striking out of part of a paragraph of a pleading is harmless, where the same facts are set out in a remaining paragraph.</p> <p>Same. — Harmless Ruling on Demurrer. — The sustaining of a demurrer for insufficiency to one paragraph of a pleading is harmless, when the same facts are alleged in a remaining paragraph.</p> <p>Same. — phridenee.—Disaffirmance of Deed by Minor. — A written notice of disaffirmance of a deed executed by a minor maybe given in evidence under a paragraph which alleges disaffirmance either in general terms or by setting out such notice specially.</p>

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

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

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

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

<p>Sale. — Personal Property.— Cash on Delivery. — Conditional Sale. — Where personal property is sold for cash on delivery, the sale is conditional, and the title to the property will not vest in the purchaser until the terras of the sale are complied with.</p> <p>Same. — Sale by Conditional Vendee to Third Party. -Liability of Such Purchaser. —Where,, in such case, the conditional vendee of personal property, without the knowledge or consent of the vendor, and without compliance with the terms of sale¡ re-sells such property to a third party, who converts the same to his own use, such third party acquires no title to the property as against the original vendor, and is liable to him for its value, or for die balance due him from his vendee on the agreed price.</p>

<p>City.— Power to Sell Water-Works Stock. — A .city incorporated under the general law of this State has the right to sell stock subscribed by it in the capital stock of a water-works company, and as an incident to decide upon the terms of sale. ></p> <p>■Same. — Incorporation of Terre Haute. — There is no provision in the law under which the city of Terre Haute is incorporated, nor in that under which the Terre Haute Water-Works Company is organized, prohibiting the city from selling stock subscribed by it in the capital stock of such company.</p> <p>Same. — Power of Courts to Set Aside. — Sales made by a municipal corporation, in the exercise of discretionary power, can not be annulled for the reason that the bargain was improvident.</p> <p>Same. — City Officers Save no Power to Donate City Property. — The officers of a city have no right to make gifts of city property.</p>

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

<p>Pbatjd. — Complaint.—Fraudulent Sepresentations by Agent. — Where, in an action against H. and others upon contract, the complaint alleges that the defendants, as obligors, agreed with the obligee that, to obtain from the latter the loan of U. S. bonds, they would execute their obligation to him, and that subsequently they had, through their agent, obtained the delivery of such bonds upon the false and fraudulent representations of said agent, that such obligation had been executed by the defendants, the complaint is insufficient, as against H., for want of an averment that at the time such bonds were so delivered he had not yet executed such bond.</p> <p>Same. — Authority of Agent. — Evidence.—Principal and Surety. — The fact that H. agrees to become surety upon a bond yet to be executed, pursuant to a loan negotiated by B., does not tend to establish an agency in B. to bind H. upon a parol contract on the same terms, by which B. subsequently obtained the loan.</p> <p>Same. — The fact that B. had authority to negotiate a loan as the agent of H. and others, by the terms of which they were to obtain such loan upon executing an obligation to the person making the loan, would not authorize B. to subsequently obtain such loan upon his false and fraudulent representations that such obligation had been duly executed.</p>

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

<p>Landlord and Tenant.— Growing drops. — Trespass.—Where there is a lease for years, rent to be paid by delivery to the landlord of a certain share of the crops when mature, the crops while growing and before delivery are the property of the tenant, and he can maintain suit for trespass thereto even against one who purchases the land from the landlord.</p> <p>Same. — Railroads.—In such case, a grant by the landlord to a railroad company is no defence to a suit by the tenant for injury to crops growing on the lands so granted.</p>

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

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

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

<p>Negligence. — Master and Servant. — Complaint.—In a suit by one not a servant against a master to recover damages resulting from his servant’s negligence, the complaint may impute the servant’s negligence directly to the master.</p> <p>Pleading. — Practice.—Where the general denial is pleaded, other paragraphs averring facts provable under the general denial are useless, and there is no available error in holding them bad on demurrer. For examples, see opinion.</p> <p>Same. — Practice.—Defects Owed. — Where the fault of a complaint is merely that the facts are defectively stated, the fault is cured by verdict, and is not available in arrest of judgment or in error.</p>

<p>Deed. — Description.—The description of land in a deed by metes and bounds, giving a definite corner of a certain city lot as the commencement, and thence courses and distances which will close, is good.</p> <p>Ejectment. — Evidence.—In ejectment for part of a city lot, the recorded plat of the lot is proper evidence for the plaintiff.</p> <p>Trust and Trustee. — Non-Resident.—Statute Construed. — The statute, R. S. 1881, section 2988, has no application to a trust in lands arising by operation of law.</p> <p>Practice. — Argument to Jury. — Directing Verdict. — "Where the evidence is without conflict, and there is no question of fact arising upon it, the court may refuse to permit argument to the jury, and may direct a verdict.</p>

<p>Practice. — Special Finding. — Upon a special finding of facts by the court, a party may move, as in ease of a special verfiict, to make more specific, to strike out a part, or for a finding of facts omitted.</p> <p>Same. — Bill of Exceptions. — A proper bill of exceptions, filed in vacation according to leave granted at the time of trial, will put in the record rulings made during the trial.</p> <p>Same. — Motion to Malee Special Findings Specific. — A fact found not within the issues is surplusage, and a motion to make it more specific should .be refused; and a finding that the defendant had the right, as stated in the third paragraph of his answer, is as certain as if the averments of the answer were repeated.</p> <p>Same. — Conclusions of Law. — Error.—Error in conclusions of law in favor of the objecting party is not available.</p> <p>Same.— Venire Be Novo. — Where a special finding states facts sufficient to justify the judgment, a venire de novo is properly refused.</p> <p>Costs. — The costs of such issues as aye found against the prevailing party should be taxed against him.</p>

<p>New Trial, oe Right. — Action for Possession or to Qwiet Title. — Mortgage. —Tax Lien. — A new trial, as of right, should be granted under section 1064, R. S. 1881, in actions for the possession of or to quiet title to real estate, but not in actions to foreclose a mortgage or a tax lien.</p> <p>Sajie. — Misjoinder of Actions. — An action to recover possession of land can not properly be joined with an action to foreclose a mortgage thereon, and if such actions be improperly joined, a new trial as of right ought not to be granted, even where the misjoinder has not been objected to, and, if granted, the order granting it should be vacated and such new ■ trial refused.</p>

<p>False Impbisonment. — Answer.—An answer, in an action for false imprisonment, justifying under a warrant, must show that the arrest was the same trespass as charged in the complaint.</p>

<p>"Will. — Construction.—A. died, leaving surviving two grandchildren, D. and K., the children of a deceased son, O. M., together with eight living children or grandchildren representing such as were dead. By his will, after a specific bequest, was this clause: “ The remainder of my estate I give to the following persons, to wit, my daughter A., the children and heirs of my daughter E., my daughter L., my son L., my grandson D., son ofC.M., deceased, my son J., my daughters M. and B. H., and my son A., the same to be divided into nine equal shares, and one-ninth to each living child, and one-ninth to the children of each of my deceased children.”</p> <p>Held, that the grandchildren D. and K. took one-ninth together.</p>

<p>Supreme Court. — Appeal.—To Stay Proceedings Bond must be Piled.— Mandate Against Clerk. — Where an appeal to the Supreme Court is taken, during term time, from a judgment for costs, and time is granted for the filing of an appeal bond, execution will not be stayed until such bond is filed; and, if such bond be not filed, the clerk of the court below may be compelled, by mandate, to issue such execution, though the time for filing such bond has not yet expired.</p>

<p>Former Adjudication. — Whenever a matter is adjudicated and finally-determined by a court of competent jurisdiction, it is forever at rest. Same. — Grounds of Former Decision. — In the trial court, final judgment was rendered against the plaintiff upon the overruling of the demurrer to the answer for insufficiency, and, upon his appeal to the Supreme Court, the judgment below was affirmed upon the ground that such demurrer should have been carried back to the complaint and sustained, whereupon the plaintiff commenced a new action for the same cause, and the defendants properly pleaded such former adjudication.</p> <p>Held, that the answer is sufficient.</p> <p>Same. — Who may Plead Former Adjudication. — A former adjudication in favor of several defendants is a good defence to a subsequent action upon the same cause against any of such defendants.</p>

<p>Pleading. — Answer to Swit on Bond. — In a suit upon a bond each breach assigned, with the introductory averments, is regarded as a separate paragraph of complaint, with a view to making issue, and an answer in bar of the whole action, not sufficient as to one of the breaches assigned, is bad on demurrer.</p> <p>Practice.— Waiver. — A defendant who obtains an order on the plaintiff to separate his causes of action and have them separately docketed, and then pleads to the whole complaint, without taking action to enforce the order, waives it.</p> <p>Same. — Harmless Error. — When the general denial is pleaded, it is a harmless error to sustain a demurrer to another paragraph merely alleging facts equivalent to the denial or admissible in evidence under it.</p> <p>•Same. — Payment.—In a suit on a guardian’s bond, for conversion of the ward’s money and a failure to pay, etc., payment in whole or in part is provable under the general denial.</p> <p>Guardianship. — Filing Accounts. — Where a guardian files accounts of his guardianship as required by law, and the court makes no order approving them, such reports conclude nobody.</p> <p>Same. — Education and Maintenance. — A guardian is not entitled to credit for sums expended in the education and maintenance of his ward, unless the ward had no parents able to provide therefor, or unless such parents were unwilling to do so.</p> <p>'Same. — Bond.—Approval.—Complaint.—A complaint on a guardian’s bond, which exhibits a copy of the bond and the clerk’s approval thereof, sufficiently shows that the bond was approved.</p>

<p>Mortgage. — Lis Pendens. — Notice. — New Trial as of Right. — Statute Construed. — Where one brings ejectment and is defeated, and -within the year allowed by statute takes a new trial upon which he recovers, a mortgagee with actual notice, who takes his mortgage after the first judgment and before the new trial is taken, is not protected by section 1066, E. S. 1881, as having acquired an interest in good faith.</p>

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

<p>County Ciebk. — Ministerial Officer.' — The clerk of the circuit court is a ministerial officer only, and can not exercise a judicial function.</p> <p>Same. — Bail.—Judicial Act. — Fixing the amount of bail is a judicial function, and can not be performed by the clerk of a circuit court.</p> <p>Same. — Section I6S4. Unconstitutional in Part. — That clause of section 1684, E. S. 1881, authorizing the clerk to “fix the amount of bail,” is unconstitutional and void.</p>

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

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

<p>Win. — Construction of. — “Children.”—Grandchildren.—A testator, by his will, directed his executor to convert his estate into money, and to then “ make distribution between my children living, and the children of my deceased children if living at the time,” etc. At the testator’s" death he left living children, but one of his children had died leaving some living children, and also some who had already died leaving children who were great grandchildren of the testator.</p> <p>Held, that the latter took nothing.</p>

<p>AebitbAtion. — Agreement to Submit.■ — In a statutory arbitration the agreement to submit must be in writing.</p> <p>Same.. — Common Bam Bond. — A bond simply to secure performance of an award, and referring to, but not containing, an agreement to submit, does not supply the place of the written agreement required in a statutory arbitration.</p> <p>Same. — Evidence.—The fact that there was an agreement to submit can be proved only by proving the agreement itself, whether oral or written. Same. — Immaterial Recital in Award. — A recital in an award that the agreement to submit was in writing will not prevent proof that such submission was oral.</p> <p>Same. — Pleading Withdrawn may be Used as Evidence. — Admission.—In an action upon an arbitration bond, trial was had, a judgment rendered, and an appeal taken to the Supreme Court, upon issues formed by an answer containing a paragraph admitting that the agreement to submit was merely oral, as alleged by the plaintiff. Upon a second trial such answer was superseded by one not containing any such admission, but the plaintiff was permitted to put in evidence the former answer containing such admission.</p> <p>Held, that the evidence was competent, but not conclusive, as an admission.</p>

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

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

<p>Criminal Law. — Advertising Lottery. — Indictment. — Gift Enieiprise. — An indictment, charging that the defendants, at, etc., on, etc., published an advertisement (set out) that they would, on a day named, give to the person buying goods at their store to the amount of fifty cents, and guessing nearest the number of beans in a glass globe in their window, a gold watch, is good, under section 2078, R. S. 1881, making it an offence to advertise a lottery.</p> <p>Same. — Instructions to Jury. — Province of Jury.- — The jury was instructed that they were the judges of the law, and that the instructions of the court were only advisory and might be disregarded; and the next instruction was that the jury had no right to determine the question whether the facts stated in the indictment constituted a public offence, or to determine the sufficiency of the indictment; and if the facts stated therein were proven beyond a reasonable doubt they must convict.</p> <p>Held, that the last instruction given, in this order, was a fatal error. Elliott and Hammond, JJ., dissenting.</p>

<p>Promissory Note. — Principal and Surety. — Creditor’s Failure to Sue. — Release of Surety.— Written Notice to Creditor by One of Two Sureties. — Effect of Such Notice. — The mere neglect or failure of the payee or holder of a promissory note to bring suit thereon, at or after its maturity, in the absence of the “notice in writing” requiring him “forthwith to institute an action upon the contract,” as provided in section 1210, E. S. 1881, will not exonerate or discharge a surety in the note from liability thereon; and where such notice has been given by one of two or more sureties, it can not be made available to the discharge of the surety or sureties, who gave no such notice, from liability on such note.</p>

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

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

<p>'Criminal Law. — Obstructing Public Highway. — Oity Street. — Private Way Over and Above Street. — Question of Fact. — A public street is a public highway, and the wrongful obstruction of a public street is a misdemeanor and is punishable as such, under the provisions of section 1964, R. S. 1881. The erection or maintenance of any structure for private use, such as an enclosed passage way over and above a public street or highway, which obstructs or may obstruct such street or highway, is a misdemeanor within the meaning of the statute, and is punishable as a public nuisance. Whether or not the particular structure, so erected or maintained, obstructs or may obstruct wrongfully the public street or highway, is a question of fact, in every case, for the court or jury trying the cause.</p> <p>Same. — Bi'rors not Dismissed.— Waiver. — Supreme Court. — In criminal, as in civil causes, errors assigned by the appellant, which are not discussed in his brief, are regarded as waived, and are not considered by the Supreme Court.</p>

<p>Pleading. — Exhibits.—Practice.—Presumption.—When a pleading is founded upon a written instrument, the original, or a copy thereof, must befileci with the pleading; such instrument should also be designated so as to be identified, but if it follows the pleading it will be presumed to be the instrument referred to.</p>

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

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

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

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

<p>Promissory Note. — Suit by Assignee. — Averment of Title. — In a suit upon a promissory note by the assignee of the payee, an averment in the complaint, that “ the payee assigned the note to the plaintiff by endorsement,” is sufficient.</p> <p>Same. — Fraudulent Conveyance. — Complaint.—Insolvency.—-In an action to set aside a conveyance as fraudulent, an averment, that the debtor “ has not now, nor has he since the note was executed had, any property subject to execution more than the exemption allowed by law,” is sufficient. Same. — The fact that one of the notes sued upon was not due did not render the paragraph, based upon both, bad.</p> <p>Same. — Evidence.— Vendor and Vendee. —When in such suit the vendee only denies the fraud imputed to her, it is unnecessary to read in evidence the endorsements upon the notes, as the plaintiff’s title to the notes is not put in issue.</p> <p>Same. — Instruction.—When in such suit it is admitted that the vendees did not have, nor has either of them since the debt was created had, any property subject to execution, it is not error to instruct the jury that if the property was conveyed and accepted for the purpose of defrauding the vendor’s creditors, such conveyance was fraudulent and void.</p> <p>Same. — Hearsay Evidence. — The statements of the vendee’s father, that he intended to give her the land subsequently conveyed by him to her husband, was mere hearsay, and inadmissible.</p> <p>Practice. — Instructions.—Where a party desires the court to call the attention of the jury to any particular aspect of his defence, he must prepare and request the proper instruction.</p> <p>Same. — There is no error in refusing to give an instruction, though correct as an abstract proposition, where it is not applicable to the case made by the evidence.</p>

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

<p>Mabbied Woman. — Power to Mortgage her Beal Estate. — Security for Debt or Liability. — Law Prior to May 31st, 1879. — Under the law"of this State, as it existed prior to May 31st, 1879, when “An act concerning married women,” approved March 25th, 1879, took effect, a married woman had full power, her husband joining with her, to execute a valid mortgage on her separate lands, howsoever acquired by her, to secure the debt or liability of her husband.</p> <p>Same. — Effect of Act of March %5th, 1879. — Bepeal by Implication. — The act of March 25th, 1879, concerning married women, contained no repealing clause or section, but it repealed by necessary implication so much, and only so much, of the previously existing law as was inconsistent or in conflict with the provisions of the later act. Thus, while the later act deprived a married woman of all power “ to mortgage or in any manner encumber her separate property, acquired by descent, devise or gift,” it did not limit or restrain her power to mortgage or encumber her separate property, acquired by contract or purchase, as it existed before such act took effect.</p> <p>Same.— When Mortgage Valid. — A mortgage given by a married woman and her husband on her separate real estate, acquired by her contractor purchase, to secure the debt of her husband, after the act of March 25th, 1879, concerning married women, took effect, and'while it remained in force, is a valid and binding mortgage.</p>

<p>Bastardy. — Evidence.—Surprise.—A party lias no right to assume that testimony which is competent and legitimate under the issues will not be introduced, and hence a defendant in a bastardy proceeding can not claim surprise that the relator states acts of intercourse at places different from where he supposed, unless she led him to believe her testimony would be different.</p> <p>Same. — In such cases the defendant must be prepared to meet the case made by the relator, as he has the means of ascertaining her version of the matter.</p> <p>New Trial. — Newly Discovered Evidence. — Diligence.—Affidavit oj Witness.— The showing in support of a new trial, on the ground of newly discovered evidence, must show that diligence has been used, and the facts constituting the diligence must be stated. The affidavits of the witnesses by whom such facts can be established must accompany the showing.</p> <p>Same. — Refusal of Witness to Malee Affidavit. — The refusal of the witness to make the affidavit is not sufficient, as the court, upon application, will compel the witness to make the affidavit.</p>

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

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

<p>Promissory Note. — Endorsement by Mamed Woman. — Liability of Assignor. — • Act of March 85th, 1879. — Construction of Statute. — At common law, the assignment or endorsement of a promissory note, by a married woman, simply operated to transfer her title to the note to the assignee or endorsee thereof. But where, after “An act concerning married women, ” approved March 25th, 1879, took effect and while it remained in force, a married woman assigned by endorsement a promissory note, negotiable under the statute and not by the law merchant, she and her separate estate, real and personal, are liable on her contract of assignment, “the same as if she were sole,” upon execution or other judicial process; and no subsequent change, modification or even repeal of the provisions of such act will affect or impair the obligation of her contract of assignment.</p>

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

<p>Practice. — Evidence.—The record on appeal must show that objection or exception was taken to the introduction of the evidence complained of, to present the question, in the Supreme Court, of its admissibility.</p>

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

<p>Pleading.- — Complaint.—Supreme Cou/i’t. — Where the only objections to the sufficiency of a complaint are, that it states, in one paragraph, several items of indebtedness on different accounts, and fails to aver that either or all of them are due and unpaid, and that the bill of particulars therewith filed fails to show that the items therein were between the parties to the suit, such objections come too late and afford no ground for the reversal of the judgment, when presented for the first time, after verdict and judgment, by an assignment of error in the Supreme Court that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Pbactice. — Motion for New Trial. — Absence of Evidence. — Supreme Court.— Where the only causes assigned for a new trial are, that the verdict is not sustained by sufficient evidence and is contrary to law, the alleged error of the circuit court in overruling the motion for a new trial, in the absence of the evidence from the record, presents no question for the decision of the Supreme Court.</p>

<p>Beelevin Bail. — Fraud.—Principal and Surety. — Judgment was obtained against a principal and three sureties, and execution thereon stayed by replevin bail. - Afterwards one of the original sureties was released by .the judgment plaintiff in consideration that J. would become additional replevin bail, which he did upon the false assurance of the principal ■debtor that the other original sureties consented thereto, which in truth they did not, and they afterwards procured a decree releasing them from the judgment.</p> <p>Held, that J. was bound as replevin bail, the creditor having no knowledge of the fraud.</p>

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

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

<p>County Commissioners.— Claim against County. — Exclusive Original Jwisdietion. — Allowance.—Under the provisions of sections 5758, 5759 and 5760, E. S. 1881, in force since May 31st, 1879, the board of commissioners of each county has exclusive original jurisdiction of every legal claim against such county, and every such claim must be presented to the board for allowance, and no other court can acquire jurisdiction of the claim, except by appeal from the judgment of the county board.</p> <p>Pees oe Coroner’s Inquest. — Payable out of County Treasury. — County Audiitor. — Mandate.—The fees of a coroner’s inquest are payable out of the county treasury, but the county auditor can not be compelled by mandate to draw his warrant therefor, until the coroner has presented his claim for such fees for allowance to the board of commissioners of the county.</p>

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

<p>County Glebe:. — Liability of his Sureties for County Order Converted, by him. • — Statute Construed. — A county order, paid into the hands of a county clerk under the order of the proper judge, comes within the meaning of the word “funds” in section 5850, R. S. 1881, and, under that section, such clerk and his sureties are liable to the person entitled to such county order, upon the refusal of the clerk to account for or deliver it to such person.</p>

<p>Public Square. — Street Assessment.— Qounty. — The public square of-a county can not be sold on a precept to pay an assessment for a street improvement.</p>

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

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

<p>Criminal Law. — Indictment.—Motion to Quash. — Plea in Abatement. — Where-the sufficiency of an indictment is questioned, upon grounds which are ■ not apparent on the face of the record, the objection can not be taken advantage of by a motion to quash the indictment, but only by a plea in abatement.</p> <p>Practice. — New Trial. — Evidence.—Supreme Gowt. — Where the only question presented by the alleged error of the circuit court, in overruling the motion for a new trial, is the sufficiency of the evidence to sustain the finding of guilty, and the evidence is conflicting, the finding will not be disturbed, or the judgment reversed, by the Supreme Court.</p>

<p>Mandamus. — Amendment of Complaint and Writ. — Abatement.—In a proceeding for a mandate, where an amended complaint is filed in the name of the State, it is proper to amend the .writ accordingly, and no error was committed in refusing to quash the -writ or in sustaining a demurrer to a plea of abatement to such writ because of such amendment.</p> <p>Justice oe the Peace. — Office and Officer. — Election and Appointment.— Where throe persons were elected to the offices of justice of the peace, in a certain township, at the April election, 1882, one of whom qualified to succeed himself, on the 15th day of April, 1882, another failed to qualify, and the incumbent of the third resigned and was appointed to fill the vacancy occasioned by the failure of the second to qualify, and took possession of the books and papers pertaining to the former officer.</p> <p>Held, that when the remaining justice qualified he became entitled to the office books and papers pertaining thereto, formerly held by such appointee.</p> <p>Practice. — Verdict.—Instructions.—Harmless Error. — Where, upon the material and undisputed facts in the case, the verdict could not have been otherwise, the Supreme Court will not inquire whether a challenge to a juror was improperly overruled, nor whether instructions were erroneously given or refused, as such errors would not reverse the judgment.</p> <p>Same. — Discretion as to Admission of Eidence. — After the parties have rested it is in the discretion of the court to admit other evidence; for this purpose it is 'unnecessary to set aside the submission, but this is not necessarily erroneous.</p>

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

<p>Taxes. — Tax Title. — Personal Property. —Burden of Pi'oof. —Statute Construed. —One wlio asserts title by virtue of a sale of lands for taxes is required, under the revenue act of 1872, to prove that the owner of the land had no personal property out of which the taxes might have been made. Sections 222, 224, 254 and 255 do not relieve him of this burden.,</p> <p>Same. — Statute of Limitations. — The limitation of five years, fixed by section 250, applies only to suits to recover possession, and not to those to quiet title.</p> <p>Practice. — Supreme Court. — Where the judgment gives proper relief, and in addition thereto other relief not proper, but no objection has been made to the judgment and no motion to modify it, the Supreme Court will not reverse.</p>

<p>Parties. —Determination of Conflicting Claims. — Depositai-y.—Counter- Claim.— Practice. — Contract.—Exhibit.—The plaintiffs sued R. and B., averring that there was a sum of money in R.’s hands which he refused to pay, and in which B. claimed an interest. R. answered that the money was in his hands, as the plaintiffs had averred, but under a written contract with the plaintiffs, exhibited, that he should pay B. out of it any sum due B. from the plaintiffs upon a certain contract between B. and the plaintiffs, and that B. claimed the whole, and he offered to pay as the court should ■direct, and prayed that the controversy between the plaintiffs and B. be ■determined. B. filed a pleading in which he set up his contract with the plaintiffs and breaches thereof, the receipt of the money by R. as averred in R.’s answer, and prayed judgment for his damages against the plaintiffs, and that R. pay the money in his hands to B. The plaintiffs answered this pleading and B. replied.</p> <p>Held, that B. might recover judgment against the plaintiffs in that action for a greater sum than was in R.’s hands, and that R. pay the latter upon it.</p> <p>Held, also, that B.’s claim against the plaintiffs was not founded on the written contract between the plaintiffs and B. and, therefore, need not be made a part of his pleading.</p> <p>‘Trial. — Postponement.—An affidavit in support of a motion to postpone a trial for one day, because of the absence of a party whose presence is necessary, which shows no excuse for such absence, is not sufficient.</p>

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

<p>From the Hamilton Circuit Courts</p>

<p>Estoppel in Pais. — Representation or Concealment of Facts. — Knowledge of Facts. — Ignorance of Facts. — Intention to Deceive. — Inducement to Act. — Where? it appeared that R. E. K. had represented • to J. W. W., to induce the latter to exchange his stock of goods for certain described real estate in Blackford county, in which D. D. K. had an interest, that D. D. and G. E. K. were the sole owners of such real estate, and had entered into a written obligation for the conveyance thereof within a reasonable time, by a good and sufficient warranty deed, in consideration of the delivery of said stock of goods to D. D. K., the brother of R. E. K., and had put J. W. W. in possession of the real estate; that J. W. W. relied upon the representations of R. E. K., and was induced thereby to act in the premises ; and that afterwards R. E. K. had acquired an interest in the real estate, outstanding at the time in the name of his sister, of which he had. knowledge and J. W. W. was ignorant.</p> <p>Held, upon the foregoing facts, that R. E. K. is thereby estopped from asserting, as against J. W. W. and those claiming under him, his after-acquired interest .in the real estate in controversy.</p>

<p>Negligence. — JSvidenee.—Meamre of Damages. — In a suit for an injury as’ the result of mere negligence, the case can not be made unless it be proven that negligence of the plaintiff did not contribute to the injury, and punitive damages can not be given.</p>

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

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

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

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

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