Volume 96 — Indiana Reports

<p>Deed. —Infancy. —Married Woman. —Disaffirmance of Deed. —Estoppel. —A married woman may, at any time during coverture, disaffirm a deed made by her while an infant, and she is not estopped by the facts, that when the deed was executed she appeared and was believed by the grantee to be an adult, that the grantee, with her knowledge after reaching majority, improved the land, and that he had conveyed to an innocent purchaser, and that after majority she, with her husband, enjoyed and exercised dominion over the consideration received.</p>

<p>Divorce. — Custody of Children. — Statute Construed. — Res Adjudícala. — Where a divorce is granted, it is the duty of the courts, K. S. 1881, section 1046, without regard to the issues or the wishes of the parties, to make provision for the custody of the minor children, and where a decree on that subject is entered subject to future modification, it is an adjudication upon all the facts then existing, whether actually in proof or not, touching the fitness of the parties to have such custody.</p> <p>Same. — Modification of Decree. — In such case a subsequent modification of the decree as to children can only be made for reasons occurring after the original decree.</p> <p>Same. — Evidence.—-In such case, where a'divorced husbapd applies to modify the decree which gave custody of a child to the wife, upon the ground that at the time of .the application she was living in open and notorious fornication with one D., proof of her adultery, or other indecent acts, with D. before the divorce is inadmissible, even as tending to illustrate facts occurring afterwards.</p> <p>Same. — In such case evidence of the good character of D. is admissible.</p>

<p>Criminal Law. — Misconduct of Bailiff and, Jury. — Where, upon the evidence, the verdict is clearly right, the fact that the bailiff, having the jury out, under order of the court, for exercise, took them past the scene of the crime with which the defendant was charged, is not sufficient ground for a new trial, where it appears that nothing occurred to influence the jury.</p> <p>Same.— Venue. — Evidence.—Where the venue of an alleged crime is laid in the county of Floyd and State of Indiana, proof that the crime occurred in the city of New Albany, Indiana, is sufficient proof of the venue.</p> <p>Same. — Manslaughter.—Intent.—Supreme Court. — Where, upon a violent and unlawful attack, death soon ensues, a jury may find an intent upon the part of the assailant to kill, and the Supreme Court will not interfere to reduce a verdict of voluntary manslaughter to involuntary manslaughter.</p>

<p>Foreign Corporation. — Filing Appointment of Agent. — Contracts by. — An instrument made by a foreign corporation, and deposited in the clerk’s office pursuant to section 8022, R. S. 1881, showing that A. has been appointed “ its agent for transacting business at I.,” makes A. its general agent at that place, so that his acts will bind the corporation. \</p> <p>Subrogation. — Mortgage.—Agreement.—Where an assignee of the equity of redemption pays and takes up one of several notes secured by mortgage, under an agreement with the mortgagee that he may hold them in the same manner as the mortgagee held them, he is entitled to the same priority of lien that a stranger would have who took an assignment thereof.</p>

<p>Injunction. — Enjoining Lawmit. — Defence.—The defendant can not, as a general rule, enjoin the prosecution of legal proceedings upon grounds of which he might avail himself in the defence of such proceedings.</p>

<p>Bridges. — ■ Complaint.— County Commissioners.— Notice.— Negliaence.__In a, complaint against a county for injury resulting from a defective bridge negligently permitted to become so by the rotting of its timber, it is not necessary to aver that the board had notice of the condition of the bridge. *</p> <p>Same. — Township.— Repair of Bridges. — An answer in such case, that the bridge had been built and always maintained by the township and its* supervisors, and that they had sufficient means to keep it in repair, is bad' on demurrer.</p> <p>Same.— Verdict. — Answers to Interrogatoi'ies. — Findings in answer to interrogatories, that no defect in the bridge was apparent, and, also, that the plaintiff had, on the day before the injury, examined it, are not inconsistent with a general verdict for the plaintiff.</p> <p>Evidence. — Harmless Error. — The admission of unnecessary and immaterial evidence is a harmless error.</p> <p>Same. — Hearsay.—Conversations between persons not parties to the suitor - their agents, and never communicated to>either party, arg not competent evidence.</p> <p>Highway.— User. — Dedication.—Instructions.—Evidence.—Harmless Error.— Where, in an action for injury resulting from a defective bridge, the evidence shows without dispute that the bridge was located on a highway which had been used as such for more than twenty years, an instruction that fifteen years’ public use makes a highway, though erroneous, is harmless^ the verdict being clearly right on the evidence.</p>

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

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

<p>Partnership. — Suit against Copartner.- — Complaint.—Even after dissolution, a suit by a partner against Ills copartner, to recover for an amount unadjusted due out of copartnership assets, will not lie until debts due it have been collected and those against it have been paid, unless there are none, or some disposition has been made of them, and a complaint not showing these facts is bad on demurrer.</p> <p>Supreme Court. — Record.— Verdict. — Good and Bad Paragraphs. — Where there is a general verdict for the plaintiff, the complaint being in several paragraphs, one of which was good, and as to the others demurrers were erroneously overruled, the judgment will bo reversed unless it can be seen from the record that the verdict was solely upon the good paragraph.</p>

<p>Superior Court. — Appeal.—Estoppel.— Waiver. — From the action of the court in general term reversing the judgment at special term, and remanding the cause, a party prayed an appeal to the Supreme Court, but filed no bond. Afterwards he appeared at special term, where the mandate of the general term was executed by sustaining a demurrer to his eomplaint, and, declining to amend, he excepted. He then, within the time allowed by law, perfected his appeal to the Supreme Court from the judgment at general term by filing a transcript.</p> <p>Held, that the action of the appellant at special term did not waive or estop the appeal prayed.</p> <p>Negligence.' — City.—Co-servants.—The rule that a master is not liable to a servant for an injury resulting from the negligence of a fellow servant is not applicable to a suit against a municipal corporation.</p> <p>Same. — Streets.—A fireman, in assuming the duties of his place, takes upon ’ himself no risk arising out of negligence on the part of those in charge of the streets.</p> <p>Same. — Complaint.—Notice.—In a complaint against a city for an injury caused by an obstruction in a street, it is not enough to allege that the city had negligently left the obstruction in the street, but it must also appear that it had notice of the obstruction, or that it ought to have had such notice.</p>

<p>Railroads. — Escape of Fire. — Negligence.—Complaint.—A complaint against a railroad company, charging that the defendant negligently and without fault of the plaintiff, allowed fire to escape from its locomotive, whereby the plaintiff’s property was burned, is bad on demurrer, because it does not show that the plaintiff’s negligence did not contribute to the injury.</p>

<p>CteiMiNAii Law. — Escaped Convict. — Dismissal of Appeal. — Sup/reme Court.— When it is shown to the Supreme Court that an appeal there pending is prosecuted in the name of a convicted defendant, who has escaped from legal custody and is at large, the appeal will be dismissed.</p>

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

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

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

<p>Execution. — Complaint to Set Aside. — Fieri Facias. — A complaint by a defendant in execution, to set aside a writ of fieri facias, alleging the issue, levy on lands and return without sale or other disposition of the levy, and then the issue of an alias fieri facias, is good on demurrer.</p> <p>Same. — Answer of Abandonment of Levy. — An answer to such complaint, that the levy had been abandoned, is bad on demurrer; so, also, is an answer or counter-claim, averring the same facts appearing by the complaint, and praying a correction of the alias fieri facias so as to conform to the statute. 2 R. S. 1876, p. 212, section 454; R. S. 1881, section 741.</p> <p>Same.— Costs. — If the alias fieri facias in such case dould be corrected as prayed, the costs should be taxed to the execution plaintiff.</p>

<p>'Contract. — Nominal Damages.— Complaint. — Decedents’ Estates. —Supreme Court. — A joint debtor, having obtained an agreement with those jointly indebted, tbat they would assume payment of the debt, died, whereupon the debt was allowed against his estate. His administrator sued the survivors, alleging the foregoing facts, but alleging neither that his decedent’s estate had been compelled to pay said debt, nor that there were any assets belonging to such estate.</p> <p>Held, that the complaint showed no cause oí action for more than nominal damages, and that the Supreme Court will not reverse in such case.</p> <p>-Practice. — Striking out Pleading. — Bill of Exceptions. — An exception to the striking out of part of a pleading will avail nothing, if no bill of exceptions be then filed and no time then granted for its filing.</p>

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

<p>Pleading. — Set-Off.—Principal and Surety. — Demurrer.—To an action on a joint promissory note, an answer by way of set-off, by one of two or more defendants, must allege that he is principal, and his co-defendants are his sureties, in the plaintiff’s cause of action; otherwise the answer is insufficient on demurrer.</p> <p>Same. — Each Paragraph Sufficient. — Each paragraph of answer must state facts sufficient to constitute a defence to the action, and the omission of necessary facts, in one paragraph, can not be cured or supplied by reference to the allegations of another paragraph.</p> <p>Practice. — Reversal of Judgment. — Harmless Error. — A judgment will not be reversed for an error in sustaining a demurrer to a paragraph of answer, when it appears that all competent evidence, under such paragraph, was admissible under another paragraph remaining in the record. Such an" error is harmless.</p>

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

<p>Replevin. — Compromise.—Dismissal.—Suit on Bond. — Where a suit in replevin is compromised and settled by the parties, and dismissed accordingly, no suit can be maintained on the replevin bond.</p>

<p>Witness. — Proof of Husband’s Declarations by Wife. — Decedents’ Estates.— After the husband’s death, his wife is a competent witness to prove his declarations made to others in her hearing.</p> <p>Evidence. — Res Gestee. — Declarations of Ownership. — The declaration of one, shown to be at the time in possession of personal property, that he owns it, is proper evidence in behalf of his administrator, in a suit by the latter to recover it.</p>

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

<p>Couhty Treasurer. — County Commissioners. —Authority.—Bight to Buy Bonds. — County Property. — A county treasurer who has received from his predecessor United States bonds belonging to the county, which had been purchased by order of the county board, and held as county property, must, on sale thereof, account for the entire proceeds thereof, including any premium, and he can not, for his own profit, question the power of the county to make the purchase.</p>

<p>Mechanic’s Lien. — Notice.—Mistake in Description. — Correction.—Pleading. —The notice of lien, by mistake, named lot 9, instead of lot 11, in block 7, in a town, but recited that the lien claimed was for lumber furnished by the plaintiffs to the contractor, and used by him in building for the defendants, recently, a brick building on the property described. The complaint, not otherwise challenged, averred the mistake, that the only building ever built for or owned by the defendants in block 7, was on lot 11, and not on lot 9, and is well known and can be-identified by the description in the notice.</p> <p>Held., that the complaint was good on demurrer.</p> <p>Held, also, that an answer by which the defendants alleged that the contractor broke his contract, whereby the defendants suffered damage which they prayed be allowed them against the plaintiffs, was bad on demurrer.</p> <p>Supreme Court. — New Trial. — The Supreme Court will not award a new trial when the verdict is clearly right upon the evidence.</p> <p>Same. — Instructions.—The refusal of instructions asked presents no question to the Supreme Court, unless all the instructions given are in the record.</p> <p>Same. — Evidence.—Harmless Error. — The admission of evidence, so entirely immaterial that it could not influence the verdict, is a harmless error.</p> <p>Same . — Brief.—A brief, which merely states the question and does not. argue it, is not sufficient.</p>

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

<p>Bridges. — Duly to Repair. — Negligence.—Liability of Comdies -under Act of 1881. — -County bridges are under tbe control of the board of Commissioners, and for negligence in suffering them to get put of repair the county is liable, and this liability is not changed by the act of 1881.</p>

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

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

<p>City.— Annexation of Territory. — Jurisdiction.—Collateral Attack. — A complaint to enjoin a city from exercising jurisdiction over territory annexed claimed that the proceedings to annex were void : 1. Because the petition for annexation prayed for the annexation of other lands also, which the county hoard refused to annex ; 2. Because no notice of the intention to present the petition was given by publication for thirty days.</p> <p>Held, that the complaint did not show that the board had not jurisdiction of the proceedings, and therefore the annexation could not be attacked collaterally.</p> <p>Same. — County Commissioners. — Defective Notice. — Where there is some notice, of a legal form, and that notice is adjudged sufficient, the proceeding is not void, although the notice may be defective.</p>

<p>Judgment. — Default.—Belief From. — Set-Off.'—Belief from a judgment by-default will not be given to a party, under section 396, B. S. 1881, merely to enable him to avail himself of a set-off.</p>

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

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

<p>Criminal Law. — Prosecution by Information. — Abatement.—A plea in abatement to an information, alleging that after the filing of the affidavit and information, which was done in term time, the grand jury had been in session during the same time and been discharged, without returning an indictment against defendant, is bad on demurrer.</p> <p>Same. — Constitutional Law. — Title of Act. — Special Legislation. — The provisions of section 1679, R. S. 1881, are within the title of the act of which it is a part, and they are not special legislation within the meaning of sections 22 and 23, art. 4, of the State Constitution.</p> <p>Same. — Evidence.—Proof of the facts necessary to authorize a prosecution by information is unnecessary, where there is no plea in abatement putting them in issue. R. S. 1881, section 1733.</p>

<p>Habeas Corpus. — Return.—Practice.—-Harmless Error. — Objection to the sufficiency oí a return to a writ of habeas corpus should be taken by exceptions, and not by demurrer; but'if the return be insufficient, and so held upon demurrer, the irregularity in practice is harmless.</p> <p>Criminal Law. — Justice of the Peace. — Practice.—Appeal.—A justice of the peace can not render judgment against the accused in a criminal case in his absence, if imprisonment may, by law, be a part of the penalty for the offence, but he may receive the verdict of a jury, and bring the defendant in by warrant to receive judgment; and delay in so doing will not vitiate the judgment. In such case an appeal before judgment is a nullity.</p> <p>Same. — Several Defendants. — Judgment.—Statute Construed. — In a criminal prosecution against two defendants jointly, the judgment against those found guilty should he several, and not joint; and if one be absent on the return of a verdict, the rendition of judgment against one does not prevent a judgment against the other when brought in, and from that judgment he may appeal, under E. S. 1881, section 1643, within ten days thereafter.</p> <p>Mittimus. — Constable.—Statute Construed.■ — A special constable may take a prisoner committed to jail, to the prison, though his name be not mentioned in the mittimus, notwithstanding section 1433, E. S. 1881.</p> <p>Same. — Misnomer.—Habeas Corpus. — The misnomer of a prisoner in a mittimus affords no reason for his discharge on habeas corpus.</p>

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

<p>Taxes. — Situs of Chattels. — Ownership by Non-Resident. — Staves purchased by a citizen of another State, remaining in this State to receive a finishing process before shipment to another State, are taxable in this State.</p> <p>Same. — Constitutional Taw. — Such taxation is not a regulation of commerce, nor is it a tax on exports, within the meaning of the National Constitution.</p>

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

<p>Teiesbaph. — Failing to Transmit Message. — Penally.—Lex Loai. — Statute Construed. — The statute, B. S. 1881, section 4176, giving a penalty for failure to transmit a telegraphic message, does not apply to messages not sent from this State, and the sender only can recover the penalty.</p> <p>Same. — Special Damages. — Complaint After Verdict. — A complaint to recover special damages for loss caused by the incorrect transmission of a telegram, which avers facts showing that the loss could no 1 have been caused by the error, is bad after verdict.</p>

<p>■'County Commissioners. — Appeal.— Transcript. — Bond. — Approval.—Dismissal. — There is no error in the dismissal of an appeal from the board of county commissioners, when it appears that no appeal bond, approved by the county auditor, and no complete transcript of the proceedings of ;the county board, were filed in the circuit court.</p>

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

<p>Married Woman. — Parties.—Husband and Wife. — A husband may unite with his wife in a suit concerning her separate property, and no averment of his interest other than the marital relation is necessary in the complaint.</p> <p>Same. — Fraud,.—Complaint.—In a suit by husband and wife for fraud upon the wife, affecting her separate property, it is not necessary to aver that the husband was deceived; and where by false representations she is put off her guard, so that she does not use ordinary prudence to ascertain the facts by examining a public record of a distant county, an action will lie if the purpose of the defendant was fraudulent, and he professed to know the facts, though he did not.</p>

<p>City. — Street Improvements. — Estimates. —Maniate.—Parties.—Mandate lies against a city as a corporation at the suit oi a contractor, to compel the making of correct estimates of work done by him in the improvement of its streets, according to the terms of his contract, so far as the same may be chargeable to abutting real estate, and neither the city engineer nor any other city officer is a necessary party.</p> <p>Same. — Letting of Contract. — Ordinance. — Complaint. — In such case the city can not object, on demurrer, to the complaint, that it does not show that the letting of the work was properly advertised, or that a grade was fixed by the ordinance providing for the improvement, or that the work was not finished according to contract, the city’s fault preventing; and where it is averred that the ordinance was passed by a unanimous vote of the council, it is not necessary, in view of the statute, R. S. 1881, section 3164, to allege that there was a petition therefor.</p> <p>Practice. — Mandate.—Jurisdiction.—In a proceeding for mandamus, jurisdiction is acquired not by summons,' but by an alternative writ; this writ may be waived by an appearance, and the complaint or application may be tested by demurrer.</p>

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

<p>Promissory Note. — Ownership.—Assignor and Assignee. — Interpleader.— Practice. — In a suit by an assignee of a promissory note, it is not error to permit another, who claims ownership of the note, to intervene by counter-claim, and assert his right thereto.</p> <p>Same. — ■Assignment.—Fraud.—The payee of a non-commercial promissory note, being unable to read or write, and desiring after its maturity to assign it to his daughter as a. marriage portion, the prospective son-in-law A., deceiving him as to the terms of the endorsement, fraudulently procured an assignment to himself, and afterwards assigned the note to a bona fide purchaser for value.</p> <p>PLeld, that the daughter, and not the assignee of A., was entitled to the pro-' ceeds of the note.</p>

<p>Continuance. — Affidavit for. — Absent Witness. — Attorney and Client. — An affidavit for a continuance because of absent testimony is not sufficient unless it states the facts to which the absent witness can testify; nor is such affidavit sufficient on the ground that the party’s counsel is not familiar with his defence, unless it shows that since the withdrawal of former counsel who was familiar with the defence, sufficient time has not elapsed, by the exercise of reasonable diligence, to enable the party to place his counsel in possession of the facts; nor is such affidavit sufficient on the ground of the party’s own absence, unless it is shown that such party has a defence to establish.</p>

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

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

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

<p>Guardian and Ward. — Assignment by Ward. — Attorney.—Money Had and Received. — Complaint.—A guardian, whose ward had reached full age, made his final report, showing due the ward $245, and that the money was paid into court, and left it and the money with his attorney, to present to the court, pay in the money and procure his discharge. On the same day, the ward assigned by a writing $150 of this money to the plaintiffs, but the attorney, upon demand, refused to pay it to them, but did pay it to the ward. The complaint against the attorney was in the ordinary form for money had and received.</p> <p>Held, that the complaint was good, and the plaintiffs were entitled to recover.</p>

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

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

<p>Deed. — Escrow.—Mortgage.—Pleading.—Exhibit.—Where the owner of an equitable estate executes an instrument to secure a debt without describing the land in it, and at the same time, and as a part of the same' transaction, executes a deed containing an accurate description, and leaves it in escrow to be delivered to the other party upon default of payment, in a suit to enforce such lien such deed is a proper exhibit, and the description therein contained will supply the want of one in tlio other instrument.</p> <p>Same. — Title.—A deed while held as an escrow conveys no title.. Mortgage. — Equitable Estate. — The owner of an equitable estate may mortgage the same, and such estate may be sold upon a foreclosure. Same. — Foreclosure.—Misdescription.—Pieformation.— Where a mortgage misdescribes the land, the same may be reformed and foreclosed, notwithstanding the fact that it has already been foreclosed by such mistaken description.</p> <p>Practice. — Exception.—No question is presented by a ruling upon a demurrer unless an exception is saved.</p> <p>Same. — Judgment.—Harmless En-or. — Where it appears affirmatively that, the judgment was not rendered upon a given paragraph of a complaint, no available error was committed in overruling a demurrer to such paragraph, though the same was insufficient.</p>

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

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

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

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

<p>Taxes. — Sale of Land for. — Quieting Title. — Complaint.—IAen of Purchaser. —Deed.—Recitáis.—Exhibit.—Personal Property. — -A complaint by a purchaser at a sale of lands for taxes under the act of 1872, to quiet his title or enforce a lien for the taxes paid, which undertakes to state the particulars of his title, is bad to quiet title unless it aver compliance with every requirement of the law required to make a valid sale, but it is good to enforce the lien unless the sale is void for the reasons enumerated in section 255, 1 R. S. 1876, p. 128, and so, also, if the tax deed be made part of the complaint, if the deed do not recite that personal property of the land-owner could not be found, or had been exhausted.</p>

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

<p>Intoxicating Liqtjor. — Selling Without License. — Indictment.—An indictment for selling intoxicating- liquor without license, under section 5312, B. S. 1881, which shows a sale of “ less than a quart,” is sufficient, without alleging that the sale was made at one time.</p> <p>Same. — Evidence.—Beer.—An inference by the jury that “ beer,” sold in a saloon, was malt liquor will not be_held unwarranted by the Supreme Court.</p>

<p>Supreme Court. — Assignment of Errors. — An error not well assigned as to all appellants who join in it, is not available on behalf of any of them. Same. — A question which has been decided by the Supreme Court on appeal, will not be considered again on a subsequent appeal of the cause.</p>

<p>County Commissioners. — Appointment of Secretary for Board of Health.— Term of Office. — The term of secretary of the county board of health is, by section 4993, R. S. 1881, one year, and the county board, after having elected, can not annul their action, nor elect a successor until the year has expired.</p> <p>Same — Contest of Appointment. — Eligibility.—Complaint.—The only qualification required of the secretary of a county board of health is that he shall be a physician, and in a contest for the office it is sufficient to so state, but an averment merely that he is competent and qualified, is fatally insufficient.</p> <p>'Same. — Evidence.—Record.—Collateral Attack — la a collateral inquiry, a record of the county board showing an act done on a certain day, can not be questioned by proof that on that day the board was not in session, and such a record though not signed, is competent evidence of the act done.</p> <p>Pleading. — Complaint.—Practice.—Overruling a demurrer to a bad paragraph of a complaint, though there be others which are good, embracing the same averments, is always a fatal error available to the defendant.</p>

<p>Instructions. — Practice.—It is not error to refuse a special instruction when the general instructions given embraced the principles of law asserted in the special instruction asked.</p> <p>Same. — Construction.—An instruction is not to be judged, by detached clauses, but if, when considered as an entirety, it states correct propositions of law, it will be upheld.</p> <p>Supreme Court.— Weight of JEvicUnce. — The Supreme Court will not disturb a verdict on the weight of the evidence.</p>

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

<p>Parties.. — Judgment, Review of. — Where a judgment is sought to be reviewed in the court below, all parties to the original action affected thereby must be brought into court.</p>

<p>Bile of Exceptions. — Instructions.—Practica.—Instructions to the jury, which have not been filed or directed by the court to be made part of the record, and are not in any proper bill of exceptions, are not a part of the record.</p> <p>Habmless Bbbob. — Ithidence.—It is a harmless error to admit or reject evidence which can not aflect the result.</p>

<p>‘ Receiver. — Evidence.—Practice.—Mortgage.—The Supreme Court will not, in an application for tlie appointment of a receiver in an action to foreclose a mortgage, disturb tlie conclusion «readied by the trial court as to the sufficiency of the mortgaged property to discharge the debt.</p> <p>Same. — Demurrer.—It is not error to refuse to permit a demurrer to be filed to such an application.</p> <p>Same. — Petition for Foreclosure. — -Where, in the foreclosure oí a mortgage, the appointment of a receiver is asked, it is not essential to aver in the petition that the mortgagor is insolvent.</p>

<p>'Criminal Law. — Pleading.—Practice.—Indictment. •— Information. —Where, upon the quashing of an indictment, the prosecuting attorney, upon affidavit, files an information charging the same offence, no question as to the action of the court in quashing the indictment can he made in the Supreme Court.</p> <p>’.Same. — Affidavit.—Signature of Affiant. — -Píame.—Plea in Abatement. — A plea in abatement of an information, that the real name of the person who made the affidavit is not the name signed to the affidavit, that the affiant’s true name is different (stating it), and that the name signed is fictitious, is bad on demurrer.</p>

<p>Supreme Court. — Jurisdiction.—Amount, in Controversy.- -Appeal. — On appeal to the Supremo Court of a case commenced before a justice of the peace, the amount in controversy is determined not alone by the complaint, but also by any set-off or counter-claim, and if it thus appears that there is more than $50 in controversy, the appeal will lie under section 632, B. S. 1881.</p> <p>Lease. — •Renewal or Purchase. — Election.—Specific Performance. — Equity.—A. lease of a lot for a term provided for the erection of a building on the-lot by the lessee, and at the end of the term, the lessor could elect to renew the lease, or buy the building, or sell the lot, at a price to be ascertained by referees; the lessor failed to elect.</p> <p>Held, that the lessee could then elect, and, having chosen to purchase the lot, and tfie lessor refusing to join in a reference to fix the price, could maintain suit against the lessor for equitable relief.</p>

<p>Execution. — Proceedings Supplementary. — Affidavit.—Fraud.—Contract.—An affidavit in supplementary proceedings under section 819, R. S. 1881, which charges that A. P. is indebted to the judgment debtor in the value of certain lands conveyed by the former to the latter, presents no question of fraud, and proof of such conveyance in consideration of an agreement by A. P. to pay certain other debts of the debtor and to support him during life, does not support the conclusion that A. P. is indebted in a sum equal to the value of the lands, as charged.</p> <p>.Same. — Judgment.—Appeal.— An appeal lies from a judgment in such case requiring A. P., unless he at once reconvey the land, to pay to the judgment plaintiff the amount found to be' the value of the land.</p>

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

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

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

<p>■County Commissionees. — ■ Vacancy.— Holding Over.— Office and Officer.— Where one is elected county commissioner, qualifies by taking the oath required by law, and dies before his term begins, his predecessor can not hold over.</p>

<p>Mortgage. — Assumption of Payment of Mortgage Debt. — Conveyance.—Principal and Surety. — Vendor and, Vendee. — A grantee of real estate, the deed of conveyance to whom contains a stipulation for his assumption of a debt secured by mortgage thereon, which debt his grantor is personally bound to pay, becomes, by the acceptance of such deed, personally bound to the mortgage creditor ; as between such grantee and his grantor, the former becomes the principal debtor, while the latter becomes a surety.</p> <p>Same. — Foreclosure.—Pleading.—Exhibits.—Deeds.—-Suit by Assignee of Mortgage Debt. — Effect as to One Grantee of Release of Another Grantee.- — A. executed his mortgage on each of a number of town lots, to secure his notes given for the purchase-money thereof. He sold an undivided one-third interest in the lots to B., who was to pay one-third of the notes, and on sale of the lots, to share in that ratio in the profits and losses, the title to remain in A. for the benefit of A: and B. They sold, and A. conveyed, the lots to C., who sold and conveyed a portion of them to D. and the remainder to F. D. afterwards sold and conveyed his portion to F. By each of the deeds of conveyance, the grantee, as part of the purchase-money, assumed and agreed to pay the notes secured by the mortgages on the lots conveyed to him. The notes becoming due and remaining unpaid, A. and B. furnished money to G-. to pay the notes and mortgage and procure assignments thereof to G. as trustee'for A. andB. G. paid the money to the assignee and holder of the notes and mortgages, and procured him to assign the notes to G., who, having notified the persons who had assumed the notes and mortgages that he accepted their assumptions, and having demanded payment of them, brought his suit as such trustee against P. to foreclose the mortgages, and for personal judgment on the notes against F.</p> <p>Held, that it was not necessary in such suit, for the purpose of enforcing against F. his assumption of the debt, to exhibit, as parts of the complaint, the deeds of conveyance to said grantees prior to F., and not necessary for the foreclosure of the mortgage to exhibit any of said deeds of conveyances.</p> <p>Held, also, that whatever may have been the effect as against F. of the agreement between A. and B., the actual assignment to G. gave him a right of action as trustee of A. and B.</p> <p>Held, also, that the fact that after the conveyance by I). to F., and before notice to P. of such acceptance by G., 0., for a valid consideration, released D. from his liability on his said assumption, would not operate to release F., the principal debtor, from his liability to G.</p>

<p>■County Supebintendent. — Schools.—Office Sent. — Qomty Not Liable for.— The county commissioners are not required to furnish the county superintendent with an office, nor, if such duty rested upon them, would they be liable to him, in the absence of a contract, for the use of his own office as such superintendent.</p>

<p>Pleading. — Joint Demurrer. — -Practice.—A demurrer “to the first and second paragraphs of the complaint, for the reason that the same, and neither one of the same, constitute a cause of action,” is joint to both paragraphs, and if either be-good the demurrer should be overruled.</p> <p>Assignment oe Error. — Defects Cured. — A joint assignment of errors, defective because the errors alleged were not errors against all the appellants, is cured by the declination of the parties against whom there is no error to join in the appeal.</p> <p>Will. — Construction.—A testator devised real estate to each of three sons,, A., B. and C., which, upon the death of any without issue, should go to the “ survivor or survivors,” and, upon the death of any one with issue, the land devised to him should go to his children. A. died without issue; then B. died, leaving issue, a daughter, and then O. died without issue, with a widow surviving, to whom he devised all his lands.</p> <p>Held, that on the death of C. the daughter of B. did not take the estate-devised to C.</p> <p>Same. — Former Adjudication. — Jurisdiction.—Judgment.—Tille to Land. — A judgment of a court in Ohio construing a will is not conclusive as to-the title to lands in this State, though the title depends upon the construction of the will.</p>

<p>Supreme Court. — Practice.—Parties.—A party against whom no judgment has.been rendered will not be heard upon assignment of errors made by him in the Supreme Court.</p> <p>Notice. — Ffon-Desident.—Publication.—Affidavit.—An affidavit that a defendant is a non-resident of the State, and a necessary party, and that the action is in relation to real estate, was, under section 38, 2 B.. S. 1876, p. 49, sufficient to warrant notice by publication.</p> <p>Contract. — Complaint. —Joinder of Causes. —Declaring Lien. — Fraudulent Conveyance. — In a suit upon a contract, the complaint may also, by virtue of section 280, K. S. 1881, embrace such other matters as may be necessary for a complete remedy, e. g., decreeing a lien or charge on real estate, or setting aside a fraudulent conveyance.</p> <p>Same. — Conveyance for Support during Life. — Equity.—Charge upon Lands.— Demand. — C. conveyed lands to E. in consideration that E. would pay his debts and support him during life, but E. refused, after receiving the deed, to put her contract so to do in writing, as she had agreed. vSlie failed both to support C. and to pay his debts.</p> <p>Held, that equity would charge the lands with E.’s support and with his debts, and that no demand of payment by C.’s creditors was necessary. Deed. — Consideration.—Parol Evidence. — Parol evidence is admissible to show what was the consideration for a deed.</p> <p>Supreme Court. — Issues.—Parties.—A party can not complain on appeal that issues were not formed between other contending parties in the same suit, where such issues could not affect the interests of such appellant; nor can such appellant complain that the appellee dismissed his suit against another defendant thereto.</p>

<p>Criminal Law. — Defective Indictment. — Refusal to Quash. — Error.—Under section 1756, R. S. 1881, the refusal to quash an indictment for a defect or imperfection therein, which does not tend to the prejudice of the substantial rights of the defendant upon the merits, is not an available error for the reversal of the judgment.</p> <p>Same. — Intoxicating Diquor.— Unlawfitl Sale of Deer. — Evidence.—Presumption. —Where the defendant is prosecuted for an unlawful sale of intoxicating liquor, and upon the trial the evidence shows a sale of beer under circumstances which would make the sale unlawful if the beer was intoxicating, it will be presumed, in the absence of evidence to the contrary, that the beer so sold was a malt or an intoxicating liquor.</p> <p>Same. — Instructions.—Supreme Court. — Instructions to the jury are construed by the Supremo Court, with reference to each other and as an entirety; and if, thus construed, they present the law fairly and correctly, and are not calculated to mislead, they will afford no sufficient ground for the reversal of the judgment, although some of the expressions therein, if they stood alone, might be erroneous.</p> <p>Same. — Argument of Counsel. — Reading Law to Jury. — As the Constitution, of this State, in all criminal causes, makes the jury the ultimate judges of the law, there is no error in permittihg counsel, in argument to the jury, to read and discuss the law applicable to the case.</p>

<p>Vendor and. Vendee. — Deed.—Delivery.—Fraud.—A deed never delivered, but obtained without the knowledge or consent of the grantor, does not divest the grantor’s title, and a subsequent purchaser from the grantee without notice for value will not be protected.</p> <p>Same. — Rescission of Contract. — Notice.—Demand.—Quieting Title. — Complaint. —C. contracted to sell land to M., a deed to be delivered on payment of a certain instalment of the purchase-money. The deed was prepared and left with C.’s attorney tobe delivered on such payment. No payment was ever made, and the deed was not delivered, M. abandoning the purchase. The deed was in some manner improperly obtained and recorded, and there was then a regular chain of conveyances down to H. C. was absent from the country and knew nothing of these transactions.. Held, that the complaint by C. against II. to quiet title, averring these facts,, was good on demurrer.</p> <p>Held, also, that a subsequent suit by C. against M. for the purchase-money, brought by his attorney without his knowledge, resulting in a judgment and the collection of a part of it by said attorney, none- of which, however, came to C.’s hands, was not such an affirmance of the contract of sale as would bar the action or require notice of rescission or demand of possession.</p> <p>Judgment, — Confiscation.— Void Decree. — Jurisdiction.—Jurisdiction of proceedings to confiscate property, under the act of Congress of July 17th,, 1862, 12 U. S. Statutes at Large, 589, could .not exist without a prior-seizure of the property by executive order, and this must appear by the record.</p> <p>Same. — Default.—Where the owner of such property appeared and answered, and his appearance and answer were stricken out and judgment entered by default for the want of an affidavit of his loyalty, the judgment is void.</p> <p>Practice. — Fhidence.—Harmless Error. — The admission of irrelevant and immaterial evidence is a harmless error.</p>

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

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

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

<p>Supreme Court. — Appeal.—Jurisdiction.—Amount in Controversy. — -No appeal will lie to the Supreme Court from a judgment in an action originating before a justice of the peace, under section 632, B. S. 1881, where the amount in controversy is less than $50, exclusive of interest and costs; and when the plaintiff is content with the recovery of $50 or less, no set-off or counter-claim having been asserted, the amount recovered will' be deemed the amount in controversy, and an appeal by the defendant dismissed.</p>

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

<p>PbACTICE. — Motion to Strike Out. — Harmless Error. — The refusal to strike out part of a complaint is a harmless error.</p> <p>BAilboads. — Fencing.—Killing Stock. — In a suit, under the statute, against a railroad company for killing stock, the material question is as to the fence at the place where the animals entered, and not at the place where they were killed.</p> <p>Same. — Duty to Fence Road. — The obligation of a railroad company to fence its track exists except at places where a fence would impair the use of private property or the rights of the public, and it includes the duty of maintaining cattle-guards where they are necessary and proper to prevent access from intersecting highways.</p> <p>Practice. — Evidence.—Bill of Exceptions. — To present any question to the Supreme Court as to admitting evidence, objection must be specifically stated to the court below and shown by bill of exceptions.</p> <p>Same. — Interrogatories to Jury. — The court may refuse to send interrogatories to the jury which the attorney of the opposite party has had i;o opportunity to see until after he has closed his argument.</p>

<p>Replevin. — Complaint to Recover Goods in Execution. — Exemption.—Judgment.. —A complaint, in replevin against a sheriff by an-execution defendant, alleging a taking, by levy of the writ, “ though the plaintiff filed a. schedule,” and the property was of less value than $600, but failing to show that the judgment on which the execution issued was founded on contract, and that the schedule was such as the law requires, is bad.</p> <p>Pleading. — Demurrer.—Practice.—A demurrer for want of facts to an answer should be sustained to the complaint if it be bad.</p>

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

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

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

<p>Criminal Law. — Libel.—Statute Valid. — Section 1925, K. S. 1881, providing punishment for publishing libels, is valid.</p> <p>Same. — A statute providing for the punishment of an offence is valid though it do not define the meaning of the words employed in describing the offence.</p> <p>Same. — The word “libel,” as used in section 1925, R. S. 1881, must be taken in its common law sense, which is well expressed by section 1, Acts 1879, p. 154.</p> <p>Same. — County School Superintendent. — Bribery.—A newspaper publication, charging that a county superintendent of schools, for a consideration in money, had, by the use of his influence, induced the county board of education to order a change in school books, is a libel in the sense of the statute.</p> <p>Same. — A publication may be libellous which does not impute a crime.</p> <p>Same. — Evidence.—Impeachment of Witness. — Publications by a witness upon the subject to which his testimony relates are admissible in evidence to impeach his testimony.</p> <p>Same. — Evidence.—Mitigation.—It may be shown in mitigation of punishment, in a criminal prosecution for libel, that the libel was provoked by a libel upon the defendant published shortly before by the prosecuting witness.</p> <p>Same. — Evidence.— Witness. — Instructions.— Weighing Evidence. — Jwy.— The law does not require the jury, in weighing- the evidence of a witness in a criminal case, to consider the fact that the witness is the defendant on trial, and it is error so to instruct.</p> <p>Same. — The testimony of a witness found by the jury to be true must be believed and acted upon, and it is error to instruct that it is only entitled to the same weight as that of other witnesses.</p>

<p>Decedents’ Estates. — Appeal to Supreme Court. — Dismissal of Appeal.— ■ Where an administrator considers himself aggrieved by a decision of a circuit court, or judge thereof in vacation, growing out of any matter - connected with a decedent’s estate, and prosecutes an appeal from such decision to the Snpreme Court, he is not required to file any appeal bond; but he must file a transcript of the record, on his appeal, in the Supreme Court, at the latest, within twenty days after such decision was made, unless, “ for good cause shown,” such time has been extended by the Snpreme Court. Otherwise a motion to dismiss the appeal must be-sustained.</p>

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

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

<p>Pleading. — Negligence.—Arrest of Judgment. — A complaint to recover for an injury from a vicious animal, which fails to show that the plaintiff was free from fault, is bad on motion in arrest of judgment.</p> <p>Same. — Where a complaint fails entirely to aver a fact essential to the plaintiff’s right of recovery, and contains nothing from which that fact might be inferred by liberal intendment,- the judgment should he arrested.</p>

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

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

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

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

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

<p>'Official Bond. — Cmmty Recorder. — Statute Construed. — The official bond of a county recorder, given pursuant to section 5929, is binding upon the principal and his sureties therein, under the provisions of section 5528, R. S. 1881, for the faithful discharge of all duties required of such officer by any law, then or subsequently in force, for the use of any person injured by any breach of the condition thereof.</p> <p>Warranty Deed. — Grantee’s Assumption of Encumbrance. — Personal Debt of Grantee.— Grantor, Grantee’s Surety. — Where the grantee in a warranty deed, containing his agreement to assume and pay the sum of five hundred dollars, as secured by mortgage given by the grantor on the land conveyed to a certain named person, accepts such deed, then, as between the grantee and the grantor, the sum of five hundred dollars, as a part of the mortgage debt, although evidenced by the grantor’s notes, becomes the personal debt of the grantee, and the land conveyed to the grantee, notwithstanding the warranty in the grantor’s deed, becomes and is bound for the payment of such debt.</p> <p>Record op Deed. — Mistake in Record as to Amount of Grantee’s Assumption of Encumbrance. — Diability of Recorder.— Notice. — The record of any instrument, entitled to be recorded, is only notice of the existence and record of suck instrument and of tlie contents, not of the instrument itself, but only of such record. Where, therefore, a deed containing the grantee’s agreement to assume and pay the sum of five hundred dollars as a part of the mortgage debt on the land conveyed, by the mistake of the recorder, is so recorded as to show the grantee’s assumption of only two hundred dollars of such mortgage debt, the recorder and his sureties are liable, upon his official bond, for the damages sustained by the grantor in such deed by reason of such mistake.</p>

<p>Real Estate, Action to Recover. — Sheriff’s Sale. — Notice to Quit, as to Judgment Debtor. — Demand.—An execution defendant, remaining in pos-' session of lands sold at sheriff’s sale, is not a tenant entitled to notice to quit, nor need a demand for possession precede a suit in ejectment.</p> <p>Same. — Right of Possession. — ■ Vendor and Purchaser. — •Executory Contract. — An executory contract for the purchase of land, Which is silent as to the right of possession, does not give that right to the purchaser.</p> <p>Same. — Judgment.-—A judgment in ejectment by the vendor, against the vendee of land, under an executory contract, does not interfere with any remedies to which the purchaser may be entitled upon the subsequent performance of his contract.</p>

<p>Obiminai, Law . — Murder.—Evidence.—Threats.—Consideration by Jury. — It is competent for the State, in a prosecution for murder, to prove threats made by the accused against the deceased, although made a long time prior to the homicide, but in determining their weight the jury may consider their remoteness from the time of tlie homicide.</p> <p>■Same. — Declarations of Accused. — Effect of Ruling on Competency. — Where the declarations of an accused are susceptible of more than one interpretation, it is for the jury to determine from the evidence what interpretation they shall have, and the court, in ruling them to be competent, does not determine that they .shall have an interpretation adverse to the innocence of the defendant.</p> <p>Same.— Witness. — Expert.—Definition of Words. — There is no error in refusing to permit an expert witness, on the direct examination, to give a definition of a word which has a fixed and well known signification.</p> <p>Same. — Hypothetical Questions. — EddeTice. —It is not necessary to embody in a question asked an expert witness all of the matters of which there is any evidence; such a question is proper if it embodies such matei’ial facts, fairly within the range of the evidence, as counsel deem to have been proved.</p> <p>Same. — Opinion of Witness as to Accused’s Power of Control. — It is not error to refuse to permit a witness to express an opinion as to whether a person accused of crime can or can not control his appetite for intoxicating liquor.</p> <p>Same.— Voluntary Drunkenness. — Voluntary drunkenness is no excuse for the crime of homicide.</p> <p>Same. — Evidence.—Discretion of Court. — Supreme Court. — The trial court may permit the State to introduce evidence after the defendant has closed his evidence, and the Supreme Court will not reverse a judgment unless the trial court has abused its discretionary power in this respect.</p> <p>.Same. — Insanity.—Effect of Order of Commission. — The order of a commission composed of two justices of the peace and a physician, declaring a person to be insane and entitled to admission to the hospital for the insane, is not conclusive, and the State may introduce evidence tending to show the defendant’s sanity, both before and after his admission into the hospital.</p> <p>,‘Same. — Opinion of Non-Expert Witness. — A non-expert witness must state .the facts upon which he bases his opinion, but if he states that he has had an acquaintance with the accused, and has had conversations and dealings with him, he may then express an opinion.</p> <p>Same. — Instructions.—-Instructions are to be taken together, and if when so taken they express the law correctly, there is no available error.</p> <p>Same. — Criminal Responsibility. — Where one has mental capacity sufficient to fully comprehend the nature and consequences of an act and unimpaired will power strong enough to master an impulse to commit a crime, there is criminal responsibility, and an instruction embodying this doctrine is a correct expression of the law.</p> <p>Same. — Mental Depravity. — It is not error to instruct the jury that mere mental depravity is not insanity.</p> <p>Same. — Delirium.—Instructions.—An instruction, that “ Insanity of a permanent nature, when once shown to exist, is presumed to continue until the contrary appears, but where delirium tremens is set up as a defence, the delirium must exist at the time the act was committed, as there is no presumption of its existence from antecedent fits from which the offending person has recovered,” is a substantially correct statement of the law.</p> <p>Same.— Value of Testimony of Expert Witness. — It is proper to give the following instruction: “ The opinions of medical experts are to be considered by you in connection with all the other evidence in the case, but you are not bound to act upon them to the exclusion of all other evidence. Taking into consideration these opinions, and giving them just weight, you are to determine for yourselves, from the whole evidence, whether the accused was or was not of sound mind, yielding him the benefit of a reasonable doubt, if any such doubt arises.”</p> <p>'Saj&e. — The ruling in the case of Quetig v. State, 66 Ind. 94, approving instructions set forth in the opinion in that case adopted and followed.</p> <p>-Same. — Insanity.—•Perversion of the Affections. — A perversion of the affections does not constitute insanity, if there is mental capacity sufficient to fully comprehend the nature and consequences of a criminal act, and no disease of the will power impairing its strength.</p> <p>Same. — Declarations of Inmate of Hospital for the Insane. — An instruction, that “Any statement, declaration, or admission of the defendant that may have been introduced in evidence by the State, made while he was an inmate of the Indiana Hospital for the Insane, must be regarded and held by you in your consideration thereof, as the statement, declaration, or admission of a person of unsound mind, and allowed no weight whatever against the defendant, unless the evidence in this case proves to your satisfaction beyond a reasonable doubt, that the defendant was of sound mind when he made such statements, admissions, or declarations,” was held to have been correctly refused. •</p> <p>Same. — Motives.—It is not error to refuse an instruction, unless it is the duty of the court to give it in the terms in which it is prayed, and there is no error in refusing an instruction which gives undue prominence to the absence of motive, and to the fact that the homicide was committed under circumstances which rendered detection and arrest inevitable.</p> <p>Same. — Frenzy.—A frenzy arising from passion is not mental unsoundness within the meaning of the law.</p>

<p>Promissory Note. — Payable in Bank in this State. — Inland Bill of Exchange. —Under section 5506, B. S. 1881, a promissory note payable to order or bearer in a bank in this State is negotiable as an inland bill of exchange, and the endorsee of such a note for a valuable consideration, before maturity and without notice, takes the same free from any equities or defences which might exist as between the maker and the payee thereof.</p> <p>Same. — Defences.-—-Failure of Consideration. — False Bepresmtations.— Want of Consideration. — Error.—In an action by the endorsee against the maker of such a note, it is error to sustain a demurrer to a paragraph of answer, alleging facts which show that the consideration of the note had wholly failed before its endorsement, and that the endorsee had knowledge of such facts before the note was endorsed to him; and such error is not rendered harmless because of the fact that issues were joined upon other paragraphs of answer, one alleging that the note was obtained from the maker by certain false and fraudulent representations, and the other averring that the note was executed without any consideration therefor.</p> <p>Pleading.— Written Instrument. — Gopy.—Where several paragraphs of a pleading are founded upon the same written instrument, each professing to set out a copy thereof, one copy filed with the pleading is sufficient for all the paragraphs.</p> <p>Practice. — Pleading Rejected. — Bill of Exceptions. — Supreme Oowrt. — Where a motion to reject or strike out a pleading is sustained, such pleading will constitute no part of the record of the cause on appeal to the Supreme Court, unless it is made so by bill of exceptions or by an order of court.</p> <p>Rehearing Denied. — Zollars, J., dissents, and files dissenting opinion.</p>

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

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

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

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

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

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