Volume 97 — Indiana Reports

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

<p>Pleading. — Amended Complaint. — Pale.—An amended complaint is to be held as stating the cause of action as it existed when the suit was instituted.</p> <p>Mistake. — ■Voluntary Payment. — Where one party is trusted to make the calculation of interest upon notes due him, and he assures the debtor that the statement is correct, although it is in fact erroneous, and the statement is accepted, the mistake is a mutual one, and the creditor having received more than the sum actually due, he can be called to account for the excess.</p> <p>Conversion.. — Where one accepts money to be by him paid to a third party and converts a portion thereof to his own use, he is liable to the person from whom he received the fund and on whose account it was to be paid.</p> <p>Contract. — Rescission.—A contract can not be rescinded unless in tolo; no part of the benefit can be retained, and the parties to the contract must be placed in statu quo.</p> <p>Instructions. — Request.—Objection.—A party can not object to an instruction given at his own request.</p> <p>Same. — Anstver to Interrogatory. — A judgment will not be reversed on account of an erroneous instruction, when it appears by an answer to an interrogatory that the jury were not misled.</p> <p>Change of Venue. — Argument of Counsel. — It is not proper for counsel to comment upon a change of venue, before the jury, but the error is not available if counsel desist on objection made.</p>

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

<p>Partition.— Title. — Proceedings in partition oreate no new title, but, ordinarily, simply divide the land as held under existing titles into separate shares.</p> <p>Same. — Interlocutory Order. — It is by the interlocutory order that the rights and interests of the parties in suits for partition are adjusted.</p> <p>Same.— Order of Sale. — Appeal.—An order for the sale of land in a partition proceeding is a final order, from which an appeal may be taken.</p> <p>J udghent. — Reference to Record. — If the entry of a judgment is so obscure as not to express the final determination of the court with sufficient accuracy, reference should be had to the pleadings and to the entire record when construing the judgment.</p>

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

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

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

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

<p>Judgment. — Promissory Note. — Pelease of Surety. — Burden of Proof. — Where-two joint makers of a note are sued, and one claims to be released because a former judgment rendered upon such note is still subsisting against his co-maker, the burden is upon him.</p> <p>Same. — Motion to Set Aside. — Justice of the Peace.— Partnership. — Where a judgment by default before a justice of the peace is rendered upon a. partnership note against both partners, and one of them within ten days thereafter pays the costs and moves to set aside the judgment, which is done, it must affirmatively appear that such judgment was only set aside as to the person asking it; otherwise it will be deemed set aside as to both defendants.</p> <p>Same. — Entry of Judgment. — Presumption.—Thefact that the justice recites in his entry that such motion “ is granted to him,” does not control the presumption that such judgment was set aside as to both defendants.</p> <p>Same. — Transcript.—Where the transcript of a judgment and the judgment itself conflict, the latter must control, as it is the primary and best evidence of itself.</p> <p>Same. — Evidence.—Collateral Attach. — Parol evidence is not admissible to contradict or impeach a judgment in a collateral proceeding.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not disturb the finding of the court upon a question of fact where the evidence is conflicting.</p>

<p>Decedents’ Estates. — Judgment.—Complaint for Review. — Statute Construed,„ —A complaint for the review of any judgment or decision of a circuit court, or judge thereof in vacation, growing out óf any matter connected with a decedent’s estate, is not authorized by the statute regulating the settlement of such estates; and, in such cases, the provisions of the civil code, for the review of judgments in civil actions, are not applicable.</p>

<p>Contbact. — Restraint of Trade. — -Public Policy. — A contract in restraint of trade is void, if the restraint be unreasonable, and this question is one of law for the court to determine, and the contract will be supported or avoided on grounds of public policy.</p> <p>Same. — Protection of Party. — All restraint of trade beyond that necessary to protect the party contracting therefor is void as injurious to the public.</p> <p>Same. — Limitation of Time. — Territory.—Trade Secret. — Where one engaged in business sells his stock or his business and good-will with a limitation upon the restraint as to time, but none as to territory, the restriction j is void, and a contract preventing one from carrying on his calling any-I where is unreasonable. Where the subject-matter of contract is a trade-secret, this rule has been held not to apply.</p> <p>Same.- — Divisible .Contract. — Where the contract is for a reasonable and limited space, and is also extended to an unlimited or an unreasonable space, it is divisible, and the limited restriction may be enforced.</p> <p>Same. — Good-WUl.—W., being engaged in business, sold to B. his stock of dry goods and assigned the insurance thereon, and transferred his lease of the premises occupied, and contracted not to engage in the dry goods business for a term of five years from date of contract. B. purchased additional stock and continued the business on the same premises. W., within the time limited, resumed business in the same town. In a suit by B. for damages,</p> <p>Held, that the contract in restraint of trade was against public policy and void.</p> <p>Held, also, that it was immaterial whether the contract expressed in terms, a sale of the good-will of the business, or of the business itself.</p>

<p>Sheriff’s Sale. — Agreement.—Fraudulent Representations. — Right to Redeem. —Sale without Appraisement. — Complaint.—A. owned a certain lot upon which was a mortgage debt due B. The lot was sold under an execution for another debt and purchased by B., who represented to A., who was a foreigner and uninformed on the subject, that the lot was not subject to redemption unless the mortgage debt was also paid, but promised to hold the same in trust until^the rents and profits paid the judgment and ten per cent, interest, and also the mortgage debt. These representations are alleged to have been false and fraudulent. Repairs being required on the premises, B. was let into partial possession and made repairs, which, by agreement, were to be included in the debt. Subsequently the lot was sold under the mortgage without relief from valuation or appraisement laws, although the mortgage did not authorize this, and the property was purchased by B., who had been let into full possession and who now claims to hold an absolute title to the property, although the time for redemption has not yet expired. It is alleged that the rents and profits since the property has been in possession of B. have more than paid both debts, interest and repairs. A. offered to pay any balance due on an account being taken, and demands judgment for any excess of payment and possession of the property.</p> <p>Held, that the paragraph of the complaint alleging these facts contains a good cause of action.</p> <p>Same. — Statute of Frauds. — Redemption.—Agreement to Hold in Trust. — Where a purchaser at sheriff’s sale induces the owner of real estate not to redeem by a promise to hold the property until repaid out of the rents and profits, and then to return the property, the promise is not void under the statute of frauds.</p> <p>Same. — Appraisement.—Sale without Relief from Valuation and Appraisement Laws. — Where there is no waiver of valuation and appraisement laws, a judicial sale without regard to appraisement is, at least, voidable.</p>

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

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

<p>Justice oe the Peace. — Attachment.—Publication against Actual Resident. —Motion to Sel Aside Judgment. — Appeal.—Jurisdiction.—Where proceedings in attachment were instituted before a justice of the peace against a resident of this State, and upon an affidavit of non-residence publication was made and judgment entered on default, the judgment can not be set aside by the justice, upon a motion founded upon an affidavit of residence and want of notice, made after the time fixed by statute within which such motion must be made had expired ; nor can the circuit court acquire jurisdiction of the matter by an appeal from the refusal of the justice.</p> <p>Same.— Void, Judgment. — Relief in Equity. --A person against whom a judgment is rendered, valid only on its face, is entitled toberelievedfrom.it, although the judgment is in fact void, but a justice of the peace has not the jurisdiction in an equity proceeding to grant such relief.</p> <p>Same. — In the decision of cases within their jurisdiction justices of the peace should act upon established principles of equity, but they can not assume jurisdiction of suits in equity.</p>

<p>Jurisdiction. — Collateral Attack. — The jurisdiction of an inferior tribunal, so far as to preclude collateral attack, must exist both over the subject-matter and over the parties.</p> <p>Notice. — Constructive.—Actual.—Where the statute provides for constructive notice, a strict compliance with the statute as to the mode of giving such notice is essential. Actual notice will not supply any material deviation in the publication from what the statute prescribes.</p> <p>Drainage. — Notice by Auditor. — Name of Land-Owner. — Assessment on Land. —Injunction.—Case Overruled. — In proceedings for the establishment of a ditch, under the drainage act of March 9th, 1875 (1 R. S. 1876, p. 428), where the name of the owner of land assessed does not appear in the notice given by the auditor, nor in any of the proceedings before the county board, jurisdiction of the person is not obtained, and the assessment on the land is void and its collection may be enjoined. So much of the opinion in Featherston v. Small, 77 Ind. 143, as holds it unnecessary for the notice given by the auditor to contain the name of the owner of land affected by the ditch, is overruled.</p>

<p>Criminal Law. — Information.—Affidavit.—Motion to Quash. — An information based upon an insufficient and defective affidavit should he quashed on motion, as also the affidavit itself.</p> <p>Same. — Obstructing Legal Process. — An affidavit in a criminal prosecution, under section 2034, R. S. 1881, for freeing one under legal arrest, must charge that the defendants forcibly freed such person, knowing him to be under arrest.</p>

<p>Bailment. — Contract. — Sale. ■— Warehouseman. — Commingling of Grain.— Negligence. — Where a warehouseman receives grain to be stored for the owner, and places it in a common bin with his own and that received from.other depositors, and sells from this receptacle, retaining always I sufficient to supply each owner, the contract continues one of bailment, | and the warehouseman is not liable for a loss resulting from an acci•dental fire not attributable to his wrong or negligence.</p>

<p>City. — Street Commissioner. — Appointment.—Tenure of Office.■ — The services of a street commissioner maybe dispensed with by the common council of a city, under the act of March 6th, 1877, and when this is done for one year, and said officer is then reappointed, his term of office commences from the time of his reappointment.</p> <p>Same.— Removal of Street Commissioner. — Reappointment.— Vacancy. — Where such officer was appointed on the 7th of May, 1879, removed May 12tb, 1879, reappointed May 10th, 1880, served till March 15th, 1882, and a successor was appointed May 8th, 1882, such successor was entitled to hold such office for two years from his appointment, and hence a person, whom the common council appointed to such office on May 8th, 1883, is not entitled to the office, because there was no vacancy at the time of his appointment.</p>

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

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

<p>Demurrer to Evidence. — Practice.—If there is any evidence favorable to the party demurring to the evidence, it can not be considered or weighed against evidence, the tendency of which is against such party.</p> <p>Same. — Inference.—If, from the evidence, the jury might infer that the plaintiff ’s action should be sustained, a demurrer should be overruled and the plaintiff should have judgment.</p>

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

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

<p>Intoxicating Liquoe. — Sale to Habitual Drunkard. — Notice by Wife. — Citizen. — Statute Construed.- — Section 2093, R. S. 1881, requires that the notice therein referred to, regarding the selling or giving of intoxicating liquor to a person who is in the habit of becoming intoxicated, must be given by a citizen of the township or ward in which the person referred to resides, and an averment that the wife of a citizen of such township or ward has given such notice is not sufficient.</p> <p>Ceiminal Law. — Defective Affidavit. — Information.—Where the affidavit is essentially defective, the defect extends with equal fatality to the information based thereon.</p>

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

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

<p>Mobtgage. — Foreclosure of.— Complaint. — Decedents’ Estates. — Personalty.— Parties.- — -Heirs.—Where it appears upon the complaint for the foreclosure of a mortgage, that the personal estate of the decedent mortgagor is liable for the payment of the mortgage debt, and that the suit was brought before the expiration of a year after the issuing of letters of administration and the giving of notice thereof, a demurrer should be sustained for want of sufficient facts. Sections 621, 2331, 2378, R. S. 1881.</p> <p>Same. — Failure to Appoint Administrator. — Next of Kin. — Creditor.—Presumption. — If the next of kin do not select an administrator, any creditor may do so; and a failure to select an administrator does not warrant the. presumption that the decedent left no personal property.</p>

<p>Mobtgage. — Foreclosure.—Evidence.—Letters.—Payment.— Receipt. — Where real estate was sold and notes and mortgage given for purchase-money, and the property transferred and laid off in lots, and a portion resold and bonds and notes taken upon such sales, it was proper under an answer of payment, on trial of the foreclosure suit, the principal owner of the property being dead, to permit the introduction in evidence of a letter from, the father of the deceased, to the plaintiff) enclosing a receipt by the plaintiff’s attorney to the deceased for a sum of money in excess of the amount of the mortgage debt, said sum having been paid at the request of the plaintiff, and the letter connecting the payment with the mortgage and being admitted with other evidence in relation to the transactions of the parties.</p> <p>Same. — Examination of Plaintiff as Witness. — Letters of Agent of Defendant.— Death of Principal Defendant. — It was also proper, while the plaintiff was under examination by the defendants as a witness on their behalf, to allow the introduction of letters to the plaintiff from one acting as agent of the principal owner before his death, and himself interested in the mortgaged property, in regard to the sale of the lots and the application of the proceeds upon the mortgage debt. The letters were relevant, and the plaintiff, being upon the witness stand, had full opportunity for explanation, and if the letters were immaterial he could not be injured by their introduction. The principal owner being dead, and the defendants, relying chiefly upon the testimony of the plaintiff, aided by such additional evidence as they could find, were entitled to a liberal use of such evidence as was in any way competent and relevant to the issue. '</p> <p>Same. — Application of Proceeds of Sales. — Proof having been introduced that an arrangement had been made with plaintiff, that he was to receive the proceeds of lots sold and to release a lot from the lien of the mortgage for every one thousand dollars received, and a large amount of such proceeds being received in bonds, the defendants were entitled to examine the plaintiff as to his application of money subsequently received upon such bonds. So, also, the plaintiff was subject to an examination in regard to an indemnifying bond executed by parties in interest to secure the payment of the bonds received on the sale of the lots.</p> <p>Supreme Court. — Evidence.—Exceptions Waived. — Where the questions put to a witness under examination and excepted to are not the ones discussed on appeal in the Supreme Court, the exceptions are considered as waived.</p> <p>Samce. — Instructions.—Exceptions to Special. — Where the instructions given, considered together, are full, complete and without contradiction, and contain a fair exposition of the law as applicable to the case, objections to one or more of them taken separately will not be considered.</p> <p>Same.— Verdict. — Evidence.—When there is evidence clearly tending to support the verdict, it will not be disturbed on the evidence alone.</p>

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

<p>Notice to Non-Resident Defendant. — Affidavit for Publication. — Statute Construed. — Under the provisions of section 318, R. S. 1881, in an action against a non-resident defendant, to whom notice of the pendency of such action, and of the term at which the same will stand for trial, is to be given by publication in a newspaper, the affidavit for publication should show not merely the non-residence of the defendant, but also that, in the case wherein it is filed, a cause of action exists against such defendant, or that he is a necessary party to such action in relation to real estate.</p> <p>Same. — Finding and Decree. — Party to Decree. — Appeal.—Collateral Attach.— Where the affidavit for notice by publication is defective and insufficient, but the court has thereon found and decided that the non-resident defendant was duly notified by publication of the notice of the pendency of the suit, and of the term at which the same would stand for trial, such decision and decree, although erroneous, are absolutely impervious to a collateral attack by a party to the decree, whose only remedy is an appeal to the Supreme Court, within the time and in the-manner prescribed by law.</p>

<p>Mortgage. — Foreclosure.—Notes for Purchase-Money. — Alteration.—Consent of Husband. — Defence by Wife. — -Answer.—Reply.—In a suit ■ to foreclose a mortgage given to secure notes for the purchase-money of the mortgaged jjroperty, the wife of the mortgagor, who had joined in the mortgage, answered that after the execution of the mortgage, the payee .of the notes unlawfully, and without her knowledge, fraudulently altered the notes executed by her husband, by inserting a provision that the notes were to bear ten per cent, interest from maturity. To this the plaintiff replied that the alteration was made in the presence, and by the direction and agreement, of the maker.</p> <p>Held., that as the answer was pleaded as a defence to the entire debt secured by the mortgage, and as the wife owned no interest in the real estate, inchoate or otherwise, as against- the mortgagee, the debt being for purchase-money of the property, the reply was sufficient..</p>

<p>Pbomissoby Note. — Payable to Order or Bearer. — Commercial Paper. — Statute Construed. — A promissory note payable to a designated person or bearer, or payable to bearer, is a valid promissory note, and when payable at a bank in this State is, under our statute, protected as commercial paper in the hands of a bona fide holder.</p> <p>Same. — Definition.—The statute does not define what is a valid promissory note, but accepts the instruments so defined by the common law.</p> <p>Same. — Payable at Bank. — Bearer.—A promissory note, valid at common law, is so under our statute, but is not negotiable under the law merchant unless payable at a bank in this State. That it is transferable by delivery does not affect its negotiability under the statute.</p> <p>Same. — Indorsement.—Delivery.—Section 5501, R. S. 1881, authorizes the assignment of all classes of choses in action by endorsement, but does, not require an endorsement where the instrument in terms authorizes a. transfer by delivery. •</p>

<p>Drainage. — Expense.—Benefit.—Constitutional Law. — The Legislature has constitutional power to authorize and provide for the drainage of wet and overflowed lands at the expense of those whose real estate is benefited by such work.</p> <p>Same. — Title of Act. — Collecting Assessments. — Attorney’s .Fees. — The title of the act of April 8th, 1881 (Acts 1881, p. 397), “An act concerning drainage,” is sufficient, under section 19 art. 4 of the Constitution, to include legislation directing the mode of making and collecting assessments upon lands benefited by the work, including the collection of reasonable attorney’s fees.</p> <p>•Same. — Complaint.—Substantial Compliance. — A complaint to collect an assessment under such act must state facts showing that assessments were in fact made upon the defendant’s land; that they were confirmed by the judgment of the court, and that the defendant was a. party to the proceedings. It should show a substantial compliance with the various provisions of the statute. This is required notwithstanding the provisions of section 8 of the act.</p>

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

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

<p>Promissory Note.— Want of Consideration. — Surrender of Cause of Action.— Extension of Time. — Chattel Mortgage. — Execution of New Notes Payable in Bank. — Agreement.—'.Where A. executed three promissory notes not negotiable by the law merchant to B., without consideration, and B. endorsed them to O. for value, and when the notes became due, upon B. undertaking to execute, and subsequently executing, a chattel mortgage to secure A. , he became a joint maker with B. of three promissory notes for a like sum as the original notes, the new notes being payable to C. at a bank in this State at a future time;</p> <p>Held, that admitting that A. might have defended successfully a suit by O. upon the three original notes, for want of consideration, as provided by section 5503, R. S. 1881, yet, as O. had a good cause of action against B. upon his endorsement, the loss of this right, and the surrender of the notes, constituted a sufficient consideration for the execution by A. of the new notes as surety for B.</p> <p>Held, also, that the granting of the extension of time to B. for a definite period was a sufficient consideration for the execution by A. of the new notes as surety for and with B.</p> <p>Held, also, that the execution of the chattel mortgage, in pursuance of the agreement therefor, if A. would sign, furnished a sufficient consideration moving to A. for his execution of the notes as surety.</p> <p>Instructions. — Legal Principles Applicable. — Conclusions Drawn from Facts.— Where an instruction contains a correct statement of legal principles applicable to the evidence, the finding will not be disturbed, because the instruction does not apply legal principles, by stating the conclusions which should be drawn by the jury from concrete facts developed by the evidence, no such instruction having been asked.</p>

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

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

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

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

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

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

<p>Res An judicata. — Evidence.—Former Recovery. — Judgment.—A record of a former suit between the same parties for the same property is competent evidence. That in the former action additional property was involved does not affect the conclusiveness of the judgment upon the property involved in the suit on trial.</p> <p>Supreme Court. — Evidence.—Exception.—A party, claiming a reversal because of the exclusion of evidence, must show what the evidence was, that the question of its competency and materiality maybe determined.</p> <p>Adverse Possession. — Execution Defendant. — Conveyance.—The possession of an execution defendant is not an adverse possession within the rule prohibiting the execution of deeds by the owner out of possession.</p> <p>Same. — Contract of Purchase. — Performance.—Where possession of land is taken under an agreement, express or implied, acknowledging the title of the owner, it is not adverse. In an executory contract to purchase, the possession is not adverse, while the conditions or covenants remain unperformed.</p>

<p>Judgment. — Part Payment. — Agreement.— Consideration. — Accord, and Satisfaction. — The payment by A. of a part of a judgment against himself and others, upon an agreement of the plaintiff to hold A. harmless as against the judgment, is not an accord and satisfaction by A., and will not relieve him as against the whole judgment.</p>

<p>Judgment. — Review of. — New Matter. — Diligence.—A review of a judgment for new matter discovered since its rendition will not be granted if by proper diligence such matter could have been ascertained before the trial, nor where such matter is not material.</p> <p>Same. — Complaint.—In such case the complaint should show by facts averred the diligence used.</p> <p>Same. — Jurisdiction.— Waiver. — Whether new matter available only in support of a plea to the jurisdiction as to the defendant’s person would be sufficient, quaere? but in any event it would not be if other facts equally available for the same purpose were known, and no question was mad,e as to the jurisdiction, and there was a waiver of all.</p> <p>Promissory Note. — Assignor and Assignee. — Consideration.—Forged Note.— In a suit upon a note payable in bank brought by an assignee in good faith before maturity, the fact that the consideration of the note was the assignment by the payee to the maker of a forged note, is no defence.</p>

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

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

<p>Judgment. — Execution.—Execution should issue from the circuit court in-which a-judgment is rendered.</p> <p>Same. — Filing Transcript. — Execution. — Sheriff’s Sale. — Quieting Title. — Prayer for Belief. — Where there is an appearance, and it is averred and found that the plaintiff’s lands have been sold upon an execution issued by the clerk of V. county upon a transcript of a judgment of the circuit court of S. county, filed in the office of the clerk of V. county, there-should be judgment setting aside the sheriff’s sale, though that relief he-not prayed.</p>

<p>Costs. — Bond for. — Non-Resident.—Statute Construed. — The bond to secure costs required of a non-resident plaintiff by R. S. 1881, section. 589, covers the costs on appeal to the Supreme Court.</p>

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

<p>Instbhctions.— Evidence.— Harmless E-ror.— An erroneous instruction, which, in view of the evidence, could not injure, is not available error.</p> <p>.Sale. — Statute of Frauds. — Delivery.—A delivery of goods, so as to take a sale thereof out of the statute of frauds, can not be accomplished by mere words, without some act of the purchaser amounting to a receipt thereof.</p> <p>'Chattel Mobtgage. — JReplevin.—Evidence.—A chattel mortgage of “ all the furniture, lumber and materials ” in a certain furniture factory described, and all furniture afterwards made in said factory, will cover furniture afterwards manufactured there out of said materials and lumber; and in replevin by the mortgagee for such furniture afterwards manufactured, it is error to exclude evidence that the furniture described in the complaint was made in that factory of said materials.</p>

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

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

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

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

<p>Drainage. — Docketing Petition. — Practice.—Diligence.— Waiver. — A petitioner for drainage, under sections 4273-4284, E. S. 1881, .and amendments thereto, should fix and note on his petition a day for docketing the same; and where the court, without such endorsement, and without a finding that proper notice had been given, orders the same to be docketed, the proceedings are irregular, but if not objected to within three days after the petition is docketed, the irregularities are waived unless excuse for the delay is shown.</p> <p>Same. — Deport of Commissioners. — Remonstrance.—A report of commissioners of drainage need not state when or where they met, and. a statement in the remonstrance, that they “ did not meet at the time and place ” fixed by the court, is too indefinite.</p> <p>Same. — No report is required as to lands not affected by the proposed ■work, though such lands be mentioned in the petition.</p> <p>Same. — Remonstrance.—Practice.—A remonstrance which presents no material question may be struck out on motion.</p>

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

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

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

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

<p>Pleading. — Exhibits.—Building Association. — Mortgage.—A complaint by a building association to foreclose a mortgage need not exhibit a copy of its constitution and by-laws, and, if it does so, such exhibits will not be • considered as part of the complaint.</p> <p>¡Same. — Set-Off.—Striking out. — Practice.—An answer which sets up a valid set-off should not be struck out, though it contairfs also much other matter which is wholly idle or surplusage.</p>

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

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

<p>New Trial. — Surprise.— Witness. — Diligence.—A motion for a new trial on account of surprise at the testimony of a witness must be supported by the affidavit of the party showing diligence, and that he was, in fact, surprised by the testimony of the witness.</p>

<p>Practice.- — Exception.—Receiver.—Where no exception is taken to a judgment appointing a receiver, the matter can not be questioned in the Supreme Court.</p> <p>Pleading. — Complaint.—Exhibits.—Reforming Instrument. — A complaint to reform a written instrument, which does not contain or exhibit the original or a copy of the instrument, is bad on demurrer.</p> <p>Same. — JDemwrer.—A complaint sufficient for some relief is not bad because not sufficient for all the relief prayed.</p> <p>Same. — Construction.—Theory.—When it appears by the prayer and whole tenor of a pleading, that it was formed on a definite theory, and it is insufficient on that theory, it will be held bad on demurrer, though the facts averred may be sufficient upon a different theory.</p> <p>Supreme Court. — Transcript.—Motion.—Bill of Exceptions. — A motion to discharge a receiver, which is not copied into the bill of exceptions, but appears elsewhere in the record, and a reference thereto is made at the proper place in the bill, is not properly in the record.</p>

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

<p>Surety or the Peace. — Record of Justice. — Parol Evidence. — In a proceeding before a justice of the peace to obtain surety of the peace, the record of the justice of the acts and things done by and before him, in such proceedings, is not conclusive, and may be contradicted by parol evidence.</p> <p>Same. — Finding of Justice. — Judgment.—Habeas Corpus. — In such a proceeding the action of the justice in requiring the defendant to enter into the recognizance required by section 1610, R. S. 1881, or, in default of such recognizance, in committing him to the county jail until discharged by due course of law, is not a “final judgment of a court of competent jurisdiction,” within the meaning of the second clause of section 1119, R. S. 1881, which forbids an inquiry into the legality of the judgment oi-process whereby such defendant is in custody, or his discharge therefrom, under a writ of habeas corpus.</p> <p>Same. — Criminal Prosecution. — Change of Venue. — Bias or Prejudice of Justice.. —A proceeding before a justice to obtain surety of the peace is a criminal prosecution, not for the punishment, but for the prevention of crime; and in such a prosecution, when affidavit is made before the justice by the defendant, that he can not have an impartial trial before such justice on account of his interest, bias or prejudice, at any time before the trial is commenced, and a change of venue is demanded, the' justice has no discretion, but it becomes and is his imperative duty to grant such change of venue, and his subsequent proceedings in the case are coram nonjudice and void.</p>

<p>Cbiminal Law. — Murder.—Self-Defence.—Character of Deceased. — Evidence. —In a trial for murder the defence was that the homicide was committed in self-defence. The defendant testified as a witness that when he shot the deceased the latter was striking at him with a knife, and that their acquaintance was a brief association as criminals. An offer to testify that the deceased had but the night before told the defendant of' two felonious assaults which he had committed, and that he preferred a knife to a pistol as more effective for such work, was refused by the court.</p> <p>Meld, that this was error.</p> <p>Same. — Dying Declarations. — A dying statement by the victim of a homicide, that the defendant had no reason for making the deadly assault, is. admissible in evidence, being the statement of a fact, and not an opinion.</p> <p>Zollabs, J., dissents.</p>

<p>Partnership.— Use of Firm Name by Purchaser of Business.— Liability of Prior Member to Creditors. — Where one is engaged in business under a firm name, and under such name purchases goods for such business from the plaintiffs from time to time, and afterwards sells the business and property to a son, who thereafter continues such business under such name, and under such name purchases similar goods from the plaintiffs, who have no knowledge of such sale and transfer, the former is liable to the plaintiffs for the goods thereafter purchased by the son from them under such name.</p>

<p>Corporation. — Manufacturing Company. — Stockholder.—Individual Liability. —Employee.—Statute Construed. — A corporation aggregate is not, and can not be. an employee of another corporation, within the meaning of the word “ employees,” as used in the proviso, in section 3869, R. S. 1881, and a stockholder of a debtor corporation is not individually liable for its debt to another corporation, under such proviso.</p>

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

<p>Fbatjd. — Pleading.—Fraud can not be pleaded generally, but the facts must be alleged.</p> <p>Same. — Misrepresentation in Execution of Lease. — Fraud in procuring the execution of a lease is not sufficiently shown by an answer merely alleging that the plaintiff deceitfully, and to defraud the defendant, represented that it was in effect merely a receipt, and the defendant, not knowing its legal effect, signed it.</p> <p>Landlobd and Tenant. — Holding Over. — Suit for Possession. — Complaint.— Lease.' — Justice of the Peace. — A complaint against a tenant holding over, to recover possession and damages, before a justice of the peace, which avers a lease for a definite time, and that it has expired, and that the defendant refuses to surrender possession, sufficiently shows an unlawful detention of the premises, to be good after verdict.</p>

<p>Practice. — Evidence.—Harmless Eror. — The refusal to admit further evidence upon a point concerning which there is no real controversy, and which is clearly established, is a harmless error.</p>

<p>Habeas Cobbus. — Petition.—Demurrer.—Motion to Quash Writ. — An application for a writ of habeas corpus is not a civil action, and the sufficiency of the complaint or petition can only be questioned by a motion to quash the writ, and not by a demurrer or by the assignment in the Supreme Court, as error, of its want of sufficient facts to constitute a cause of action.</p> <p>Same. — Contract for Custody of Infant. — Cotporation.—Law of Ohio. — Construction of Contract. — The Children’s Home of Cincinnati, Ohio, is a corporation organized under the laws of the State of Ohio, and as such it had the lawful charge and custody of an infant, and had power to procure for her a permanent home in a Christian family. By a written agreement, executed at the city of Cincinnati, in the State of Ohio, the Home transferred the care, custody and education of the infant, to the defendant. It is provided in the statutes, under which the Home is incorporated, that its trustees and managers might remove a child from a home, when, in their judgment, the same had become an unsuitable one, and that they should, in such case, resume the same power and authority they originally possessed. In the judgment of the trustees and managers of the Children’s Home, the defendant’s home had become and was an unsuitable one for the child, and he was not a proper person to have the custody and management of such child, and the Home demanded of the defendant the surrender to it of the custody and control of the child, which was by him refused.</p> <p>Meld, upon the foregoing facts, that the Children’s Home had the right to remove the child from the home of the defendant, and to resume its original power and authority over such child.</p>

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

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

<p>Beplevin. — Possessory Action. — Evidence.—Presumption.—Supreme Court.— An action of replevin is a possessory action, but where the plaintiff recovers judgment, and the evidence is not in the record, the Supreme Court will presume, in support of the judgment, that he introduced evidence tending to prove his right to the possession of the property in controversy.</p>

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

<p>Criminal Law. — Constitutional Law. — Right to Impose Terms Where Accused, Asks to Take Depositions in a Foreign Jurisdiction. — The Legislature has power to impose terms upon a person accused of crime, who asks and receives the privilege of taking depositions of witnesses in a foreign jurisdiction, and a statute which provides that the accused may take testimony by depositions in a foreign jurisdiction is not unconstitutional because it requires that the defendant shall enter of record his consent that the prosecution may also take the depositions of witnesses residing out of the State.</p> <p>Same. — Federal Constitution.- — In What Cases its Provisions Apply to State Prosecutions. — The general rule is that the provisions of the National Constitution do not apply to the procedure by the State in prosecutions for offences against its laws, but when the constitutional provision names the States it is otherwise. As the States are not named in the section which provides that a person accused of crime shall “ be confronted with the witnesses against him,” its provisions do not control the question of the power of the State Legislature to enact a statute granting an accused a right to take depositions upon condition that he consent to the exercise of a similar right by the prosecution.</p> <p>Same.— Waiver of Constitutional Privilege.— Witnesses. — A defendant in a criminal prosecution may waive the benefit of the constitutional privilege of being confronted by the witnesses.</p> <p>Same.— What Constitutes.— Depositions. — Where the defendant accepts a right to take depositions in a foreign jurisdiction under a statute requiring him to concede a like privilege to the State, he waives the constitutional privilege of being confronted by the witnesses against him.</p> <p>Same.— Withdrawal of Consent. — After the defendant has acted upon the order of the court, and taken depositions under it, he can not withdraw his consent.</p> <p>Same. — Practice.—Right to Limit Number of TFííaesses. — Within reasonable limits, the trial court has a right to limit the number of witnesses that may be called, and if there is no abuse of discretion the appellate court will not interfere.</p> <p>Same.— When Evidence Must be in Record. — When it is necessary that all the evidence should be in the record in order to show that a ruling complained of injured the appellant, there can be no reversal in the absence of the evidence from the record.</p> <p>•Same. — Jurors, Statements of. — The statements of a juror in answer to questions touching his competency are to be taken together, and his competency is not to be determined from mere isolated and detached statements.</p> <p>Same . — Competency of Jurors. — A juror is not necessarily incompetent because in answer to a.question he discloses the fact that he has an erroneous view of the law governing the defence of insanity, but also discloses in his answers a willingness and an ability to yield readily to the law as it exists.</p> <p>Same. — Juror’s Opinion of Feigned, Defence of Insanity. — A juror is not necessarily disqualified because he expresses an opinion that the defence of insanity should be carefully scrutinized, and also expresses himself as strongly opposed to feigned defences of that character, but states further that he is not prejudiced against genuine defences of that character.</p> <p>.Same. — Juror’s Opinion Founded on Rumors and Newspaper Reports. — As a general rule opinions founded on newspaper reports and rumors do not disqualify.</p>

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

<p>Pleading.— Written Instrument. — Copy.—Under section 362, R. S. 1881, it . is only where a pleading is founded on a written instrument that “ the original, or a copy thereof, must be filed with the pleading.”</p> <p>Decedents’ Estates. — Allowance of Claim. — Collateral Security. — Assignment without Recourse for Collection.— Waiver. — An allowance of a claim against a decedent’s estate is not a lien on the estate, nor can its payment be enforced by execution ; and where the decedent had, in his lifetime, assigned a policy of insurance on his life to his creditor, as collateral security for the payment of his debt, the creditor does not waive his right to the proceeds of such policy by procuring an allowance of his debt as a claim against the decedent’s estate in the proper court, nor by his assignment without recourse of such policy to the decedent’s administrator solely for the purpose of collection.</p> <p>Same. — Eoidence.—In a suit by such creditor to recover of the decedent’s administrator the proceeds of the policy so assigned, parol evidence is competent and admissible to show that the assignment of such policy, though absolute in form, was executed by the creditor without consideration and solely for the purpose of collection.</p>

<p>Deainaue. — Lien for Ditch Assessments. — Complaint.—Copy of Assessment by Commissioner. — Exhibit.—In a suit to enforce a lien for a ditch assessment under section 4275, et seq., R. S. 1881, it is necessary that the assessment made by the commissioner charged with the execution of the work should be made the foundation of the suit, and either the original or a copy thereof filed as an exhibit.</p>

<p>Partnership. — Contract by One Member. — Liability of Firm,. — A contract by one partner to pay an employee stipulated wages binds such partners to pay for sucli services as may thereafter be rendered under such contract, though some of such services were rendered after a third person had become a co-partner in carrying on the business of the firm.</p> <p>Same. — Evidence.—Payment.—New ¡Trial. — As the formation of such firm constitutes no defence for services thereafter rendered under such contract, and where, in an action therefor, under a plea of payment, the evidence fails to show that the services had been fully paid, a new trial will be granted.</p> <p>Instruction. — ■ Harmless Error. — An erroneous instruction, if harmless, will not warrant a reversal of the judgment.</p>

<p>Bill op Exceptions.— Time Given to File.— Extension of.— Objection.— Waiver. — Where time is given beyond the term in which to prepare and file a bill of exceptions, the court can not grant an extension of such time at a subsequent term, over the objection of the adverse party : but if such party is present, and makes no objection to such extension of time, when it is granted, it will be held by the Supreme Court that, by his silence, he acquiesced in and tacitly consented to the extension of time and waived his right to object thereto.</p> <p>Same. — New Trial. — Supreme Court. — A cause for a new trial is not taken as true, and will not he considered by the Supreme Court unless the truth of the facts, assigned as such canse, is shown by bill of exceptions.</p>

<p>Drainage. — Notice.—Jwi'isdiction.—Highways.—In proceedings for drainage under R. S. 1881, sections 4273-4284, the fact that the circuit court referred the petition to the commissioners of drainage will, as against collateral attack by persons whose lands are mentioned in the petition, be conclusive that the proper notices were posted. Aliter as to those who have not been named, and whose lands have not been described in the petition, and as to assessments for benefits to highways when the petition did not mention such highways.</p>

<p>Mandamus. — Issue of Fact. — Bight of Trial by Jury. — An issue of fact, in mandate, must be tried by jury if either party demands it, the proceeding being' at law, and not in equity</p>

<p>Churches. — Jurisdiction.—No suit can be maintained by a priest of a Catholic church against his bishop for removing him from his office of priest, the civil courts in such cases having no authority to inquire as to the rightfulness of ecclesiastical decision.</p>

<p>Slander.— Words Actionable. — Public Indecency. — Words, which in their common acceptation, taken as a whole, charge the crime of public indecency as defined by the statute, are actionable per se.</p> <p>Same. — Slanderous Words. — In order that words should be slanderous, it is not necessary that they should describe the offence with technical accuracy ; it is sufficient if the words uttered are such as convey to the minds of the hearers an imputation of a crime.</p> <p>Same.— Words. — Provincial Meaning. — Pleading.—Where words have a provincial meaning, that meaning must be averred as a substantive fact, and the ordinary meaning of words can not be changed by a mere innuendo.</p> <p>Evidence.— Witness. — Impeachment.—A witness may be contradicted by evidence showing that he has made statements directly relevant to the subject-matter of the action, contradicting the testimony given on the witness stand, but he can not be impeached by contradiction upon -merely collateral matters.</p> <p>Same. — Effect of Evidence of Contradictory Statements. — Evidence of contradictory statements extends no further than the question of credibility ; it does not tend to establish the truth of the matters embraced in the contradictory statements.</p> <p>Same. — Cross-Examination.—A witness may be impeached upon statements made by him on cross-examination, when such statements are not as to merely collateral matters.</p> <p>Same. — Degree of Contradiction between Statements out of Court and Testimony in Court. — There must be contradiction between the statements out of courts and the testimony of the witness, in order to make the impeaching evidence competent, but the degree of contradiction does not determine the competency of the impeaching evidence.</p>

<p>Contract. — Sale.—-Rescission.—Fraud.—To rescind a contract of sale of goods for fraud, the seller must be put in statu quo by a return of the goods*</p> <p>Same. — A written contract can not be varied by a prior or contemporaneous parol agreement.</p> <p>Fraud. — Pleading.—To successfully plead a fraudulent representation, damage must be averred ; and such representation, to be available as a cause of action or defence, must relate to an existing or past fact.</p>

<p>Married Woman. — Judgment.—A. judgment against a married woman is valid as against collateral attack.</p> <p>Same. — Parties.—Statute Repealed. — Section 5129, R. S. 1881, which required that suits concerning the lands of a married woman should be prosecuted by or against the husband and wife jointly, is repealed as to. suits in her behalf, by section 254.</p> <p>Same. — Descent.—Sheriff’s Sale. — Statute Construed. — Section 2484, R. S. 1881, prevents the sale on execution against a married woman, during her second marriage, of lands held by her in virtue of a previous marriage, if she have children alive by such marriage.</p> <p>Same. — Real Estate, Action to Recover. — Limitation of Action. — Decedents’ Estates. — A suit by a woman to recover lands sold on execution against her while married is barred if brought after the lapse of ten years, and after two years from the death of her husband.</p>

<p>Ejectment. — Evidence.—Effect of Decree Quieting Title. — Res Adjudícala.— A decree in favor of one out of possession against one in possession, quieting the title of the former free from all claims of the latter except a lien for taxes, is proper evidence for the former against the latter in a subsequent suit for the possession, and concludes the latter not only as to the title, but as to any right of possession not afterwards acquired.</p>

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

<p>'Contjra.ct. — Damages.—If a contract for work and labor contains a stipulation giving the employer the right to revoke the contract when not satisfied with the work, the-contractor has no remedy for damages resulting from the exercise of the right thus reserved.</p>

<p>Quieting Title. — Complaint.—A complaint to quiet title which states the specific facts upon which plaintiff’s title rests, and thereby discloses that the defendant has an interest, is bad on demurrer, though it be also alleged generally that the plaintiff “holds the land in law and equity discharged of and free from all claims and liens of” the defendant.</p> <p>Same. — Statement of Title. — Where a pleader specifically describes the title upon which the right to recover is based, he must recover on the title described, and the specific description of title can not be controlled by a conclusion of law.</p> <p>Same. — Bankruptcy.— Wife’s Interest. — Judicial Sale. — A complaint against the wife of a bankrupt to quiet title, which shows a sale of lands of the bankrupt to the plaintiff by order of the bankruptcy court to satisfy liens thereon, the wife not being a party'to the order of sale, shows that the wife has an interest in the lands, and is, therefore, bad.</p>

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

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

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

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

<p>Intoxicating Liquor.— Application for License.— Appeal.— Amendment of Remonstrance. — On an appeal from a refusal by tlie county board to grant a license to sell intoxicating liquor in a less quantity than a quart, the circuit court may permit, at the costs of the remonstrator, an amendment making the remonstrance more specific and adding new specifications under the original objections, where no new parties aré introduced.</p> <p>Same. — Evidence.—Opinion of Witness. — Upon the trial of such cause it is not proper for a witness to testify that in his judgment the applicant was a man fit to be trusted with a license to sell intoxicating liquors.</p> <p>Same. — Harmless Error. — Evidence that the applicant’s former place of business had been on a much frequented street was immaterial, but its admission could not harm the applicant, and is not available error.</p> <p>Same. — Former Place of Business. — Conduct of Customers. — Testimony as to the conduct of persons congregating around the saloon formerly kept by the applicant, and going in and out, was competent, although the former place was one where liquor was sold by the quart.</p> <p>Same. — Specific Acts.— Unfitness of Applicant. — The unfitness of applicant may be proved by specific acts. The question is not one merely of general character, but the jury may judge whether the specific acts prove unfitness in the person applying for the license.</p> <p>Instructions. — Evidence Supporting Verdict. — Where all the instructions taken together fairly present the law to the jury, a single inaccurate instruction will not authorize a reversal of the judgment. Where the record affirmatively shows that the verdict was right upon the evidence, the judgment will not be reversed for error in the instructions.</p>

<p>Life Insurance. — Forfeiture in Case Assured shall Die from Intemperance, or in known Violation of Law. — A provision in a policy of insurance providing that it shall be forfeited, in case the assured shall die by reason of intemperance, or while engaged in the known violation of law, is valid and enforceable.</p> <p>Same. — Pleading.—Death of Assured Resulting from Commission of Assault and Battery. — To a suit upon a life insurance policy, an answer, alleging in general terms, that the assured came to his death while engaged in the known violation of law by committing an assault and battery, and specifically stating facts constituting an assault and battery, is sufficient, although the term “unlawful” is not used.</p> <p>Same. — Death of Assured from Violation of Civil Law. — It is immaterial whether the death of the assured resulted from the violation of a criminal law, or of a positive rule of civil law, provided the violation of law was such as increased the risk and naturally led to his death.</p> <p>Same. — Proximate Cause of Death. — It is sufficient to relieve the insurance company if the known violation of law was such as to proximately lead to the death of the assured by bringing him into danger of losing his life.</p> <p>Same. — Right of Husband to Defend Wife when Moulted. — An assault upon the person of the wife of another is a known violation of law, and justifies the husband in interfering to pirotect the wife from violence.</p> <p>■Same. — It is not necessary in order to work a forfeiture, that the assured should die in the act of violating the law, hut it is sufficient if it appears that the wounds received while engaged in a known violation of positive law are the cause of his death.</p> <p>Same. — Presumption.—Interference of Husband for Protection of Wife. — The presumption is that men will act in conformity to their natural habits and propensities, and one who violently assaults the wife of another is presumed to know that he endangers his life, as the presumption is that the husband will resist the assault with force.</p> <p>Same. — Excuse.— Voluntary Drunkenness. — The voluntary drunkenness of the assured while engaged in the known violation of law, causing his death, will not prevent a forfeiture of the policy of insurance.</p>

<p>Bill of Exceptions. — Change of Venue. — A bill of exceptions filed in a court to which the venue is changed will not save an exception taken in the court from which the venue is changed, though the same judge preside in both courts.</p> <p>Railroads. — Killing Animals. — Complaint.—Name.—In a complaint against a railroad company for killing animals while operating the road of another company, it is not necessary under the statute, R. S. 1881, section 4025, to allege in what name the road was being operated.</p> <p>Transcript. — Reference in a transcript, for documents, to a bill of exceptions not in existence until after the ruling concerning the documents,, is not sufficient.</p>

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

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

<p>Supbemb Court. — Record.—Bill of Exceptions. — Summons.—Where all defendants appear, the summons and return can only be brought into the record by bill of exceptions or special order; so, also, a pleading which has been struck out, and instructions given or refused which do not appear to have been filed.</p> <p>Same. — Practice.—Verdict.—Interrogatories.—Unless it appears hy the record that the court has sent interrogatories to the jury, the answers thereto will not be considered by the Supreme Court.</p>

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

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

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

<p>Pbesumption. — Public Officer — The presumption is always in favor of that which is ordinarily and usually done in like cases. A public officer is presumed to have done his duty.</p> <p>Replevih Bail. — Contract.—Terms.—Siaiutonj Undertaking. — Effect.—Motives. — Where a contract is one made by the parties directly, then what all agree upon constitutes its terms, but where the statute gives a certain meaning and force to an undertaking, then that meaning and that force it possesses irrespective of the motives which prompted its execution.</p> <p>- Same. — Reversal of Judgment Against one. — Release of Undertaking. — A party who becomes replevin bail upon an execution issued on a judgment against three defendants is released by the reversal of the judgment as to any one of the three judgment debtors.</p> <p>Same. — Judgment Confessed. — Principal and Surety. — A replevin hail, in legal effect, is similar in important features to a judgment confessed for all, and not merely for a part, of the principal debt. He becomes liable for all the defendants, and they all stand to him as principals to a surety. That the request was made by one for the bail is immaterial.</p> <p>Same. — Lien.—Estoppel.—The replevin bail is so far concluded by the undertaking that it operates as a lien from the time it is entered into, and' he is so far concluded that he can not, on his own account, attack the judgment.</p> <p>Same. — Parol Evidence.— Written Contract. — The undertaking of replevinbail can not be varied by parol evidence; it is a written contract, and is governed by the general rules applicable to other written contracts.</p> <p>Same. — Recovery of Money. —Restitution of Property. — The undertaking of' replevin bail extends only to a recovery of money, and not to the order of restitution of property.</p>

<p>Supreme Court. — Errors Waived. — The Supreme Court will consider only the alleged errors discussed; all others are deemed waived.</p> <p>Quieting Titee. — Declarations of Grantor against Title of Grantee.— Conspiracy to Defraud. — 'While, as a general rule, the declarations oí a grantor made after he has parted with his title are not admissible in evidence to impeach the title of one claiming under him, yet, where the grantor and grantee have conspired together to defraud third persons, the statements of either are admissible against the other.</p> <p>Same. — Evidence.—Declarations Prior to Proof of Conspiracy.- — Evidence of declarations only admissible on the ground of the existence of a conspiracy, if admitted before such proof is made, are rendered competent by the subsequent introduction of such evidence.</p> <p>Same. — The declarations of the grantor, made prior to the time that the grantor and grantee became actors in the conspiracy, are admissible in evidence against the title of grantee.</p> <p>Practice. —Ehronecrus Instructions. — Harmless Error. — Where it appears “ that the merits of the cause have been fairly tried and determined in the court below,” the judgment will not be reversed, although one or more of the instructions of the court to the jury may have been erroneous.</p> <p>Verdict.— Construction. — A verdict, however informal, is good if the court can understand it. Verdicts are to have a reasonable intendment, and to receive a reasonable construction, and are not to be avoided unless from necessity. If rendered upon substantial issues of fact, fairly presented by the pleadings, they should not be disturbed on account of mere technical defects.</p> <p>Judgment. — Motion to Correct. — Practice. — If a judgment is erroneous only in respect to the damages in the recovery of real estate, the motion should be to correct that part of the judgment, and not to vacate the entire judgment.</p>

<p>Cbiminai, Law. — Sickness of Juror. — Discharge of Jury. — Jeopardy.—Constitutional Law. — The sickness of a juror, and his consequent inability to sit during the trial of the cause, is a sufficient cause for the discharge of the jury before the return of a verdict, and for the issue of a venire de novo at the same or a subsequent term; and, in such case, the defendant has not been in jeopardy, within the meaning of that word, as used in either the State or Federal Constitution.</p> <p>-Same. —Murder. —Dying Declarations. —Preliminary Proof. —Discretion of Court. — Where the defendant is charged with murder, and the State, on the trial, proposes to put in evidence the dying declarations of the deceased, and, to that end, offers the necessary preliminary proof to show the court that the declarations were made by the deceased while in ex-tremis and under a solemn sense of his impending dissolution, it is in the discretion of the trial court whether it will allow the State to introduce such preliminary proof in the presence and hearing of the jury, or will send the jury out during the introduction of such proof.</p> <p>•Same. — Declarations of Defendant. — Res Oestce. — The statements or declarations of the defendant, not made during but a short time after the transaction, in regard to the conduct of the deceased at the time, are not admissible in evidence as a part of the res gestee.</p> <p>•Same. — Dying Declarations. — Credibility and Weight. — The caution and care with which dying declarations should be received and scrutinized are questions for the trial court upon the preliminary proof; but when such declarations are received and admitted, their credibility and weight as evidence are the principal questions for the jury.</p> <p>•Same. — Misconduct of Jury. — Bailiff’s Presence in Jury Room. — Cause for New Trial. — Counter Affidavits. — Case Explained. — Ordinarily, the mere presence of the jury bailiff in the jury room during their deliberations upon their verdict, when shown by affidavit, is such misconduct of the jury as will constitute a good cause for granting a new trial; but where, in a criminal cause, such misconduct is so explained and qualified by counter affidavits as to show that the defendant was not injured or harmed thereby, and the trial court so decides, the Supreme Court will respect such decision, and will not reverse the judgment on account of such misconduct. Rickard v. State, 74 Ind. 275, explained.</p>

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

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

<p>GrimikXl Law. — Severity of Punishment. — Constitutional Law. — Supreme Court. —Where the punishment assessed against the defendant, in a criminal cause, seems excessive and oppressive, yet, if it be within the limits prescribed by the statute, the apparent severity of the judgment affords the Supreme Court no legal or sufficient ground for disturbing the finding or reversing the judgment of the trial court.</p> <p>Same. — Evidence.—Unless the record shows an absolute failure of evidence to sustain the finding or verdict on some material point, thej Supreme Court is not justified, even in a criminal cause, in reversing the judgment upon the weight of the evidence.</p> <p>Same. — Beversal of Judgment. — Harmless Error. — In a criminal cause the Supreme Court is not authorized to reverse the judgment for an error which does no harm or injury to the defendant.</p> <p>Same. — Trial by Jury.— Waiver of Constitutional Right — Statute Construed. — ■ Under section 13 of the Bill of Bights in the Constitution of this State, the defendant in a criminal cause has the constitutional right to a public trial by an impartial jury, but the right is one which, under the provisions of section 1821, R. S. 1881, he may waive, except in a capital -case. This section of the statute is a constitutional and valid law.</p>

<p>Supreme Court. — Misjoinder of Cmses. — The statute, section 341, P. S. 1881, forbids in any ease a reversal for overruling a demurrer to a complaint for misjoinder of causes of action.</p> <p>Decedents’ Estates. — JExecutor.—Trespass.—Joinder of Causes. — An executor may join in the same complaint a paragraph for trespass guare clausum, fregit during the testator’s lifetime, with another for a like trespass after his death, to lands devised to the executor in trust for specific purposes, and this is not a misjoinder.</p> <p>Same. — Damages.—Chose in Action. — The right to damages for trespass to a testator’s lands during his lifetime is a chose in action for which his executor may sue.</p> <p>Same. — Parties.—Case Limited. — Where lands are devised to an executor in trust for certain purposes, he is the proper plaintiff in a suit for trespass thereto after the death of the testator. Taylor v. Fiekas, 64 Ind. 167, limited.</p> <p>Railroads. — Appropriation of Land. — Trespass.—Incense.—Limitations.—The right of a railroad company, given by section 3907, R. S. 1881, to enter upon lands and remain in possession during the pendency of proceedings by it to condemn lands to public use, is a license which is lost hy its subsequent dismissal of the proceedings, during the pendency of an appeal therein, and thereupon it becomes a trespasser ab initio. And in such case certainly the plaintiff may bring his suit within a reasonable time after such dismissal, and perhaps the statute of limitations only then begins to run.</p> <p>Same. — Remedy.—Cases Overruled. — When a railroad company, undercolor of proceedings to condemn lands for public use, enters, and then dismisses its proceedings, the owner may sue for trespass, and is not restricted to the remedy hy writ of Ad quod damnum given hy statute. Victory v. Fitzpatrick, 8 Ind. 281, McCormack v. Terre JSaule, etc., R. R. Co., 9 Ind. 283, and Indiana, etc., R.- W. Co. v. Oakes, 20 Ind. 9, have been expressly or by implication overruled.</p> <p>Trespass. — Real Estate. — Measure of Damages. — Interest.—In ascertaining the damages for a trespass to lands and removing material therefrom, the jury may, in their discretion, add to the value of the material taken interest thereon at six per cent, per annum, without finding, as in suits on contract, that there has been unreasonable delay of payment.</p>

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

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

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

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

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

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

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

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

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

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