Volume 98 — Indiana Reports

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

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

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

<p>Pleading. — Harmless Error. — Where it appears that the facts alleged in a pleading have been found untrue, the overruling of a demurrer to the pleading is a harmless error.</p> <p>Ejectment. — Evidence of Title. — Deed.—A warranty deed, executed by one shown to be in possession of real estate, is prima facie evidence of title in the grantee.</p>

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

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

<p>Supreme Court. — Motion for Judgment on Answers of Jury to Interrogatories. — Verdict. — Evidence.—In reviewing the ruling upon a motion for judgment upon the answers of the jury to interrogatories, notwithstanding the general verdict, the Supreme Court can not look to the evidence; and in order that the answers may control the verdict, there must be between them an antagonism, which could not be removed by any evidence admissible under the issues. If an'answer, apparently antagonistic to the verdict, can be reconciled therewith by other answers, the verdict will stand.</p> <p>Practice. — Evidence. — Objection to Answer. — It is not error to overrule an objection to a question on the ground of irrelevancy, when it is not apparent that the question calls for irrelevant testimony.</p> <p>Same. — Motion to Strike Out. — New Trial. — The refusal of the court to strike out an answer to a question must be made the ground of a motion for a new trial, to reserve the question.</p> <p>Negligence. — Instruction.—Issue.— Wilfulness. — When the issue on trial is negligence, it is error to charge the jury that if defendant’s negligence was so gross as to imply a willingness to inflict the injury, the plaintiff may recover even though he did not use ordinary care to avoid the injury.</p> <p>Same. — Pleading.—Averment of Gross Negligence.— Wilfulness. — In pleading, an averment that the injury was caused by the recklessness and gross negligence of the defendant, is not equivalent to a charge that the injury was inflicted purposely or wilfully.</p>

<p>Decedents’ Estates. — Suit on Administrator’s Bond. — Evidence.—Record.— In an action by an administrator against a former administrator of the same estate and his sureties upon his bond, to recover a certain sum of money received by the latter from a sale of real estate, the record of such proceeding is admissible in evidence.</p> <p>Same. — farol evidence is also admissible to prove the amount actually received by such administrator upon the sale of such real estate.</p> <p>New Teiad. — Reasons for. — Beasons'for a new trial are sufficiently definite if they describe with reasonable certainty the rulings of the court of which complaint is made.</p>

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

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

<p>Dbainage. — Complaint to Collect Assessment. — In an action, under sections 4273-4284, R. S. 1881, to collect a ditch assessment, the complaint must state facts showing that the assessment was made upon the defendant’s land, that it was confirmed by the judgment of the court, and that the defendant was a party to the proceedings.</p> <p>'Same. — Copy of Assessment. — In such action it is necessary to file with the complaint a copy of the assessment creating the lien.</p>

<p>Practice. — Demurrer.—A demurrer to a motion for a new trial is improper.</p> <p>Ejectment. — Amendment Making New Parties. — Costs.—Practice.—In ejectment an amendment to the complaint substituting another person as plaintiff, who was the grantor of the original plaintiff, can, under section 894, K. S. 1881, be made on leave, without costs, if no delay results.</p> <p>Same. — Deed.—Adverse Possession. — Champerty.—Instruction. — An instruction, declaring the rule of law as to a conveyance made during an adverse possession by the defendant in ejectment, was modified by the statement that if the grantor sold while in possession, giving a title bond and putting the purchaser in possession, and afterwards executed a deed as the bond required, then title would pass by the deed.</p> <p>Held, that this modification could not mislead the jury and was as favorable as the defendant could expect.</p> <p>Same. — Evidence.-—Copies.—Town Plat. — Where, in ejectment, the original of a town, plat is in evidence, the admission of a copy of it is a harmless error.</p> <p>Same. — Where, in ejectment, the deeds under which both parties claim refer to a certain recorded town plat for identity of the lot, the record is proper evidence, though the plat may not have been made as the law requires.</p> <p>Bill oe Exceptions. — Instructions.—Instructions and exceptions thereto may be brought into the record by bill of exceptions as formerly, notwithstanding sections 533 and 535, R. S. 1881, provide another mode. Practice. — Separating Witnesses. — Evidence.—It is error to exclude a witness merely for disobeying an order requiring the witnesses, when not testifying, to remain out of court.</p>

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

<p>Criminal Law. — Indictment.—Description of Offence. — As a rule, an indictment charging an offence in the language of the statute is sufficient.</p> <p>Same. — Conveyance to Defraud. — Intention.—An indictment under section 2156, B.. S. 1881, which states such facts as show that the accused was a party to a conveyance to defraud a purchaser, and that such conveyance was corruptly executed for such purpose, sufficiently describes the offence named in the first branch of such section. It is not necessary to show that the conveyance was fraudulent; and in describing the intent it is sufficient to characterize it by appropriate words.</p>

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

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

<p>Bank Check. — Forged Endorsement. — Title.— The forged endorsement of a bank check confers no title upon the endorsee.</p> <p>Same. — Acceptance. —Election.—Ownership.—Estoppel.— U. S. Pension Agent.— A pension agent sent a bank check to a pensioner by mail, addressed by mistake to the wrong post-office, by reason whereof the check was received by another person of the same name who forged an endorsement thereon and sold the check to one who drew the money.</p> <p>Held, that the payee might elect to accept the check, even after its payment and after first bringing suit against the pension agent for failure to pay the pensioner, and then maintain a suit against the purchaser for the money received.</p>

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

<p>Contbact. — Oonditimal Sale. — Title.—Indebtedness.—A written contract, reciting that H. has -bought from D. a threshing machine for the sum of .$450, and that there is still due to D. $124.05, and it is agreed that the title to said property shall not pass, but remain and vest in E>., till said amount is fully paid to him, signed by H., is a conditional sale, which creates an indebtedness that renders PL liable.</p>

<p>Contract: — Acceptance.-—Where a written contract is signed by one only of the contracting parties, but the writing is accepted and acts are done under it by the other party, he is bound by such contract.</p> <p>Same. — Averment of Performance. — Under section 370, R. S. 1881, it is sufficient for the plaintiff, in an action upon a contract, “ to allege generally,” that he has performed all the conditions of the contract on his part.</p> <p>Pbactice. — Assignment of E’ror.— Waiver. — An error assigned, but not discussed, is considered by the Supreme Court as waived.</p> <p>Same. — Special Finding.— Conclusions of Law. — Exception.—The effect of an exception to the court’s conclusions of law, upon a special finding of facts, is to admit for the purposes of the exception that the facts have been fully and correctly found; but the admission is not conclusive, and does not preclude the party from questioning the special finding of facts, either by a motion for a new trial or for a venire de novo.</p>

<p>Instructions. — Evidence.—Presumption.—Where the evidence is not in the record, it will be presumed in the Supreme Court that instructions «refused were not applicable.</p> <p>Same. — Beeord.—Instructions can only be brought into the record in the mode provided by statute, or by bill of exceptions.</p> <p>Tree Turnpikes. — Change of Route. — In establishing free turnpikes under the statute, R. S. 1881, section 5091, et seq., the line of the old road may be departed from, for the purpose of straightening or improving the route as public utility and convenience may require, and in such case and for this purpose the change of line may be made even for a long distance.</p> <p>Same. — County Commissioners. — Special Sessions. — Notice.—Appeal.—Transcript. — On appeal in such case from the county commissioners, where their proceedings were at a special session, the notice of the auditor convening the session is not a necessary part of the record, nor need the record show how the commissioners were convened.</p> <p>Same. — It is immaterial in such case that in the transcript the notice of the petition does not appear until after the viewers’ report, if the notice itself was correct in form and time; arid where the notice states the petition to be for a free gravel road, it sufficiently describes the kind of improvement proposed.</p>

<p>County Auditor. — Gravel Roads.- — -Taxes.—Fees.—The county auditor was; not entitled to fees for services in placing on the tax duplicate taxes for free gravel roads in the year 1882.</p>

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

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

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

<p>Evidence. — General Denial. — Evidence which does not controvert any fact which the plaintiff must prove is not admissible for the defence under the general denial. R. S. 1881, section 377.</p>

<p>Sheriff. — Qounly Commissioners. — Expense of Recapturing Escaped Prisoners.' —A sheriff can not, as of right, demand'payment of a county for the-recapture of prisoners escaped from jail, or expenses incurred therein.</p>

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

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

<p>Ex’om the Starke Circuit Court.</p>

<p>Íh/EADING. — Demurrer.—Practice.—Amended Complaint.— Waiver. — The filing of an amended complaint, after a ruling upon a demurrer to the original complaint, waives all questions as to such ruling.</p> <p>Account. — Cross Complaint. —Partnership.—Settlement of Accounts. — Assignment. — Demwrer.—Defect of Parties.- — In an action upon an account, a cross complaint which sets up a written contract by the plaintiff with defendant and one C. as partners, avers a settlement of the partnership accounts and transfer of all of them to the defendant, including the claim in suit, but does not aver that the transfer was by endorsement in writing, nor make O. a party to answer as to his interest, is subject to a demurrer for defect of parties defendants.</p> <p>Instructions. — Beco?'d.—Refusal.—Presumption.-—Where all the instructions given by the court are not in the record, it will be presumed that an instruction refused was embraced in one given.</p>

<p>Railboad. — Streets.—Abutting Lot Owner. — License of City. — Easement.—No right of action accrues to an abutting lot owner against a railroad company for operating its railroad in the street in the usual way, by leave of the city, where the injury is only such as the general public sustains.</p> <p>Same. — Answer.—Complaint by the owner of a lot having buildings thereon, used for worship and a school, alleging the use of the street adjoining by a railroad company for its track and running cars thereon, whereby worship was interrupted and children attending the school imperiled, and the street obstructed, etc. Answer, that the railroad was operated in the usual way necessary for such business ; that the railroad is nine feet wide, and none of it upon the plaintiff’s premises, being beyond the center of the street, and was constructed by leave of the city and in manner as required by an ordinance; that the street is sixty-six feet wide and is not obstructed save as the running of cars carefully and as is usual may temporarily have that effect as to its general use.</p> <p>Held, that the answer was good.</p>

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

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

<p>Instructions. — Record. — Order-Book Entry. — Instructions can only be-made a part of the record in some one of the modes prescribed by the statute; and the mere transcription of instructions, in an order-book entry of the court’s proceedings, does not make them a part of the record to be considered, as such, on an appeal to the Supreme Court.</p>

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

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

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

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

<p>Taxes. — Oity-—Action to Recover Money Paid at Tax Sale. — As a general rule a city is not liable to refund to a purchaser, -who fails by his purchase to acquire title to or a lien upon land sold for city taxes, the amount of money paid by him upon.such purchase.</p> <p>Same.— When Oity Liable to Refund. — In order to render it liable to refund the money, it must be shown that the land was not liable to taxation, or that the taxes had been paid before sale.</p> <p>Same. — Transfer of Lien of State. — The lien of the State for taxes may be transferred to a purchaser by private sale.</p> <p>Same.. — Judgment not Conclusive on Oily as Ho Lien. — The judgment of a court refusing to enforce the purchaser’s lien against the land-owner, does not conclude the city, and, therefore, the mere rendition of such judgment does not render the city liable to refund the purchase-money.</p>

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

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

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

<p>Pleading. — Complaint.—Dejects Cured after Verdict. — A complaint, alleging that the defendant “is indebted to the plaintiff,” etc., is good after verdict, without an express averment that the debt is due and unpaid. Landlord and Tenant. — Bent.—Where the relation of landlord and tenant has never existed, there can be no recovery for the use and occupation of real estate.</p> <p>Same. — Principal and Agent. — Where an agent uses his own building and grounds in the business of his principal, without any intention or notice of purpose to charge rent in addition to his compensation as agent,, he can not afterwards recover rent.</p>

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

<p>Mortgage. — Foreclosure.—Subsequent Purchaser. — Parties.—Judgment.— When the owner of the equity of redemption, a subsequent purchaser, is not. made a party to the foreclosure of a mortgage, such proceedings do not ■affect him, and such mortgage, though the premises are purchased under such foreclosure, remains unforeclosed as to him.</p> <p>Same. — In an action to foreclose such mortgage against such purchaser, in which the facts are specifically found, no foreclosure can be ordered where the court fails to find that anything is' due upon the mortgage. .Same. — Title.—Judgment.-—-Replevin Bail. — Where such purchaser claims a superior title to such premises by virtue of a judgment upon which it is claimed a former owner of the land became replevin bail, it is necessary that the court should find such fact, and not merely the evidence of such fact.</p> <p>■Same. — Record.—Indexing Replevin Bail. — Iden.—Where such bail is entered, but is not indexed in the name of such bail, the same does not constitute a lien on his land against subsequent bona fide purchasers or mortgagees without notice.</p> <p>Same. — Evidence.—'-Notice.—Finding.—Presumption.—The burden of showing notice is upon the parly who asserts title through the judgment, and where the finding is silent upon such question, it will he deemed a finding against the party upon whom the burden rests.</p> <p>Same. — Tax Sale. — Lien.—Such purchaser can not acquire title to such land as against the mortgagee by purchasing the same at tax sale for an insignificant sum, nor can he assert a lien upon such land for the amount of taxes paid while he has in his hands rents and profits of such land largely in excess of the amount of taxes paid.</p> <p>Same. — Compensation for Improvements Made under Tax Title. — Such purchaser is not entitled to compensation for improvements made by him as owner upon such land.</p>

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

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

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

<p>Partition. — Parties.—-Appeal. — Guardianship. — In a suit for partition against infants, the guardian of their persons and estates may appear in his own name as guardian and plead in their behalf, and in the same name as a party appeal to the Supreme Court.</p> <p>Same. — Description. — Pleading. — Exhibits. — Will. — Title.—Counter- Claim.— Harmless Error. — To a suit for partition of lands, it was pleaded, as an answer and cross complaint, that one A. died seized thereof; that there was “ a certain bed and deposit of limestone rock, known as the rock on Big Creek,” on a certain portion of said lands, in the whole of which portion the plaintiff, by his complaint, has claimed an estate for his life; that by the terms of A.’s will, exhibited in the record, the defendant “ now owns the said rock situate on the above described real estate, and known and designated by the terms of said will as the rock on Big Creek.” The will exhibited was without probate, and it was not averred that it'had been proved, or that A. died testate.</p> <p>Held, that as an answer this pleading amounted only to a denial, which having been pleaded, it was harmless error to sustain a demurrer to it. Held, also, that as a counter-claim it was bad on demurrer for failure to give a definite description of the rock, or to allege that the plaintiff, had any interest in it, or in the land in which it was alleged to be, and also for failure to show how title passed from A. to the pleader.</p> <p>Same. — New Trial. — Practice.—Where, in partition, on motion for a new trial, assigning for cause that the finding (which was for the plaintiff and that partition ought to be had) was not sustained by sufficient evidence, it appeared by the evidence that the plaintiff was entitled to partition of some of the lands in question, there was no error in overruling the motion.</p> <p>Harmless Error. — Demurrer.—There is no available error in sustaining a demurrer to a good defence to a part of a complaint, where the final judgment as to that part of the complaint is against the plaintiff.</p>

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

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

<p>Contract. — Public Policy. — Constructive Fraud. — An owner of adjacent property entered into a combination with others and agreed with the owners of a building in a city, if they would offer their building to the government for a nominal rent, tobe used as a post-office for ten years, and use their personal influence and “ proper persuasion ” to secure its acceptance, the former would, in ease of success, pay the latter a certain sum annually for ten years. The location was chosen and leased accordingly, one of the owners of the building, who was a personal friend of the P. M. General, having truthfully represented to him that the location was suitable, and their notes were given for the annual instalments.</p> <p>Held, that the consideration of the notes was illegal, the agreement being against public policy, and therefore void.</p> <p>Same. — Consideration.—Indivisible.—Where the consideration of a contract is indivisible, and part is illegal, the contract is void.</p>

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

<p>Baiuroad. — Killing Slock. — Complaint before Justice of the Peace. — In an action under the statute, before a justice of the peace, against a railroad company for killing stock, a complaint is not bad for failure to allege that the road was not fenced where the animal entered upon the track; nor for failure to show by direct averment that the plaintiff was damaged, or that the damages are due and unpaid, where the value of the stock killed is alleged-</p>

<p>Mortgage. — Estoppel.—Covenants.—After-Acquired Title. — Where a grantor of land receives back, in the same transaction, a mortgage for the purchase-money, the covenants in the mortgage operate only upon the estate acquired from the mortgagee, and do not operate upon an after-acquired title.</p> <p>Same. — Foreclosure.—Vendor and Vendee. — Partition.—Judgment.—Res Adjudieata.' — Estoppel.—Purchaser Pendente Lite. — A. died intestate, seized of lands, leaving a wife and four children surviving him. The widow remarried, and then one of the children executed a deed to B., purporting to convey an undivided one-fourth of the lands with full covenants and took a mortgage of the same share, with like covenants, to secure the purchase-money, and then assigned the mortgage to L., who brought suit against B., who had also acquired the share of another child, to foreclose. Pending that suit, in 1878, R., who had acquired the share of another child, sued B. and the widow, then wife of B., and the remaining child for partition, and the lands being adjudged indivisible, they were sold by order of the court, and R. became the purchaser. Afterwards, in October, 1879, there was judgment in the foreclosure suit directing the sale of one-fourth of the land, under which L. purchased and received a deed.</p> <p>.Held, that L. became seized of an undivided one-fourth of the lands.</p> <p>Held, also, that L.’s decree, in the suit pending when R. purchased was an adjudication which bound R., and estopped him from questioning the fact that the mortgage bound one-fourth of the lands.</p>

<p>Sheriff’s Sale. — Redemption.—Agreement for Extension of Time. — Sheriff’s Deed a Mortgage. — Statute of Frauds. — Where the purchaser of land at sheriff’s sale, within the year allowed by law for redemption, agrees verbally with the execution defendants, or one of them, to extend the time for such redemption beyond the year, and, upon the faith of such agreement, money is paid to and accepted by him thereon, the sheriff’s deed of the land, subsequently executed to him, will operate merely as a mortgage to secure the performance of such agreement, which is not within the statute of frauds, and will not entitle the grantee therein to recover the possession of the land, nor to a decree quieting his title thereto-</p>

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

<p>Deed. — Defective Description. — Suit for Breach of Covenant. — Complaint.—Mistake. — Reformation.—-Where a deed purports to convey lands by a description so defective that it is for that reason void, no suit for breach of the covenant of seizin therein can be maintained without showing a mistake and also seeking a reformation of the instrument.</p>

<p>Landloed and Tenant. — Lease.—Tenant for Life. — Emblements.—Tha lessee of a tenant for life is entitled to the crops growing at the death of the lessor.</p> <p>Same. — PaHies.—Tenants in Common.— Use and Occupation. — One tenant in common can not sue alone for use and occupation of the premises.</p>

<p>Execution. — Seal.—Amendment.—Sheriff’s Sale. — A writ of execution without a seal is not void, and may be amended; nor can a sale under it be attacked collaterally.</p> <p>Same.- — Sale after Return-Day. — Where a sale on execution has been advertised during the life of the writ, it is not void because made five days after the return-day.</p>

<p>County Commissioners. — Claims,—Pleading.—A claim filed' for allowance before a county hoard, which contains enough to inform the hoard of the nature of the claim, is sufficient.</p> <p>Same. — Refunding Taxes. — That the assessment of taxes paid have been made by the wrong officer is not enough to give a right to have them refunded under section 5813, B. S. 1881, but it must also appear that the taxes were not legally or equitably owing.</p> <p>Same. — Tax Assessment.— Voluntary Payment. — Mistalce.—Estoppel.—Pledge. —Where a taxpayer consents that his assessment may be increased by the treasurer by the addition of personal property not listed, he can not, after paying such additional taxes, claim to have them refunded upon the ground that the property should have been listed against a pledgee, who held it in possession.</p>

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

<p>Verdict. — Name.—New Trial. — Harmless Error. — Where a verdict is returned in proper form, but, by mistake of the judge in reading it, a wrong Christian name is pronounced, and, thus read, the jury assent to it, no cause for a new trial occurs.</p> <p>Witness. — Oath.—New Trial. — Harmless Error. — That a witness has testified without being sworn is no cause for a new trial, unless it appears that the counsel of the party against whom the witness testified was not guilty of laches in permitting the witness to testify, and that the evidence of the witness was material and not true.</p>

<p>Sale. — Warranty.—Rescission of Contract. — An absolute sale of a chattel' with a mere warranty does not authorize the purchaser, for breach of the warranty, to rescind the contract by notice and return of the property, but he must sue for the breach, or, in a proper case, he may recoup„</p>

<p>Quieting Title. — Complaint.—A complaint to quiet title, which avers that the plaintiff “ is the owner in fee simple,” etc., is not vitiated hy another averment that “the plaintiff, on,” etc., “ conveyed said premises to” a third person.</p> <p>Same. — Husband and Wife. — In such action, a husband and wife may join as plaintiff's though the land be owned solely by the wife, and evidence of such ownership will not vitiate a finding for the plaintiffs jointly.</p> <p>Railroads. — Right of Way. — Donation by Guardian. — Deed.—Statute Construed. — The statute, R. S. 1881, section 3907, does not authorize the court to empower a guardian to donate the right of way for a railroad over his ward’s lands, and a deed by the guardian for such right, without the prior approval' by the court of a price agreed upon by the guardian, is void.</p>

<p>Attorney and Orient. — Authority of Attorney to Bind Client by Receipt of Damages. — Ad Quod Damnum. — Where a w.rit of ad quod damnum to condemn a water-right is resisted upon the ground that the same will injure a mill already in course of erection, and an order of condemnation is rendered conditioned upon the payment within,a year of damages found to accrue to the defendant, the attorney of the. defendant in the proceedings can not, by virtue of his general employment as such, bind his client by receiving such damages.</p>

<p>Decedents’ Estates. — Petition to Sell Lands. — Pleading Good offer Verdict.— An administrator’s petition to sell lands, which shows a claim allowed against the estate, not specifying whether the debt was incurred as surety or principal, is sufficient in that respect after verdict.</p> <p>Same. — Averment of Title. — Such petition need only state the intestate’s title generally, as that he died seized in fee simple.</p> <p>Same. — Parties.—Averment of Glaims nr Liens. — After verdict no question as to the parties defendants can be first made in such a case; so, also, an averment that the administrator knows of no liens or claims except such as are stated.</p> <p>Same. — Evidence of Title. — Where the question of title is in issue upon the trial of such a petition, proof of the intestate’s title is necessary.</p>

<p>Sheriff's Sale. — Redemption.—Prim Owner of Land. — Lien for Redemption. —Statute Construed. — Under the redemption law of March 81st, 1879 (Acts 1879, p. 176), the owner of land sold by the sheriff, at the time of the sale, may redeem the land from such sheriff’s sale, but the statute does not give such owner any lien upon the land for the amount of money paid by him in such redemption.</p>

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

<p>Pbactice. — Supplemental Complaint. — Demurrer.—A demurrer to a supplemental complaint is unwarranted and presents no question.</p> <p>Tbust and Tbtjstee. — Husband and Wife. — Purchase of land with Wife’s Money. — Where a husband, prior to July 24th, 1853, invested the proceeds of his wife’s lands in other lands, taking title in his own name with her consent, but agreeing to hold it for her, a trust resulted in her favor. Same. — JResulting Trust. — A payment of part of the purchase-money with trust funds will create a resulting trust to the extent of the payment.</p>

<p>Telegraph. — Inability for Delay in Delivering Telegram. — -Where a dispatch is delivered with reasonable promptness, in good faith, and without partiality, in the order of its reception, there is no liability for the penalty given by statute, B. S. 1881, section 4176.</p>

<p>Railroad. — Killing Stock. — Fences.—Highway.—A railroad company is not required to fence its road where it would obstruct a public highway, and the want of fencing at such place does not make it liable for stock killed or injured.</p>

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

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

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

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

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

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

<p>Criminal Law. — Voluntary Manslaughter.— Intent.— Instruction.— An instruction to the jury, in the form of a hypothetical case, stated as constituting voluntary manslaughter, which does not embrace the element that the fatal blow must have been voluntarily inflicted, is erroneous.</p>

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

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

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

<p>Life iNSUBAiSrcE. — Evidence.—.Admissions.—Where one takes a life policy on his own life in a mutual society, payable upon his death to another, ■er “ to such other person or persons as he may subsequently direct,” no subsequent admissions of his are admissible in evidence against the beneficiaries in a suit by them upon the policy.</p> <p>Same. — Construction of Mutual Policy. — Evidence.—In actions upon life policies, issued by mutual societies, courts .should construe .the rules and regulations of such societies liberally; and this' doctrine of construction is applicable generally to rulings on questions of evidence.</p>

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

<p>Railroad. — Negligence.—Pleading.— Personal Injuries.— Gcmirihutory Negligence. — It can not be inferred as a conclusion of law, that getting on a passenger train at a place other than the platform was negligence of the passenger contributing to an injury received while entering the car, in consequence of a violent and negligent starting of the train. An answer stating such fact is, therefore, bad on demurrer.</p>

<p>JRaiekoad. — Board of Directors. — In a strictly legal sense, the hoard of directors of a railroad corporation are the agents and representatives oi the corporation. In a practical sense, the board of directors become; ■the corporation itself, so far, at least, as its relations to the public aic concerned. ■</p> <p>¡Same.— Authority of Agents, Officers and Employees. — Whatever authority agents, officers and employees have they derive from the board of directors, or governing power, unless conferred by the charter of the corporation.</p> <p>Same. — Authority to Contract. — Before the corporation will be bound by the contracts of such agents, officers or employees, unless authority is conferred by the charter, it must be shown that authority to so contract ha; been given by the board of directors, or governing body, either expressly, impliedly, or by ratification.</p> <p>Same.— When Coiporation Bound by Contracts of Agents. — The corporation will be bound by the contracts of its agents, officers and employees within the line and scope of the agency, office or employment.</p> <p>Same. — Evidence.—Presumption.—The duties of such agents, officers anil employees must in general be shown. When shown, the authority to contract within the line of such agency, office or employment will be presumed. ' '<■</p> <p>■Same. — Contract of Road-Master for Services to Person Injured. — Judicial Knowledge. — Presumption.—Courts can not judicially know, or presume, without further proof of the duties and powers of a “road-master” than what the term indicates, that such an employee has authority to bind the corporation by a contract with a third party for nursing a person injured upon the line of the railway.</p> <p>¿Same. — Contract without Authority. — Ratification.— A contract by an agent, etc., without authority, may be ratified by the corporation, so as to become binding upon it.</p> <p>Same. — Contract for Services to Person Injured. — General Manager. — Presumption. — The courts will presume from the ordinary meaning of the term “ general manager,” that such an officer has the general direction, and control of the affairs of the corporation, and authority to bind it by contracts for nursing, etc., of persons injured on the line of the railway.</p> <p>Same.' — Ratification of Contract. — The general manager having authority to thus contract, the corporation will be held liable by his ratification of. such a contract made by the road-master.</p>

<p>Supbeme Couet.— Weight of Evidence. — The Supreme Court will not disturb a verdict on the mere weight of evidence.</p> <p>Same. — Real Estate Broker. — Contract.—Commission.—Principal and Agent.— As to evidence sufficient to authorize the Supreme Court in affirming a judgment in favor of a real estate broker for commissions in negotiating the sale of land, see opinion.</p>

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

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

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

<p>Receives. — Right to Sue. — State Comity. — A receiver appointed by a competent court of another State, with authority to sue, may, on the ground . of inter-state comity, maintain such suit in the courts of this State. •</p> <p>Same. — Parties.—Recovery of Trust Fund. — Where a receiver is appointed by a competent court and authorized as such, or jointly with the beneficiary -of the fund, to sue for the.recovery of certain moneys which have been wrongfully paid out, the receiver and. beneficiary may properly join as plaintiffs in such suit, making defendants only the parties liable, and such others as may be necessary for complete relief by reaching lands in which the moneys may have been invested.</p> <p>Judgment. — Reversal.—Payment.—Money paid in satisfaction of a judgment, afterwards reversed, may be recovered back.</p>

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

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

<p>Beplevin Bond. — Judgment.—Ownership.—Res Adjudícala. — Answer. — In an action upon a replevin bond, wherein the complaint averred that upon an issue formed in the repleyin suit, it was adjudged that the defendant therein, who, as sheriff, had levied upon the goods in question, was the owner and entitled to the return of said goods which had been delivered to the plaintiffs therein, -an answer that the plaintiffs had a prior lien upon such goods by virtue of a chattel mortgage, duly executed by the judgment debtor, is not good, as the judgment in the replevin suit concludes the plaintiffs therein as to the ownership of the property and as to its value.</p> <p>Same. — Mitigation of Damages. — Dismissal of Replevin Suit. — Such answer is good in mitigation of damages in a suit upon the replevin bond, where the replevin suit is dismissed without a final adjudication.</p>

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

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

<p>Supbeme Coubt. — Parties.—Appeal.—Where there is a defect of parties to an appeal, the Supreme Court will not dismiss the appeal of its own motion.</p> <p>Mobtqage. — Description of Lands. — Complaint.—Evidence.—A creek is a monument which may be referred to as a boundary in a deed or mortgage without vitiating the description for uncertainty, and a complaint in an action to foreclose the mortgage, which, after giving such description, then adds “ a more particular description ”"by giving the courses and distances of the boundary lines, can not for that reason be regarded as seeking to reform the instrument; and evidence of such extrinsic facts as will make more definite the defective description, is admissible.</p>

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

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

<p>Wills.— Judgment.— Quieting Title.— Former Adjudication. — A judgment quieting title, upon a complaint asserting title by virtue of a will, is a bar to a subsequent suit by a party defendant to the first suit against the plaintiff therein, to set aside the same will upon the ground that the testator was of unsound mind.</p>

<p>Mortgage. — Indemnity.—Agreement to Pay Debt. — .Foreclosure.—Damages.— Where a mortgage of indemnity contains an express agreement of the mortgagor to pay the debt therein described, upon his failure to pay when his liability is ascertained and fixed, and the debt is due, the holder of such mortgage may at once, without having paid the debt or any part thereof, maintain an action for the foreclosure of the mortgage, and may recover therein, as damages, actual compensation for the total probable loss.</p> <p>Sheriee’s Sax-e. — Purchaser’s Title. — Sheriff’s Deed. — The purchaser of real estate at sheriff’s sale requires, for the completion and perfection of his title, the execution of a sheriff’s deed in pursuance of such sale.</p> <p>Same. — Mortgage Debt. — Judgment without Foreclosure. — Execution.—'VoidSale. —Where a personal judgment is rendered for the mortgage debt, without foreclosure of the mortgage, and where, upon execution issued on such judgment, the mortgaged real estate is levied upon and sold by the sheriff, such sale is in contravention of the provisions of section 1105, It. S. 1881, and is inoperative and wholly void.</p>

<p>Special Finding.— Exceptions.— Bill of Exceptions. — Where, without request, a judge finds the facts specially, with his conclusions of law thereon, it stands merely as a general finding, and exceptions to the conclusions of law present no question, and if it he not signed hy the judge it can he made part of the record only hy bill of exceptions.</p> <p>New Trial. — •Evidence.—Where a motion for a new trial, founded upon the erroneous admission of evidence, does not designate such evidence so that it can be identified, no question is presented.</p> <p>Supreme Court. — Bill of Exceptions. — Evidence.—Where the bill of exceptions shows that it does not contain all the evidence, the Supreme Court will not consider whether the evidence supports the finding.</p>

<p>Sale. — Contract.—Statute of Frauds. — Memorandum.—Complaint.—Where the complaint upon a contract for the sale of goods does not allege that the contract was in writing, and does aver that there was a memorandum thereof in writing, giving a copy thereof, the contract is shown to be verbal.</p> <p>•Same.— Conditional Agreement. — Answer.—In such case, an answer, claiming that the contract was upon a condition to be performed by the plaintiff, not averred in the complaint or shown by the memorandum, is an argumentative denial, and good on demurrer. So, also, an answer that two memoranda were made, one signed by the buyer and the other by the seller, the terms being essentially different, is good.</p> <p>Bill of Exceptions. — Statute Constmed. — Sections 626 and 1287, R. S. 1881, do not restore, in cases pending when they took effect, the right to save questions by bill of exceptions arising upon rulings which had before been made upon the trial, and lost because no bill of exceptions was filed within the time required by the previous law.</p>

<p>Township Tbtjstee. — Authority to Bind School Township. — Promissoi'y Bote. —Complaint.—A complaint against a school township on a promissory note given by the trustee, reciting that it was given for certain articles named, “ purchased for the benefit of the schools of said township,” which does not aver that the articles were suitable or necessary, nor that they had been received or .used by the defendant, is bad on demurrer.</p>

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

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

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

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

<p>Decedents’ Estates. — Parties. — Right of Distributees to Sue for Debts.— Heirs. — Persons entitled to an estate by distribution may sue for demands due to an intestate, if there be no administration and no demands against the intestate.</p> <p>Same. — Such suit may be maintained against a debtor who is also a distributee, making defendants also such other distributees as refuse to join as plaintiffs.</p>

<p>Special Finding. — Exceptions.—Record.—Practice.—Where there is in the record a special finding of facts, with conclusions of law properly authenticated, stating therein that “ both parties requested the court to find the facts specially and tS state his conclusions of law thereon,” the case is shown to be within section 551, R. S. 1881, and exceptions to the conclusions of law will present all questions thereon.</p> <p>'Same. — Defective Record. — Trial.—Presumption.—Sup-eme Gowrt. — Where the record shows answers filed, which, however, do not appear, a trial and finding of facts, with conclusions of law and exceptions by both parties, the Supreme Court can not act upon the assumption that there was a trial without an issue.</p> <p>Mortgage.— Wife as Surety for Husband. -Marshalling Secun-ilies. — Priorities. —Estoppel.—T.'& Son, partners, had a mortgage on the lands of E., executed by E. and wife to secure a debt of E., and upon a decree of foreclosure thereof they bought the lands, and assigned the sheriff’s certificate to a stranger, who, after receiving a sheriff’s deed, conveyed the lands to T., one of the firm of T. & Son. There was a prior mortgage on the same lands by E. and wife to W., which included also lands known by T. & Son, when they took their mortgage, to belong to the wife, to secure a debt of E. to W. This mortgage was duly recorded when it was executed, but T. & Son had no actual notice of its existence. On foreclosure by W.</p> <p>Held, that the wife was entitled to a decree requiring that her lands should not be sold until after the lands which were her husband’s when the mortgage was given had been exhausted.</p> <p>Held, also, that T. was not entitled as against the wife to a decree requiring that the lands of the wife be exhausted before resorting to the lands now held by him under his purchase.</p> <p>Held, also, that the wife stood as a surety for her husband, with the right in equity to have the lands of the husband first exhausted, which right, • by reason of its priority in time, was paramount to any right of T. to have the securities so marshalled as to protect him.</p> <p>Held, also, that a covenant in the mortgage to T. & Son (executed in 1875) did not bind the wife personally, and did not estop her to assert her equity as above.</p> <p>Vendor and Purchaser. — Rights of Former Owner who Buys from Bona Fide Purchaser. — The rule that one who has notice of a prior equity may nevertheless secure a good title by purchasing from one who bought in good faith and without notice, does not apply to a purchase by a former owner who had notice of the equity.</p>

<p>Pkomissoby Note. — Execution.— Delivery. — A promissory note is without force unless delivered.</p> <p>Same. — Escrow.-—If a promissory note placed in escrow, to he delivered upon the performance of conditions by the payee, is surrendered to him without the performance of the conditions, such surrender will not constitute a valid delivery.</p> <p>Bes Adjtoicata. — The general rule is, that whatever was or might have been litigated in an action will be deemed to have been settled and adjudicated; but what could not have been so litigated will not be con-‘ eluded by such adjudication.</p> <p>Same. — Evidence.—It is a general rule that if the evidence offered in the second suit is sufficient to authorize a recovery, but could not have produced a different result in the first suit, the failure of the plaintiff in the first suit is no bar to his recovery in the subsequent one, although it is for the same cause of action for which he attempted to recover in the first suit.</p>

<p>Township Trustee. — Mandate.—Affidavit.—Exhibits.—Where an affidavit, for mandate to compel a township trustee to pay an indebtedness stated ' to be shown in detail by certain orders and vouchers filed with the affidavit, and no orders or vouchers are filed as stated, a demurrer to the alternative writ should be sustained.</p> <p>Same. — A township trustee can not be compelled by mandate to pay a debt of the township not ascertained by judgment, or where the amount has-not been ascertained by some officer authorized by law to do so.</p> <p>Same. — Jload Superintendent'. — Expense of Highway. — County Commissioners.— Township. — A superintendent of roads was not by statute authorized to. contract for “ extraordinary ” work on the highways, unless he had the money in his hands to pay for it; nor had the county board authority, after the office was abolished, to make an allowance for his services, binding upon the township.</p>

<p>Railroads. — Inability for Servants’ Acts. — Trespasser.—Negligence.—The servants of a railway company, put in charge of a switching engine used to place cars, have implied authority from the company to remove trespassers from the engine, and if in doing so the trespasser be injured, not in consequence of negligence merely, but because of the reckless manner of doingit, evincing an indifference to consequences, the company is liable.</p>

<p>Special Finding. — A request for a special finding of facts, with conclusions of law thereon, under section 551, R. S. 1881, need not be accompanied by a statement that it is made with a view to except to the conclusions of law.</p> <p>Same. — Exceptions.—Record.—Supreme Court. — In such case, an exception in the words, “ to all of which finding of facts, and conclusions of law thereon, the defendant objects and excepts at the time,” in the same entry which shows the finding and judgment thereon, but following the judgment, though informal, is sufficient to present to the Supreme Court all questions concerning the conclusions of law.</p> <p>Telegraph. — Failure to Transmit Message. — Evidence.—In a suit against a telegraph company for the penalty given by section 4176, R. S. 1881, there can be no recovery without proof that the defendant was engaged in the business of telegraphing for the public.</p> <p>Same. — In such case, where the person to whom the message was sent was absent from town, by reason of which it was promptly left at the hotel where he resided, in charge of the hotel clerk, for him, but by failure of the latter to call his attention to it, his receipt of it was delayed, there could be no recovery.</p>

<p>Railroads. — Fences.—Abandoned Highways. — Animals, etc. — Where the evidence shows that the county commissioners gave permission to a railroad company to occupy a highway, and it has done so for thirty years, the cuts and fills, at some places covering the entire way ; and during that time the public authorities have exercised no supervision over the way, and the public have not usually travelled over it, the jury are justified in finding that the highway, as such, has been abandoned, and that the company should maintain fences.</p> <p>Same. — Instructions.—An instruction, that if the company can fence its road, without interfering with the rights of the public or the management of its road, it is bound to do so, is not erroneous, as against the company.</p> <p>'Same. — The court can not be asked to cover the whole case in a single instruction.</p> <p>Same — Instructions should be considered as a whole.</p> <p>Pleading.— Uncertainty. — Demurrer.—Indefiniteness in apleading is reached by a motion, but not by a demurrer for want of facts.</p>

<p>Witness. — Oi-oss-Examinalion:—Credibility.—-A plaintiff having testified in his own behalf in a suit against a city for personal injury resulting from a defective sidewalk, the defence proposed1 by his cross-examination to show that some three years before he had combined with others to defraud an insurance company, which had taken a risk upon his life.</p> <p>Held, that such cross-examination might, in the discretion of the court trying the cause, be either refused or permitted, without, error, the witness not claiming his privilege.</p> <p>Sake. — For a discussion generally of the right to cross-examine as to matters which tend to disgrace a witness, and cases reviewed, see opinion. Instructions. — An instruction in general terms, which is correct, can not. be objected to upon the ground that it should have been more specific.</p>

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

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

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

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

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