Volume 99 — Indiana Reports

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

<p>Negligence. — Question of Law. — The facts being found, negligence is a pure question of law to be decided by the court.</p> <p>Same.— Verdict. — Special Finding of Facts. — Cities.—Street.—Sidewalk.—Suit against a city for injury in consequence of an obstruction in a sidewalk. Answering interrogatories, the jury found the obstruction to have been a water-box 6 by indios, and 1{ inches above the level of the sidewalk; that the, plaintiff had knowledge of it. The plaintiff, in the dark when it was difficult to see it, stumbled over it and was injured.</p> <p>Held, that the defendant should have judgment, notwithstanding an adverse general verdict.</p>

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

<p>"Witness.— Weight of Evidence. — Supreme Court. — The weight of evidence and the credibility of witnesses are questions for the jury and the trial court, and the Supreme Court will not reverse a judgment on either of these grounds.</p> <p>Same. — Contradiction of Witness. — Impeachment.—A party is not authorized to introduce evidence to sustain the moral character of his witness, whose testimony has been contradicted merely, where no attempt has been made to impeach the moral character or reputation of such witness.</p> <p>Quieting Title. — Cross Complaint.— Verified Answer Denying Execution of Deed. — Burden of Issue. — Where, in an action to quiet the title to real estate, the defendant, by way of cross complaint, asserts that he is the owner of such real estate, and that the plaintiff’s claim thereto is unfounded and a cloud upon his title, which he asks to have quieted, and the plaintiff answers such cross complaint, denying under oath the execution of the deed under which the cross complainant claims to derive title, and the record shows that the issue thus joined was the issue tried below, the burden of such issue rests upon the cross complainant, without shifting or change, throughout the trial.</p> <p>Same. — Requisites of Deed. — Instruction.—In section 2919, R. S. 1881, it is provided that the conveyance of real estate “shall be, by deed in writing, subscribed, sealed, and duly acknowledged by the grantor or his attorney.” An instruction, substantially in the language of the statute, is not an available error, whore the controversy in relation to the execution oí the deed is not between the grantor and the grantee, or one having actual notice of such deed.</p> <p>Same. — Acknowledgment.—Where one of the controverted questions on the trial of a cause is in relation to the acknowledgment of a deed, an instruction as to how and by whom an acknowledgment may be taken is not erroneous.</p> <p>Instructions. — Exceptions.—Whore instructions are objected to solely upon the ground that they do not fully state the law on the subject-matter' thereof, it is incumbent on the objecting party to ask the trial court for additional instructions covering the omitted points, for, in such a case, the mere saving of an exception to the instruction given will not constitute an available error for the reversal of the judgment.</p> <p>¿/red. — Execution of. — Delivery an Essential Requisite. — Intention of Grantor.— The delivery of a deed is an essential requisite of its execution. The deed takes effect from its delivery; and if it should pass into the grantee’s possession without the grantor’s intention that it should become operative, and be used for the purpose apparently intended, it has no legal existence as a deed, and no x^erson can gain any rights thereunder.</p> <p>Sajib.— Unauthorized Delivery. — Record of Deed. — Innocent Purchasers. — A deed delivered without the knowledge, consent or acquiescence of the grantor, is no more effective than a deed wholly forged would be to x>ass the title to the grantee, and the record of such deed will afford no protection to innocent purchasers.</p> <p>Juey. — Misconduct of. — Bailiff’s Presence in Jury-Room. — Counter-Affidavits. Supreme Court. — The unexplained and unnecessary presence of the bailiff of the jury in their room, during their deliberations, is good cause for a new trial, as constituting misconduct of the jury; but where it is shown by counter-affidavits, and the trial court decides, that the presence of the bailiff in the jury-room was necessary to the proper discharge of his duties as bailiff, and did not harm the complaining party, the Supreme Court will not disturb such decision on the weight of the ■evidence.</p>

<p>IVIobtgage. — Foreclosure.—Parties.—Judgment.—A decree of foreclosure is a nullity as to one of several owners of the equity of redemption who was not a party thereto, and is no bar to another suit against him to foreclose.</p> <p>Same. — Subrogation.—Purchaser at Shaiff’s Sale. — If, in such case, there has been a sale under the decree, the holder of the sheriff’s certificate of sale is by subrogation the real party in interest, and he alone can maintain the second suit.</p> <p>Same. — Hits band and Wife. — Joint Tenancy. — If such second suit be against a married woman, holding with her husband as tenants by entireties, the husband also is a proper defendant.</p> <p>Doubts. — Jurisdiction.—The circuit court, being a court'of superior general jurisdiction, has the jurisdiction inherent in such a court, and a specific statute giving it jurisdiction in'a given case is not required.</p> <p>ÜEAii Pabty in Intebest. — Pleading.—The defence that the plaintiff is not the real party in interest must be specially pleaded.</p>

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

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

<p>Interrogatories to Jury. — Submission.—General Verdict. — Answers by the jury to interrogatories, where it does not appear by the record that the interrogatories had been, by the court, submitted to the jury, can not override a general verdict.</p> <p>Same. — Harmless Error. — To refuse to send interrogatories to the jury, answers to which could not overrule or antagonize a general verdict, is a harmless error.</p> <p>Evidence.- — Records.—Parol evidence of the contents of a public record is inadmissible.</p> <p>Same. — The contents of a book kept in another State, called a “ transfer-book,” not shown to be a public record, are not admissible in evidence against one who did not make the entries therein.</p> <p>Same. — Swamp Lands.— Judicial Knowledge.— Title. — Courts take judicial knowledge of the act of Congress of September 28th, 1850, granting swamp lands to the States, and a patent for such lands from the United States to the State of Iowa, dated in 1869, is sufficient proof of title in that State at the date of the act of Congress.</p> <p>Same. — Deed.—Breach of Covenant. — Seizin.—In a suit fár breach of covenant of seizin in a deed, the plaintiff by his evidence showed a chain of deeds beginning with one from K., made in 1868, and extending to the defendant, and then title in the State of Iowa granted by the United States in 1850.</p> <p>Held, that title in the State of Iowa in 1850 was not inconsistent with title in K. in 1868, and, therefore, this evidence failed to show a breach of the covenant, the burden of which, under an answer of general denial, was on the plaintiff.</p>

<p>Assignment op Errors. — Pleading.—Practice.—An assignment of error in the Supreme Court, that neither paragraph of a complaint states facts sufficient to constitute a cause of action, presents no question. Such an assignment can only be made in regard to the complaint as a whole, and if either paragraph is sufficient, such assignment will not avail to reverse the judgment.</p> <p>Railroad. — Killing Stock. — Complaint.—In an action, under the statute, against a railroad company, for killing stock, the want of a formal averment in the complaint, that the plaintiff was damaged by the killing of his cattle, will be unavailing for any purpose after verdict.</p> <p>Same. — Damages.—Evidence.—Upon the question of damages, it is proper to allow witnesses to testify as to the value of animals before and after the injury.</p> <p>Practice. — Signing Pleadings. — Where there has been no motion before verdict to strike out or reject a pleading, because not subscribed by the party or his attorney, the defect will not be regarded on appeal.</p>

<p>Dbiminai. Law. — Manslaughter.—Indictment.—Duplicity.—An indictment, charging that the defendant at, etc., on, etc., did unlawfully and feloniously, without malice, involuntarily kill A. by shooting, etc., the defendant then and there being in the commission of an unlawful act, to wit, drawing a deadly weapon, to wit, a revolver, upon A., and not in defence of his person or property, or of those entitled by law to his protection, whereby, etc., shows an involuntary killing without malice, while committing an unlawful act, and is good as a charge of manslaughter, and is not bad for duplicity.</p> <p>Same. — Eoidence.—Declarations.—Bes Gestee. — Declarations of others, in the presence of the accused, immediately following the fatal act, are part of the res gestee, and admissible in evidence against the accused.</p> <p>Same. — Practice.—Instructions.—Instructions asked after the argument begins may be refused without error.</p> <p>Same. — Attorneys.—Counsel may be called in behalf of the State to assist the prosecuting attorney, and the argument may be opened either by such counsel or by the prosecuting attorney.</p> <p>.Same. — Involuntary Killing while Engaged in Commission of Unlawful Act.— Our statute makes it an offence to draw a deadly weapon upon another, and a person who does this commits an unlawful act, and if deatli results he is guilty of felonious homicide.</p> <p>Same.— Voluntary Drunkenness. — The voluntary drunkenness of the defendant does not change the unlawful character of the act of purposely pointing a loaded pistol at another.</p>

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

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

<p>Intoxicating Liqitor. — Sale by Druggist on Sunday. — A druggist is liable-to fine for selling liquor on Sunday to a person without a physician’s prescription, although the liquor may be purchased and used for medicinal purposes, and this fact is known to the druggist at the time of the sale.</p>

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

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

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

<p>Intoxicating Liquor. — Selling to Minor. — Excuse.—Bwdm of Proof. — Instructions. — One who sells liquor to an infant has the burden of showing an excuse therefor; and an instruction that if the appearance of the infant indicated that he was of full age, and he had so stated to the accused, the latter is excusable, is not correct.</p>

<p>.Drainage. — Complaint to Recover Assessment. — Exhibit.—County Commissioners. — Jurisdiction.—Collateral Attach. — A complaint to recover an assessment for drainage, where the proceedings for drainage were before the county board, is not founded upon the order of the board, but upon the assessment; the order establishing the drain need not be made part of the complaint, and if it appear that by petition and proper notice the board had jurisdiction, the order can not be attacked collaterally.</p> <p>Same. — Judicial Knowledge. — County Boundaries. — Courts will take judicial knowledge of the county in which a public ditch is located, and also ' the lands affected thereby, if the termini and route of the ditch, and the-section, township and range of the lands, be shown by averment.</p>

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

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

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

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

<p>Pbactice. — Trial by Court.' — Taking Under Advisement. — Motion to Set Aside Finding. — Statute Construed. — The requirement of section 551, E. S. 1881, that the court trying an issue shall not hold the matter under advisement more than 60 days, is directory, and a failure to obey it will not affect the determination when made afterwards.</p> <p>Same. — Special Finding. — The court must make a special finding of the facts, and its conclusions of law thereon, when properly requested; but such request must be shown either by an order-book entry, by bill oí exceptions, or by the special finding itself.</p>

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

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

<p>New Trial. — Demurrer to Evidence. — That a demurrer to the evidence, was improperly overruled is not a cause for new trial.</p> <p>Assignment on Error. - If only one of several paragraphs of a complaint be good, an assignment of error that the complaint was bad for" want of sufficient facts is not supported.</p> <p>Railroads. — Fencing.—If the circumstances are such as to justify a failure to fence one side of a railroad track, none is required on the other side, as where on one side freight is loaded and discharged, and there is. a saw-mill and grain elevator from which lumber and grain are laden on the cars for shipment.</p> <p>Same. — Kitting Sioch. — Contributor]/ Negligence. — One who voluntarily permits his cattle to run at large near a railroad, where it is not required to be fenced, is guilty of contributory negligence, if the cattle stray upon the track and are killed by the negligent management of a train, of cars passing upon the railroad, and he can not recover.</p>

<p>Practice. — Pleading.—Harmless Error. — A judgment will not be reversed for erroneously overruling a motion to strike out part of a pleading.</p> <p>Assault and Battery. — Trespass.—Complaint.—A complaint to recover damages for an assault and battery need not aver in terms that the assault and battery was unlawful.</p> <p>Malicious Prosecution. — Complaint.—In a complaint for malicious prosecution, the want of probable cause is properly shown by general averment of the fact, and it is not necessary or proper to allege the evidence of the fact.</p> <p>Same. — Probable Cause. — Instruction.—In such case an instruction that if the prosecution alleged was not set on foot for a public purpose, then there was no probable cause, is erroneous.</p>

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

<p>Mechanic’s Lien. — Evidence.—Supreme Court. — For an example of evidence regarded by the Supreme Court as “fairly tending” to support a verdict for the enforcement of a mechanic’s lien, and sufficient to support it in the Supreme Court, see opinion.</p>

<p>Assignment oe Ebbob. — A joint assignment of errors must be well takeni by all of the appellants who join in the assignment, or else it is not well taken by any and can not be sustained.</p> <p>Same. — Names of Parlies. — Where the names of certain parties to the record appear among the names of the appellants and also of the appellees, but. they do not otherwise appear to be appellees, and they brief and submit the case as appellants, they will be deemed appellants in the Supreme-Court.</p>

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

<p>Quieting Title. — Complaint.—Descr-iptim of Lands. — A complaint to quiet title, describing the land thus, “ commencing at the northeast corner of section” (giving number, town, and range), “thence south about 100 rods to a stone established by the county surveyor, thence west 24 rods, thence south 4 rods, thence west 56 rods to middle dividing line of northeast quarter of said section, thence north on said line to the north line of said section, thence east to the place of beginning,” gives a definite description.</p> <p>Same. — Deed.—Evidence.—Estoppel.—A deed of lands describing the first line as running from the same initial point “south one hundred rods,” and otherwise corresponding with the complaint, shows no title beyond' the distance of 100 rods; but if the stone mentioned in the complaint be still farther south, and the plaintiffs, ignorant of the matter, have been induced to purchase, by a device of the defendant who had knowledge, relying upon his representations that the first line of the tract extended south to the stone, the latter will be estopped in equity to dispute the fact.</p> <p>Same. — In such case parol evidence is admissible to establish the facts which create an estoppel.</p> <p>Beal Estate. — Title.'—'Acquisition by Estoppel. — Title to land may be acquired by an estoppel in pais.</p> <p>Tax Deed. — Where it is not shown that the person bound for taxes has no personal property, a tax deed will not convey title.</p>

<p>Mortgage. — Desmption of Lands. — Complaint.—Foreclosure.—A mortgage of lands described as “ all the lands owned by the mortgagor " can be made certain by evidence aliunde, and therefore is not void; and a complaint to foreclose, describing the lands specifically, and averring that these were all the lands owned by the mortgagor, is, in that respect/ sufficient.</p> <p>Practice. — New Trial. — Waiver.—Special Finding.— Verdict. —A motion for a new trial is not a waiver of a motion for judgment on facts specially found in answer to interrogatories, notwithstanding the general verdict.</p> <p>Mortgage. — Execution.—Fraud. — One who, being illiterate, executes a mortgage without knowledge of its contents, no fraud being shown, can not contest its validity on that ground, nor can his grantee who purchases with knowledge of the mortgage.</p>

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

<p>Wills. — Construction.—Rule in Shelley’s Case. — A devise of the rents and profits of lands to M. until his youngest child shall become of age, “ upon the happening of which event the fee simple of said lands shall then vest absolutely in said M. and his heirs, and may by him or them be disposed of as he or they may'judge best for his or their interest,” vests in M. an estate in fee simple when his youngest child reaches full age, there being nothing in the context or situation of the parties plainly indicating a different intention.</p> <p>Same. — Changing Words. — It is only in the clearest cases that courts will undertake to substitute or change the words of a will.</p> <p>Same. — Effect of term “Heirs.” — When the term “ heirs ” clearly appears to be used as descriptive of a class who are to take as devisees, the fee will not vest in the first taker, but where the word is connected with the name of the first taker, it carries the fee, unless it clearly appears that it Was not used in its ordinary legal signification.</p>

<p>.New Tbial. — Special Findings. — Practice.—Where the court finds the facts specially with its conclusions of law,- matters not in issue, or which, in view of the facts found, are immaterial, need not be found, and the omission to find them is not cause for a new trial.</p> <p>Watebcotjbse. — Levees. — Injunction.—Easement.—One may, by levees on his own land, protect it from overflow by floods, not, however, obstructing the channel of any stream ; and for this purpose he may make his levee over the way of a turnpike company having an easement upon his land, not injuring the use of the way, and though his levee cause a greater overflow of water upon the land of others, and upon the turnpike elsewhere, his levee will be protected by injunction.</p>

<p>Married Woman. — Can not Mortgage her Beal Estate for Husband’s Debt.— Since the act of April 16th, 1881, went into force, a married woman can not execute a binding mortgage upon her real estate to secure her husband’s debt.</p> <p>Witness. — Contradictory Statements. — Evidence of, for Impeachment only. — The contradictory statements of a witness, introduced to impeach him, can only be considered for such purpose, and can not be regarded as substantial proof of the facts in dispute between the parties.</p>

<p>■County Treasurer. — Liability of Sureties on Sond. — Where a county treasurer is elected his own successor, his sureties for the first term are liable for any defalcation existing at the end of that term.</p> <p>Same. — Defalcation.—Application of Payments. — A county treasurer, having served two successive terms, was a defaulter at the end of each, and after-wards made payments upon the aggregate witliout any designation as to their application by any one. Some such payments were derived, 1. From loans and investments of the moneys for which he was in default. 2. From sources having no connection with the office. The sureties on botli bonds were equally solvent.</p> <p>Held, in a suit on the first bond, that the court should apply payments from the funds’ of the first class to the defalcation of the term from the moneys of which the loans and investments were made, and those of the second class to tlio defalcation of the first term.</p> <p>Same. — Settlements.—Pleading. - -To a suit on a county treasurer’s bond an answer that at the close of his term he had accounted for all moneys to, and settled with, the county hoard, is bad on demurrer.</p> <p>•Same. — Payment.—Seply.—Harmless Hrror. — To an answer of payment to a complaint on a county treasurer’s bond, a reply that such payment was made out of inoney coming to the officer as such, during a succeeding term of office, is bad; but it is a harmless error to hold it good on demurrer if it appears by the wscord that there was no evidence whatever offered in its support, and a finding in answer to interrogatories showing that it was not true.</p> <p>Same. — Evidence.—Settlements of County Treasurer. — Harmless Error. — In a suit on a county treasurer’s first bond, the refusal to admit in evidence his annual settlements during his succeeding term of office is a harmless error where it appears that their admission could not have changed the result.</p> <p>Same. — Farol Testimony as to Contents of Boohs of Account. — Competent witnesses who have examined a county treasurer’s books may testify to the amount of the treasurer’s receipts and disbursements, as they appear by the books.</p> <p>Pbactice. — Amendment. — Resweamng Jury. — An amendment of pleadings upon the trial, unless it appears that the issues were changed thereby, does not make it necessary to reswear the jury.</p> <p>Same. — Argument of Counsel. — -In a civil case the court may forbid the argument of a question of law before the jury, there being no controversy as to the facts upon which the question arises.</p> <p>Same. — Supreme Court. — Excessive Damages. — The Supreme Court will not reverse for excessive damages given by general verdict, nor for erroneous instructions concerning the subject of damages and inducing the excess, if in answer to interrogatories the jury has found all the facts, so that the proper damages can be computed, but will affirm on condition that the appellee remit the excess.</p>

<p>CbiminaXi Law. — Sufficiency of Evidence. — Supreme Court. — In criminal as well as in civil causes, there must be an absolute failure of evidence on some material point to authorize the Supreme Court to reverse the judgment merely on the evidence.</p> <p>Same. — Sale of Intoxicating Liquor to Minor. — Evidence.—Case Overruled.— Where evidence is given on the trial, on May 1st, 1884, of a defendant charged with a sale and giving away of intoxicating liquor to a minor, that the prosecuting witness “ will be twenty-one years old the first day of August next,” the court is justified in finding from the evidence that on the 15th day of November, preceding the day of trial, the witness was under twenty-one years of age. On this point Meyer v. Slate, 50 Ind. 18, overruled.</p>

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

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

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

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

<p>Drainage. — Repeal of Statute — The act concerning drainage, of March 10th, 1873, has not been repealed by the act of March 13th, 1879, as to corporations organized prior to the latter date.</p> <p>Corporations. — Dissolution.—Until a corporation once organized has been adjudged dissolved, in a direct proceeding for that purpose, instituted by the State, its existence can not be questioned by a private person.</p> <p>Husband and Wipe. — Tenants by Entireties. — Judgment.—Foreclosure of Lien. — A judgment foreclosing a lien against lands held by husband and wife as tenants by entireties, is not necessarily void; it would be valid if both were parties thereto.</p>

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

<p>Drainage. — Attorney’s Fees. — County Auditor* — The act concerning drainage by proceedings before county boards (K S. 1881, sections 4285,4317,) makes no provision for the payment of attorney’s fees out of the county treasury, and any allowance therefor by viewers is void, and there is no duty on the part of the auditor to issue a warrant therefor.</p>

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

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

<p>Fraudulent Conveyance. — Complaint to Set Aside Deed by Judgment Creditor. Quieting Title. — Trial.—Causes in Equity. — Jury.—A complaint by a judgment creditor to set aside conveyances of real estate as fraudulent, and subject some of the lands to execution upon the judgment, and quiet the plaintiff’s title to some of them already purchased on execution, presents a cause in equity triable by the court under the statute, B. S. 1881, section 409.</p> <p>Same. New Trial as of Night. — Case Distinguished. — Where the complaint seeks to annul a deed as fraudulent, and to quiet the plaintiff’s title as against it, and the defendant by counter-claim claims title to the same lands by virtue of that deed, and seeks to .quiet his title, the defendant, if the finding .be against him generally,' is entitled to a new trial as of right under the statute, E. 8. 1881, section 1004. Butler University v. Conard, 94 Ind. 353, distinguished.</p> <p>Sdpbeme Cotjbt.— Weight of Evidence. — The Supreme Court will not, in any case, whether at law or in equity, reverse upon the weight of evidence.</p>

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

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

<p>County School Supebintendent. — Term of Office. — A county superintendent of public schools, properly elected and qualified, will hold the office until his successor is elected and qualified.</p> <p>Same. — Record of Election. — Evidence.—The record of such election, made by the county auditor, is prima facie correct, and is prima facie evidence of such election.</p> <p>Same. — Election.—Ballots.—Testimony of Trustees. — When the township trustees agree that the election of such superintendent shall be by secret ballot, the election will be determined by the ballots actually cast, and in a suit regarding the validity of such an election the ballots are the best evidence, but when they have been lost, it is proper for the jury to consider the testimony of the trustees who cast the ballots, and of those who counted them and announced the result.</p> <p>Same. — Instructions.—The court should not charge, as a matter of law, that the testimony of the trustees casting the ballots is the best evidence, in the absence of the ballots.</p> <p>Same.— Trustees. — Acquiescence in Announcement. —Where the trustees agreed' that the election should bé by ballot, adhered to that mode throughout, and at the time the result was announced supposed the result was correctly announced, it was error to charge the jury that if the trustees adjourned without objection, an acquiescence in the result might be inferred, and that such an acquiescence would amount to an election.</p> <p>Instbuctions. — Harmless Error. — The refusal of instructions, the substance of which is embraced in others given, is a harmless error.</p> <p>Same. — Not Signed. — The refusal of instructions, not signed by the party, or his attorney asking them, is a harmless error.</p> <p>Same. — Contradictory.—When the instructions are contradictory, etc., and tend to mislead the jury, the judgment will be reversed.</p>

<p>Prom tlie Spencer Circuit Court.</p>

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

<p>©eed. — Execution of. — Delivery an Essential Requisite. — The delivery of a deed is an indispensable requisite of jts-due execution; the deed takes effect from its delivery, and though signed, sealed and acknowledged in proper form, if it pass into the grantee’s possession without delivery by the grantor, it will not operate, as between the parties thereto, to convey the title to the real estate described therein.</p> <p>Same.— Voluntary Unrecorded Deed. — Delivery after Grantor’s Death. — Testamentary Disposition. — Rights of Grantor’s Creditors. — Relation.—Where the grantor signs and acknowledges a voluntary deed to his children' as grantees, in consideration of natural love and affection, and, without having such deed recorded in the proper recorder’s office, seals it up in an envelope and deposits the same with his agent to be delivered to the grantees after his death, and where such deed by its terms is not to take effect until after the grantor’s death, the deed is an attempted testamentary disposition of the land described therein, and, if not executed with the legal formalities of a will, is inoperative to pass the title to the land to the grantees. And where the grantor dies insolvent long after he placed such deed in the hands of his agent, the subsequent delivery of the deed will be ineffectual to defeat the rights of the grantor’s creditors and administrator to sell the land for the payment of his debts; for the rule is that the doctrine of relation, which alone could give effect to such deed, will not be permitted to apply so as to do wrong or injury to strangers to the deed.</p>

<p>Habeas Cobfus. — Practice.—Where exceptions are sustained to the return to a writ of habeas corpus, and no further return is made, the verified petition for the writ showing facts sufficient, the prisoner may be discharged from restraint without further evidence.</p> <p>Divokce. — Custody of Children. — Where, upon granting a divorce, the custody of a child is given to the wife, with directions forbidding its removal from the court’s jurisdiction, a disregard of such directions does not per se give the father a right to such custody.</p>

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

<p>Fraudulent Conveyance. — Assumpsit.—Trial.—Equity.—Where a complaint, as in assumpsit, is to recover a sum of money, and also to subject certain lands fraudulently conveyed to the payment of the judgment, the latter branch of the case is not, under section 409, R. S. 1881, triable by jury, and such a trial is fatal error.</p> <p>Assignment of Error. — Where two or more appellants assign error jointly, any error assigned which is good only as to one of the appellants will not be available.</p>

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

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

<p>Taxes. — Complaint to Set Aside Sale of Land. — A complaint to set aside a sale of land for taxes legally assessed, on the ground that the land was sold .without being advertised, and while the owner had sufficient personal property with which to pay the taxes, is insufficient upon demurrer unless it is also averred that the plaintiff has paid the taxes or offers to pay them.</p> <p>Same. — This rule applies in controversies between the land-owner and the purchaser.</p> <p>Same. — Priority of Liens. — Mortgage.—Purchaser at Foreclosure Sale. — Taxes assessed against the owner of the equity of redemption become a lien upon the land superior to the lien of a prior mortgage given for purchase-money, and where such mortgage is foreclosed, and the land purchased under such decree, by the mortgagee, he takes it charged with such taxes.</p> <p>Same. — Assessment in Another than Owner’s Name. — The assessment of taxes upon the owner’s land in another’s name does not impair the assessment.</p> <p>Same. — Personal Property. — The assessment of taxes for personal property becomes a lien upon the land of the owner in the county.</p> <p>Same. — Misdescription of Land. - — Lien.—A misdescription of land assessed does not destroy the lien of the State for'taxes, and a sale of such land for taxes by such misdescription will transfer the lien of the State to the purchaser.</p> <p>Same. — Private Sale. — A private sale of land for taxes, after notice as required by the statute, will transfer the lien of the State to the purchaser.</p> <p>Same. — Statute Construed. — A purchaser of land for taxes under the act of December 21st, 1872, where the title proves invalid, is only entitled to a lien for the purchase-money, and all subsequent taxes paid by him, at the rate of twenty per centum, under the 3d and 4th sections of the act of March 5th, 1883, which govern such cases.</p>

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

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

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

<p>Instbtjctioiís. — Invading Province of Jmy. — It is error to instruct the jury in the language of 1 Greenl. Ev., sec. 200, expressing the necessity of caution as to evidence of admissions of parties, and the reasons for such caution, as that author gives them, because it invades the province of the jury as to matters of which the jurors are the exclusive judges.</p> <p>Same. — Harmless Phror. — An instruction against a defendant, which is erroneous, will not be held harmless merely because his answer was bad.</p>

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

<p>Deposition. — Certificate.•— Mistalce. — Clerical Error. — Where an officer by whom a deposition has been taken states in his certificate that the deponent, instead of the deposition, was reduced to writing, the mistake is a mere harmless clerical error.</p>

<p>Supreme Court. — Motion to Tax Costs. — Bill of Exceptions. — Practice.—Where the grounds of a motion to tax costs, and the exception to a ruling thereon, are not shown by a bill of exceptions, no question is before the Supreme Court in relation to the ruling.</p> <p>Same.' — ■ Weight of Evidence. — If the evidence is conflicting, the Supreme Court will not undertake to determine the preponderance.</p>

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

<p>Peaciice. — Special Finding. — Conclusions, of Law. — Exceptions.—Where the court, at the request of one or more of the parties, makes a special finding of the facts and states thereon its conclusions of law, and the party objecting thereto merely saves an exception to the conclusions of law, and does not move either for a new trial or for a venire de novo, on appeal he admits that the facts are fully and correctly found, and the error, if any, is predicated solely upon the court’s application of the law to the facts so found.</p> <p>Bailment. — ■ Mutuum or Exchange.— Sale.— Warehouseman.— Mingling of Grain. — Tenants in Common. — Ownership.—Demand.—Conversion.—In November, 1882, one K., a miller and warehouseman, received of W. five hundred bushels of wheat, and agreed verbally to store such wheat until July 1st, 1883; that before that date W. might sell the wheat when he pleased, or that wheat would be returned if called for. The wheat was mingled with other wheat purchased by K., in his flouring-mill, which ground, when running, about two hundred bushels of wheat per day, and thereafter, until March 3d, 1883, ran about one-half of the time. In February, 1883, W. received from K. a writing, in evidence-of the aforesaid verbal contract. On March 3d, 1883, K. ceased to run the mill, and, between that date and July 1st, 1883, he executed to the defendant S. and others a chattel mortgage on all the wheat in the mill, amounting at the time to nineteen hundred bushels. On June 30th, 1883, W. demanded of K. the wheat or the money on his contract, but received neither; and, on July 3d, 1883, W. demanded of the defendants S. et al., while they were removing the wheat from the mill, that they should leave five hundred bushels thereof in the mill for him, which they refused to do, and afterwards converted all the wheat, and the proceeds thereof, to their own use.</p> <p>Meld, upon the foregoing facts, that the contract of K. with W., verbal or written, was not a mutuum or exchange, nor a sale of the wheat, but that it was a contract of bailment, pure and simple.</p> <p>Meld, also, that, under such contract, K. and W. became and were tenants in common of the nineteen hundred bushels of wheat, remaining in the mill, W. to the extent of his five hundred bushels, and K. as to the residue ; and that K. could not sell or mortgage W.’s wheat to the defendants, so as to divest the plaintiff’s title thereto, or to authorize its removal from the mill, after W.’s demand that it should be left there.</p> <p>Meld, also, that when, after such demand, the defendants removed the-wheat from the mill and converted the same to their own use, they became and were liable in damages to the plaintiff, as the owner of the wheat so converted, for its fair value.</p>

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

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

<p>'City. — Opening Streets. — Commissioners.—A person who is financially interested in the opening of a street, or who is father-in-law to a person whose property will be affected by such opening, is incompetent to act as a commissioner, in the assessment of benefits and damages.</p> <p>Same. — Objections to Commissioners.— Waiver. — If a person is served with notice of the second meeting of the commissioners, and before an assessment against his property, has knowledge of the incompetency of any commissioner, he must make the objection then and there. If he does not, he will be deemed to have waived it.</p> <p>Same. — Objections on Appeal to Circuit Court. — If his objection is overruled, or not reported to the common council, or disregarded by the common council, it may be renewed, and tried on appeal in the circuit court.</p> <p>■Same. — Regularity of the Appointment of Commissioners, etc. — No question can be made in the circuit court, as to the regularity of the appointment of commissioners, except by a verified answer.</p>

<p>PxEADiira. — Practice.—Amendment.—Upon the trial of an action for partition it is not error to permit the defendants, at the close of the evidence, to amend their answer by the addition of words which contain, no new fact, but merely modify the terms of the prayer.</p>

<p>Application for mandamus.</p>

<p>Ejectment. — Complaint.—Demand for Possession. — In an action of ejectment for the recovery of real estate, no prior demand for the surrender of possession is necessary, and none need be alleged in the complaint, unless it be apparent from its other allegations that the relation of landord and tenant exists, or has existed, between the plaintiff and defendant in regard to such real estate.</p> <p>Quieting Title. — Possession.—Complaint.—Demand.—Under section 1070, R. S. 1881, any person claiming title to real property, “either in or out of possession,” may bring an action to quiet such title; and therefore, it is not necessary to allege in the complaint, in such action, either that the plaintiff is entitled to the possession, or has demanded possession, before the commencement of the suit.</p> <p>Fobmeb Adjudication. — Party to Decree. — Estoppel—Title to Real Estate — A party to a decree in a former adjudication between the same parties, in relation to the same subject-matter, is bound and concluded by each provision of the decree, and can not acquire any title to or interest in the real estate, which was the subject of the former adjudication, except by a substantial compliance with all the provisions of such decree.</p> <p>Ejectment, — Real Estate Owned by Stale. — Officers of the Slate. — Auditor of Slate. — Statutory Power. — Agreement.—An officer of the State has no power or authority over any real estate, owned by the State, except such as has been or maybe conferred upon such officer by positive statute; and where the State sues for the recovery of such .real estate, and the defendant relies upon an alleged agreement with the auditor of State in defence of such suit, unless it appears that the auditor of State was expressly authorized by statute to make the agreement, as against the State such agreement is absolutely void.</p> <p>Same. — Growing Crops. — Where the plaintiff in ejectment recovers the land, he is entitled to the crops growing or cut and shocked thereon, which were planted after the commencement of his action.</p> <p>Taxes. — Sale of State’s Land for. — Deed.— Void. — The sale and conveyance of land owned by the State, for delinquent taxes assessed thereon, are invalid and void, because the State’s land is not subject to taxation.</p> <p>■ Trespass. — Husband and Wife.— Wifeis Torts. — Joint Inability. — Damages.— Under the law of this State, prior to September 19th, 1881, husband and wife were jointly liable in damages for the wife’s torts, where it appeared that she was the principal tort-feasor and committed the trespass complained of, not in company with nor by the order of her husband.</p>

<p>Fbatjdui/ent Conveyance. - Evidence. — Ti-ansfer to Bank. — Husband and Wife. — In an action to set aside certain conveyances as fraudulent, made by an insolvent debtor to a bank in payment of credits due. the bank, as was claimed, evidence that such debtor’s wife then held 537,700 of the stock of such bank in trust for him, has a tendency to show that such transfer was fraudulent as against other creditors.</p> <p>Same. — The fact that a large amount of property, consisting of town lots, saw-mill, saw-logs, lumber and other personal property, was conveyed by an insolvent debtor to such bank in payment of credits claimed to be due, without inventory, measurement or count, furnishes some evidence that such transfer was fraudulent as against other creditors.</p> <p>Same. — ■'Where the cashier of such bank is cognizant that the transfer of such property will inure to the benefit qí one of such debtors by enhancing the value of the stock held by his wife in trust for him, and that such excess is thus placed beyond the reach of other creditors of such debtors, these facts, in connection with the fact that such cashier knows that such debtors are insolvent, furnish some evidence that said Bank participated in the alleged fraudulent intent of such debtors.</p> <p>Same. — Estoppel.—The fact that one of the creditors who instituted the action had obtained a judgment, and had levied upon one of the pieces of real estate that had been transferred, did not preclude him from maintaining the action.</p> <p>Same.— Weight of Evidence. — Where the evidence in such case tends to support the finding, the Supreme Court will not disturb it.</p>

<p>Cbiminal Law. — Gaming.—Evidence.—A charge in an indictment, that the defendant played a game of pool upon a pool table with another person, and thereby won money from him, is sustained by proof that the parties played under an arrangement that the losing party should pay the owner of the table the amount charged for the use of it, and that the defendant won the games, and the other party paid for them.</p> <p>, Same. — -It is not necessary to prove the winning of the whole amount, charged in the indictment.</p>

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

<p>Partnership. — Accounting.-—Trial by Jury. — Practice.—Under the law as it stood prior to 1881, parties to a suit to settle partnership affairs were entitled to a trial by jury.</p> <p>Same. — Harmless Error. — The refusal of a trial by jury is not a harmless error, although upon a se'cond trial under the code of 1881 the parties would not be entitled to a jury.</p> <p>Same. — Beference to Master Commissioner. — Where a party is thus entitled to a trial by jury, the court could not, over his objection and demand for a jury, refer the case to a master commissioner.</p> <p>Same. — Bill of Exceptions. — The reference to the master being a part of the record without a bill of exceptions, the objection and exception to such reference is also a part of the record without a bill of exceptions.</p> <p>Same. — Beference.—-Written Consent of Parties. — Under 1 E. S. 1876, p. 629, et seq., the written consent of the parties to a reference to a master commissioner is not required, as in case of a reference to a referee under section 349, 2 E. S. 1876, p. 178.</p>

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

<p>Deed. — Infant Mamed Woman. — If a married woman, while an infant,, signs and acknowledges, with her husband, a deed for her real estate, and authorizes him to deliver it, and he delivers it with her consent after she becomes an adult, such deed can -not be avoided by her on account of infancy.</p> <p>Same. — Husband as Agent. — A husband may act as his wife’s agent, and such agency may be conferred before he acts, or his acts may be subsequently ratified.</p> <p>Same. — Quieting Title. — Complaint. — A complaint to quiet title, alleging that the defendant who was once seized of the land gives out in public speeches falsely, that her conveyance thereof was made when she was an infant, and that she was still the owner, whereby the plaintiff’s title was clouded, is good on demurrer. > "</p> <p>Same. — Married Woman. — Evidence.—Upon a complaint to quiet title, alleging the facts to be that the plaintiff, a married woman, was seized of the land and executed a conveyance thereof while an infant, in which her husband joined, and that she had disaffirmed the deed, is not supported by proof that the deed was ineffectual for want of such a certificate of acknowledgment as the statute' required to give validity to the deed of a married Woman.</p>

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

<p>Ratlboads. — Negligence.—Pleading.—A complaint against a railroad company for killing cattle upon a highway crossing, by reason of negligent failure to sound the whistle and ring the bell, as the statute requires, without any negligence of the plaintiff, is good.</p> <p>Same. — Negligence of Plaintiff. — Cattle at Large. — Where, in such case, it appears by evidence that the plaintiff’s cattle were running at large, and it is not shown that there was an order of the county board allowing cattle to run at large, a verdict for the plaintiff will be set aside. '</p>

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

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

<p>Pasties. — Suit on Replevin Bond.— Waiver. — Where a replevin bond is executed to a sheriff and execution plaintiff jointly, and an action thereon is subsequently brought by the execution plaintiff alone, the defect of plaintiffs will'be waived by the failure of defendant^ to demur therefor.</p> <p>Execution. — Sale of Mortgaged Chattels. — Possession.—Under the statute mortgaged chattels may be levied upon and sold, subject to the mortgage, to satisfy an execution against the mortgagor. The officer is entitled to possession of such chattels,- as against the mortgagee, for the purpose of making the sale.</p> <p>Assignment oe Ebbob. — Assignments of error, such as “ rendering judgment for the defendant bn the finding,” and “not rendering judgment for the plaintiff for the full value of the corn replevied,” are too general to present any question; and, besides, such objections can not be made for the first time in the Supreme Court.</p> <p>Replevin. — Judgment.—Where there is no judgment for the return of the property replevied, there can be no judgment for its value.</p> <p>Supbeme Coubt. — Harmless Error. — Where the facts are specially found by the trial court, and no objection is made to the finding, and it appears that, upon the facts so found, the judgment is clearly right, such judgment will not be reversed for intermediate errors.</p>

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

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

<p>Fixtures. — Mortgage.—Foreclosure.—Purchaser.—Agreement.—The owner of real estate with a flouring mill thereon, which was subject to a mortgage duly recorded, procured new machinery therefor on credit, upon agreement that title to the machinery should not pass until it was paid for. The machinery was attached to the realty as was intended.</p> <p>Held, that a purchaser upon foreclosure took title to the machinery as against the vendor of it, notwithstanding the contract and a failure to pay for it.</p>

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

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

<p>Bailboads. — Negligence.—Defective Bridge. — Pleading.—In a suit against a railroad company for injury resulting from its negligence, an express averment that the plaintiff was guilty of no contributory negligence is not necessary, if that fact otherwise appears, e. g., as where it is averred that while the plaintiff, being a passenger, was seated in the defendant’s coach, the coach, by reason of the defendant’s negligence, broke through a bridge, whereby, etc.</p> <p>Same. — Care Required to Protect Passengers. — Presumption.—Evidence.—Proof that a railroad passenger was injured by the train breaking through a bridge raised a presumption of negligence by the carrier, which may be rebutted by proof. The slightest negligence in such case imposes liability, the care required being the greatest that is practicable in keeping the machinery and bridges in safe condition, consistent with what are the known means of attaining that end.</p> <p>Same. — Instruction.—In the absence of proof that the safety of a properly constructed railroad bridge may depend upon the soundness of a single iron rod, the jury should not be instructed that if the bridge broke down because of a defect in such single rod, which was not discoverable, and the injury resulted therefrom, there eould be no recovery.</p> <p>Pbactice.— Venire de novo. — Answers to Interrogatories. — Gases Modified.— Where the general verdict is in proper form, a failure of the jury to answer interrogatories does not authorize a venire de novo. Peters v. Lake, ■55 Ind. 391, and Carpenter v. Galloway, 73 Ind. 418, modified.</p> <p>Same. — Evidence.—Rebutting.—Evidence which controverts that of the defendant as to particular facts is proper in rebuttal, though the same evidence would also have been proper as part of the plaintiff’s original case.</p>

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

<p>Beal Estate. — Quieting Title. — Sale for Tares. — Description.—Mistake.—Complaint. — Demurrer.—Whore, in a suit by the grantee in a tax deed to quiet his title to certain described land previously sold for delinquent taxes, the plaintiff avers, among other things, that such land had been by mistake entered upon the tax-duplicate by a description so indefinite and erroneous that the tax deed conveyed no title thereto, but that such description was intended to apply to and cover the land in suit, his complaint is sufficient on demurrer to entitle him, as such grantee, to the remedy against the land intended to be taxed and sold, provided in section 257 of the act of December 21st, 1872, for the assessment and collection of taxes, 1 B. S. 1876, p. 129.</p> <p>■Same. — Partial Answer. — Merger.—Mortgage Debt. — A paragraph of answer, which is expressly limited to a specific part of the complaint, is not bad on demurrer merely because it fails to answer the whole complaint,.nor is there any such merger of the debt secured by mortgage, in the decree foreclosing such mortgage, as will make it error to describe such debt as a mortgage debt, or as will invalidate an agreement to assume and pay the debt by that description.</p> <p>'Same. — Sale for Taxes. — Purchase by Mortgagor or his Grantee. — Payment.— The mortgagor of land, or his grantee remaining in possession, owes a duty to the mortgagee to keep down the taxes, and if he, unmindful of his duty, allows the taxes to become delinquent, and directly or indirectly purchases the laud for such taxes, such purchase operates only as a payment of such taxes, and the purchaser acquires no rights thereby as against the mortgagee.</p> <p>Pbactice. — Bad Answer. — Overruling Demurrer. — Harmless Hrror. — The overruling of a demurrer to a bad paragraph of answer is a harmless error, when the evidence is in the record and shows clearly and conclusively that the error did not affect the substantial rights of the plain- ■ tiff, and that notwithstanding such error “ the merits of the cause have been fairly tried and determined in the court below.”</p>

<p>Trust and Trustee. — Fraudulent Conveyance. — Agreement.—Statute of Frauds. —Statute of Limitations. — Demand.—Presumption.—Where one holds lands in secret trust for another, to defraud creditors, and by subsequent parol agreement the land is converted into money to be used by the trustee in paying the creditors, the balance to be put at interest until called for or until the grantor’s youngest child reaches full age, the new agreement purges the original fraud, is valid though not in writing, the statute of limitations does not begin to run until demand by the cestui que trust or full 'age of the youngest child, and the lapse of twenty years raises no presumption of payment.</p> <p>Harmless Error. — Pleading.—Error in sustaining a demurrer to a paragraph of answer to one of several .paragraphs of complaint is harmless, if the same issue was made upon another paragraph of the complaint, and upon trial was found against the defendant.</p> <p>Same. — It is harmless error to sustain xl demurrer to a paragraph of answer, all the averments of which are provable under another issue made by the pleadings.</p> <p>Decedents’ Estates. — Appointment of Administrator. — That a prior administrator has been discharged because he could find no assets does not prevent the appointment of an administrator de bonis non; nor is the fact that proceedings are pending for the removal of the latter a reason for abatement or stay of proceedings of a suit instituted by him.</p> <p>Same. — Collection of Debts. — Where there is no widow, and no debts against an estate, the heirs-may collect debts due the estate without an administrator, but this can not prevent the appointment of an administrator.</p> <p>Evidence. — Lost Writing. — Immateriality.—Where a writing, which would be proper evidence, is shown to be lost, parol proof of its contents is admissible, and if the evidence be immaterial it is necessarily harmless.</p> <p>Practice. — Pule of Court, Enforcement of. — Where a rule of court forbidding the removal of papers from the files has been violated by an attorney in the cause, as to depositions, the court may strike out his motion to suppress parts thereof.</p> <p>Same. — Amendment of Pleading. — Discretion.—The trial court has much discretion in the matter of amending pleadings, and this is not abused by refusing an immaterial amendment.</p> <p>Same. — Interrogatories to Jury. — ;In a suit by an administrator to recover money held in trust, it is immaterial whether there are demands against the estate or not, and interrogatories upon the subject should not be sent to the jury.</p>

<p>Wills. — Revocation.—Destruction.—Insanity.—The destruction of a will by the maker during a temporary fit of insanity is not an act done with his consent, and does not revoke it, nor, under the statute, R. S. 1881, section 2609, prevent its proof and establishment as one destroyed.</p> <p>Same. — Probating Will. — Ekvdence.—Copy.—In proceedings to prove and establish a will destroyed, proof that the testator caused it to be recorded (in the recorder’s office, and that the record there found is a correct copy of the original, with evidence given by the attesting witnesses that the original was duly executed, is sufficient to show that the copy as recorded is a true copy, and it is then admissible in evidence.</p> <p>Practice. — Competency of Witness. — Evidence.—Harmless Error. — If a witness be competent as to any matter in issue, there is no available error in overruling a general objection “ that he is incompetent,” and in any event, if he testify only to matters which are established by other evidence without conflict, the error, if any, is harmless.</p>

<p>Railroads. — Appropriation of Land. — Description.—Amendment.—Under section 3909, B. S. 1881, the court has power, during the pendency of a proceeding by a railroad company to condemn land for the right of way of its road, to permit the plaintiff to amend the description of the land so condemned, as set forth in the article of appropriation and in the proceedings thereunder.</p> <p>Same. — Supreme Court. — Presumption.—Damages.—In such case the Supreme Court will presume, in the absence of the evidence adduced at the trial, that if the quantity of land appropriated was augmented, or the damages of the owner increased, by reason of -such amendn^ent, these facts were considered by the jury in making their assessment.</p>

<p>Judgment. — Application to Set Aside. — Complaint.—Defects Cured. — In the absence of a demurrer or a motion to make more specific, a complaint to set aside a judgment rendered by default, which fails to allege the date thereof any more definitely than that it was “ on the — of -, 1882,” will be deemed cured after a finding.</p> <p>Same. — Fraud.—Former Adjudication. — Negligence.—An adjudication of a motion to set aside a judgment rendered by default, on the ground of excusable neglect, is not a bar to a subsequent action to set aside such judgment for fraud, even if the plaintiff had knowledge of the fraud when his motion was made.</p> <p>Same.— Variance. — Where a complaint to set aside a judgment alleges a judgment by default for three thousand dollars, and the proof shows it to be three thousand five hundred dollars, the variance is not material.</p> <p>Witness. — impeachment.—The impeachment of the character of a witness is only one of the modes of testing his credibility, and the court or jury may believe such witness notwithstanding his impeachment.</p>

<p>Deaihage. — Complaint.—Exhibit.—In an action to enforce an assessment made under the drainage act of April 8th, 1881, B. S. 1881, section 4273, et seq., the complaint is bad if the assessment made by the commissioner charged with the execution of the work, or a copy thereof, is not filed with the complaint or made a part'thereof.</p>

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