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hcirs, directed that the remainder any evidence of hope in the lan-
of his real estate be sold and the guage or actions of the declarant,
proceeds "cqually divided between his statements will be rejected.. Ibid.
my lawful heirs, after deducting the 5. Sale.- Deceit.- Examination of
amounts that the following named Goods by Jury.—Upon the trial of
heirs have reccived:

an action for deceit in the sale of a
daughter F. has received $2,109; J. quantity of flour, its quality at the
has received $1,000.

I want my

time of the sale being in question,
heirs to be made cqual, and the re- the court refused to permit the flour
mainder of my estate to be cqually to be examined by the jury, to test
divided between my heirs."

its odor.
Complaint by F. and J. against the Ileld, that it was properly excluded.
widow, the other heirs and devisces, llagee et al. v. Grossman.....
and the executor, alleging, that the 6. Number of Witnesscs.-A party
testator recited and charged said cannot lawfully be limited by the
sums against the plaintiffs crrone- court to one witness upon i vital
ously, through mistake and inad- point in issue. Ilubble v. Osborn.249
vertence; that, in truth, T. had rc- 7. Same.Resulting Trust.-Suit by
ceived only $300, and J. had rc- A. against B. and C. for possession
ceived no advancement whatever. of certain real estate purchased by
Prayer, that the mistake be correct- the plaintiff at sheriff's sale on an
cd, and that, in making distribution cxccution in favor of the plaintiff
under the will, the advancement issued upon a judgment against B.,
charged to J. be escluded, and that the legal title at the time of sucli
TY, 7.

charged to F. reduced to $300. sale standing in the name of C., to
Vield, that the matter sought to be wliom it had been conveyed by D.

contradicted was not simply the rc- The plaintiff claimed that B. had
cital of a fact (although if merely paid the purchase-money, and, to :
such the plaintiffs would, it seemcd, defraud his creditors, particularly
have been estopped from denying the plaintiff, to whom lie was then
the truth of the recital), but also a largely indebted, procured the con-
limitation upon the interest of the veyance to be made by D. to C. It
plaintiffs in the estate devised. was claimed in defense, that in mak-
Ileld, also, that evidence dehors the ing the purchase B. acted as the au-

will was not admissible to prove the thorized agent of C., who was not
alleged mistake.

present, and that B. advanced the
IIeld, therefore, that the complaint was purchase-money in pursuance of an
bad on demurrer...

Ibid.

agreement with C. by which lie was
3. Dying Declarations. When Ad- to so advance it as a short loan to C.,

mitted. Where the statements of a who soon afterwards repaid the mon..
person are offered in evidence as ey. On the trial, B. testified to this,
his dying declarations, the proof effect, and C. testified to the same
must clearly show that the decla- facts, cxcept as to the fact of the
rant was in fact at the very point of loan, concerning which the court
death, and that he was fully con- refused to allow him to testify.
scious of that fact, not as a thing of Ileld, that this refusal was crror..Ibid.
surmise and conjecture or appre- 8. Same.- Admissions. The admis-
hension, but as a fixed and inevitable sions and declarations of the person
fact. Morgan v. T'he State ........193 paying the purchase money made

Same.-It is not required that the after the conveyance to the other
deceased should have declared in person, are not admissible in evi-
terms that he expected to die at dence against the latter.......... Ibid.
once, if his condition was such that, I. Statement of Evidence to Jury.-
of necessity, such an impression Bill of Exceptions.—The statement
must have existed on his mind. On of the evidence which a party is
the other hand, no matter how strong allowed to make to the jury by sec-
the expression of this certainty of tion 324 of the code is, as to it3 .
death may have been, if there be brcvity or prolixity, a matter to be

VOL. XXXI.-33

left, to a considerable extent, to the See PRACTICE, 3; PRINCIPAL AND SCRE-
control of the court trying the cause;
and where the interference of the
court is complained of on appeal, EXECUTOR AND ADYINISTRA-
the bill of exceptions must show the

TOR.
statement that was being made

See DeceDENTS' ESTATES.
when the court interposed. Ayles-
worth et al. v. Brown et al.........270

EXHIBITS.
10. Statute Book of Another State.-

A book purporting to be Swan and
Critchfield's edition of the statutes

See PLEADING, 21.
of Ohio was offered and, over ob-

EXPRESS COMPANY.
jection, admitted in cvidence. By
the title-page it appeared, that it
was "published by the State of

See Common CARRIER, 1, 2, 3.
Ohio, and distributed to its officers,
under the act of the General Assem-
bly."

FALSE IMPRISONMENT.
Held, that there was no error. Paine
et al. v. The Lake Erie f Louisville

See ARREST.
R. R. Co.......

.283
11. Statute of Another State.-Cor-

FALSE PRETENSES.
poration.- Pleading.- Where a stat-
ute of another State constitutes a See Criminal Law, 11, 48 to 54.
part of the organization of a corpor-
ation suing in this State, it is not

FEES.
necessary to its introduction in cvi-

Sce OFFICE AND OFFICER, 1, 2.
dence by the plaintiff that it should

have been pleaded........ ...... Ibid.
12. Parol Evidence. Written Order. County Clerk.- Where Nolle Prosequi
Trees were delivered to a buyer up-

is Entered.-A county is not liable
on his written order directed to the

to its clerk for fees taxcd by bin
seller, for certain trees at specificd

for services rendered in a criminal
prices.

prosecution disposed of by a nolle
Ileld, that parol cvidence was admis-

proscqui being entered. Board of
sible to prove an agreement of the

Com'ts of Morgan Co. v. Johason.463
parties at the time of making said

FENE COVERT.
order, that the seller should replace
any of the trees that might not
grow. Morehead v. Murray et al..418

See IIUSBAND AND Wife.
:13. Principal and Agent.-- Declara-

TENCES.
tions.-As steps in proving the au-
thority of one as an agent in the
transaction in controversy, cvidence

Sce RAILROAD, 1, 12.
of his similar transactions with dif-

FINES.
ferent persons and of his declara-
tions therein was held admissi-
ble

...Ibid.

Sec Criminal Law, 23.
EXAMINATION OF WITNESS.

FORGERY.
Sce WITNESS, 1, 2, 4.

See ESTOPPEL, 5.

1. Indictment.-An indictment for
EXCEPTIONS.

defacing and destroying a promis-

sory notc, in which it is alleged, 23
Sce Bill of Exceptions; Practice, 8, an excusc for not setting forth the
18, 28, 30.

tenor of the note, that it was de-

stroyed by the defendant, must stato
EXECUTION.

its substance and effect.' Birdy F.
The State..........

.88

2. Same.—An indictment for defacing the profits of a contract for the con-

and destroying a promissory note struction of the road as to give them
must show whether the note was a standing in a court of equity to
for the payment of money or prop- interpose an objection to the con-
crty......

... Ibid. summation of a compromise between

the railroad company and its con-
FRAUD.

tractor, Painé et al. v. The Lake

Erie f Louisville R. R. Co........ 283
See PLEADING, 12; Practice, 5; RE- 5. Same. - Stockholders. - An arrange-

SCISSIOx, 1 to 6; TRUST, 8; VOLUN- ment made by persons who are di-
TARY CONVEYANCE, 3.

rectors of a railroad company withi

a contractor, by which such persons
1. Sale.- Agent.—On a sale of goods are to share in the profits of the

it was agreed that the buyer should contract for the construction of the
give to the seller, in payment, upon road, can only be confirmed by the
delivery of the goods, notes of sol- stockholders, and not by the direct-
vent persons. A certain note so ors of whom the guilty persons form
given was not such as the contract a part..........

.Ibid.
thus called for, and the buyer, know-
ing this, fraudulently deceived the FRAUDS, STATUTE OF.
seller's agent, to whom he delivered
the note, knowing him to be such See STATUTE OF FRAUDS.
agent and knowing that the pro-
ceeds of the sale were to go to, and FRAUDULENT CONVEYANCE.
become the property of, the agent,
who, on discovering the deceit, of-

See PRACTICE, 5.
fered to return the note to the buy-
er and demanded of him other good FUGITIVE FROM JUSTICE.
notes. There being evidence of these
facts in a suit by the seller against Appeal.—No appeal by the State to
the buyer, the plaintiff bringing the the Supreme Court lies from the
note into court and offering to re- ruling of a judge discharging from
turn it to the defendant; there was arrest a prisoner brought before him
a finding for the plaintiff in a cer- for examination as provided by the
tain sum, and that the defendant be act of March 9th, 1867 (Acts 1867,
entitled to withdraw the note from p. 126), “to regulate the arrest and
the files of the court and hold it as surrender of fugitives from justice
his own.

from other states and territories."
TIeld, that the finding was correct. The State v. Morgan..........

....66
Kinney v. Blythe.....
2. Same.- Deceit.- Where a seller

of goods knowingly makes false
representations to the buyer as to

GIFT.
their quality, but the buyer does not

See HUSBAND AND WIFE, 14.
rely upon such representations and
is not deceived thereby, the selleris

GOVERNOR.
not liable in an action for deceit.

Hagee et al. v. Grossman............ 223
3. Same.- Where a seller has made

See Court of Commox PLEAS, 2.
false representations as to the qual-

GRANT.
ity of the goods, but the buyer, in
making the purchase, relies on a Sce GUARDIAN AND WARD, 7.
test of their quality made by his
own agent, who is not prevented by

GRAVEL ROAD.
any act or word of the seller from
testing the goods, the seller is not

Sce TURNPIKE.
liable for deceit....... ........
4. Railroad.- Directors.-Persons who GUARDIAN AND WARD.

arc directors of a railroad company
cannot acquire such an interest in 1. Pleading.- Complaint. Promise..

....140

..... Ibid.

A complaint against a guardian, to court of superior jurisdictior having
recover for maintaining and provid- authority to make such appointments
ing for his ward, did not contain any and jurisdiction of guardians' peti-
arerment of a request or promise tions to sell lands, but without juris-
made by the defendant, or any alle. diction to make the particular ap-
gation that he had failed to provide, pointment, sells land of his ward, un-
within the means in his hands as deran order of such court, to one who
guardian, for the reasonable wants purchases and pays for such land,
of his ward.

relying in good faith on such ordco,
lleld, that the complaint tras bad on such purchaser will be protected i:

demurrer for want of suflicient facts. the title so acquired, if the guardian

Gwaltney, Guard., v. Cannon ..... 227 applies the proceeds properly. lod
2. Jurisdiction.- Associate Judges. in an action by the late ward, er-

The Associate Judges, as a Court of rived at majority, to recorer such
Probate, had jurisdiction on the Joth land, a debt of the guardian against
of August, 1829, to appoint guardi- the deceased father of the ward,
ans for infants, and such court was through whom the plaintiff claims
a court of record. It had jurisdic- title, allowed by such court as a
tion of guardians' petitions to sell credit to the guardian apon settle-
lands. Such jurisdiction extended ment, will be presumed to have been
to lands situated anywhere within rightfully allowed...... ........Ibid.
the State. Though the law required 7. Indian Treaty.-Grant- Relation.
a bond to be given before entering A section of land, to be located un-
the order of sale, the failure to re- der the direction of the President,
quire one would not render the pro- was granted to a certain persoa by
ceeding void. Dequindre et al. v. an Indian treaty; and after the death
Williams....

.444

of the grantee the proper court, up-
3. Same.--- Probate Court.-The Pro- on petition of the guardian of the

bate Court, upon its organization grantee's heirs at law, ordered the
under the act of 1829, had authority sale of the unlocated section; and,
to take jurisdiction of matters in the land having been located by the
relation to guardians and wards then assignce of the purchaser at such
pending in such Court of Probate guardian's sale, the proper court
held by the Associate Judges, and ordered a conveyance of the specific

conduct them to conclusion..... Ibid. land to such assignce, which was
4. Same.- Collateral Proceeding:- made, but never approved by the

Where a proceeding in a court of President.
superior jurisdiction is of such a lield, that, by the doctrine of relation,
character that upon final action the the treaty operated instantly in law
court should, from the nature of the as a grant, the subsequent location
casc, ascertain whether it is such in of the land merely ascertaining the
fact that it has jurisdiction to act as specific thing which was granted.
it is invoked to do, and it does so Iield, also, that the approval of the
act, the matter cannot be questioned President was not necessary to the
collaterally ...

..Ibid. validity of the guardian's deed of
5. Same.--- Residence of Ward.The conveyance .....

......Ibid.
Associate Judges, as a Court of Pro- 8. Same.- Case Stated.-Suit by the
bate, on the 10th of August, 1829, heirs at law of A, against B., to re-
appointed a guardian for certain in- cover certain real estate. Trial upon
fants.

the following agreed statement of
lield, that an inquiry as to whether facts: A section of land was granted

the infants were at the time of such by treaty with the Potawatamics,
appointment residents of this or an- of October 16th, 1826, to A., to be
other state, could not be raised col- located under the direction of the
laterally ..

.......... Ibid. President. It was located, in 1837,
6. Same.- Vendor and Purchaser.- in Allen county, without the terri-

Guardian's Sale.- Application of tory ceded by the Indians under said
Proceeds.- Where a guardian who treaty, the premises in controversy
has received his appointment from a being a part of that section. Ia

1828, A. died, in Illinois, where he
then resided, leaving a widow and
children surviving him, who con-

HEIRS.
tinued to reside in Illinois until
1831, when they removed to Knox

See Pårties, 2, 3.
county, in this State, prior to which
they liad no property in Indiana,

IIIGHWAY.
except the unlocated land. It ap-
peared by the record of certain pro- See APPEAL, 3; CrimiNAL LAW, 3; Nu-
ceedings in Knox county, that on

SANCE, 1, 2.
the 10th of August, 1829, the court See BROOKOVEN v. Forst, 255.
doing probate business, held by the
Associate Judges, appointed a guar- 1. Practice.- Obstruction of ligh-
dian of A.'s children, the plaintiffs way.-Injunction.-In an action to
in this action, and that "there being enjoin the obstruction of a public
no property,” no bond was required. highway within the limits of an
The bond required by law was to be incorporated town and under the
in double the value of the personal jurisdiction and control of such cor-
property. On the following day, the poration, brought by a plaintiff who
guardian presented his petition to predicates his right to such relief on
cell the unlocated section, and, after the ground that he is the owner of
an appraisement at $80e, the sale certain lots fronting upon the high-
Tas ordered, the guardian to give way obstructed, such corporation is
bond with surcties approved, within not a necessary party plaintiff. De-
thirty days, but no such bond ap- bolt v. Carter ct al......

355
peared in the transcript of the pro- 2. Same.- Another Action Pending.--
ccedings. The sale was to be pri- Suit by the owner of certain town
Tate, for onc-half cash and the bal- lots, denying the existence of a high-
ance in two cqual annual instal- way upon and along a portion therc-
ments. In August, 1839, the guar- of, as claimed by the defendant, and
adiun reported to the Probate Court, seeking to quiet the plaintiff's pos-
that in Norcmber, 1831, he had sold session of the lots, freed from the
the float for $1,000 to one who claim of such highway, praying a
transferred his right to another, and perpetual injunction against the
Bc to C., who paid 'the purchase- defendant, restraining lim from dis-
money and, after having procured turbing the plaintiff's possession or
the land to be located, died; the re- asserting an casement over the lots
port describing the section located. as a public highway. After answer
The Probate Court confirmed the and reply, thc defendant filed a cross
sale and directed a conveyance of complaint, asserting the cxistence of
the specific land to the heirs at law an casement as a public highway
of C., which was accordingly dc- over a part of said lots, charging
lirercd, but was never approved by the plaintiff with having unlawfully
the President. The title of C. and obstructed it, to the special injury
his heirs afterwards became vested of the defendant, and praying that
in B., who, with his grantors, paid the plaintiff be perpetually enjoined
taxes on the land and took care of from repcating or continuing such
and protected it from 1841, thongh obstruction.
not in actual possession, till the Ileld, that the cross complaint was not
commencement of this action, in bad on demurrer on the ground that
1365. From its location in 1837 till another action was pending between
1841 it was worth $30 per acre. the same parties for the same cause,
From January, 1829, till 1840, the to wit, the original complaint, the
United States, it was admitted, lield answer, and the reply...... ..Ibid.
public lands in Knox county and 3. Uscr.- A county road was located
clsewhere, in this State, and other by the board of county commission-
states. Upon this cvidence the court crs, in 1840, over certain lands, the
found for the defendant,

location being defective for not
Hell, that the evidence sustained the specifying the width of the highway;
finding

...Ibid. but, in pursuance of the order of

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