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heirs, directed that the remainder
of his real estate be sold and the
proceeds "equally divided between
my lawful heirs, after deducting the
amounts that the following named
heirs have received: 發
My
daughter F. has received $2,100; J.
has received $1,000. I want my
heirs to be made equal, and the re-
mainder of my estate to be equally
divided between my heirs."

Complaint by F. and J. against the
widow, the other heirs and devisces,
and the executor, alleging, that the
testator recited and charged said
sums against the plaintiffs errone-
ously, through mistake and inad-
vertence; that, in truth, F. had re-
ceived only $300, and J. had re-
ceived no advancement whatever.
Prayer, that the mistake be correct-
ed, and that, in making distribution
under the will, the advancement
charged to J. be excluded, and that
charged to F. reduced to $300.
Held, that the matter sought to be
contradicted was not simply the re-
cital of a fact (although if merely
such the plaintiffs would, it seemed,
have been estopped from denying
the truth of the recital), but also a
limitation upon the interest of the
plaintiffs in the estate devised.
Ileld, also, that evidence dehors the

will was not admissible to prove the
alleged mistake.

Held, therefore, that the complaint was
bad on demurrer....
...Ibid.
3. Dying Declarations.- When Ad-
mitted.-Where the statements of a
person are offered in evidence as
his dying declarations, the proof
must clearly show that the decla-
rant was in fact at the very point of
death, and that he was fully con-
scious of that fact, not as a thing of
surmise and conjecture or appre-
hension, but as a fixed and inevitable
fact. Morgan v. The State........193
4. Same. It is not required that the
deceased should have declared in
terms that he expected to die at
once, if his condition was such that,
of necessity, such an impression
must have existed on his mind. On
the other hand, no matter how strong
the expression of this certainty of
death may have been, if there be

VOL. XXXI.-35

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IIeld, that it was properly excluded.
Hagee et al. v. Grossman...........223

6.

7.

Number of Witnesses.-A party
cannot lawfully be limited by the
court to one witness upon a vital
point in issue. Hubble v. Osborn.249
Same.-Resulting Trust.-Suit by
A. against B. and C. for possession
of certain real estate purchased by
the plaintiff at sheriff's sale on an
execution in favor of the plaintiff
issued upon a judgment against B.,
the legal title at the time of such
sale standing in the name of C., to
whom it had been conveyed by D.
The plaintiff claimed that B. had
paid the purchase-money, and, to
defraud his creditors, particularly
the plaintiff, to whom he was then
largely indebted, procured the con-
veyance to be made by D. to C. It
was claimed in defense, that in mak-
ing the purchase B. acted as the au-
thorized agent of C., who was not
present, and that B. advanced the
purchase-money in pursuance of an
agreement with C. by which he was
to so advance it as a short loan to C.,
who soon afterwards repaid the mon--
ey. On the trial, B. testified to this.
effect, and C. testified to the same
facts, except as to the fact of the
loan, concerning which the court
refused to allow him to testify.
Held, that this refusal was error..Ibid.
8.

9.

Same.- Admissions.- The admis-
sions and declarations of the person
paying the purchase money made
after the conveyance to the other
person, are not admissible in evi--
dence against the latter.......... Ibid.

Statement of Evidence to Jury.—
Bill of Exceptions.-The statement
of the evidence which a party is
allowed to make to the jury by sec-
tion 324 of the code is, as to its
brevity or prolixity, a matter to be

TY, 7.

EXECUTOR AND ADMINISTRA-
TOR.

See DECEDENTS' ESTATES.

EXHIBITS.

left, to a considerable extent, to the | See PRACTICE, 3; PRINCIPAL and Sure-
control of the court trying the cause;
and where the interference of the
court is complained of on appeal,
the bill of exceptions must show the
statement that was being made
when the court interposed. Ayles-
worth et al. v. Brown et al.........270
10. Statute Book of Another State.—
A book purporting to be Swan and
Critchfield's edition of the statutes
of Ohio was offered and, over ob-
jection, admitted in evidence. By
the title-page it appeared, that it
was "published by the State of
Ohio, and distributed to its officers,
under the act of the General Assem-
bly."

Held, that there was no error. Paine
et al. v. The Lake Erie & Louisville
R. R. Co......
.283
11. Statute of Another State.-Cor-
poration.-Pleading.-Where a stat-
ute of another State constitutes a
part of the organization of a corpor-
ation suing in this State, it is not
necessary to its introduction in evi-
dence by the plaintiff that it should
have been pleaded.................Ibid.
12. Parol Evidence.- Written Order.
Trees were delivered to a buyer up-
on his written order directed to the
seller, for certain trees at specified
prices.

Held, that parol evidence was admis-
sible to prove an agreement of the
parties at the time of making said
order, that the seller should replace
any of the trees that might not
grow. Morehead v. Murray et al..418
13. Principal and Agent.--Declara-

tions. As steps in proving the au-
thority of one as an agent in the
transaction in controversy, evidence
of his similar transactions with dif-
ferent persons and of his declara-
tions therein was held admissi-
ble
...Ibid.

EXAMINATION OF WITNESS.

Sce WITNESS, 1, 2, 4.

EXCEPTIONS.

See BILL OF EXCEPTIONS; PRACTICE, 8,
18, 28, 30.

EXECUTION.

See PLEADING, 21.
EXPRESS COMPANY.

See COMMON CARRIER, 1, 2, 3.

F

FALSE IMPRISONMENT.
See ARREST.

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2. Same. An indictment for defacing
and destroying a promissory note
must show whether the note was
for the payment of money or prop-
erty......
Ibid.

FRAUD.

See PLEADING, 12; PRACTICE, 5; RE-
SCISSION, 1 to 6; TRUST, 8; VOLUN-
TARY CONVEYANCE, 3.

1. Sale-Agent.-On a sale of goods
it was agreed that the buyer should
give to the seller, in payment, upon
delivery of the goods, notes of sol-
vent persons. A certain note so
given was not such as the contract
thus called for, and the buyer, know-
ing this, fraudulently deceived the
seller's agent, to whom he delivered
the note, knowing him to be such
agent and knowing that the pro-
ceeds of the sale were to go to, and
become the property of, the agent,
who, on discovering the deceit, of-
fered to return the note to the buy-
er and demanded of him other good
notes. There being evidence of these
facts in a suit by the seller against
the buyer, the plaintiff bringing the
note into court and offering to re-
turn it to the defendant; there was
a finding for the plaintiff in a cer-
tain sum, and that the defendant be
entitled to withdraw the note from
the files of the court and hold it as
his own.

Held, that the finding was correct.
Kinney v. Blythe.................140
2. Same.- Deceit.-Where a seller
of goods knowingly makes false
representations to the buyer as to
their quality, but the buyer does not
rely upon such representations and
is not deceived thereby, the seller is
not liable in an action for deceit.
Hagee et al. v. Grossman...........223
3. Same. Where a seller has made
false representations as to the qual-
ity of the goods, but the buyer, in
making the purchase, relies on a
test of their quality made by his
own agent, who is not prevented by
any act or word of the seller from
testing the goods, the seller is not
liable for deceit.......
......... Ibid.

4. Railroad.-Directors.-Persons who
are directors of a railroad company

the profits of a contract for the con-
struction of the road as to give them
a standing in a court of equity to
interpose an objection to the con-
summation of a compromise between
the railroad company and its con-
tractor. Paine et al. v. The Lake
Erie & Louisville R. R. Co........283
5. Same.-Stockholders.-An arrange-
ment made by persons who are di-
rectors of a railroad company with
a contractor, by which such persons
are to share in the profits of the
contract for the construction of the
road, can only be confirmed by the
stockholders, and not by the direct-
ors of whom the guilty persons form
a part.........
..Ibid.

FRAUDS, STATUTE OF.

See STATUTE OF FRAUDS.
FRAUDULENT CONVEYANCE.

See PRACTICE, 5.

FUGITIVE FROM JUSTICE.

Appeal.-No appeal by the State to
the Supreme Court lies from the
ruling of a judge discharging from
arrest a prisoner brought before him
for examination as provided by the
act of March 9th, 1867 (Acts 1867,
p. 126), "to regulate the arrest and
surrender of fugitives from justice
from other states and territories."
The State v. Morgan..........
.......66

G
GIFT.

See HUSBAND AND WIFE, 14.

GOVERNOR.

See COURT OF COMMON PLEAS, 2.

GRANT.

See GUARDIAN AND WARD, 7.

GRAVEL ROAD.

See TURNPIKE.

GUARDIAN AND WARD.

cannot acquire such an interest in 1. Pleading.- Complaint.- Promise.

A complaint against a guardian, to
recover for maintaining and provid-
ing for his ward, did not contain any
averment of a request or promise
made by the defendant, or any alle-
gation that he had failed to provide,
within the means in his hands as
guardian, for the reasonable wants
of his ward.

Held, that the complaint was bad on
demurrer for want of sufficient facts.
Gwaltney, Guard., v. Cannon.....227
2. Jurisdiction.-Associate Judges.-
The Associate Judges, as a Court of
Probate, had jurisdiction on the 10th
of August, 1829, to appoint guardi-
ans for infants, and such court was
a court of record. It had jurisdic-.
tion of guardians' petitions to sell
lands. Such jurisdiction extended
to lands situated anywhere within
the State. Though the law required
a bond to be given before entering
the order of sale, the failure to re-
quire one would not render the pro-
ceeding void. Dequindre et al. v.
Williams.....

444
3. Same.-Probate Court.-The Pro-
bate Court, upon its organization
under the act of 1829, had authority
to take jurisdiction of matters in
relation to guardians and wards then
pending in such Court of Probate
held by the Associate Judges, and
conduct them to conclusion..... Ibid.
4. Same. Collateral Proceeding.-
Where a proceeding in a court of
superior jurisdiction is of such a
character that upon final action the
court should, from the nature of the
case, ascertain whether it is such in
fact that it has jurisdiction to act as
it is invoked to do, and it does so
act, the matter cannot be questioned
collaterally
Ibid.

5. Same.-Residence of Ward.-The
Associate Judges, as a Court of Pro-
bate, on the 10th of August, 1829,
appointed a guardian for certain in-
fants.

Held, that an inquiry as to whether
the infants were at the time of such
appointment residents of this or an-
other state, could not be raised col-
laterally
.........Ibid.

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7.

court of superior jurisdiction having
authority to make such appointments
and jurisdiction of guardians' peti-
tions to sell lands, but without juris-
diction to make the particular ap-
pointment, sells land of his ward, un-
der an order of such court, to one who
purchases and pays for such land,
relying in good faith on such order,
such purchaser will be protected in
the title so acquired, if the guardian
applies the proceeds properly. And
in an action by the late ward, ar-
rived at majority, to recover such
land, a debt of the guardian against
the deceased father of the ward,
through whom the plaintiff claims
title, allowed by such court as a
eredit to the guardian upon settle-
ment, will be presumed to have been
rightfully allowed...
...Ibid.

Indian Treaty.-Grant.—Relation.
A section of land, to be located un-
der the direction of the President,
was granted to a certain person by
an Indian treaty; and after the death
of the grantee the proper court, up-
on petition of the guardian of the
grantee's heirs at law, ordered the
sale of the unlocated section; and,
the land having been located by the
assignce of the purchaser at such
guardian's sale, the proper court
ordered a conveyance of the specific
land to such assignee, which was
made, but never approved by the
President.

Held, that, by the doctrine of relation,
the treaty operated instantly in law
as a grant, the subsequent location
of the land merely ascertaining the
specific thing which was granted.
Held, also, that the approval of the
President was not necessary to the
validity of the guardian's deed of
...Ibid.

conveyance

8. Same.-Case Stated.-Suit by the
heirs at law of A. against B., to re-
cover certain real estate. Trial upon
the following agreed statement of
facts: A section of land was granted
by treaty with the Potawatamies,
of October 16th, 1826, to A., to be
located under the direction of the
President. It was located, in 1837,
in Allen county, without the terri-
tory ceded by the Indians under said
treaty, the premises in controversy
being a part of that section. In

H

HEIRS.

See PARTIES, 2, 3.

HIGHWAY.

See APPEAL, 3; CRIMINAL LAW, 3; NUI-
SANCE, 1, 2.

2.

1828, A. died, in Illinois, where he
then resided, leaving a widow and
children surviving him, who con-
tinued to reside in Illinois until
1831, when they removed to Knox
county, in this State, prior to which
they had no property in Indiana,
except the unlocated land. It ap-
peared by the record of certain pro-
ceedings in Knox county, that on
the 10th of August, 1829, the court
doing probate business, held by the
Associate Judges, appointed a guar-1.
dian of A.'s children, the plaintiffs
in this action, and that "there being
no property," no bond was required.
The bond required by law was to be
in double the value of the personal
property. On the following day, the
guardian presented his petition to
sell the unlocated section, and, after,
an appraisement at $800, the sale
was ordered, the guardian to give
bond with sureties approved, within)
thirty days, but no such bond ap-l
peared in the transcript of the pro-
ceedings. The sale was to be pri-
vate, for one-half cash and the bal-
ance in two equal annual instal-
ments. In August, 1839, the guar-
dian reported to the Probate Court,
that in November, 1831, he had sold
the float for $1,000 to one who
transferred his right to another, and
he to C., who paid the purchase-
money and, after having procured
the land to be located, died; the re-
port describing the section located.
The Probate Court confirmed the
sale and directed a conveyance of
the specific land to the heirs at law
of C., which was accordingly de-
livered, but was never approved by
the President. The title of C. and,
his heirs afterwards became vested
in B., who, with his grantors, paid
taxes on the land and took care of
and protected it from 1841, though
not in actual possession, till the
commencement of this action, in,
1835. From its location in 1837 till
1841 it was worth $30 per acre.
From January, 1829, till 1840, the
United States, it was admitted, heldi
public lands in Knox county and 3.
elsewhere, in this State, and other
states. Upon this evidence the court
found for the defendant.
Held, that the evidence sustained the
finding
..... Ibid.!

See BROOKOVER v. FORST, 255.

Practice. Obstruction of High-
way.-Injunction.-In an action to
enjoin the obstruction of a public
highway within the limits of an
incorporated town and under the
jurisdiction and control of such cor-
poration, brought by a plaintiff who
predicates his right to such relief on
the ground that he is the owner of
certain lots fronting upon the high-
way obstructed, such corporation is
not a necessary party plaintiff. De-
bolt v. Carter et al..
........355

Same. Another Action Pending.-
Suit by the owner of certain town
lots, denying the existence of a high-
way upon and along a portion there-
of, as claimed by the defendant, and
seeking to quiet the plaintiff's pos-
session of the lots, freed from the
claim of such highway, praying a
perpetual injunction against the
defendant, restraining him from dis-
turbing the plaintiff's possession or
asserting an casement over the lots
as a public highway. After answer
and reply, the defendant filed a cross
complaint, asserting the existence of
an casement as a public highway
over a part of said lots, charging
the plaintiff with having unlawfully
obstructed it, to the special injury
of the defendant, and praying that
the plaintiff be perpetually enjoined
from repeating or continuing such
obstruction.

Held, that the cross complaint was not
bad on demurrer on the ground that
another action was pending between
the same parties for the same cause,
to wit, the original complaint, the
answer, and the reply........... Ibid.

Uscr.-A county road was located
by the board of county commission-
ers, in 1840, over certain lands, the
location being defective for not
specifying the width of the highway;
but, in pursuance of the order of

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