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In notice of mechanic's licn. See VE- such defendant in the wrong. He CHANIC's LiEx, 1.

may save himself from costs by dis

claiming any interest ........ Ibid. MORTGAGE.

MURDER. See DESCENT, 6; IIUSBAND AND Wife 17; JURISDICTION, 12, 13.

Sec Criminal Law, 14, 15, 16, 28, 31,

36, 41, 43 to 47. 1 Code.-- Law and Equity.-Subrogation.- Improvements.- Where mort

N gaged real estate has been sold and conveyed by the mortgagor to the

NAME. mortgagee or his assignce, there being a junior judgment-lien thercon,

Sce ConPORATION, 3. and the vendee of such purchaser, without actual notice of such judg- Initial Letters.--Where a judgment is ment-lien, has cxpended money in rendered before a justice of the valuable permanent improvements, peace against a defendant by a name without which the value of the in which an initial letter is used property would not exceed the mort- instead of his Christian name, the gage; though the judgment-plaint- proceedings and judgment are therciff has a complete legal remedy by rendered irregular, but not void. to enforce his lien, by execution, Bridges v. Layman et al............384 yet, upon the application of such vendee, the execution-plaintiff will

NEGLIGENCE. be required to cxercise his legal right subject to the cquitable right See RailroAD, 5, 6, 9, 10, 11. of the vendee, for whom the mortgage will be kept on foot, and to 1. Railroad.-- Pleading.–Where the whom the value of the improve- owner of a quantity of cord-wood ments will be allowed-the court, deposits the same at a certain place in taking account, charging the ven- near a railroad track, in accordance dce with the value of the rents of with the direction of an agent of the the property, as it would have been railroad company and under an without such improvements, for the agreement with such agent by which time it has been held by him. Troost it is to become the property of the

v. Davis, Sheriff, et al.......... ..34 railroad company when measured 2. Jurisdiction.- Title to Real Estate. and paid for by the company, but Where the main object of a com- until so measured and paid for to plaint in the court of common pleas remain the property of such owner, is to have satisfaction cntered of a and while so remaining his property mortgage of real estate, there is no it is consumed by fire originating crror in overruling a motion made from a locomotive engine in the use by the defendant, before answer, to of the company and caused by the transfer the cause to the circuit court, negligence of the employees of the on the ground that the title to real company, and these facts are arerred estate is in issuc. Paine ct al. v. in the complaint in a suit by such The Lake Erie & Louisville R. R. owner against the company to reCo.......

.283

cover the value of the wood; it is 3. Pleading.Answer.-Costs.- In a not necessary to allege also the de

suit to enforce the entering of satis- struction of the wood without the faction of a mortgage, a party de- fault or negligence of the plaintiff. fendant against whom no relief is The Indianapolis f Cin. R. R. Co.r. sought, but who is made a defendant Paramore....

.143 merely to answer as to his pretended 2. Same.- Burden of Proof. It is interest in the subject-matter of the the duty of a railroad company to suit, must file an affirmative answer use machinery properly constructed if relief is sought by him. The gen- with a view to prevent fire from beeral denial by such a party puts the ing communicated to property lar. plaintiff to such proof as will place fully placed by the owner thereof near the railroad track, and the en- and control of said owner, who gines should be operated with care should cxamine for himself all the and skill to the same end. If fire mcans used in loading and unloadis communicated to such property ing, to see that they were of suffifrom an engine by reason of a failure cicnt strength, of the right kind, to uso proper preventives, or by the and in good repair and order; that carelessness of employees, the com- each person riding free to take care pany is liable for the consequences; and charge of said stock should do but negligence in cither respect so at his own risk of personal inshould not be inferred without proof, jury from whatever cause; and that the burden of which rests on the the owner should release and hold

party alleging it....... ...Ibid. harmless, and keep indemnified, the 3. Same.- Watchman.The railroad railroad company, from all damages,

company is not bound to provide a actions, claims, and suits, on account watchman to protect property so of any and crcry injury, loss, and placed by the owner, at his own damage heretofore referred to, if instance, without any contract with any should occur or happen. Suit the company, in danger of taking against the railroad company to rcfirc by unavoidable accident from cover for certain animals shipped by thic engines used by the compa- the plaintiff, under this contract, ny....

....Ibid. and lost, while in course of trans4. Common Carrier.--Special Contract. portation, by escaping through a

A common carrier cannot contract window open in the end of the car against liability for loss from his in which they had been loaded by own ordinary negligence. Such a the plaintiff's agent, who accomcondition is void as against public panied them on the route, and who, policy. The Ind polis, Pittsburg, f: after the escape of one of the ani

Cleveland R. R. Co. v. Allen......394 mals, told the conductor to fix said 5. Same.- A contract for the ship- window, and the conductor not do..

ment of live stock by a railroad ing so, fixed it himself. company provided, that, in consid- Held, that the railroad company was cration of a certain reduced rate of liable for the loss.................. Ibid. transportation, the owner of said 6. Railroad.-Injury to Passenger.. stock should assume all risks of in- A railroad train ran beyond tho juries which the animals or either platform for landing passengers at a of them might receive in consc- certain station, and stopped over a quence of any of them being wild, culvert, and the proper servants of unruly, vicious, weak, cscaping, the railroad company announced the maiming and killing themselves or name of the station, as a notification cach other, or from delays, or in to the passengers for that station consequence of heat, suffocation, that the train was there; whereupon or the ill cffects of being crowded a passenger for that station, who had : upon the cars of said company, or paid the company the farc demanded on account of being injured by the of him, relying on the good faith of burning of hay, straw, or any other the company, alighted upon and into material used by the owner in feed- said culvert, without his fault or ing the stock, or otherwise, and any negligence, supposing he was alightdamage occasioned thereby, and ing upon said platform, it being at also all risk of any loss or dam- night and so dark that he could not age which might be sustained by see that the train had not stopped at reason of any delay, or from any said platform; whereby he other cause or thing in or incident greatly injured. to, or from, or in, the loading or un- Icld, that the company was liable for loading of said stock; that said own- the injury so received. The Colum. er should load and unload said stock bus and Indianapolis Central Railway at his own risk, the railroad com- Co. v. Farrell......... ......408 pany furnishing the necessary la- 7. Same.-A railroad company is not borers to assist, under the direction legally responsible for the action of

Vol. XXXI-36

was

costs

persons not its servants in falsely, 8. Motion for New Trial.-Filing of
announcing the arrival of a train at Affidavits.- Motion for new trial on
a station, whereby a passenger in the ground of misconduct of the
attempting to alight from the train jury. Affidavits in support, though
is injured........

..Ibid. ready, the party making the motion

refused to put on file or submit to
NEW PARTY.

the inspection of the opposing coun-

sel before the motion was taken up
Sec Practice, 16, 17, 18.

for argument, though he was previ-

ously notified in open court that
NEW TRIAL.

objection would be made to the

reading of them unless they were
See WITNESS, 2.

so filed. The court refused, there-

fore, to allow them to be read.
1. As of Right.— The form of the Held, that in this there was no error.
"issues in an action to quiet title to Iubble v. Osborn..........

.249
real property cannot abridge the 9. Same.- Finding Beyond the Issue.-
right of the losing party to have a Motion for Judgment on Finding.-
new trial on the payment of costs On the trial, in the circuit court, of
as provided by section 601 of the an action commenced before a jus.

code. Moor v. Scaton........ .11 tice of the peace, to recorer upon a
2. Same.--In a suit to quiet title to stock subscription, the esecution of

rcal property, there was a finding the instrument not being denied by
for the defendant upon a cross com- the defendant under oath, the court
plaint.

found specially for the plaintiff crery
TIeld, that the plaintiff was entitled to point in isssue, so that judgment
a new trial on the payment of could have been rendered for the

Ibid. instalment sued for, but found fur-
3. Weight of Evidence.- Where there ther, that after the defendant had

is a conflict in the testimony, this cxecuted the instrument it had been
court will not reverse a judgment altered in a material part, without
on the weight of the evidence. Mc- his knowledge or authority, and,

Caw et al. v. Burk ci al..............56 over a motion by the plaintiff for a
4. Supreme Court.Prepondrance of new trial, rendered judgment, with-

Evidencc.-Where the Supreme Court out further objection, for the defend-
finds evidence to support the find- ant.
‘ing, it will not go beyond this to Held, that the motion for a new trial
determine the preponderance of the did not raise any question; but a

cvidence. Kinney v. Blythe......140 motion for judgment on the finding
.5. Assignment of Errors.- Where, in should have been made, in order to

an assignment of crrors, the only present the question involved to the
crrors complained of relate to mat- circuit court.
ters occurring on the trial for which Ileld, also, that the question could not
a new trial was prayed, but the ac- be made for the first time in the
tion of the court in overruling the Supreme Court. The Fishback and
·motion is not assigned for error, no Elizabethtown Gravel Road Co. v.
question is properly raised in this Wilson ....

..371
court. Lingerman et al. v. Nave.222
+6. Excessive Damages.—The assign-

NOLLE PROSEQUI.
ment of excessive damages as a
'cause in a motion for a new trial is County Clerk.- Fees where Nolle Pros-
the only method by which that ques- equi is Entcred. A county is not lia-
tion can be raised. City of Indian- ble to its clerk for fees taxed by him

apolis v. Parker, Sheriff............ 230 for services rendered in a criminal
7. As of Right.-There is no error in prosecution disposed of by a nolle

overruling a motion for a new trial proscqui being entered. Board of
as of right in an action of cjectment, Com'rs of Morgan Co. v. Johnson.463
"Where no proof is presented to the

NOTE.
court that the costs have been paid.

.
McSheely v. Bentley .................235 See PROMISSORY NOTE.

NOTICE.

OFFICE AND OFFICER.

See RAILROAD, 11.

See JUSTIFICATION, 1, 2, 3. Of mechanic's lien, reformation of. See 1. County Clerk.-Deputy.- CompenMECHANIC's Lien, 1.

sation of -A county clerk may con

tract with his deputy that the latter NUISANCE.

for his compensation shall have a

certain share of the fees taxed and 1. Injunction.- Obstructing Highway.- collectable in the clerk's office dur

A private person cannot enjoin the ing his deputyship. Check et al. v. obstruction of a public highway Tilley.

.121 without showing a special and pecu- 2. Injunction.-Receiver.-In a suit by liar injury to himself, not common such deputy against his principal to to the public. The fact that the recover the former's share of such injury to such person is greater in fees, an injunction may be granted, degree than that to others does not pending the cause, restraining the entitle him to such relief. The in- clerk from collecting or transferring jury may be to more than one per- such fees yet unpaid, and the sheriff son, but must not embrace the entire from paying such fees collected by public. McCowan et al. v. White- him to the clerk; and a receiver may sides........

....235

be appointed....... ......Ibid. 2. Same.In a complaint to enjoin 3. Vacancy.- County Auditor.- Statthe obstructing of a public highway,

ute Construed.- Where a vacancy in the only averments connecting the the office of county auditor is filled plaintiffs with the highway were, by appointment, and a successor is that it is their usual, convenient, elected at the next general clection, and necessary route of travel from such successor is entitled, by section their houses, which are all on, or in 4 of the act of May 13th, 1852 (1 G. the vicinity of, the road, to their & H. 671), to take the office as soon market town and usual place of after his election as he shall have business; and that without greater or qualified. Douglass v. The State, ex less circuity, when the road is so rel. Wright.....

...429 obstructed, they and cach of them 4. Usurpation.— Damages.— Measure have no other means, nor have the of.-If such appointee refuses to surpublic wishing to use the road, of render the office upon the demand going to and fro, as they have a of such qualified successor, the latright to do, for business, comfort,

ter is entiled to recover from the and pleasure.”

former the gross emoluments of the Ileld, that the complaint was bad on office received by him while so undemurrer

. Ibid. lawfully withholding the office. Ibid.

5. Same.—At the October election,

1863, A. was elected auditor of a

certain county, was commissioned, OBSTRUCTION OF HIGHWAY,

and, having duly qualified, went into

said office November 1st, 1863. IIC See HighwAY, 1, 2; Criminal Law, 3;

resigned in December, 1866, and B.

was appointed by the board of counNUISANCE, 1, 2.

ty commissioners to fill the vacancy.

At the October clcction, 1867, C. OBTAINING GOODS BY FALSE

was elected to fill the office, iind was PRETENSE.

subsequently commissined for four

years from the 1st of November, See Criminal Law, 11, 48 to 54.

1867; and, having duly qualificd, on

the 11th of November, 1867, he deOBTAINING SIGNATURE BY manded of B. possession of the office, FALSE PRETENSE.

its records, &c., which B. refused to

surrender, claiming the right to See CriminAL LAW, 48 to 54. hold till the first Monday of March,

1868. Information under the statute,

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on the relation of C. against B.,

PARTIES. pending which, on the first Monday

of March, 1868, B. surrendered to C. See CoNSIDERATION, 1; CONTRACT, 8; lleld, that C. was entitled to the office Corporation, 1.

when lie so demanded possession of it, and to receive its fees and emol-1. Promissory Note. Party Plaintiff. uments from that date.

It is not necessary that the plaintiff lleld, also, that B. was not entitled to in a suit upon a promissory note

retain from the gross emoluments should be the legal owner thereof;of the office for the time he so un- it is sufficient if he be the equitable lawfully held it against C. the owner. Compton v. Davidson et al.12 amount paid out for necessary clerk! 2. Deccdents' Estates.-The heirs at hire for discharging the duties of the law of a decedent against whose csoffice for that period.

tate it appears there exists any debts Held, also, that section 1 of the act of cannot maintain an action for mon

May 31st, 1852 (1 G. & H. 122), so cy due the estate. Walpole's Adm. far as it fixed the commencement of v. Bishop et al.........

156 the county auditor's term of office 3. Same.--Suit by the heirs at law of on the first Monday of March next A. against the administrator of B., cnsuing his election, was intended to recover money collected by B. in to apply to a regular succession of his lifetime, as attorney of A. The terms by election, and was repealed, complaint alleged, that, in the same by implication, by the act of March year that A. died, an administrator 31, 1855 (Acts 1855, p. 52), provid- of his estate was appointed, who sia ing, that the term of office of the years afterwards resigned his trust; cuditor and certain other officers that no assets erer came to his hands "shall commence on the first Mon- that no claims against A.'s estate were day of the month of November, ever filed in court; that no other immediately following the general administrator of A.'s estate was erOctober elections, and that any of er appointed; that the widow of A. the abore named officers to be elect- paid all the claims that were preed hereafter shall hold their offices sented or that she knew existed until the first Monday of November against his estate, and fully admiaaforesaid, according to their respect- istered the same years before. ive terms."

Ileld, that these plaintiffs could not Held, also, that, in such a case as this, maintain the action............... Ibid.

said act of March 3d, 1855, is not in 4. Plaintiff.- Agent.--One who conconflict with section 2 of article 6 of tracts merely as the agent of another, the State Constitution. Iloward v. and has no personal interest in the The State, 10 Ind. 99, explained. Ibid. contract, is not the trustee of an

express trust within the meaning of OFFICIAL BOYD.

the statute, and cannot, under the

code, sue on such contract in his See EstoPPEL, 2 to 5; PrixcirAL AND own name. (Code, secs. 3, 4.) Rar. AGENT, 1.

lings v. Tuller...

5. Practice.-Admission of New ParONUS PROBANDI.

ty.--Complaint on a note and mort

gage, the plaintiffs claiming to be See INSANITY, 4; NEGLIGENCE, 2; Trust, the surviving partners of a late firm 8; VOLUNTARY CONVEYANCE, 2. named. Before any further plead

ings had been filed, another person OVERRULED CASES.

filed a petition, alleging, that he

was a member of said late firm to See Cases OVERRULED, AFFIRMED, &C. which the note in suit was payable,

and as such had an interest; and P

praying to be made a party plaint

iff; and the court so ordered. PARENT AND CHILD. lield, the facts alleged in the petition

being undisputed, that there was no See Voluntary CONVEYANCE, 2, 3.

..255

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