1865, delivered on the contract a
certain quantity of wool, being the
amount that was due in June, 1865,
and something over, and that no
wool was delivered for the year
1866 or 1867, thereby rendering the
contract due as to principal and wool.
The complaint of A. was filed July
24th, 1867.

B. answered, that the sheep were affect-
ed with a contagious disease when
he received them, and one half of
them died of said disease, without
his fault, before the shearing season
in 1865, and the residue before the
shearing season in 1866, and that the
wool delivered was all that was ever
sheared from the sheep.

Held, that by the contract, the property

...255

guage of a deed was as follows: “A.,
and B., his wife, convey and warrant
to C. her lifetime, and after her
death to descend to the heirs of her
body," certain real estate. "The
said C., in consideration of this deed,
receipts and forever quitclaims to any
further interest in and to her father's
real estate whatever, and that a trans-
fer of said real estate by C. shall in
no wise be valid."

Held, that the deed conveyed a fee
simple absolute to the grantee.
Held, also, that the grantee possessed
the right of alienation, and that an
alienation by her completely cut off
all her heirs...................
....Ibid.

SHERIFF'S SALE.

See REDEMPTION.

1. Irregularities.-Evidence.-A. sued
B. for the recovery of real estate and
damages for its detention. The right
of A. to recover depended on whether
a sheriff's sale and conveyance to
him was valid, he not being the judg-
ment-plaintiff or chargeable with
notice of any irregularities in the
sale. A. introduced the judgments,
executions, and sheriff's deed, and
proved payment of purchase-money
and his damages, and rested. B.
offered to prove that the sheriff
omitted to post notices of the sale
in the township where the real estate
is situated, and that the property
sold for only one-half its cash value.
The court refused to admit the evi-
dence.

in the sheep passed to B., and they
were thenceforth at his risk, and
their death did not excuse him from
delivering the wool; and on failure
to deliver it, A. could maintain his
suit for the price of the sheep and
for the wool not delivered. Smith
et al. v. Dallas et al........
3. Pleading.-Answer.-Warranty.-
An answer setting up a warranty
made by parol at the time of entering
into a written contract for the sale of
the property warranted, and alleging
that it was also at the same time
agreed by parol that the warranty
should not be inserted in the written
contract, is bad............................................................. Ibid.
4. Evidence.-Evidence that at the
time of the contract it was agreed
that B. might sublet the sheep if he
desired, upon the same terms, and
when sublet he was to be credited for Held, that the evidence was properly

the same, and that he did thus sublet
some of the sheep, is at variance
with the written contract and inad-
missible.......
....... Ibid.
5. Warranty.-If a sale of property
is complete and perfect, by the terms
of a written contract of sale, a sub-
sequent warranty is void, unless some
new consideration be given to sup-
port it. Summers et al. v. Vaughan
et al............
..323

2.

excluded. White et al. v. Cronk-

Held, that the muster-roll containing
his name as a resident of that town-
ship was not sufficient evidence of
the fact that such township had re-
ceived the credit. Druly v.
Hunt

2.

1.

2.

3.

...507
Same.-Bounty.-Callateral Pro-
mise.-An instruction to the jury,
that where one promised to guaran-
tee or warrant the pay to a volunteer
which had been promised to be paid
by a public meeting, his promise was
only collateral and not binding on
him unless in writing, was held
proper in a case, where if the evi-
dence showed any contract, it had a
tendency to show that it was thus
..Ibid.
collateral

SPECIAL FINDING.

Where the court upon request finds
the facts specially, and there is no
exception to the conclusions drawn

upon the facts found, no question in
regard to said conclusions is present-
ed for the consideration of the Su-
preme Court. B'd of Com'rs of La-
grange Co. v. Newman........

.10

Exception.-Where the court finds
the facts specially, and states the con-
clusions of law thereon, an exception
to the finding will not raise the ques-
tion of the correctness of said con-
clusions; exception must be taken
to said conclusions, or no question
thereon can be presented on appeal.
..76
Leffel v. Leffel........
Same.-Where there is a special
finding of facts by the court, without
any conclusions of law being found,
and with no exception entered to the
decision, in accordance with 2 341 of
the code, no question can be raised
upon the finding as a special finding
under said section 341. The O. &
M. R. R. Co. v. Hays.........173
SPECIFIC PERFORMANCE.

See PLEADING, 1, 2; VENDOR AND PUR-
CHASER, 2; STATUTE OF FRAUDS, I

to 4.

STATUTE OF FRAUDS.

Collateral promise. See SOLDIER, 2.

I. The statute of frauds does not
make a contract void, but simply!

2.

3

4.

withholds the remedy for its enforce.
ment. Mather v. Scoles...]
Verbal Contract to Convey Real
Estate.-A complaint upon a verbal
agreement to convey real estate, not
showing part performance, or that
the defendant fraudulently refused to
reduce the contract to writing, is bad.
Ibid.

Part Performance.-Payment of
purchase-money is not such a part
performance as will take a case out
of the statute of frauds..............................Ibid.

Alternative Contract.-A parol
agreement in the alternative, to con-
vey land, or, in case of failure to
convey, to pay a certain sum of mon-
ey, is within the statute of frauds,
and no action, either to compel a per-
formance or to recover money, can
be maintained upon it............. Ibid.
STATUTE OF LIMITATIONS.

See CONTRIBUTION, 2; WAR, 13 to 17.

Pleading.-Demurrer.- When a stat-
ute of limitations contains no excep
tions, and it appears upon the face of
the complaint that the action is barred,
the bar can be taken advantage of
by demurrer; but where there are ex-
ceptions, the statute must be pleaded
by answer. Perkins v. Rogers.. 124
SUMMONS.

Judgment.-Where the evidence
is in the form of an agreed state-
ment of facts, and there is no reason
for another trial, the Supreme Court
will pronounce judgment without
remanding the case for trial. City of
Jeffersonville v. Ferryboat John
Shallcross et al....

.....19

I.

2.

1.

2.

SURETY OF THE PEACE.

-

In a proceeding for surety of the
peace, the question as to just cause
of fear relates to the time of the in-
stitution of the proceeding, and not
to the time of the trial. The State,
ex rel. Dougherty, v. Sayer.......379
Same. If, on the final trial of a
proceeding for surety of the peace, it
is found that the fears have, since the
commencement of the proceeding,
ceased to exist, this fact may be con-
sidered by the court in determining
the time and amount of the recog-
nizance to be entered into by the de-
fendant, but it will not entitle him to
an unconditional discharge at the
costs of the relator........

T

TAXES.

....Ibid.

See RAILROAD, 9, 10.
Lien of. See PARTNERSHIP.

TELEGRAPH COMPANY.

neighboring county, and on the lin
of the telegraph, is guilty of gross
negligence....
.......Ibid.
4. Same.-Penal Statute.-Where a
statute fixes the amount which a tel-
egraph company shall pay as a penal-
ty if she fails to comply with its re-
quirements, the company cannot
change the degree or measure of her
statutory liability by the adoption of
rules and regulations......... ...Ibid.

5.

Same.-Paying back the amount
paid for sending a dispatch, and the
acceptance of the same, unless it is
agreed to be accepted in full of all
that the party has a right to recover
by virtue of the provisions of a pe-
nal statute, will not bar an action for
the full penalty........

6. Same.-Damages.—In an action to
recover the penalty given by statute
for a failure on the part of a tele-
graph company to transmit a message,
it is not necessary that the plaintiff
should prove any damages........Ibid.

TENANTS IN COMMON.

Adverse Possession.-When one ten-
ant in common is in possession of the
whole estate, claiming under a deed
purporting to convey the entire estate,
he will be deemed to have ousted his
co-tenants. Nelson et al. v. Davis.474

Rules Limiting Liability.-A per-
son sending a message by telegraph,
who knows of the existence of cer-
tain, rules and regulations adopted
by the telegraph company touching
the transmission of messages, though
he does not use the blank of the tel-
egraph company upon which the
rules and regulations are printed, is
as much bound by the rules and reg-
ulations as if he had written the mes-
sage sent on such a blank prepared
by the company. The Western Un. 1.
Tel. Co. v. Buchanan....... ..430

Same-Gross Negligence.-Tele-
graph companies may, within certain
limits, establish rules and regulations,
which, in cases not depending on
any statute, may govern the manner
⚫ of sending messages, repeated mes-
sages, and insured messages; but they
cannot make such rules and regula-
tions as will protect them from lia-
bility for damages resulting from
their own gross negligence, or the
gross negligence of their agents and
......Ibid.
3. Same.-A telegraph company having
in her employment an operator who
does not know of the existence of a
town which is the county seat of a

servants......

TENDER.

See VENDOR AND PURCHASER, I.

TOWN.

Annexation of Contiguous Terri-
tory.-Appeal from the Board of
Commissioners.In a proceeding by
an incorporated town to annex con-
tiguous territory, no appeal lies from
the judgment of the board of county
commissioners. Trustees Town of
Princeton v. Manck..........
51
2. Same.-The action of the board of

3.

county commissioners in annexing
contiguous territory, not platted or
recorded, to a town, is final, and no
appeal lies therefrom. Church et al.
v. Town of Knightstown.............177
Injunction.-Improvement of Streets
of Town.-Petition, Ordinance, Con-
tract, Jurisdiction of Board of Trus
tecs. Under section 8, 3 Ind. Stat.
128, the board of trustees of a town,