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
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.
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
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
...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
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........
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
Collateral promise. See SOLDIER, 2.
I. The statute of frauds does not make a contract void, but simply!
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....
3 Question of Law Reserved.—When a question of law is reserved under section 347 of the code, and the evi- dence is not in the record, this court cannot say that the verdict is sus- tained by the evidence, and that the giving of an erroneous instruction, which in effect excluded from the jury the principal ground of defense, resulted in no injury. Bissell v.
Wert.... 4. Refusal to Instruct Jury.-Where the jury are discharged without agreeing, and a second trial had, the refusal of the court to give instruc- tions upon the first trial cannot be assigned as error. Leffel v. Leffel....76 5. Assignment of Error.-Motion to Strike Out. The refusal of the court to strike out a portion of a paragraph of pleading cannot be assigned for error. Porter et al. v. Silvers........ .295 6. Demurrer.-Where a demurrer is not set out in the record, no question with reference to a ruling upon it can be presented in the Supreme Court.
7. Pleading. A judgment will not be reversed on account of the im- proper sustaining of a demurrer to a paragraph, or to several paragraphs, of an answer, when the same matter is admissible in evidence under the remaining paragraphs of the answer. Ibid.
8. Evidence.-A judgment will not be reversed upon the weight of evi- dence, where there is a conflict, and there is evidence, which, if believed, will support the verdict. Richard- son v. Reed et al. ....356 9. Excessive Damages.—A judgment will not be disturbed on the ground that the damages are excessive, if there is a conflict in the evidence, and there may be an honest differ- ence of opinion as to the propriety of the finding, where the finding is within the range of the evidence, and where it does not appear that substantial injustice has been done. Ibid.
10. Release of Errors.-A judgment in favor of A. against B. was ren- dered by confession, upon a warrant of attorney made by B., waiving the filing of a complaint and the issue and service of process, and setting: out a copy of the note on which
the judgment was confessed, and authorizing the attorney confessing to release all errors. The record showed that the execution of the power was proved to the satisfaction of the court, and also that the de- fendant waived all error. B. ap pealed, assigning for error the render- ing of the judgment without a com- plaint being filed, and without procf of execution of the power, and that a judgment was rendered for the amount of attorney's fees mentioned in the note. A. answered to the assignment of errors, that the judg ment was rendered by virtue of a power of attorney made by B.; that in the power B. expressly waived the filing of a complaint, and released all errors; that the execution of the power was duly proved to the satis- faction of the court; and that judg- ment was rendered waiving all error, and was only for the amount of principal and interest due upon the note, and contained no amount for attorney's fees.
Held, that the release of errors pleaded, the truth of which was sustained by the record, was a bar to the proceed- ing in error. Boyd et al. v. Crary........ ....363 11. Assignment of Errors.-Demur- rer-Waiver.-The objection that the court erred in rendering judg- ment for plaintiffs, because the com- plaint does not state facts sufficient to constitute a cause of action, is not waived by a failure to demur to the complaint, and answering it, but may be assigned for error in the Supreme Court. Newhouse v. Miller et ........463
12. Same.-Names of Parties.-On an appeal to the Supreme Court, the assignment of errors must state the names of all the parties to the appeal; and if any of the appellants be there- in designated only by the words “it al.," the appeal will be dismissed. Lang et al. v. Cox et al............470 Credibility of Witnesses. The Supreme Court will not, upon the evidence, reverse the finding of the court below, trying an action without the intervention of a jury, where the evidence is conflicting, and its weight must be determined by the credibility of the witnesses. Wallace v. Mil- .....531
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........
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.
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.
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
See VENDOR AND PURCHASER, I.
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
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,
have no jurisdiction, without the pe- tition filed of a majority of all the resident owners of lots, &c.; and an ordinance passed and contract made for the improvement of the sidewalks of the town without such petition is void. Town of Covington et al. v. Nelson........ ........532 4. Same.-Parties.-Where the work in progress under such void proceed- ing would be of no benefit, but a damage to the citizens of the town, a resident tax payer of the town may, for himself and others of like inter- est, enjoin the prosecution of the work....... .........Ibid.
Whoever keeps an animal accus- tomed to attack or bite mankind, with knowledge of its dangerous propen- sities, is prima facie liable to an ac- tion for damages at the suit of any person attacked or injured by the animal, without proof of any negli- gence or fault in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous disposition. Partlowv. Haggarty.178 2. Same.-Complaint.-Suit to recov- er for injuries received from being bitten and otherwise injured by a dog. The complaint alleged that the defendant kept the dog, and negli gently suffered him to go at large, and that he attacked and bit the plaintiff, without her fault, and great- ly lacerated and injured her, &c., and that the defendant had knowl edge of the fact that the dog was ac-
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