2.

BANK.

National. See TAX, 2.

BANKRUPTCY.
See CONTRACT, 4-

BASTARDY.

See ESCAPE, I, 2.

-

1. Compromise.—Admission of Record.
A compromise of a suit for bastardy
made out of court, though in the
form of the statute, is no defence to
the action, unless ratified and con-
firmed in court, and entered of record
with the consent of the prosecutrix.
Reeves v. The State, ex rel. Ellis.441
Same. - Evidence. Where the
prosecutrix refuses in court to ratify
such a compromise and have the
same entered of record, she cannot
be required to state her reasons for
such refusal.............................................................Ibid.
3. Damages.-Excessive.-Unless the
amount of the judgment in such a
case show an abuse of discretion,
this court will not interfere on the
ground that the damages are exces-
sive.....

BILL OF EXCEPTIONS.

See CRIMINAL LAW, 4; PRACTICE, 2,
3, 9, 15, 17; SUPREME COURT, 2.
BOND.

See APPEAL Bond; OFFICIAL BOND;
PRINCIPAL AND SURETY, 1; RE-

PLEVIN.

BURDEN OF PROOF.

See DECEDENTS' ESTATES, 4; RAIL-
ROAD, I.

C

CARRIER.

1. Baggage.-Porter.-The price paid
by a passenger on a steamboat usual-
ly includes the charge for the trans-
portation of his baggage; and as the
carrier must provide some one to
care for it, that person is the agent
of the carrier, although he be not

one of the crew or paid by the carrier, but a porter, who receives his

COLLATERAL PROCEEDING.

to

Perkins et al. v. Wright............27 2. Parties.-Minor.-A minor may, by his next friend, maintain an action against a carrier for the value of clothing or other property given to him by his parents or cthers, and lost by the defendant.............. ...Ibid. 3. Negligence.- Liability.-A common carrier cannot, by contract, relieve himself from liability for the loss of goods delivered him for transportation, which has been occasioned by his own negligence, or that of his agents or servants, or where such negligence has, in any degree, contributed to such loss. A common carrier can no more stipulate for a slight degree of negligence than he can for gross negligence. The Mich. South. & North. Ind. R. R. Co. v. Heaton.........448 CASES OVERRULED, APPROVED, AND DOUBTED.

1. Manufacturing Companies.-The case of Gaff v. Theis, 33 Ind. 307, approved. Gaff et al. v. Gardiner ..229

et al...

2. Pleading.- Exhibits.-Judgment. Reasor v. Raney, 14 Ind. 441, and Norris v. Amos, 15 Ind. 365, and cases following them, overruled. Lytle v. Lytle et al................281 3. Exceptions.- Instructions.- Cross v. Pearson, 17 Ind. 612, overruled. The Jeff, etc., R. R. Co. v. Cox..325 4. Bill of Exceptions.-Albaugh v. James, 29 Ind. 398, doubted. Marion T'p Un. Draining Co. et al. v. Norris et al............ .424

CITY.

See DEDICATION, 1, 2; SCHOOLS, 2.

A

Railroad Crossing. Mandate. mandate will lie to require a railroad company having its track upon, along, or across the streets and alleys of a city, to so build and erect the same, and level and grade the said streets and alleys, their full width, as to render the use of the streets and alleys and the crossing of the track convenient for the public. The I. & C. R. R. Co. v. The State, ex rel. City of Lawrenceburg...... .486

VOL. XXXVII.-36

PLEADING, 2.

COMMON CARRIER.

See CARRIER.
CONSIDERATION.

See CONTRACT, 12, 14; PROMISSORY
NOTE, 7.

CONSTITUTIONAL LAW.

See AGRICULTURAL College, I to 5; FEES AND SALARIES, 1, 2, 4; SINKING FUND, 1, 2, 4.

CONTRACT.

See CARRIER, 3; DRUNKENNESS, 1,2; SPECIFIC PERFORMANCE; STATUTE OF FRAUDS; SUNDAY.

I.

2.

Fraudulent Representations.-A. sued F. & H. upon two promissory notes. F. & H. answered, first, that the consideration of the notes was the purchase of a certain mill, with engine, boiler, and machinery from V., who was the payee of the notes and had transferred them to the plaintiff; that V. fraudulently and falsely represented that the boiler, engine, and machinery were in good condition, sound, and fit for the running of the mill, and defendants, relying on said representations, purchased; that V. knew the representations were false; that, in fact, said boiler and machinery were worthless, but they could not discover this fact by ordinary diligence; and they were required to expend large sums in repairs, and the mill was kept idle in undergoing repairs on account of defects.

Held, that this answer was good on demurrer. Frenzel et al. v. Miller....I Same. Warranty.A second paragraph of answer contained the same allegations as the first, with an averment of a warranty.

Held, that this was a sufficient an.......... Ibid.

swer.............

3. Promissory Note.—Assignment.— Party in Interest.-Another paragraph of answer alleged that the plaintiff was not the real party in in

terest, the assignment being made to
cheat the defendants.

Held, that this answer was bad..... Ibid.
4. Same.-Bankrupt Law.-Fraud.
Another paragraph of answer averred
that the assignment was made in
fraud of the bankrupt law.

Held, that this answer was not good on
demurrer...
..Ibid.

5. Contract with Co-defendant.-Set-
off-Another paragraph of answer
was that F. agreed with his co-de-
fendant H. to pay the notes and save
him harmless, and that the plaintiff
was indebted to him for goods sold.
Held, that this was not a sufficient an-
...........Ibid.

swer...........

6. Evidence. Damages. — On the
trial, the court excluded evidence of
damages sustained by loss of time
while the mill was undergoing re-
pairs in machinery, of defects which
existed at the date of sale.
Held, that the evidence should have
been admitted..................................... ...Ibid.
7. Same. False Representations.—
Knowledge.-The court allowed evi-
dence of the want of knowledge by
V. and A. of the falsehood of the
representations made, one of the
paragraphs of answer having charged
that A., the plaintiff, united with V.
in the fraudulent representations.
Held, that if the evidence had been
admissible under the answers alleg.
ing fraud, the court should have in-
structed the jury that such testimony
could not be considered in determin-
ing whether there had been a war-
ranty and a breach thereof...... Ibid.
8. Same.-Cross Examination.-On
the trial, the plaintiff introduced a
witness who testified that the mill
was in the same condition a short
time before the sale, as it had been
for over three years previous thereto.
The defendants offered then, on cross
examination, to prove that the ma-
chinery was worthless three years be-
fore said sale. The court refused
the evidence.

Held, that this was error, as the evi-

dence offered was proper, on cross
examination, as a means of testing
the knowledge of the witness, and
for the purpose of explaining his tes-
timony in chief......
....Ibid.

9. Instruction.- Notice of Assign-

ment. The court instructed the jury
that a set-off, set up in answer, could

not be allowed unless it accrued be-
fore the assignment of the notes.
Held, that this was error; that the in-
struction should have been that the
set-off must have accrued before no-
tice to defendants of the assign-
ment..........

II.

10. Same. False Representation.—
Knowledge. The court instructed
the jury that fraudulent representa-
tions, to relieve a party from his con-
tract, must be false, and the intent,
when they were uttered, must have
been to deceive, and they must have
been intended to operate on the party
complaining; and the court refused
to instruct that if the representations
were false and relied upon to the de-
fendant's damage, they constituted a
defence, although not known to be
false by V. when he made them.
Held, that the instruction given should
have been refused, and the one re-
fused given ....
Ibid.
Same.- Silence.-An instruction
was asked and refused, that if V.
knew that the machinery was out of
order, and that this could not be dis-
covered by ordinary care, and that
the defendants believed the machin-
ery was in good order, the silence of
V. would amount to a representation.
Held, that this instruction was correctly
refused
.Ibid.
Consideration.-Promise for Ben-
efit of Third Person.-Where a com-
plaint charged that a railroad com-
pany promised to pay for goods
which should be furnished to a sub-
contractor, an answer that the rail-
road company was not indebted to
the sub-contractor was held no de-
fence on demurrer. The C., C. &
L. R. R. Co. v. West...............211
13. Written Contract. Attempt to
Change by Parol.-Where an order
was given upon A. to pay certain
claims out of the proceeds of a cer-
tain note in his hands, and he ac-
cepted the same in writing," so soon
as the maker pays the note," and A.
afterward obtained a judgment and
foreclosure of a mortgage given to
secure the note held by him, and
bought in the mortgaged property,
and was subsequently offered more
than the sum due upon the note for
the property;

12.

Held, that he could not defend against

the payment of the claims included

in the order accepted by him, on the ground that the person who gave the order was, at the time when A. accepted the same, indebted to A. for more than the amount at which he had bid in the land, and that it was understood by the person for whose benefit he accepted the order that this indebtedness was to be first paid, and that it was not yet discharged. Miller, Ex'r, v. Goldthwait, Administrator..............217 14. Executory Promise. Consideration.-Advancement.-The promise of a father to give up to his son certain notes executed by the latter to the former is a promise which natural love and affection is not a sufficient consideration to support. Nor can it be supported as an advancement of the sum for which the notes were taken from the son. Denman v. McMahin, Adm'r......241 15. Same.- When a father loans money to his son and takes his note for the same, his oral declaration that he will not collect the same, but let the son have it at his death, does not change the transaction into an advancement which the father cannot recall......... ...........Ibid.

16. Joint.—Several.—Where a mortgage executed by one of the members of a partnership in his own name, but for the firm, and upon property held in his own name, but in trust for the firm, contained this agreement: "He assuming the payment of said notes, and they being for the purchase-money for the above described real estate; and the mortgagor expressly agrees to pay the sum of money above described," the notes referred to having been given by another person, and the partnership having purchased an interest in the real estate, and thus assumed their payment; Held, that the contract was the joint contract only of all the partners, and not the several contract of each. Crosby et al. v. Feroloman........ 264 17. Pleading. Joint Liability.— Former Recovery.-Where suit had been brought upon the notes and mortgage against the maker of the notes and the member of the firm in whose individual name the mortgage was executed, and judgment only of foreclosure taken against the member of the firm and a personal judgment

against the maker of the notes; Held, that, as judgment on the agreement to pay the notes might have been taken against the partner in that action, the proceedings and judgment taken were a bar to any further suit against him on the contract, and therefore a bar to any suit against his partners, who were only liable jointly with him............Ibid. 18. Construction.-A contract that if certain improvements are sold for five thousand dollars, B. is to have four hundred dollars, or in proportion if for a less sum, and if the works and machinery constituting the improvements are started again and are successful, A. is to have the same amount, but if unsuccessful, nothing, will entitle A. to a proportion, if the improvements are sold after an unsuccessful attempt to run them. MeKernan v. Collins............. ...376

I.

CONVEYANCE.

See HUSBAND AND WIFE, 5 to 9.

Construction.-A conveyance of a lot to A., for the use of the Catholic congregation of the city of Aurora, called "St. Mary's," to have and to hold said premises, etc., for the use of said congregation or their assigns forever, conveys an indefeasible title in fee simple. Schipper v. St. Palais et al.......... ............505

2. Estoppel.-A church building was erected upon a lot thus conveyed, and after the use of the building for years for worship, the building was removed, and the use of the lot for church purposes was abandoned, and while a suit by the grantor was pending to have the deed of conveyance corrected on the ground of mistake in drafting, so as to limit its exclusive use to church purposes, and demanding a forfeiture of the lot to the grantor on account of such abandonment, the grantor took a contract to grade the street in front of said lot, under an ordinance of the city, and made an affidavit to secure the issuing of a precept for the collection of an assessment against the owner of the lot, and in said affidavit alleged that A. was the owner thereof; whereupon A. paid said assessment. Held, that the grantor was not estopped by such affidavit from prosecuting

See VENDOR AND PURCHASER, I, 2.

CRIMINAL LAW.

See HUSBAND AND WIFE, 4; NEW
TRIAL, 5.

1.

Murder-Possession of Weapon
by Deceased.-Proof of Threats by
Deceased.-On a trial for murder, in
which the witnesses for the defence
had testified that the deceased had a
bowie-knife in his possession_the
night of the murder, and the State
had introduced evidence to show
that he had no such knife, and the
defendant proposed to prove threats
made by the deceased when the knife
was exhibited, and also when it was
not shown, against the life of the
prisoner, or of injury to him, some
of which threats were not shown to
have come to the prisoner's knowl-
edge;

Held, that evidence of the posses-
sion of the knife by the deceased a
short time before the date of the oc-
currence which resulted in his death,
was proper for the consideration of
the jury, and also evidence of the
threats made by the deceased, wheth-
er known to the defendant or not,
and either when exhibiting the knife
or at other times. Holler v. The
State.........
.57