filed in a criminal case, after the] close of the term, without leave having been granted during the term for an extension of time.

D

DAMAGES.

See BASTARDY, 3; Contract, 6.

Measure of. See VENDOR AND PUR-
CHASER, 2.

I.

2.

Held, that the bill of exceptions form-
ed no part of the record, even if
time beyond the term, in which to
file the bill, could have been given.
The State v. Jones... 179
5. Murder.-Manslaughter.-Use of
Deadly Weapon.--Malice.-Instruc-
tion.-On a trial for murder, where
there were some circumstances
strongly tending to the conclusion
that the crime was murder, and not
manslaughter merely; such as the
use of a deadly weapon by the de-
fendant, in a manner seemingly cruel
and not justified by the danger of
the supposed assault by the deceased,
and the following the deceased and
inflicting upon him a blow with a
knife after he had turned and was
retreating; and, on the other hand,
there were some circumstances that
tended in some degree to modify
such conclusion; as that the defend-3.
ant was smarting under indignities
inflicted upon him by the deceased,
who a short time before had assaulted
and chased defendant with a stable
fork through the public streets, until
he took refuge; and the deceased
had also applied to the accused de-
grading and humiliating epithets.
Held, that a charge to the jury, which,
after defining manslaughter as an
unlawful killing without malice ex-
press or implied, stated, that “if a
man use a deadly weapon in killing
his adversary, the law implies malice
from its use, except where the killing
is excusable," was in effect telling
the jury, that there was no such
thing as manslaughter where a deadly
weapon was used, as the implied
malice made it murder, if it was not
excusable; and that the charge was
erroneous. Miller v. The State-432
6. Same.-Mortal Wounds.-Malice.
Where there was doubt as to which
of the blows was mortal, this in-5.
struction should have been given as
requested: "If the blows which
caused the death of" A., the de-
ceased, "were given in self-defence,
and other blows were afterward
given, which were not given in self-
defence, not mortal, you should find
the defendant not guilty."........Ibid.

4.

DECEDENTS' ESTATES.

Creditor.-A creditor of a decedent's estate must proceed to enforce his claim against the estate through an executor or administrator, and cannot sue the heirs, devisees, and legatees, where there has been no administration. Wilson et al. v. Davis et al............................... .141

Executor de Son Tort.-Liability.If any one has, without an adminis.tration, though he be a legatee under a will, taken possession of any of the property of a decedent, he may be sued as an executor de son tort, by an unpaid creditor ..Ibid.

Appeal.-Section 189 of the act for the settlement of decedents' estates is in force, except so far as it authorizes a writ of error. The party aggrieved has his election to appeal from the common pleas court to the circuit court, in any matter connected with the decedent's estate, or under section 550 of the code, to the Supreme Court. If appealed to the circuit court, the case is tried de novo, and if there are issues of fact, they may be tried by a jury. Hamlyn et ux. v. Nesbit, Adm'r. .284 Trial.-Burden of Issue.-Where the administrator had reported, and exceptions were taken to his report, and the administrator charged that the decedent had made unequal advancements to the heirs, and this was denied, and an appeal was taken to the circuit court;

Held, that the administrator was entitled to have the open and close on the trial......... ........ Ibid. Witness.-Evidence.-The administrator is a competent witness on such trial. The wife of one of the co-plaintiffs, the real party in interest, cannot be a witness. Nor can the declarations of the ancestor, made long after the supposed payment or advancements to his children, be proved for the purpose of establish

1.

ing the fact that such payments or advancements were made......... Ibid. 6. Administrator.-Removal.-Practice. In a proceeding to remove an administrator on the ground that he 2. has failed to make a true and complete inventory of the estate of the decedent, no other pleadings are authorized than the sworn application. The only judgment the court can render is one removing or refusing to remove. The statute is simply mandatory, and the action of the court on the application is very much within the discretion of the judge. Williams v. Tobias, Adm'r............345

DEDICATION.

3.

1. City.-Improvement of Alley.-In-
junction.-Pleading.-Where an in- 1.
junction was sought to restrain the
city of Evansville from improving
what was claimed by the city as an
alley, it was answered, that the own-
ers of the property, subject to the
plaintiff's life estate, on both sides of
the alley, had laid out and opened
the same to correspond with the other
alleys of the city, with the consent
of the plaintiff, and, in 1858, had
laid off lots on their grounds abut-
ting on said alley, and described said
lots as extending to the same, in deeds
and conveyances; and that, with full
knowledge of the plaintiff and the
owners, said alley had been used by
the public, exclusive of the use by
the owners.

Held, that A. took the entire real estate of which his father died seized. Mathers v. Scott....

2.

..303 Same.-Sixth Section.-A. and his wife conveyed lands to B. and his wife, the consideration being natural love and affection, the wife of B. being the daughter of the grantors. B. and wife had two children. The wife died; and B. married again, and had five children by his second wife; and B. died.

Held, that, on the death of B., the seven children inherited equally. Barnes v. Loyd et al...................................523

Held, that the answer was sufficient as
showing a dedication to the public
use; and that such facts could not
be introduced under the denial, but
must be averred by answer. The
City of Evansville et al. v. Evans. 229
2. Same.-Lapse of Time.-Dedica-
tion of property to a highway may be
shown by acts in pais, and lapse of 1.
time is not important under such cir-
cumstances.......
Ibid.

DEMAND.

See OFFICIAL BOND, I.

DEMURRER.

See JURISDICTION, 5; NEW TRIAL, 4;
PRACTICE, 19.

DIVORCE.

Custody of Children.-In granting a divorce, the court has the power to decree the custody of the minor children, or any of them, to the party most suitable, considering the sex and age of the children and qualification of the parties. Bush v. Bush........... ....164 2. Provision for Children.-It is the duty of the court on granting a divorce, where there is property, to make reasonable provision for the

2. Where in a proceeding in bastardy the defendant is adjudged to pay a certain sum, and is held in custody for failure to pay or replevy the same, and without the consent of the sheriff forcibly and unlawfully escapes from the jail, and the sheriff is sued for the escape, and suffers judgment, and pays the sum adjudged against the defendant, he may again arrest the defendant and hold him in jail in execution of the original judgment. Ex parte Voltz......237 ESTOPPEL.

See CONVEYANCE, 2.

EVIDENCE.

See BASTARDY, 2; CRIMINAL LAW, I;
CONTRACT, 6, 7; DECEDENTS' Es-
TATES, 5; LIBEL, 3; OFFICIAL BOND,
2; PLEADING, 3, 4; PRACTICE, 5;
PROMISSORY NOTE, 5, 6; SUPREME
COURT, 1; TRUST, I; VENDOR AND
PURCHASER, I.

5.

6.

another officer of the same company, and delivered to the plaintiff having an account against the company, is admissible, there being an averment in the complaint that the draft was not delivered or received as payment. Such evidence does not contradict the tenor of the draft. The C., C. & L. R. R. Co. v. West....211 Admissions.-Admissions are not regarded as the strongest and most satisfactory evidence. Denman v. McMahin, Adm'r......241 Same.-The admissions of a party may be given in evidence against him, whether connected with any act done or not. These declarations cannot be introduced in his favor........Ibid. 7. Proof in Part.-Where it is necessary for the defendant to show the payment of taxes by him, the admission of a tax receipt is proper, although it does not show who paid the money, as this proof may be supplied by other evidence............ Ibid. Appeal.-Justice of the Peace.-In a suit on a premium note given for a policy of insurance, evidence of the want of consideration may be given under the denial put in by the statute, on trial in the court of common pleas, on an appeal from a justice of the peace. Heller, Receiver, v. Crawford.......

S.

.279

1. Impeachment of Rebutting Witness. Although a witness has been cross examined, on his original examination by the State, yet, if he is again introduced by the State and examined in rebutting, it is proper to lay the foundation then for his impeach-9. Same.-Declarations of Agent.ment upon any evidence then given In such action, the declarations of for the State, and to subsequently in- the agent, made at the time of making troduce witnesses for that purpose. the contract, and relating thereto, are Holler v. The State... .57 admissible in evidence against the in2. Hearsay. The declarations of a surance company................... Ibid. person upon whom an order for the 10. Set-off. Rebutting Evidence.delivery of goods is given are not Where a defendant in an action has evidence against the maker of the introduced proof of a set-off, and the order. Shirts v. Irons...............98: plaintiff introduces new matter in 3. Deposition.-When Used..-When evidence in avoidance, the defendant the deposition of a witness, who does has the same right to introduce renot reside in the county of the trial, butting proof, that he would have in or in an adjoining county, has been an action on the matter pleaded as taken by one party, the fact that the set-off. Basye v. Goodman.......331 other party has had the witness pres- 11. Attorney.—Admissions.—In a suit ent and has examined him during the by an attorney for his services, it is trial, does not prevent the reading of proper for him to testify as a witness the deposition, if the witness be not to admissions made by the defendpresent when it is offered, having ants, as to the amount realized by been discharged by the party who his successful defence of the action procured his attendance........... Ibid. in which he was employed by them. 4. Explanation of Delivery of Draft. McNiel et al. v. Davidson.........336 Evidence to explain under what cir- 12. Same.-Opinions.-There is no cumstances a draft on one officer of error in excluding evidence of a wita railroad company was accepted by ness as to the value of services

See CONTRACT, I to II; HUSBAND AND WIFE, 7; PRACTICE, 6; PRINCIPAL AND SURETY, I; PROMISSORY NOTE,