joyment of his property, and that he could dispose of it as he pleased during his life, by gift or otherwise. Held, also, that a conveyance in good faith in his lifetime of all his property to his wife vested in her an absolute title to the property, it not being charged with any trust in favor of the girl. Held, also, that the contract was void as to the wife, because of her coverture when it was entered into, and incapable of ratification. Held, also, that a new verbal contract made by the wife after the death of the husband was within the statute of frauds, and a part performance on the part of the girl did not take it out of the statute. CONTRIBUTION. See DECEDENTS' ESTATES, 2. CONVEYANCE. See TRUST AND TRUSTEE. CORPORATE STOCK. See DECEDENTS' ESTATES, 10, 11, 14 to 16. CORPORATION. Ib. Existence of.--Attacked by Direct Proceeding. When Must be.-Where there is a statute authorizing the creation of a corporation and an attempt to comply with the statute, and an actual exercise of corporate functions, the existence of the corporation can only be destroyed by a direct proceeding. Crowder v. Town of Sullivan, 486 COSTS. See DRAINAGE, 11; ELECTIONS, 3. 1. Retaxing of.—When Motion May be Made.-Bill of Exceptions.—A motion to modify the judgment and retax the costs in a case may be made at any time during the term when the judgment was rendered, as during that entire term the proceedings are in fieri. It is not necessary that the motion should be extended on the order-book. It is sufficient if it is brought into the record by the bill of exceptions. Merrill v. Shirk, 503 2. Same.- Bill of Exceptions.-- What it Must Contain.-The law does not necessarily contemplate a trial and the introduction of evidence on the hearing of a motion of this character. A bill of exceptions is sufficient which contains the verified motion to modify the judgment and retax the costs, together with an itemized and a properly certified statement of the costs, and which recites that "all the evidence introduced upon said hearing or heard by the court was the complaint, answer and reply, the verdict of the jury and the judgment of the court in said cause, together with the verified motion and exhibit above referred to." Ib. 3. Same.-Action to Quiet Title.-Joinder of with Action for Partition.-Taxation of Costs.--Discretion of Court.--Where an action to quiet title is joined with an action for partition, the taxation of costs is governed by section 590, R. S. 1881, and the successful party is entitled to recover his costs, and the court has no discretion to refuse it. The verdict and judgment are conclusive against the unsuccessful party. Ib. COUNTY. COUNTY AUDITOR. See TAXES, 9, 10. COUNTY COMMISSIONERS. See ELECTIONS, 1. Erection of Court-House.-Minor Changes Without Plants or Specifications.— Power of Commissioners to Make.--Presumptions.-Under section 4243, R. S. 1881, requiring plans and specifications for the construction of public buildings to be prepared and filed before advertising for proposals, a board of county commissioners may make a change in a matter of detail, such as the heating or lighting of a court-house, in process of erection, without requiring plans and specifications of the proposed change to be filed, and without advertising for proposals for the same. No important general change in the plan of the building can be thus made, only changes in matters of detail. It must be presumed that the board of commissioners neither violated the law, nor acted in bad faith in ordering changes in a matter of detail, and in the absence of countervailing facts, it must be also presumed that the changes were of such minor importance and so necessary that it was not only the right of the board to order them made, but that it was its duty to cause them to be made. Board, etc., v. Cincinnati, etc., Co., 240 COVENANT. 1. Running with Land.- What is.-A covenant in a deed of certain premises, " together with the mill and all privileges and easements thereto belonging," is a covenant running with the land that the grantors had a right to maintain the dam at the height it was when the deed was made. Scott v. Stetler, 385 2. Same.-Action for Broken Covenant.-Subsequent Grantee. When can not Maintain. In a suit by a subsequent grantee against the grantors in the above deed based upon the breaking of said covenant, the grantors may successfully defend by showing that they sold the land with the agreement that the grantees, among other things, were to repair or rebuild the old dam, and that it should not be raised beyond its original height; that for the purpose of deceiving their grantors the grantees destroyed the marks indicating the height of the dam, and falsely represented that the height was not increased, and that therefore the grantors executed the deed in ignorance of the fact that the height of the dam had been increased. Ib. CRIMINAL LAW. 1. Assault and Battery with Intent to Kill.--Information.--An information charging that one A., at, etc., on, etc., 'did then and there unlawfully, feloniously, wilfully, and purposely, and with premeditated malice, in a rude, insolent, and angry manner, touch one B., with intent then and there, and thereby, her, the said B., feloniously, wilfully, and purposely, and with premeditated malice, to kill and murder," etc., contains a good charge of assault and battery, with intent to commit the crime of murder. Vaughan v. State, 14 2. Larceny.-Information.-Duplicity. An information charging in one count the larceny of two distinct articles of personal property belonging to different persons, without alleging that the property of the two owners was stolen at the same time and by the same act, is bad for duplicity. Joslyn v. State, 160 3. Abortion.-Sufficiency of Indictment.-An indictment for criminal abortion charging that an instrument was feloniously introduced into the womb of a pregnant woman, with the intent to produce a miscarriage, such operation not being necessary to save the woman's life, is sufficient without showing what kind of a wound it produced or what disease it caused. Rhodes v. State, 189 4. Same. Indictment.-The indictment was not bad because it showed both miscarriage and death. Ib. 5. Same-Duplicity.-Charging Accessory.-The indictment was not bad for duplicity because it charged an accessory before the fact as principal. Ib. 6. Same.-Evidence.- Declarations in Last Illness.--Declarations and exclamations indicative of pain or suffering, made by the woman in her last illness, and not referring to the past, are competent evidence. Ib. 7. Same.--Witness.-Impeachment.-Where the State is neither surprised nor prejudiced by the testimony of a witness called by it, it may not contradict such witness by evidence of contradictory statements made out of court. 1b. 8. Same.--Evidence.--It was not competent for the State to show that the woman, upon whom the abortion was produced, was buried at the expense of the county. Ib. 9. Same.--Instruction.--Reasonable Doubt.--In a case where the evidence of guilt is purely circumstantial an instruction that "The defendant is to have the benefit of any doubt. If, however, all the facts established necessarily lead the mind to the conclusion that he is guilty, though there is a bare possibility that he may be innocent, you should find him guilty," is erroneous. CUSTODY OF CHILD. See DIVORCE, 1, 4. DAMAGES. See COMMON CARRIER. Ib. When Exemplary May be Given.--Exemplary damages may be given when malice and oppression weigh in the controversy, and the act is not punishable as a crime. Louisville, etc., R.W. Co. v. Wolfe, 347 DECEDENTS' ESTATES. 1. Extent of Creditor's Lien on Realty.--A creditor of an estate has a lien for his claim on the entire realty of the estate, and can not be confined to a particular part of it. Chaplin v. Sullivan, 50 2. Insufficiency of Personal Assets.-Payment of Indebtedness by Purchase of Part of Real Estate.-Right of Contribution.--A purchaser of land set off to one of the children of a decedent in a partition proceeding, who, in order to prevent the land so purchased by him from being sold to discharge outstanding claims against the estate, pays off such indebtedness, the executor not having any assets with which to do so, is entitled to contribution from one who has also purchased a portion of said estate, but who refuses to pay his proportion of said indebtedness. Falley v. Gribling, 110 3. Same.-Expenses of Administration.-Real Estate of Decedent Liable for.Under our statute, the land of a decedent is subject to be sold by an executor or administrator to make assets with which to pay the expenses of administration. Ib. 4. Same. Statute of Limitations.-Application to Sell Land to Pay Debts.When Must be Filed.-The fifteen years' statute of limitations applies to applications of an executor or administrator to sell lands for the purpose of making assets with which to discharge the liabilities of the estate represented by him. The statute does not begin to run, however, until the executor or administrator discovers the insufficiency of the personal estate, and that it is necessary to sell land to make assets to pay off such liabilities. Ib. VOL. 128.-39 ute. 5. Same.-Statute of Limitations.-Defence of.-How Pleaded.-Demurrer.Complaint. In an action by an executor to sell land of a decedent for the purpose of discharging liabilities against his estate, a demurrer will not lie to the complaint on the ground that the action is barred by the statute of limitations, unless the complaint affirmatively shows that such is the fact. The statute of limitations must be pleaded, and is not available on demurrer unless it affirmatively appears that the case is not within any of the exceptions to the statIb. 6. Sale of Land by Administrator.—Mortgagee not Party to Proceeding -- Lien not Divested.--To divest the lien of a mortgage by an administrator's sale of land, the mortgagee must be made a party to the proceeding, and the court must order the sale of the land to discharge the lien. Where the mortgagee was not a party to the proceeding to sell, and the court did not order a sale to pay his mortgage, the lien of the mortgage was not divested, and the purchaser took the land subject to such lien, notwithstanding the administrator's assurance to the contrary. Crum v. Meeks, $60 7. Same.-Final Settlement.- When May be Set Aside-Summons.-Under section 2403, R. S. 1881, any person interested in an estate which has been finally settled, if he was not personally served with summons, and did not appear at the hearing of such final settlement, may have the same set aside if it affects him adversely, for any of the causes therein specified. Ib. 8. Same.-Final Settlement.-Action by Creditor to Set Aside.--Estoppel.-When a creditor of a decedent seeks to set aside the final settlement of the administrator, on the ground that the administrator misappropriated the funds arising from the sale of certain real estate, he is not estopped from so doing because formerly he had brought a suit, in which he was defeated, to set aside the sale of the land, alleging as a reason therefor that the land sold too cheap. Neither is he estopped because he failed to object to certain acts and declarations of the administrator, it not appearing that he knew his rights, or that his failure to object in any degree influenced the conduct of the administrator, or that the administrator did not know all the facts as fully as he did. Ib. 9. Childless Second Wife.--Interest in Husband's Realty.-Rights of Children.Under the statute previous to the amendment of 1889 a childless second wife takes a fee simple title in one-third of the real estate of which her husband died seized. At her death the children of the husband by a former marriage become her forced heirs, and the quitclaim deeds of such children do not estop them from recovering the land after the death of the widow. The said deeds only pass the title held by the grantors at the time of the conveyances. Montgomery v. McCumber, 374 10. Corporate Stock.--Personal Property.-Shares of stock in a corporation, owned by the decedent at the time of his death, are personal property. Citizens' Street R. W. Co. v. Robbins, 449 11. Same.-Sale -Such stock descends to the heirs at law, subject to the right of the administrator to subject the same to sale in the manner prescribed by the laws of the State. Ib. 12. Same. Public and Private Sales.-The common law right of the administrator to sell and dispose of personal property does not exist in this State. Sales of such property must be made in the manner prescribed by our statutes upon the subject. In the absence of an order from the proper court, the sale must be public, and where the sale is private, under the order of the court, it must be made in substantial compliance with the order. Ib. Ib. 13. Same.-Sales Under Order of Court.- When Title Passes.-In cases of private sales, where the order of the court does not require a confirmation, if the sale is made in substantial compliance with the order of the court the title passes to the purchaser upon his compliance with the terms of the sale. Ib. 14. Same-Validity.-Where an order to sell stock at private sale required the administratrix to make the sale on good security, and the sale was made upon the individual note of the purchaser without any security and on a credit of ten years, the statute authorizing a credit of only twelve months, the sale was void and vested no title. 15. Sume.-Corporate Stock.-Transfer of on Books of Corporation.-Liability for Illegal Transfer.-In such case, if the corporation, with notice that the stock belonged to the estate of the decedent, and with notice of the order of sale, cancels the certificates of stock, and issues a new certificate to the purchaser, without inquiring into the validity of the sale, it is liable to the estate for any loss occasioned thereby. It is bound to know that the sale has been made in compliance with the terms of the order. Ib. 16. Same.-Liability of Corporation to Estate.-A purchaser of such new certificate, in good faith, and without notice of any illegality in the surrender and cancellation of the original stock, is not liable to the estate, its remedy being against the corporation. Ib. 17. Application to Remove Administrator.-Change of Venue.-In an application to remove an administrator the party making the application is not entitled to a change of venue from the county, nor is he entitled to a change from the judge. Bowen v. Stewart, 507 18. Same.-Appointment of Administrator.- Power of Court-Adverse Party.— Where more than twenty days had elapsed after the death of a decedent, and neither the widow nor any of the children had taken out letters of administration, it was proper for the court to appoint the treasurer of Carroll county, the decedent being a resident of said county at the time of his death, administrator of the estate of said decedent, it being claimed that at the time of his death the decedent held mortgages on large bodies of land in Carroll county and in adjoining counties which were unpaid, and that he was indebted to the city of Delphi and the county of Carroll in a large sum for taxes due on personal property which had never been listed for taxation. The treasurer of the county, under the circumstances, was not a stranger to the estate, and therefore incompetent to take out letters. Neither did he have such an adverse interest as against the estate as to render him an improper person to administer upon the same. Ib. 19. Same. Evidence.- Competency of to Prove Need of Administration.-Upon the hearing of the application to remove the administrator, it was proper for him to show that there were unsatisfied mortgages upon real estate in Carroll county, held by the decedent in his lifetime. It was a circumstantial fact, which the court might consider in determining as to the necessity for an administration of the estate. Ib. 20. Same.--Evidence.-Communication of Decedent.-Inadmissibility of.—Custom as to Appointment of Administrators.-Incompetent to Show.-Upon such a hearing the court did not err in excluding testimony as to the wish of the decedent, communicated to his son, that his estate should not be administered upon. Neither did it err in excluding testimony as to the custom of the Carroll Circuit Court in the appointment of administrators. Ib. 21. Same.-Settlement of Estate by Heirs without Administration.-- When can |