plaint for a new trial after the close of the term at which a cause has been disposed of constitute a separate and distinct action, and from the judgment rendered therein an appeal may be taken to the Su- preme Court. An appeal from the judgment in the original cause does not present for review the judgment rendered upon the com- plaint for a new trial. Harvey v. Fink, 249
6. Same.-Review of Judgment.- Waiver.-Where a party files a complaint for review for alleged errors of law only, and prosecutes the proceed- ing to final judgment, he can not afterwards appeal from the judgment sought to be reviewed, as the adoption of one remedy waives the other. Ib.
7. Party Accepting Benefit of Judgment not Allowed to Appeal.-Mortgage.— Foreclosure. Sale.- New Trial as of Right.- Where in an action to foreclose a mortgage upon three tracts of land there is a de- cree of forelosure rendered as to two of the tracts, and a judgment against the plaintiff as to the third tract, the latter can not, after a sale of the two tracts under the decree, prosecute an appeal to the Supreme Court to obtain a reversal of the judgment as to the third, nor can he prosecute such an appeal from a ruling of the court be- low overruling his motion for a new trial, as a matter of right, as to such third tract. Sterne v. Vert, 408
8. Civil Actions.-Statute Construed.-Section 640, R. S. 1881, must be construed in connection with section 633, and appeals thereunder, as in all civil actions, must be perfected within one year from the time judgment is rendered. Wright v. Manns, 422
9. Same.-Time.-Computation of. Under section 1280, R. S. 1881, in com- puting the year within which appeals may be taken, the day on which the judgment appealed from was rendered is to be excluded; there fore, where a judgment was rendered July 23d, 1885, and the tran- script was filed July 23d, 1886, the appeal is in time.
Ib. 10. Same-Death of Party.—Substitution of Administrator.- Decedents' Estates. -Where an action is commenced against a party, who dies while it is pending, and his administrator is substituted as defendant, the time within which an appeal may be taken is fixed by the civil code of practice, and not by section 2455, R. S. 1881, regulating appeals in matters affecting decedents' estates. 1b.
11. Bond.-Supreme Court can not Increase Penalty.--Solvency of Sureties.- Change in Financial Condition.-The Supreme Court can not increase the penalty of an appeal bond as fixed by the trial court; nor will it interfere with the decision of that court as to the sureties' solvency and ability to pay, unless it is shown that there has been a change in the condition of the parties or sureties.
Midland R. W. Co. v. Wilcox, 561
APPEARANCE.
See GRAVEL ROAD, 3. ARGUMENT OF COUNSEL. See CRIMINAL LAW, 40 to 42. ASSAULT AND BATTERY.
See CRIMINAL LAW, 2. ASSESSMENT.
See CANAL, 3; GRAVEL ROAD, 4 to 11; TAXES.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
Deed.-Preference of Creditors.-Fraud.-A stipulation in a deed of assign- ment, made under the statute, that certain creditors shall be pre-
ferred and paid in full, is controlled and annulled by the statute, and the deed, in the absence of actual fraud, will be upheld as a valid general assignment. Schwab v. Lemon, 54
ASSIGNMENT OF ERROR.
See SUPREME COURT, 5, 7.
ATTACHMENT.
1. Abandonment of Proceeding.- Dismissal. - Judgment.-Supreme Court.- Practice. Where an attachment proceeding is instituted, as auxiliary to an action for the recovery of a debt, and a personal judgment is taken, without an adjudication of the proceeding in attachment, the latter will be deemed abandoned. The taking of the judgment is equivalent to a dismissal of the attachment proceeding, and there be- ing a full appearance to the main action by the defendant, no avail- able error can be predicated upon a ruling relative to the auxiliary proceeding. United States Mortgage Co. v. Henderson, 24 2. Delivery Bond.--Custodia Legis.--By the execution of a delivery bond, under section 924, R. S. 1881, attached property is not withdrawn from the custody of the law, but its keeping and care are removed from the sheriff and committed to the claimant until the sheriff may lawfully demand it to be sold on execution issued on the judgment for the sale thereof. Wright v. Manns, 422 3. Same.-Complaint on Delivery Bond --Necessary Averments.--A com- plaint upon a delivery bond, executed by the claimant of attached property and his sureties, is bad if it fails to allege that after the rendition of judgment for the sale of the property a special execu- tion had been issued thereon to the sheriff commanding him to sell the same, and that by virtue thereof he had demanded of the obligors the delivery of the property, or the payment of its appraised value, not exceeding the amount of the judgment and costs.
4. Same.--Taking Personal Judgment Only.--Effect as to Attachment Proceed- ings.-The rendition of a personal judgment only against the defend- ant in an attachment suit is equivalent to a dismissal of the attach- ment proceedings, and a delivery bond executed therein ceases to be effective.
5. Sume.-Surrender of Indemnity.--Discharge of Sureties.--Judgment Nunc pro Tunc.-Where a personal judgment only is rendered against the at- tachment defendant, on the faith of which his sureties in the delivery bond surrender indemnity held by them, the subsequent entry, nunc pro tune, of a judgment for the sale of the attached property will not affect them, their liability being at an end.
ATTORNEY AND CLIENT.
See CONTINUANCE; PRINCIPAL AND AGENT, 4.
1. Good Faith.-Diligence.- Violation of Instructions. Ratification.-Compen- sation of Attorney.--Where an attorney, in good faith, and acting as he believes for the best interests of his client, exercising reasonable skill and diligence, takes steps in the foreclosure of a mortgage, and the appointment of a receiver for mortgaged property, in violation of instructions of his client, and the latter afterwards ratifies and accepts the benefits of such action, and adopts the receivership established, such attorney is entitled to a reasonable compensation for his services. United States Mortgage Co. v. Henderson, 24
2. Same. In such case, if the attorney acted in bad faith, or if he had violated the instructions of his client, and the proceedings taken by him had not been ratified. he would be entitled to no compensation for the services so rendered.
3. Attorney's Lien.-Notice of Intention to Hold.-When Must be Entered.- Assignment of Judgment.-Under section 5276, R. S. 1881, an attorney does not acquire a lien upon a judgment obtained for a client, even as against subsequent assignees, unless notice of his intention to hold a lien is entered at the time the judgment of the trial court is rendered. Alderman v. Nelson, 255
See DECEDENTS' ESTATES, 1; JUDGMENT, 1 to 3; Principal and SURETY,
BANKS AND BANKING.
See PRINCIPAL AND AGENT, 6, 7; TAXES.
BENEFIT ASSOCIATION.
See LIFE INSURANCE, 1 to 3, 5 to 9.
BILL OF EXCEPTIONS.
See CRIMINAL LAW, 12, 22, 31; Supreme Court, 9.
1. Statement that Evidence was "Offered" not Equivalent of " Introduced."—A statement in a bill of exceptions that the parties ❝offered the fol- lowing evidence" is not the equivalent of a statement that the evi- dence was introduced or admitted. Lyon v. Davis, 384
2. Same.-Must Show that it Contains all Evidence Adduced.--A bill of excep tions which shows on its face that it does not include all the evidence adduced and the agreements of the parties entered into at the trial, is substantially defective.
3. Same-Long-Hand Manuscript.-Certificate of Judge.--It is for the judge, and for him alone, to certify that the evidence set out in the long- hand manuscript is all the evidence given in the cause. Ib.
BLUFFTON, CORPORATION OF.
See APPEAL, 11; ATTACHMENT; GRAVEL ROAD, 5; GUARDIAN AND WARD; OFFICE AND OFFICER, 3, 4.
See PRINCIPAL AND AGENT, 5.
BURDEN OF PROOF.
See INSURANCE, 4.
CANAL. See LEASE.
1. Wabash and Erie.-Title to Lands Taken by.-Easement.-Where lands were taken, occupied and used under the laws which provided for the construction of the Wabash and Erie Canal, the estate acquired therein was an estate in fee simple, and not a mere easement. Frank v. Evansville, etc., R. R. Co., 132 2. Lands Appropriated for Reservoir Purposes.-Title Acquired.-The Wa- bash and Erie Canal Company acquired title in fee to land appro- priated by it in 1846 for a reservoir to supply the canal with water. Blair v. Kiger, 193
3. Same.-Assessment of Damages.-Lapse of Time.-Presumption.-After the lapse of so long a time since the appropriation of the land, it will be presumed that damages were assessed and tendered or were waived. Ib.
CANCELLATION OF MORTGAGE. See MORTGAGE, 2, 5 to 7; NEW TRIAL, 5. CASES LIMITED AND DISTINGUISHED.
1. Huff v. Cole, 45 Ind. 300, distinguished. 2. Bucklen v. Huff, 53 Ind. 474, distinguished. 3. Deisner v. Simpson, 72 Ind. 435, distinguished. 4. Githens v. Kimmer, 68 Ind. 362, limited.
Post v. Losey, 74
Post v. Losey, 74 Robinson v. Rippey, 112 Knopf v. Morel, 570
See APPEAL, 3; BILL OF EXCEPTIONS, 3.
CERTIORARI.
See SUPREME Court, 9.
See SCHOOLS; TAXES; TOWN.
COMMON CARRIER.
See NEGLIGENCE, 4 to 7.
1. Contract.-Care Required Concerning Goods.-A stipulation in a bill of lading issued by a transportation company, that goods received for shipment at Boston are "to be forwarded to Louisville depot only," does not relieve the carrier from its duty to properly care for them after their arrival at the latter place.
Merchants Despatch, etc., Co. v. Merriam, 5 2. Same-Duty to Provide Place of Storage.-Although the bill of lading is silent on the subject, it is the duty of a common carrier, which be- comes a part of its contract, to provide a place where goods may be safely kept after they have been unloaded from the cars in which shipment is made.
3. Same.-Warehouseman.-Negligence.-Delivery to Wrong Person.-Conver- sion. After goods are unloaded and stored, the liability of the car- rier becomes that of a warehouseman, whether the depot or place of storage belongs to it or to another; and if, through its negligence, the goods are delivered to a wrong person, it is liable to the owner upon its contract for damages as for a conversion.
COMMON SCHOOLS.
See SCHOOLS.
COMMON GAMBLER.
See INTOXICATING LIQUOR, 2.
COMPROMISE.
See CONTRACT, 8; COUNTY, 5.
Contract. Consideration.-In order that a compromise may constitute a sufficient consideration for the enforcement of an executory contract, there must have been an actual bona fide claim, founded upon a col- orable right, about which there was room for honest doubt and actual dispute. United States Mortgage Co. v. Henderson, 24 CONDITION.
See CONTRACT, 7; DEED; INSURANCE, 7 to 10.
See COMPROMISE; CONTRACT, 5; DEED; JUDGMENT, 4, 11; MARRIED WOMAN, 4; PLEADING, 4; PRINCIPAL AND SURETY, 3; SOLDIER'S BOUNTY, 2.
See CRIMINAL LAW, 23 to 29; MALICIOUS PROSECUTION; TORT.
CONSTITUTIONAL LAW.
See DRAINAGE, 1; GRAVEL ROAD, 5; TOWN.
Repeal of Old Constitution by Inconsistent Provisions of New.-Statute.-Repeal by Implication.-The adoption of a new Constitution repeals and su- persedes all the provisions of the older Constitution, not continued in force by the new instrument; and the same rule applies to amend- ments of an existing Constitution, which are inconsistent with the original text of the instrument amended; also to statutory enact- ments which are inconsistent with later constitutional provisions embracing the same subject-matter. Griebel v. State, ex rel., 369
CONTEMPT.
See PARTIES.
CONTINUANCE.
Absence of Attorney.—Discretion of Trial Court.—Reversal of Judgment.—The refusal to continue a cause, on account of an attorney employed therein being professionally engaged elsewhere, is not a ground for reversal, unless it clearly appears that injustice has been done, and the discretion vested in the trial court plainly abused.
Evansville, etc., R. R. Co. v. Hawkins, 545 CONTRACT.
See COMMON CARRIER; COMPROMISE; COUNTY COMMISSIONERS; DEED; ESTOPPEL, 2; GUARANTY; INSURANCE; LEASE; LIFE INSURANCE; MASTER AND SERVANT, 6; PLEADING, 4; PRINCIPAL AND AGENT, 1 to 5; PRINCIPAL AND SURETY; REAL ESTATE; SOLDIER'S BOUNTY. 1. Construction of Railroad.— Estimates of Engineer.- Stipulation that They Shall be Conclusive.- Recourse to Courts.-A stipulation in a contract be- tween a railroad company and a contractor, that the estimates made by the former's engineers as to the quality, character and value of the work performed by the contractor shall be final and conclusive against the latter, "without further recourse or appeal," can not deprive him of the right to resort to the courts for the recovery of what may be due him, notwithstanding the estimates.
Louisville, etc., R. W. Co. v. Donnegan, 179 2. Same.-Taking Control of Work from Contractor.-A provision in the agreement, that, if the contractor fails to employ such a force of work- men as the company's engineer may deem adequate to a completion of the work within the time fixed, the latter may do so and charge the contractor with the amount paid in wages, must be given a reason- able construction, and control of the work can not be taken from the contractor without sufficient cause. Ib. 3. Same.-Competency of Engineers.-Implied Undertaking as to.-In such case there is an implied undertaking on the part of the railroad com- pany that the engineer to be put in charge shall be competent, honest and reasonably careful, and that he will not make delays, caused by his wrongs, a pretext for taking the work out of the control of the 16. 4. Same.-Material Furnished at Direction of Engineer.-Compensation Not- withstanding Contract.—Where the work which the contractor under-
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