Imágenes de páginas

weather is unusually severe, and proper steps are not taken for the
comfort of childron thus excluded, such method of enforcement is
unreasonable and improper. lb.

7. Same.Liability of School Officer.—Error of Judgment.—A school officer
is not personally liable for a mere mistake of judgment in the govern-
ment of his school; but to create liability it must be shown that he
acted in the matter complaiued of wantonlv, wilfully or maliciously.


8. Same.Detention of Pupil After Scltool Hours.False Imprisonment.—The
detention of a pupil for a short time after school hours, as a penalty
for some omission or misconduct, is one of the recognized methods
of enforcing discipline and promoting the progress of the pupils in the
common schools, and although the detention be mistaken it possesses
none of the elements of false imprisonment, unless imposed from wan-
ton, wilful or malicious motives. Ib.

9. Same.Reasonableness of Rule a Question of Law.Instruction.—It is for
the court to determine, as a matter of law, whether or not a rule is a
reasonable one, and an instruction which confounds the reasonable-
ness of the rule with its unreasonable enforcement, and submits the
matter of reasonableness to the jury as a hypothetic question, depend-
ent upon the existence or non-existence of certain enumerated facts,
thus making the question of validity one of mixed law and fact to be
determined by the jury, is erroneous. Ib.

8ee Office And Officeb, 1, 2.
See Evidence, 9; Partnership, 2.

See Married Woman, 7.

1. Void Judgment.—Where a judgment is void all proceedings thereunder,
including a sale, are also void. Ferrier v. Deutchman, SSO

2. Same.Sale Under Several Judgments, Some Valid and Some Void.
A sale made under several judgments, some of which are void and the
others valid and regular, is nevertheless void. Ib.

3. Purchaser.Prior Encumbrance.Effect of Payment by Purchaser.—Where
the equity of redemption in real estate is sold on execution, the
purchaser takes the land charged with all prior encumbrances. The
amount bid will be presumed to be the price or value of the property,
less the encumbrances, and where the purchaser obtains title to the
land, and subsequently pays off' pre-existing liens of which he had
notice,, he will not be permitted to keep them alive by having them
assigned to himself, when to do so would operate as an injury to an-
other who has the right to have them treated as extinguished.

Bunch v. Grave, S51

4. Same.Married Woman.Mortgage.—G. purchased at sheriff's sale on
execution a tract of land sold as the property of B., subject to the
lien of two prior mortgages executed by B. and wife. Afterwards
the wife of B. had her one-third interest in the land set off to her
under the provisions of the act of March 11, 1875. Subsequently,
G.'s title having matured, he purchased and had assigned to him one
of the prior mortgages, which he caused to be foreclosed, taking the
decree in his own name. The other was foreclosed, and the decree
and judgment purchased by and assigned to G. Both decrees ad-
judged that G.'s interest in*the land should be first sold for the pay-

merit of the debts. His interest exceeded in value the amount of the judgments.

Held, that by the purchase of the mortgage debts by .G., they were thereby extinguished as to Mrs. B., and no longer operated as liens upon her interest in the land. lb.

5. Redemption of Real Estate.Act of 1861.Rents and Profits.Judgment Debtor Alone Liable for.— Under the redemption law of 1861, no one except the judgment debtor could be held liable to the execution pur chaser for the rents and profits of the real estate during the year allowed for redemption. Adams v. (Jlidden, 528

45. Same.Act of 1879.—Occupant of Land Liable for Rents and Profits.— The redemption law of 1879, which superseded that of 1861, made the occupant, although not the judgment debtor, liable for the rents and profits of real estate during the year for redemption. lb.

7. Same.Redemption Law of 1881.—xVo Liability for Rents and Profits by Virtue of Act.—Under the act of 1881 on the subject of redemption, no one is liable to the execution purchaser, by virtue of the act alone, for the rents and prorits of real estate during the period allowed for redemption. lb.

8. Some.Vendor's Lien.Redemption Laws Construed.—A vendor's lien attached to real estate in 1876. After the taking effect of the redemption law of 1881, the lien was enforced, and the real estate sold by the sheriff under the decree of foreclosure. At the time of the foreclosure and sale, and during the year following the sale, the real estate was occupied by a grantee of the judgment debtor.

Held, that such occupant is not liable to the execution purchaser for the rents and profits of the land during the year following the sale, either under the provisions of the redemption law of 1861 or that of 1881. lb. SHORT-HAND REPORTER.

See Bill Op Exception's, 3.


1. Military Service.Liability of County.Contract.Mutuality.Statute of Limitations.—Where, during the late war, a county appropriated money to induce, by the payment of bounties, the enlistment of men in the military service of the United States to fill its quota under a call for additional troops, an agreement in writing on the part of men already in the service, procured by one not shown to have been an agent of the county, to accept the offered bounty and be credited to such county, is not responsive to the proposition contained in the order of the county commissioners, but is more in the nature of a counter-proposition, requiring a further order of the board to make it binding as a contract, and in the absence of such further order the contract can not be deemed one wholly in writing, and the six years statute of limitations is a good defence to an action thereon.

Board, etc., v. Crockett, 816

2. Same.Consideration.—If a soldier was credited to a certain county at the time he was mustered in, or if such county then became entitled to have him so credited, any subsequent promise made to him for the purpose of obtaining his consent to be credited to that county, was without consideration. lb.

SPECIAL FINDING. 1. Exception to.Practice.Motion for New Trial.—A simple exception to a finding of facts does not raise a question as to whether the finding is in accordance with or contrary to the evidence, but a motion for a new trial is necessary. Gardner v. Case, 494

2. Same.—Exception to Omclutions of Law.Admission.—An exception to conclusions of law admits, for the purposes of the exception, that the facts have been fully and correctly found. Ib.

See Office And Officer, 1, 2.


1. Character of Corporation.Endowment Fund. Interest.—The State University is not a public corporation, but a private, or at most a quasi public one, and its endowment fund is not embraced by the phrase "public funds" as used in section 5200, R. S. 1881, fixing the rate of interest upon the latter class of funds at eight per cent

State, ex reL, v. Carr, SS5

2. Same.—RepeiU of Statute.Interest on Public Funds.—Auditor of State.— Section 4000, R. S. 1881, requiring the auditor of state to loan the university fund, for which provision is made by section 4595, at seven percent, interest, was not repealed by the later enactment, section 5205, fixing the rate of interest on public funds at eight percent, and repealing " all acts on the subject of interest, including such as relate to interest on public funds." Ib.

See Constitutional Law; Pleading, 7.

1. Construction.Forms.—A form prescribed by statute is an essential and controlling part of the statute. Orr v. Meek, 4!>

2. Repeal by Implication. Gravel Road Acts.Separate Systems nf Procedure.

The gravel road law of March 3, 1877, was not repealed by the act of April 8, 1885, on the same subject; but an intention being manifested to not repeal the former act, two systems for the construction of gravel roads and the making and collection of assessments are created. Deisner v. Simpson, 72 Ind. 435, distinguished. Robinson v. Rippey, 11"

3. Same.Similarity of Provisions of Two Statutes.Inconvenience,—If an intention to construct two systems for the government of the same subject is manifested, the similarity in the provisions of the two statutes, and the inconvenience worked thereby, are not sufficient to constitute a repeal of the earlier one by implication. Ib.

4. Same.Later Act Covering Same Subject-Matter.When Former Act not Repealed.—The rule that where a later act covers the whole subject matter of a former one, and contains irreconcilable provisions, a repeal will be implied, fails where an intention not to repeal is manifested and where both acts may stand. 76.

5. Sams. Incompleteness of Act.Construction.—It is not a sufficient objection to an act that it is not in itself complete in every part, for in interpreting and enforcing a statute it is not to be considered alone, but as part of a system of law. Ib.

6. Construction.Custom.—A practical construction given to a statute by custom is equivalent to a positive law. Board, etc., v. Bunting, 14$

See Appeal, 8 to 10; Attorney And Client, 3; Criminal Law, 3;
Insurance, 7, 10; Intoxicating Liquor; Sheriff's Sale, 5 to 8;
State University; Tax Sale.

See Contract, 5.

STATUTE OF LIMITATIONS. See Guardian And Ward; Soldier's Bounty; Trust And Trustee.

1. Guardian's Sale of Real Estate.Adverse Possession.Ejectment.Quieting Title.—Where the purchaser at a guardian's sale, made in 1852, went into immediate possession of the land, causes of action for the recovery thereof and to quiet title thereto accrued at that time, and, even if the sale was void, adverse possession having been continuously held by the purchaser and his grantees, such causes of action are barred. Sections 293 and 294, R. S. 1881. Walker v. HiU, US

2. Same.Disabilities.Infancy.—Where one is under the disability of infancy at the time a cause of action in his favor accrues, the statute of limitations, nevertheless,, begins to run, and, under section 296, R. S. 1881, the only effect of such disability is to give the party, if the full limitation has run during his infancy, two years after reaching legal age within wiiich he may sue. 16.

3. Same.Infancy and Coverture.—Where the statute of limitations beginB to run during infancy, it is not impeded by the subsequent intervention of the disability of coverture, as one disability can not be tacked to another to stay the operation of the statute. Ib.

4. Guardian's Salt.Iiegal Disability.—Under section 293, R. S. 1881, an action for the recovery of real estate sold by a guardian or commissioner of a court must be commenced within five years after the sale is confirmed; but if the party entitled to maintain the action is under a legal disability, then, under section 296, if the full period of limitation has expired during the existence of the disability, the action must be brought within two years after its removal.

Davidson v. Bales, 391

STOCK AND STOCKHOLDERS. See Corporation; Taxes. STREET RAILWAY. See Negligence, 4 to 7. SUBROGATION. See Mortgage, 7; Principal And Agent, 1. SUMMONS. See Criminal Law, 10; Notice. SUPREME COURT. See Appeal; Attachment, 1; Bill Of Exceptions; Continuance; Criminal Law, 12, 13,16, 18, 31; Practice.

1. Instructions to Jury.Evidence Not in Record.—Where the evidence is not in the record, the Supreme Court can not say that instructions given or refused were erroneous. Low v. Deiner, JjS

2. Practice.Appeal.Showing of Error.Reversal of Judgment. — Unless the record affirmatively shows the existence of error, and that it was, or probably was, prejudicial to the party complaining, the judgment will not be reversed. Hartcr v. Eltxroth, 159

3. Brief.Mere Restating of Causes for Kern TVtaZ.—The mere restating^ in a brief of the causes assigned for a new trial does not meet the requirements of the rule of the Supreme Court relating to briefs.

Louisville, etc., R. W. Co. v. Donnegan, 179

4. Same.References to Record. Parties asking for a reversal of s judgment must furnish references to such portions of the record as will show that error intervened in the proceedings below. lb.

5. Joint Assignment of Error.Sufficiency of.—A joint assignment of errors by two or more appellants will not present any question for decision unless it is good as to all who have united therein.

Walker v. HiU, SSS

i>. Law of Cage.Decision of Supreme Court.—The decision of the Supreme Court in a cause remains the law of the case in all subsequent proceedings. ConlinerUal lift Ins. Co. v. Houser, 266

7. Assignment of Error.Joint Assignment.Effect of.Complaint Good as to One Appellant. — Where a complaint is good as to one appellant, a joint assignment of errors will not prevail against it.

Rogers v. Union Cent. L. Ins. Co., S43

8. Instructions to Jury.Applicability to Evidence.Practice. — Where the evidence is not properly in the record, no available question can be predicated upon the giving or the refusal to give instructions, the correctness of which depends upon the facts. Lyon v. Davis, S8f

U. Certiorari.Rules of Trial Court.—The Supreme Court will not take notice of the existence of the rules of a trial court unless they are properly in the record on appeal, und will not require the clerk, by writ of certiorari, to certify such rules, unless embraced in a bill of exceptions or ordered by the court to be so certified. Rout v. Sinde, 597


See Appeal, 11; Attachment, 2 to 5; Conveyance, 3; Guaranty; Husband And Wife; Judgment, 16; Married Woman; MortGage, 4, 8; Office And Officer, 4; Principal, And Surety.

See Nuisance.

See Tax Sale.

1. Assessment of National Bank Stock.Right of Owner to Deduct Indebtedness. —The owner of national bank stock is entitled to deduct from its value, if he have no other credits from which the deduction can be made, the amount of the bona fide debts owing by him.

City of Indianapolis v. Vajen, S40

2. Same.Refusal to Allow Deduction.Erroneous Assessment.City.Refunding Taxes Erroneously Collected.—Where a taxpayer, in making his assessment list for city taxation, gives notice of his indebtedness, but does not enter it upon his list, and demands of the assessor the right to deduct from the value of his national bank stock the amount of his bona fide indebtedness, which that officer refuses to allow on the ground that such deduction is not authorized by law, and afterwards makes a like demand of the city treasurer before paying his taxes, which is also refused, the assessment, to the extent of the deduction improperly denied, is erroneous, and the taxpayer is entitled to have the excess of taxes collected refunded, whether paid voluntarily or not, and without appearing before the board of equalization and there attempting to have the assessment corrected. Ib.


1. Deed.Permanent Improvements.—Adverse Title.—A purchaser of land at a tax sale, who has received a tax deed and taken possession and made permanent improvements, but whose deed is not effectual to convey title, can only recover for such improvements as were made after receiving his deed and before notice of an adverse claim to the land. Hilgenberg v. Rhodes, 16?

2. Some.—Statute Construed.When Recovery Had for Improvements.—Section 253, of thn t-.ix law of 1872, providing that the purchaser "shall

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