INDEX. ABATEMENT. See CRIMINAL LAW, 19; PLEADING, 2. ACCESSORY. See CRIMINAL LAW, 2, 4, 7, 10, 11. See STATE, 2. ADVANCEMENT. 1. Presumption.--Burden of Proof.--A voluntary conveyance of land by a parent to a child is presumed to have been intended as an advancement, and the burden of proof is upon the party claiming that it is Scott v. Harris, 520 not. 2. Money Borrowed by an Heir from the Estate.-Money borrowed from the estate by an heir may be treated as an advancement in an action brought by the heirs for a partition of the decedent's estate after the estate is settled. New v. New, 576 AFFIDAVIT. See CONTINUANCE; CRIMINAL LAW, 12, 14. AGISTER'S LIEN. See LIENS, 1. See COUNTY COMMISSIONERS, 4; CRIMINAL LAW, 23; HIGHWAY, 1. 1. Presumption.-Error.-The presumption, on appeal, is that the lower court did not commit an error. Miller v. Cook, 339 2. Errors Not Affecting Appellant Unavailable.-Mechanic's Lien.-Where a judgment foreclosing a mechanic's lien is rendered against two persons and only one appeals, an objection by such appellant that his coparty had no interest in the property is not available for a reversal of the judgment. Wiley v. Coovert, 559 APPLICATION. See LIFE INSURANCE, 3 to 5. APPROPRIATION. See CONSTITUTIONAL LAW, 5; STATE, 2; STATUTE, 2. 1. Implied, what is.-Sufficiency.-An appropriation need not be made in any particular form or in express terms; it may be implied. It is sufficient if the intention to make the appropriation is clearly evinced by the language employed in the statute upon the subject, or if it is evident that no effect can possibly be given a statute unless it be construed as making the necessary appropriation. Nothing more is requisite than the designation of the amount and the fund out of which it shall be paid; but a promise to pay, contained in a bond of the State, lawfully issued, is not an appropriation. Carr v. State, ex rel, 204 2. Same. No Funds in Treasury.-An appropriation may be made even when there is no funds in the treasury to meet it. Ib. ARGUMENT OF COUNSEL. 1. What Does not Constitute Misconduct.-Erroneous inferences from the evidence drawn by counsel and stated in their addresses to the jury, or (601) mistaken opinions of the law expressed by them in such addresses, do not, as a general rule, entitle the complaining party to a new trial. Sage v. State, 15 2. Misconduct.-Where the prosecuting attorney, in argument, spoke of a witness for the defendant as "this scoundrel who has served a term in the penitentiary," there being no evidence to support the charge, he was guilty of misconduct, and the refusal of the court, upon objection made, to attempt to correct it, was reversible error. Schlotter v. State, ex rel., 493 ARREST OF JUDGMENT. See CRIMINAL LAW, 16, 17; PLEADING, 8; PRACTICE, 5, 6. Complaint.-A motion in arrest of judgment will not lie if a complaint Durham v. Hiatt, 514 contains one good paragraph. ASSAULT AND BATTERY. See CRIMINAL LAW, 25, 26. ASSESSMENT. See GRAVEL ROAD. ASSIGNEE. See PARTITION, 1 to 3. ASSIGNMENT FOR BENEFIT OF CREDITORS. See CHATTEL MORTGAGE, 3. ATTORNEY AND CLIENT. BANKRUPTCY. See HUSBAND AND WIFE, 1. BANKS AND BANKING. Application of Checks.-Rights of Holder.-The husband of the plaintiff, as her agent, sold some wheat for her, and received therefor from the grain merchant a check payable at the defendant bank to himself or bearer. The check was delivered to a third party to be presented to the bank for payment. Such third party, on presenting the check, claimed a certain sum of the amount represented thereby as due him, and stated that the remainder belonged to the plaintiff's husband. The bank paid the sum claimed as due and applied the remainder to a debt due from the husband to the bank. Held, that the proceeds of the check belonged to the plaintiff, and that the defendant having failed to pay the same on demand, she was entitled to recover in an action for money had and received. Held, also, that the plaintiff was not bound to tender her check when she demanded payment. Citizens Bank of Noblesville v. Harrison, 128 BASTARDY. 1. Evidence. In a prosecution for bastardy the relatrix may properly be permitted to testify to repeated acts of sexual intercourse with the defendant prior to the time of the alleged conception, as tending to show the relations existing between the parties. Ramey v. State, ex rel., 243 2. Same. Declarations.--Where, in such case, the defendant, to impeach the relatrix, introduces in evidence statements of the relatrix that the defendant was not the father of the child, her statements that he was the father of the child, made about the same time, are admissible BILL OF EXCEPTIONS. See PRACTICE, 8. Ib. Time of Filing.-Where the record shows that the bill of exceptions was not filed within the time allowed by the court, and it does not appear in the body of the bill when it was presented, the bill will not be regarded as properly in the record. Buckner v. Spaulding, 229 BONA FIDE PURCHASER. BOND. See PLEADING, 11, 12. BRIDGE. 1. Injuries Caused by Breaking Down of.-Traveller's Knowledge of Defect. -Instruction.-In an action against a county for injuries caused by the breaking down of a bridge, an instruction that if the plaintiff was acquainted with the bridge, and knew the kind of timbers of which it was constructed, and knew how long such timbers had been in the bridge, "the plaintiff is chargeable with knowledge of the tendency of such timbers to decay, incident to age and long use," is erroneous. In approaching a bridge the traveller has a right to assume that the officers charged with its erection and maintenance have done their duty, and that he can pass over it in safety. Apple v. Board, etc., 553 2. Same.--Instruction.-In such action an instruction that if the plaintiff knew the kind of timbers of which the bridge was constructed, the length of time they had been in it, that a part of the same kind of timber still remained, and that plaintiff might have reached his destination by travelling another route, the jury might consider the plaintiff's knowledge of such facts in determining whether the bridge was unsafe, and whether the plaintiff had knowledge of its actual condition, is erroneous. BURDEN OF PROOF. See ADVANCEMENT, 1. BURGLARY. See CRIMINAL LAW, 21. Ib. CASES DOUBTED, DENIED, DISTINGUISHED AND OVERRULED. Bryan v. Watson, 42 Cicero School Tp. v. Chicago Nat'l Bank, 79 Fontaine v. Houston, 58 Ind. 316; Brenner v. Quick, 88 Ind. 546; and Vizzard v. Taylor, 97 Ind. 90, denied. Goodell v. Starr, 198 Dietrichs v. Schaw, 43 Ind. 175; Barkeloo v. Randall, 4 Blackf. 476; Krutz v. Howard, 70 Ind. 174, doubted. State, ex rel., v. Wolever, 306 Hall v. South, 109 Ind. 315, and Lange v. Dammier, 119 Ind. 516, distinguished. Ashmead v. Reynolds, 441 McKee v. Gould, 108 Ind. 107, and Bowman v. Jobs, 123 Ind. 44, distinguished. Cook v. Quick, 477 Gray v. State, ex rel., 72 Ind. 567, distinguished. Hovey v. State, ex rel., 588 CHANGE OF VENUE. CHATTEL MORTGAGE. 1. Sale on Execution.--Personal property under mortgage may be levied upon and sold by execution, subject to the mortgage lien. Byram v. Stout, 195 2. Sume.-Nature of Mortgagee's Interest.--The mortgagee of personal property is a mere lien-holder. Ib. 3. Same. Attachment of Mortgaged Property by Mortgagee.—Waiver of Lien.— Estoppel.-A levy of a writ of attachment by the mortgagee upon personal property mortgaged to him is not a waiver of his mortgage lien; and the mere fact of the levy does not estop him to foreclose or claim under his mortgage lien. Ib. 4. Failure of Recorder to Spread Upon Record.—Innocent Purchaser.-Where a mortgage, entitled to be recorded, is left with the recorder of the proper county for the purpose of being recorded, and is not withdrawn until the mortgagee, in good faith, believes it to be recorded, the title of the mortgagee will be protected and the consequences of the failure to spread upon the record will be thrown upon the recorder in case damage ensues to an innocent purchaser who exercised due care. Chandler v. Scott, 226 CHECK. See BANKS AND BANKING. CHURCH SUBSCRIPTION. CIRCUIT COURT. See CRIMINAL LAW, 25. COLLATERAL ATTACK. See GRAVEL ROAD, 3; GUARDIAN AND WARD, 1, 3; JUDGMENT, 7 to 9; PARTITION, 4. COMMISSION. See FACTORS AND BROKERS. COMMISSIONERS. COMMON CARRIER. 1. Shipment of Freight.-Subsequent Parol Contract.-Evidence.-In an action against a railroad company for the breach of a contract for the shipment of cattle, evidence of conversations between the plaintiffs and the agent of the defendant is admissible to prove that a written contract for transportation was abandoned, and that the cattle were shipped under a parol contract subsequently made. Toledo, etc., R. R. Co. v. Levy, 168 2. Ejection of Passenger.-Damages.-The plaintiff, a boy of 16, became a passenger on the defendant's train, and gave the conductor his ticket. Afterwards the conductor again demanded a ticket, and refusing to believe the plaintiff's statement that he had given him a ticket demanded fare. The plaintiff gave the conductor ten cents, all the money he had. The conductor accepted the money, but ordered the boy to get off the cars before reaching his destination, which he did, being thereby compelled to walk the remainder of the distance. Held, that damages in the sum of $195 were not excessive. Indianapolis, etc., R. W. Co. v. Howerton, 236 CONFIDENTIAL COMMUNICATIONS. CONSIDERATION. See PROMISSORY NOTE. CONSTITUTIONAL LAW. See OFFICE AND OFFICER, 1. 1. City Ordinance.--Pawnbrokers.- License.--Examination of Goods.--Police Power.-An ordinance of the city of Fort Wayne making it unlawful for any person to carry on the business of a pawnbroker without having first procured a license, and making it the duty of every person engaged as a licensed pawnbroker to keep at his place of business a book in which he shall enter a description of the personal property pawned, the time when it was received, noting any descriptive marks found on the same, with the name and residence of the person by whom it was left, and providing that such book and such personal property should be subject to the inspection of the police power of the city, is not a violation of the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, as the business of the pawnbroker is subject to the police power of the State; but as the State has not declared the business of a pawnbroker unlawful, nor conferred on municipal corporations the power so to do, the city has no power to require a license of pawnbrokers, and the ordinance is void. Shuman v. City of Fort Wayne, 109 2. Mechanic's Lien.-- When Right to Vests.--The right to a mechanic's lien becomes vested at the time the material is furnished or labor performed, and this right can not be taken away by the Legislature. Goodbub v. Estate of Hornung, 181 3. Same.-Control Over Remedy.--Legislative control over the remedy is so far restricted that the remedy given for the enforcement of a lien can not be materially impaired, upon the ground that the remedy available at the time of the contract is a part of it, and can not be taken away. Ib. 4. Same.-Altering Remedy.--Changing.--Abolishing One of Two.--Whatever belongs merely to the remedy may be altered as the Legislature sees fit, if such alteration does not impair the obligation of the contract. The remedy may be changed, or one of two abolished, even though the new or remaining one be less convenient or less prompt and speedy than the one abolished. Ib. 5. One Department Controlling Another.-One department of a State can not control another department; nor can the courts supply the omission of the Legislature to make an appropriation. Carr v. State, ex rel., 204 6. Constitution.-Three Departments Distinct.--One department of the government can not invade the province of either of the other two. Hovey v. State, ex rel., 588 CONTEST OF WILL. See WILL, 1 to 4, 13. CONTINUANCE. See CRIMINAL LAW, 12; NEW TRIAL. Application for Unsupported by Affidavit.-Disregarding of-An application for a postponement of a trial on account of the absence of a witness, which is unsupported by the affidavit required by section 410, R. S. 1881, may be properly disregarded. Schlotter v. State, ex rel., 493 |