See MORTGAGE, 7; PRACTICE, 1, 11; SPECIAL FINDING.
1. Replevin.-Evidence.--Stave Machine.-Grist Mill.-Line Shaft.—In an
action of replevin for possession of a stave machine, consisting in part
of a line shaft connecting it with a grist mill, evidence tending to
show that the machine was set up under an adjoining shed, so that by
means of belting it could be run by the steam engine in the mill; that
the line shaft was hung from joists in the mill, and that the rest of
the machine was not attached to the real estate, justified a finding
that the line shaft was personal property. Balliett v. Humphreys, 388
2. Same.-Circuit Court.-Justice of the Peace.-Title to Real Estate.-Juris-
diction. In such case, objection under section 11, 2 R. S. 1876, p. 607,
that the justice of the peace had not jurisdiction of the action, because
the title to lands came in question, ceased to be an objection when the
cause reached the circuit court, on appeal.
3. Same.-Pleading.-Practice.--In such case, in the circuit court, under
section 34, 2 R. S. 1876, p. 612, the defendant, without plea, was enti-
tled to show that the articles sued for as personal property were fix-
Ib.
4. Same.-Instruction.-In such case, the trial court correctly refused to
instruct that if the shaft was bolted on and fastened securely to the
joists of the mill, it was a part of the real estate on which the mill
was situate.
5. Mortgage.-A., in possession, but not the owner, of a flouring mill,
was permitted by the manufacturers of machinery to put into and
annex to it, in such a temporary manner as to admit of removal with-
out injury to the mill, certain machinery which, if found satisfactory,
after sixty days' trial, was to become his property upon giving his
notes for the price and notice of his acceptance of the machinery.
The mill and real estate were, at the time, subject to two mortgages.
A. refused to accept the machinery or give his notes as he had agreed,
and when he quit possession the machinery remained in the mill, a
tenant taking possession.
Held, that, as between the manufacturers and the mortgagees, the ma-
chinery was part of the real estate, and subject to the mortgages.
Hamilton v. Huntley, 521
FORCIBLE ENTRY AND DETAINER.
See EJECTMENT, 2.
FORECLOSURE.
See JUDGMENT, 11; MARRIED WOMAN, 2; MORTGAGE; PLEADING, 5.
FOREIGN JUDGMENT.
See EVIDENCE, 8.
FORGERY.
See PROMISSORY NOTE, 6.
FORMER ADJUDICATION.
See MASTER AND SERVANT, 2.
FORMER CONVICTION.
See CRIMINAL LAW, 3.
FRAUD.
See CONTRACT, 1, 2; INSTRUCTION, 4; INSURANCE, 1; PROMISSORY NOTE,
11 to 14, 16 to 19; VENDOR AND PURCHASER, 1, 2.
Allegations and Proof.--The facts necessary to establish fraud must be
alleged and proved by the party who relies upon it.
Howe, etc., Co. v. Brown, 209
FRAUDULENT CONVEYANCE.
See EVIDENCE, 5.
GATEWAY.
See HIGHWAY, 6, 7,
GENERAL DENIAL.
See PROMISSORY NOTE, 2.
See PROMISSORY NOTE, 21.
GRAIN BROKER.
See PROMISSORY NOTE, 25.
See CITY, 13, 15; EASEMENT.
GRAVEL ROAD.
See CONSTITUTIONAL LAW, 2.
GUARDIAN AD LITEM.
See SUPREME COURT, 10.
GUARDIAN AND WARD.
See ESTOPPEL; TAXES.
HABEAS CORPUS.
See RECOGNIZANCE, 4.
HANDWRITING.
See EVIDENCE, 1, 2.
HARMLESS ERROR.
See BASTARDY; DEPOSITION, 2; EVIDENCE, 7; INSTRUCTION, 7; PLEAD-
ING, 2; PRACTICE, 2, 13; REAL ESTATE, ACTION TO RECOVER, 1, 3;
RECOGNIZANCE, 6; SUPREME COURT, 4, 14, 16.
See DECEDENTS' ESTATES, 2, 3; DEED, 1; DESCENT; JUDGMENT, 3; ME
CHANIC'S LIEN; MORTGAGE, 9 to 12; WILL.
See CRIMINAL LAW, 14; EASEMENT; PRIVATE WAY.
1. Prescription.- Dedication.— User.-User for twenty years constitutes a
road a public highway, but user for a less period may so constitute it
by dedication, all that is required being the assent of the owner of the
soil to the public use, and the enjoyment of such use for such a period
that public accommodation and private rights would be materially af-
fected by a denial or interruption of the enjoyment. Ross v. Thompson, 90
2. Same.-Acceptance.-An acceptance by the public of such way is shown
by long continued user, grading, macadamizing, bridging, or the like.
3. Same. Estoppel.-Where the owner of land through which a way runs
knows that another is making costly improvements, in the faith that
the way is public, and offers no objection, he is estopped from assert-
ing that the way is not public.
Ib.
4. Same.-Damages.—Injunction.-One whose only mode of access to his
real estate is being interrupted by unlawful obstructions, may arrest
the injury by injunction, and he may recover damages merely nomi-
nal, not being bound to wait until the injury is fully consummated
and actual damages have accrued.
Ib.
5. Same. Dedication.-Intention.-Presumption.-Intention by the owner
of the soil to dedicate a way to public use must appear by proof, but
it will be presumed against the owner of the soil, when the easement
has been enjoyed by the public during a period corresponding with
the limitation of real actions, fixed by statute.
Ib.
6. Gateway.-Act of 1852.-Board of Commissioners.-A highway laid out
by the board of commissioners of a county in 1835, and used by the
public and worked and controlled by the road supervisor, could not
be changed into a gateway by order of the board of commissioners in
1859, such authority being vested exclusively in the township trustees
by the act of June 17th, 1852, 1 R. S. 1852, p. 307. Webb v. Carr, 455
7. Same.-Act of 1859.--Saving Clause.-Statute Construed.-In such case
the petition presented to the commissioners at the June term, 1859,
and granted, was not saved by the saving clause of the act of March
5th, 1859, Acts 1859, p. 113, in force August 6th, 1859, so as to author-
ize an order of the board at the September term, 1859.
Ib.
See JUDGMENT, 12; MARRIED WOMAN; PARTNERSHIP, 13, 14; REPLEVIN,
5; VOLUNTARY ASSIGNMENT, 1.
INDICTMENT.
See CRIMINAL LAW, 2, 7, 8, 19.
See SUPREME COURT, 10.
INFORMATION.
See LIQUOR Law, 6.
INJUNCTION.
See CITY, 9 to 11; HIGHWAY, 4; PLEADING, 9; TRADE MARK.
1. Remedy at Law.-Where there is an adequate legal remedy, an injunc-
tion will not be granted.
Caskey v. City of Greensburgh, 233
2. Referee.-Appeal.-Injunction is not the proper remedy to prevent a
referee appointed to take evidence from proceeding to the discharge
of his duties. An appeal is necessary.
Shoemaker v. Axtell, 561
3. Same.-Legal Remedy.-Equitable Relief.-Where a party's legal remedy
is perfect and complete, equitable relief will not be granted. The
principle remains as it was when actions at law and suits in equity
were distinct.
Ib.
4. Supreme Court.-Jurisdiction.-The Supreme Court, by virtue of section
1147, R. S. 1881, has jurisdiction to issue an injunction forbidding the
enforcement of a judgment below, pending an appeal therefrom, when
necessary to maintain the statu quo.
Leech v. State, ex rel., 570
INSOLVENCY.
See MORTGAGE, 9, 11.
INSTRUCTION.
See BASTARDY; CRIMINAL LAW, 14; EASEMENT, 3; FIXTURES, 4; LAND-
LORD AND TENANT, 7; PARTNERSHIP, 22; PRIVATE WAY, 2; RECOG
NIZANCE, 5, 6; SUPREME COURT, 4; VENDOR And Purchaser, 4.
1. Practice.-Evidence.-It is the duty of the court, by instructions, to
construe record and other written evidence in the cause, and to state
its effect.
Turner v. First Nat'l Bank, etc., 19
2. Practice. There is no error in an instruction to the jury which, an-
nouncing no legal proposition, merely states the nature of the plain-
tiff's claim.
Ross v. Thompson, 30
3. Same.--Practice.-In order to save any question in reference to instruc-
tions, under sections 324-5 of the Code, it must appear that the same
were filed.
Supreme Lodge, etc., v. Johnson, 110
4. Same.-Fraudulent Representations.-Evidence. Where a representation
charged to be false and fraudulent was, that the plaintiff was indebted
to the defendant in a certain sum, and there was evidence tending to
prove that the plaintiff was in fact so indebted, the court properly
instructed the jury, that, if they believed such facts to exist, their
finding must be for the defendant, upon the question of fraud.
Adams v. Stringer, 175
5. Same.-Motion for New Trial.-Practice.-The instructions asked for,
and refused by the court, can not be made a part of the record of a
cause by merely copying them in the motion for a new trial.
6. Same. - Supreme Court. - Practice. - Where an instruction is given,
which states the law correctly, as far as it goes, and the only objection
to it is, that it does not contain a full statement of the law applicable to
the case, the objecting party can not make such objection available in
the Supreme Court, by excepting to the instruction given; but, in
such case, he must ask the trial court for an additional instruction,
to supply the supposed omissions in the one given, and, if such addi-
tional instruction is refused, he must see that it, as well as the one
given, is made part of the record in one of the modes prescribed by
Iaw.
7. Disregard of Issue.-Harmless Error.-Where an instruction of the court
is confined to an affirmative defence, in disregard of the general denial
pleaded, the error will be deemed harmless, there being no conflict in
the evidence, or dispute in the case, except in reference to the affirm-
ative issue.
Browning v. Hight, 257
8. Same.-Jury.-Presumption.-It is not to be presumed, on appeal, that
the jury misunderstood the meaning of an instruction.
Ib.
9. Evidence.-Issues.-Practice.-Supreme Court.-An instruction, which is
not applicable to any evidence admissible under the issues, is erron-
eous, and will reverse the case, although the evidence is not in the
record.
Cates v. Bales, 285
10. Reference to Complaint in General Terms.-Practice.-In an instruction
submitting an issue arising upon the sale and payment for eleven
mules, a reference to the mules as a "lot of mules," without indicat-
ing the number designated in the complaint, was not too general. The
complaint containing the precise number was already before the jury,
to aid the reference to it with exactness. Anderson v. Donnell, 303
11. Practice. The error of an incorrect instruction to the jury is not cured
by giving another which states the law correctly, unless the erroneous
instruction be expressly withdrawn.
Uhl v. Bingaman, 365
12. Practice. It is not error to refuse to give an instruction which is
not applicable to the case made by the evidence. Leary v. Meier, 393
13. Same.-Proof of Averments in Different Paragraphs of Complaint.— Burden
of Proof.-Where the complaint consists of more than one paragraph,
it is proper for the court to instruct the jury that the burden is upon
the plaintiff, and, to entitle him to recover, he must prove by a fair
preponderance of the evidence all the material averments in some one
of the paragraphs of the complaint. Such an instruction does not in-
form the jury that proof of one paragraph entitles him to recover on
all of them.
14. Same. A party desiring further instructions upon a question of law
must ask for them.
Hatton v. Jones, 466
See CONTRACT, 2, 3; Vendor and PURCHASER, 3, 4.
1. Promissory Note.-Fraud.-Pleading.-In an action by an insurance com-
pany upon a promissory note, given for premiums on insurance, an
answer is good which avers false representations of existing facts.
affecting the responsibility of the company and its ability to fulfil its
contracts, made by its agent as to matters presumed to be within his
knowledge, and of which the defendant was ignorant, whereby the
defendant was injured.
American Ins. Co., etc., v. Pressell, 442
2. Same.-Foreign Insurance Company.-Evidence.-A foreign insurance
company furnished to the Auditor of State a statement substantially
as required by statute. The copy of its charter was furnished as a
separate paper, and not embraced as the fourteenth item of the state-
ment, as section 3765, R. S. 1881, specifies. This was accepted by the
auditor as sufficient. The auditor's certificate of authority and copy
of statement recited that a copy of the charter was filed, and this was
filed by the company's agent in the clerk's office, without a copy of the
charter.
Held, that a premium note taken for insurance made in the county was
not, for this cause, void.
INTENTION.
See CITY, 16; HIGHWAY, 5.
INTERROGATORIES TO JURY.
Special Interrogatories.-Practice.-Defects Cured.-Special interrogatories in
reference to particular facts within the issues, may be submitted to
the jury, but not questions covering entire issues. It is not error to
refuse an immaterial interrogatory. Errors may be cured by the an-
swers to interrogatories.
Harvey, 26
See INSTRUCTION, 8 to 10; JUDGMENT, 1; PLEADING, 16.
JOINDER OF CAUSES.
See PRIVATE WAY.
JOINT TENANT.
See DEED, 5.
JUDGMENT.
See ACCORD AND SATISFACTION; ATTORNEY; CONTRACT, 6; COSTS; CRIM-
INAL LAW, 11; DECEDENTS' ESTATES, 3; DEED, 4; EVIDENCE, 3, 8;
JUSTICE OF THE PEACE; MECHANIC'S LIEN; MORTGAGE, 7, 8, 14;
PARTNERSHIP, 14; PLEADING, 9; PRACTICE, 11, 13; REAL ESTATE,
ACTION TO RECOVER; SHERIFF'S SALE, 1; TOWNSHIP TRUSTEE, 2.
1. Default.-Action for Relief under Section 99.-Practice.-Issues.-Proof.-
An applicant, under section 99 of the code, for relief from a judgment
by default, need not prove his alleged defence to the original action,
but he must prove his excuse for suffering the default, and the proof
pro and con may be by affidavit, including the applicant's verified
complaint or motion, or by oral testimony, or by both kinds of evi-
dence, in the discretion of the court. Morris v. Buckeye, etc., Co., 86
2. Same.-Evidence.-Record.-Supreme Court.-The exclusion of evidence
on a particular point, or of a particular kind, presents no question
when the record does not show what other evidence was offered or ad-
mitted.
Ib.
3. Same-Decedents' Estates. - Personalty belongs to Representative, not to
Widow and Heirs.-Parties.-Default.-In an action, under section 99
|