Philpot et al. v. Webb. Per Curiam.-The judgment against the railroad company is affirmed. The proceedings against the receiver and station master are reversed to be dismissed, with costs, &c. Theodore Gazlay and Carter Gazlay, for the appellants. George B. Fitch, for the appellee. ALSOP et al. v. MCKINNEY. APPEAL from the Dearborn Common Pleas. Per Curiam.-A like order is made in this case as is made in The Ohio, &c., Co. v. Fitch, at this term, the cases being alike. Theodore Gazlay and Carter Gazlay, for the appellants. PHILPOT et al. v. WEBB. DESCENT-ACTION.-In 1859 a man died, leaving a widow and children. One-third of his real estate descended to his widow. She and B, in 1860, executed a joint and several promissory note for the payment to Cof a sum of money. Afterwards she and B intermarried. She then died, the children by her former husband surviving her. B then became insolvent. C sued the children by the former husband to subject the interest which had descended to their mother, as aforesaid, to the payment of said note. The children claimed that, by reason of her subsequent marriage, she 206 509 132 310 20b 509 146 405 Philpot et al. v. Webb. took but a life estate therein, and that, therefore, it was not subject to sale for payment of said note. Held, That, under the circumstances, she took a third in fee, and that it was liable for the payment of her debts, and said action would lie. APPEAL from the Spencer Common Pleas. Per Curiam.-Henry G. Waggoner died in 1859, then owning certain real estate, and he left surviving him Matilda Waggoner, his widow, and Eliza J. Philpot and several others, his children by said Matilda, being his heirs at law. Afterward, in September, 1860, said Matilda executed, jointly and severally, with William Henderson, two promissory notes, amounting in the aggregate to 866 dollars and 66 cents, payable to George W. Webb. Later, to-wit, in November, 1860, the widow, Matilda, intermarried with said Henderson; and, on the 20th of March following, (1861), she died, leaving surviving her no children by her second husband. On the 6th of June, 1862, Webb, the payee of the above mentioned notes, instituted this suit to enforce payment of them out of the interest of said Matilda in the real estate of her first husband, she having left no other property, and Henderson being insolvent, The suit is against her children by her first husband, the heirs of Henry G. Waggoner, deceased. It is alleged that there is no administrator. The Court held that one-third of the real estate of her first husband, Waggoner, descended to the said Matilda, in fee; that her subsequent marriage did not divest it; and that at her death it descended to her heirs, liable to be sold for debts contracted by her. Concurring in the opinion of the Court below, we affirm the judgment, with costs. The judgment is affirmed, with costs. L. Q. & T. F. DeBruler and David T. Laird, for the appellants. H. G. Barkwell and O. F. Stirman, for the appellee. Meyers v. The State. MEYERS V. THE STATE. QUALIFICATION OF JUROR.-A juror is competent, who, under oath, says that he is a resident householder of the county, and never heard of the case on trial, and knew nothing of it. APPEAL from the Vanderburg Circuit Court. Per Curiam.-The record presents but a single point. The Court below discharged a juror from the box, under the following circumstances: "After the defendant had exhausted all his peremptory challenges but one, and the State had exhausted all her challenges, Henry Hendricks was duly summoned and called into the jury box, and, being duly sworn to answer questions, was asked by the Court if he was a resident householder of the county, which question he answered in the affirmative; he was then asked by the Court whether he had formed or expressed an opinion of the guilt or innocence of the defendant; said Hendricks made no reply to said question; when defendant's counsel asked him if he understood the question, said Hendricks said he did not understand; counsel for the defendant then asked him if he had ever heard of the case on trial, to which he answered that he had not; counsel for the defendant then asked said Hendricks if he knew anything about the case, to which question he also answered in the negative; whereupon he was accepted by the defendant, but the Court decided upon said answers that said Hendricks was not a competent juror, and ordered him to retire from the jury box." Appellant objected, but the Court overruled his objection, and appellant excepted. The facts are set forth in a bill of exceptions; the point is made one of the written causes for a new trial. On the answers given, the juror appears to have been competent. The bill of exceptions states expressly that the Brookshire et al. v. Lomax et al. Court decided the point upon the answers. the Court decided erroneously. On the answers If, in fact, the Court decided in part upon the manner of the juror in answering, his appearance, &c., the Court should have said so in the bill of exceptions. The judgment is reversed, with costs, cause remanded, &c. BROOKSHIRE et al. v. LOMAX et al. PLEADING. In an action by an assignee to enforce the lien of a judgment on certain real estate, the complaint should contain a copy of the judgment and assignment thereof to him. APPEAL from the Blackford Common Pleas. Per Curiam.-Suit to enforce a lien of a judgment on certain real estate. The suit is in the names of the appellees, who profess to be the owners, by assignment, of said judgment. Neither a copy of the said judgment, nor of the assignment is set forth; the demurrer should, therefore, have been sustained to the complaint. The judgment is reversed, with costs. Cause remanded, &c. Walter March, for the appellants. Van Deventer & Brownlee, for the appellees. Ellis et al. v. Somes. PARKS V. THE STATE. CRIMINAL LAW AND PRACTICE.-Where the record on appeal to this Court, in a criminal case, shows that two indictments were duly returned against the defendant, it should also identify the particular indictment upon which the defendant was tried as one of them. APPEAL from the Lagrange Circuit Court. Per Curiam.-In this case, the record, although it shows the return of two indictments into Court by a grand jury, yet it does not identify the indictment upon which this defendant was tried as one of those so returned. The judgment is reversed; and the clerk is ordered to notify the proper officer thereof; and that it is a case where, under the statute, the defendant will have to be discharged. A. Ellison, for the appellant. Oscar B. Hord, Attorney General, for the State. ELLIS et al. v. SOMES. STATUTES CONSTRUED WITNESSES.-The second proviso of the third section of the act of March 11, 1861, (Acts 1861, p. 52,) must be literally construed. APPEAL from the Knox Common Pleas.1 Per Curiam.-The judgment in this case is reversed upon the authority of Dahoney v. Hall et al. at this term, ante. p. 264. Both parties were competent witnesses. After much consideration, the Court has determined in the decision of causes, to give a literal interpretation to the seVOL. XX.-33 |