2. Construction of Statutes.-Legislative Power.--Supreme Court.-The legisla-
tive authority of the State is vested in the General Assembly, whose
power is supreme and sovereign, and is subject to no restrictions ex-
cept such as are imposed by the State and Federal constitutions, and
the laws and treaties made by and under the Federal Government;
and, in considering the constitutionality of an act of the General As-
sembly, it is the uniform rule of the Supreme Court to construe and
interpret its provisions, if it can be done, in such manner as to sus-
tain and not defeat the law in question. McComas v. Krug, 327
3. Same.-Impeachment or Removal of Public Officers.— Voluntary or Habitual
Intoxication.-Sections 7 and 8, of article 6, of the State constitution,
should be construed together, and, thus construed, they authorize the
General Assembly to provide by law for the impeachment or removal
from office of county, township or town officers, for crime, incapacity or
negligence. Therefore, the act of March 11th, 1875 (section 6012, R. S.
1881), providing for the removal from office of any public officer, for
voluntary intoxication in the business hours of his office, or for habitu-
al intoxication, is not repugnant to, or in conflict with, any provision
of the constitution, State or Federal, and is a constitutional and valid
law.
Ib.
4. Vanderburgh Superior Court.-The act of March 3d, 1877, Acts 1877,
p. 52, establishing a superior court in the county of Vanderburgh, is
constitutional and valid.
Sauer v. Twining, 366
CONSTRUCTION OF CONTRACT.
See INSURANCE, 14.
CONSTRUCTION OF STATUTES.
See CONSTITUTIONAL LAW, 2, 3.
See ATTACHMENT, 1; CRIMINAL LAW, 13, 14.
See DIVORCE, 2; FRAUD; INSANITY; INSURANCE; PROMISSORY NOTE, 4,
5, 18, 20; RAILROAD, 2; SPECIFIC PERFORMANCE; STATUTE OF
FRAUDS.
1. Offer of Sale and Acceptance by Letter.-Parol Evidence.-In an action for
the price of a horse alleged to have been sold by the plaintiff to the
defendant, the plaintiff, admitting that he had sent a letter to the de-
fendant containing an offer to sell him the horse for two hundred dol-
lars, offered in evidence a letter, afterwards received from and signed
by the defendant, of the tenor following: "I might purchase your
horse at $200-the price you asked. I would like to get it at once, if
it will do me, which I am quite certain it will. Please reply at once."
Held, that the two letters do not show a complete written contract for the
sale of the horse, and that the one offered was competent evidence, in
connection with other parol evidence offered, to show the sale charged.
Stagg v. Compton, 171
2. Statute of Frauds.-False Representations.—Partnership.-An oral repre-
sentation by persons in partnership, falsely and fraudulently made,
that each of them had $800 invested in the business, whereby another
was induced to invest that sum, and become a member of the copart-
nership, whereas none of them had any sum so invested, is not within
the statute of frauds. R. S. 1881, section 4909. Such representation
is one concerning the credit or solvency of another.
St. John v. Hendrickson, 350
3. Same.--Fraud.-Ratification.-Rescission.-Damages.-Where one is in-
duced by fraud, in the form of false representations, to enter into a
contract, and afterwards, upon obtaining full knowledge of the fraud
practiced upon him, and of all material facts, declines to repudiate it,
and expressly ratifies it, he can neither rescind nor maintain an action
for damages.
Ib.
4. Warranty, Breach of.-Pleading.-A complaint for a breach of warranty
of a machine to be "fit for cutting wheat and grass, and that it will do
first-class work," alleging for breach, generally, that "it was not fit
for and would not do first-class work," and was worthless to the plain-
tiff, is not sufficient on demurrer. The nature and particulars of the
breach should be specified, and it should be shown that the machine
was properly tested within a reasonable time, by alleging the facts
constituting the test and the time thereof. Johnston, etc., Co.v. Bartley, 406
5. Same.-Oral and Written Warranty.-Evidence.-Presumption.-Where,
upon a complaint for breach of an oral contract of warranty, it ap-
pears in evidence that the contract was in the first place oral, but
finally reduced to writing, there can be no recovery, the preceding
oral negotiations being presumed to be merged in the written instru-
Ib.
6. Pleading.-Condition Precedent.-In pleading the performance of a con-
tract, the statute (R. S. 1881, section 370) makes it sufficient to aver
that the party has performed all the conditions on his part.
Bertelson v. Bower, 512
7. Same.-Sale of Personal Property.--Title.-A contract, whereby A. agrees
to buy all the spring lambs of B. at certain prices to be paid, the
seller to pasture them till called for, passes title to the purchaser
without specifically setting the property apart, and, if without fault
of the seller, it suffers injury, the loss falls upon the purchaser.
CONTRIBUTORY NEGLIGENCE.
See NEGLIGENCE, 3 to 7.
See CHATTEL MORTGAGE, 3, 4; JUSTICE OF THE PEACE, 5.
See CITY, 2; EVIDENCE, 4, 8, 9; FRAUDULENT CONVEYANCE; MARRIED
WOMAN, 2 to 4; MORTGAGE, 1, 2; REAL ESTATE, ACTION TO RECOVER,
6; SHERIFF'S SALE, 4, 5; TAXES, 13; Vendor AND PURCHASER, 3 to
5; VOLUNTARY ASSIGNMENT.
See ARBITRATION AND AWARD, 2; COUNTY ORDER, 3; JUSTICE OF THE
PEACE, 3; PROMISSORY NOTE, 16; TURNPIKE COMPANY, 2.
See CITY; CRIMINAL LAW, 17, 18; INSURANCE, 10 to 13; NEGLIGENCE;
RAILROADS; TOWNSHIP; TOWNSHIP TRUSTEE, 8; TURNPIKE COMPANY.
1. Pleading.-Complaint.--In the complaint of a corporation, the pleader
is not required to allege every fact necessary to its original organiza-
tion, or anticipate supposed defences growing out of irregularities oc-
curring in or after the election of directors.
Washer v. Allensville, etc., T. P. Co., 78
2. Same.--Books of Corporation.-Evidence.-The books of a corporation
are competent evidence for and against its members in an action be-
tween the corporation and its members.
Ib.
3. Information.--Quo Warranto.-An information under the third clause
of section 1131, R. S. 1881, is sufficient if it appear therefrom that the
defendants pretend to be organized as a corporation, and are exercising
corporate powers, when they are not so organized as the law requires.
State, ex rel., v. Beck, 500
4. Same. Whether corporators intend, in good faith, to carry out the
purposes of their organization, can not be questioned by quo warranto.
Ib.
5. Railroad Company.-Liability for Wilful Acts and Torts of Agents and Ser-
vants.-Principal and Agent.-Ratification.—A corporation is liable for
the wilful acts and torts of its agents, done to the injury of others,
within the general scope of their employment, though the particular
acts have not been previously authorized and have not been ratified
since by the corporation. Terre Haute, etc., R. R. Co. v. Jackson, 19
COSTS.
See ARBITRATION AND AWARD, 3; ATTACHMENT, 8; COUNTY CLERK, 5;
CRIMINAL LAW, 16; FRAUDULENT CONVEYANCE, 2; NEW TRIAL, 4;
SUPREME COURT, 25.
1. Taxation.-Judgment Conclusive.-Supreme Court.-The Supreme Court
will not look into the merits of a cause to determine whether costs
are properly taxed, but will regard the verdict and judgment as con-
clusive upon such question against the unsuccessful party.
Williams v. Williams, 113
2. Same. Decedent's Insolvent Estate.-Claimant's Action on Administrator's
Bond.-A claimant against a decedent's insolvent estate, having re-
ceived a part of her claim, and failing, in an action on the adminis
trator's bond, to recover more, may not complain of the overruling of
her motion to tax against her adversaries the costs from the com-
mencement of the action until the last payment to her.
COUNTER-CLAIM.
See MORTGAGE, 5 to 7; PLEADING, 12.
COUNTY AUDITOR.
See EVIDENCE, 4; TAXES, 13.
1. Relator.-Capacity to Sue.--County Treasurer.- Defalcation.-County Com-
missioners.-A county auditor may sue a defaulting county treasurer
individually, in the name of the State, on his relation as such auditor,
for trust funds, and for State, county, school, road, railroad, corpora
tion and other taxes, if so directed by the board of commissioners of
the county.
Gauntt v. State, ex rel., 137
2. Same.-Referee.-Finding.-Trust Funds.-Taxes.—Exceptions.-Practice.
-In a suit by the State on the relation of a county auditor, against a
county treasurer, for trust funds, and by order of the board of county
commissioners for taxes not accounted for, a report of the referee find-
ing the facts, and his conclusions of law, which finds a gross sum due
from such treasurer, a failure to find that the board ordered the suit
is not reached by exceptions to the conclusions of law, nor would the
defendant, on that account, be entitled to judgment on the report. Ib.
COUNTY CLERK.
See PRINCIPAL AND AGENT, 3; SHERIFF, 2; SUPREME COURT, 19.
1. Official Bond.-Complaint.-As to the sufficiency on demurrer of the
complaint on the bond of a county clerk, to recover for fines, docket
and witness fees collected by him, see opinion. Carr v. State, ex rel., 342
2. Same.-Docket and Witness Fees.-Fines and Forfeitures.-Attorney Gen-
eral.-Prosecuting Attorney. — Statute Construed.—It is the duty of the
clerk-R. S. 1881, section 5858—to pay docket fees to the treasurer
within thirty days after collection; also on the first of January, an-
nually, all fines, jury fees, and witness fees not claimed for a year;
also the proceeds of sales of real estate of unknown heirs-section
2412; also, when after the lapse of two years from final settlement of
an estate, heirs do not claim the surplus, and the court directs the pay-
ment-section 2415; and on default the Attorney General may, at
once, under section 5668, sue for the same; but for default as to fines
and forfeitures, and for property escheating to or belonging to the
State, he has no duty to perform until a year has elapsed from the
time the cause of action has accrued, and then only if the prosecuting
attorney has failed, neglected, or refused to collect or begin suit. Ib.
3. Same.-Repeal of Statute by Implication.-Statute Construed.-Section 5668,
R. S. 1881, is not so inconsistent with sections 4435, 5611 and 5616, or
either of them, as to repeal them.
Ib.
4. Same.-Statute of Limitations.-Principal and Surety.-In a suit against
the county clerk and his sureties, on his bond, it is error to sustain a
demurrer to an answer by the clerk, that the cause of action did not
accrue within three years, and the error can not be regarded as harm-
less because there was a similar defence pleaded by the sureties in an-
other paragraph, nor because the judgment against the clerk was no
larger than against the sureties; nor can the suit be regarded as upon
the bond against the sureties, and against the clerk as not upon the
bond, so as to make the period of limitation, as to him, six years, as
provided in section 293, R. S. 1881.
Ib.
5. Same.-Payment After Suit.-Evidence.-Costs.—Semble, that a county
clerk, pending a suit on his bond, may pay, as he ought before suit, to
the proper officer, and, under proper issues, proof of such payment is
admissible; but this would not affect the plaintiff's right to costs and
penalties.
Ib.
See COUNTY AUDITOR, 2; COUNTY ORDERS, 2; DRAINAGE; RAILROAD, 5, 6.
1. Promissory Note.-Consideration.-Presumption.-A county order for
taxes refunded containing the words "due and payable June 30th,
1878, with 8 per cent. interest from date," is in legal effect the prom-
issory note of the county, is assignable, and is presumed to be upon a
sufficient consideration.
Brownlee v. Board, etc., 186
2. Same. Refunding Taxes Paid on School Lands.-Act of February 8th,
1877.-Pleading.--In an action against a board of commissioners upon
an order for the repayment of taxes paid on school lands, if the taxes
were of the class which the act of February 8th, 1877, Acts 1877, p.
139, prohibits from being refunded, and that fact does not appear on
the face of the complaint, it must be pleaded as a defence to the ac-
Ib.
3. Evidence.--Set-Off.-Answer.-Exhibit.--A county order is admissible in
evidence in support of a set-off for it, where the answer of set-off so
identifies it by date and number, and amount of principal and inter-
est, that the opposite party can not be misled. Highfill v. Monk, 203
COUNTY TREASURER.
See COUNTY AUDITOR.
COURTS.
See CIRCUIT COURTS; CONSTITUTIONAL LAW, 4.
COVENANTS.
See INSURANCE, 8.
CRIMINAL LAW.
See JUSTICE OF THE PEACE, 1; LIQUOR LAW.
1. Ticket-Scalper.--Special Railroad Tickets.-Statute Construed.-Section 8
of the act of March 9th, 1875, regulating the issuing and taking up of
railroad tickets, etc., 1 R. S. 1876, p. 259, exempts from the operation
of its provisions all special tickets, whether half-fare or excurson
tickets, or special in any other respect.
State v. Fry, 7
2. Same.-A railroad ticket, having stamped upon its face the word
"special," is prima facie exempt from the provisions of said act.
3. Gift Enterprise.-Definition.-Judicial Notice.--Supreme Court.-The Su-
preme Court takes judicial notice that the phrase "gift enterprise,"
used in sections 2077 and 2078, R. S. 1881 (Acts 1881, pp. 211, 212),
means substantially a scheme for the division or distribution of cer-
tain articles of property, to be determined by chance, amongst those
who have taken shares in the scheme.
Lohman v. State, 15
4. Same.-Advertising.--Information.-Duplicity.-An information, charg
ing that the defendant advertised an account of when and where a
certain gift enterprise was to be drawn, the prizes therein, the price
of a ticket, and showing where tickets might be obtained, and had at
the same time given publicity to said gift enterprise by unlawfully
circulating printed copies of such account, does not charge two sepa-
rate and distinct offences under section 172, R. S. 1881, sec. 2078. Ib.
5. Same.--Price of Ticket.-Equivalent Terms.--Announcing in the pub-
lished account, set out in such information, how much money invested
in a specified manner would procure a ticket, is equivalent to stating
the price of the ticket.
6. Same.--Time or Place of Drawing.--Notice.--The announcement in such
published account: "To every purchaser of twenty-five cents worth
of goods at our drug store we will give a ticket; this ticket entitles
the holder to one share in the donation to be held December 10th,
1882," is sufficient to name the time or place of the contemplated
drawing.
7. Same.-Signatures to Published Account.-In such publication, it was
immaterial whether any, and, if any, whose name was signed to the
published account of the scheme.
Ib.
8. Constable.-Taking Recognizance.-Statute Construed.-Fixing the amount
of a recognizance in cases of felony, is a judicial act which a consta-
ble has no authority to perform; nor does section 1705, R. S. 1881,
confer upon him authority to take recognizances in such cases with-
out a judicial order fixing the amount, or directing that bail may be
taken; and a bond so taken, without such order, is void, and subse-
quent acts of the court can not validate it, nor is it such a defect as is
cured by section 1221.
State v. Winninger, 51
9. Perjury.-Sufficiency of Indictment.-Under the criminal code, section
1747, R. S. 1881, it is only necessary, in an indictment for perjury, to
set forth the substance of the controversy or the matter in respect to
which the crime was committed, and in what court or before whom
the oath alleged to be false was taken, and that the court or person
before whom it was taken had authority to administer it, with the
proper averments to falsify the matter whereof the perjury is assigned,
without setting forth any part of the record or proceeding, or the
commission or authority of the court or other authority before which
the perjury was committed.
Burk v. State, 128
10. Same.-Materiality of Testimony.-It must appear, though it need not
be alleged in express terms, in an indictment for perjury, that the tes-
timony given, and alleged to be false, was touching a matter material
to the point in question.
11. Pleading.-Former Acquittal.-Jeopardy.-A plea of former acquittal is
sufficient, if it shows that the defendant had been indicted, tried and
acquitted, in a court of competent jurisdiction, for the same felony
charged in the indictment in the pending case; for the fundamental
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