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without any validity whatever. No authority has been found which denies the validity of such a mortgage; and, if it be effective only as an assignment of the mortgagor's claim against the vendee, the latter, after notice, is under the same obligation to pay to the mortgagee the balance owing by him on the land that every debtor is under to pay his debt to his creditor's assignee after knowledge of the assignment.

In this case the possession of the defendant Dixon, as shown by the agreed statement of facts, was sufficient notice of his rights under the contract of purchase; and the record was not constructive no. tice to him of the plaintiff's mortgage. Before he had actual notice of the mortgage, Dixon made payments to Hardy on the contract to the amount of $650. These payments, it is admitted, were valid, and to that extent Dixon discharged his indebtedness on the purchase without incurring any liability to the plaintiff. The controversy concerns the remainder of the purchase money. It is averred in Dixon's answer that he had paid $650 to Hardy on the contract before he had knowledge that the mortgage of the plaintiff had been placed on the property; which sum, with interest, he alleges he is entitled to have paid back to him before any payment shall be made on the mortgage. This amount is all that he alleges was paid on the purchase prior to his knowledge of the mortgage, which is an admission that any further sum paid there. on was paid with such knowledge. sides, it is set forth in the agreed statement of facts, upon which the cause was disposed of in the circuit court, that Dixon did not know that Hardy had placed a mortgage on the premises until they came to settle in March, 1876; that on the 25th day of March, 1876, Dixon made his last payment upon the contract to Hardy, which amounted to $700, and, at the time the payment was made, Hardy promised to have the plaintiff's mortgage canceled by the following Monday; that it was only a few days before this payment was made that Dixon discovered that the property had a mortgage upon it. given to the plaintiff by Hardy, and that, relying upon the promise of Hardy to cancel the mortgage, Dixon made the payment, and took Hardy's warranty deed for the premises.

Be.

Dixon contends that his knowledge of the mortgage, as thus shown, does not entitle the plaintiff to charge him, or the property, with the amount of the last payment made to Hardy, because it does not appear that the notice of the mortgage came from the plaintiff, nor that it apprised him that the mortgage was unsatisfied; and, furthermore, that upon the authority of Zeller v. Bading, 43 Ohio St. 157, 1 N. E. Rep. 523, he had the right to continue to make payments of the purchase money to Hardy until the plaintiff should by suit, or in some other unequivo cal form, assert his claim to the money; and, before this was done, he had completed his payments and received his deed. The general rule is that, in order to charge a party with notice of the rights of anothv.27N.E.no.10-55

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er, it is not necessary that the information be received directly from the latter. If it is derived from a source entitled to credit, and distinctly brought to the knowl edge of the person sought to be affected by it, the notice is as effectual and binding as if it came from the person himself who claims the benefit of it. Mere rumor is not sufficient. The information must be such as men commonly act upon in the ordinary affairs of life. A party who has sufficient information of that character to lead him to a fact is to b deemed conusant of the fact. He is put upon inquiry, and is chargeable with notice of those facts which diligent inquiry would reveal. The admitted facts show that the existence of the plaintiff's mortgage was distinctly brought to the knowledge of Dixon before the last payment was made to Hardy. The information was regarded of such reliable character as to be made the subject of an agreement between them, and induce him, before making the payment, to exact a promise from Hardy to obtain the cancellation of the mortgage. He knew the mortgage was uncanceled, and it so appeared of record. Prima facie it was therefore a subsisting and unsatisfied mortgage. It is not claimed that Dixon had any information to the contrary. Reasonable inquiry would have afforded him knowledge of the precise sum due on the mortgage. Under these circumstances, he chose not to make the inquiry, but rather to rely on the promise of Hardy to discharge the mortgage, and, upon the faith of that promise, to pay him the money which he knew rightfully belonged to the plaintiff. That promise was not fulfilled, and either Dixon or the plaintiff, in consequence, must be the loser. The loss, we think, must fall upon Dixon, who not only had it in his power to prevent it, and did not, but whose conduct was the means of bringing it about, by reposing confidence in Hardy, and intrusting him with the money, when he knew the plaintiff was entitled to receive it.

It is true that it is said in the case of Zeller v. Bading, supra, that a vender of land, who is in possession, may safely, as against a subsequent mortgage executed by the vendor, continue to make payments on the contract of purchase until the mortgagee, by suit or in some other unequivocal form, asserts the right to receive the unpaid purchase money. In that case the mortgagee sought, by his suit, to foreclose the mortgage. It was found that the first notice the purchaser had of the mortgage was long after he had received his deed, and, he claimed, after he had paid the purchase money. It does not appear that he had any notice before the suit was commenced. There can be no doubt that the commencement of the action was ef fectual as notice of the mortgagee's rights. But whether any other notice would be equally effectual was not a question in the case. It was held that the inortgage was valid, and that the mortgagee was entitled to foreclose for whatever balance remained unpaid on the purchase. What is said in regard to the right of the purchaser to continue to make payments on his contract until the mortgagee should

by suit, or in some other unequivocal form, assert the right to receive the unpaid installments of the purchase money, may not be inappropriate, when confined to the circumstances of that case, but it is not applicable to the case before us. If, until a suit shall be instituted against the purchaser to subject any part of the purchase money that may then be unpaid to the satisfaction of his mortgage indebtedness, the mortgagee has no rights, under the mortgage, against the land or the purchaser, which can otherwise be protected, of what validity is the mortgage? Without its aid, the mortgagee could maintain the suit to subject his debtor's choses in action to the payment of his debt. The same remedy would be equally open to any other creditor of the mortgagor. This case is governed by the well-settled rules of law to which we have referred, and in so far as Zeller v. Bading, supra, is in conflict with them, it is disapproved. The judgment of the circuit court is reversed, and, proceeding to render the judgment which that court should have rendered, a decree of foreclosure will be entered in favor of the plaintiff for the sum of $700, with interest from March 25, 1876.

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1. An indictment charging that defendant feloniously introduced an instrument into the womb of a pregnant woman with intent to produce a miscarriage, and that such operation was not necessary to save her life, is sufficient, though it does not describe the nature of the wound or the disease which resulted.

2. The indictment was not bad for duplicity because it shows both miscarriage and death.

3. The indictment was not bad because it charged that defendant did "introducę, and "cause to be introduced," such instrument, since an accessory before the fact may be charged as a principal.

4. On the trial declarations and exclamations indicative of pain, made in her last illness by the woman upon whom the alleged operation was performed, and not referring to the past, were competent evidence.

5. Evidence that the deceased woman was buried at the expense of the county was incompetent.

6. As to reasonable doubt, the court gave only the following charges: "The defendant is presumed to be innocent, and before he can be convicted the state must prove him guilty beyond a reasonable doubt." "A reasonable doubt arises when the evidence is not sufficient to satisfy the minds of the jury to a moral or reasonable certainty of defendant's guilt. A reasonable doubt is not an unreasonable doubt; it is a doubt for which a reason can be given. It is not a mere surmise or guess that the defendant may not be guilty of what he is charged with." "The defendant is to have the benefit of any doubt. If, however, all the facts established necessarily lead the mind to the conclusion that he is guilty, though there is a bare possibility that he may be innocent, you should find him guilty. Held, that such instructions did not fully define a “reasonable doubt," and that the last sentence was not the law, because it failed to state that the evidence must exclude every "reasonable doubt. "

7. A juror whose eye-sight was so defective that he could not see the face of the defendant, or the expression of the faces of the witnesses,

was incompetent, especially where various articles were placed before the jury to illustrate the testimony, none of which were seen by him.

8. Defendant was not negligent where his counsel made a full examination of such juror, and there was no indication that his eye-sight was defective; and the fact that during the trial such juror, coming in late, stumbled, and in reply to a question by the court stated that his eye-sight was poor, cannot charge defendant with notice of that fact, when such incident was not observed by his counsel.

Appeal from circuit court, Tippecanoe county; B. W. LANGDON, Judge.

The indictment charged that defendant did "introduce" and "cause to be intro. uced" an instrument into the womb of a pregnant woman, with intent to produce a miscarriage. Rev. St. Ind. 1881, §507, pro vides that a “party producing a witness shall not be allowed to impeach his credit by evidence of bad character unless it was indispensable that the party should produce him, or in case of manifest surprise, when the party shall have the right; but he may in all cases contradict him by oth er evidence, and by showing that he has made statements different from his present testimony.". By section 1796 this section is made applicable to criminal cases. During the trial one of the jurors, coming in late, stumbled, and, in reply to a question by the judge, stated that his eyesight was poor. It afterwards appeared that it was so defective as to make it impossible to see the expression upon the faces of witnesses, or to observe certain instruments which were exhibited to the jury.

R. P. De Hart, W. P. Rhodes, and Kumler & Gaylord, for appellant. A. G. Smith, Atty. Gen., and Geo. P. Haywood, Pros. Atty., for the State.

ELLIOTT, J. The indictment upon which the appellant was convicted charges him with having feloniously introduced an instrument into the womb of a pregnant woman with the intent to produce a miscarriage. The appellant's counsel insist that the court erred in overruling the mo. tion to quash the indictment, and allege several objections, but all of them are without substantial merit. It is said that the indictment is bad because it does not show that the woman miscarried or died, but this point is not supported by the record, for it does appear that there was a miscarriage and death. Good pleading does not require any such particularity as counsel insist upon. It is sufficient, in such a case as this, to charge that an instrument was feloniously introduced into the womb of a pregnant woman without showing what kind of a wound it pro. duced, or what disease it caused. Where the felonious use of an instrument is shown, and it appears, as it does here, that the operation was not necessary to save the woman's life, it is not incumbent upon the state to go further, and describe the nat ure of the wound, or the character of the disease which resulted.

The objection that the indictment is bad, because it shows both miscarriage and death, has not even the poor merit of plausibility. The indictment is not bad for duplicity. An accessory before the fact may be charged as a principal. The other

questions in the case arise on the ruling | dence of contradictory statements does denying the motion for a new trial. Complaint is made of the ruling of the court in admitting the declarations or exclamations of the woman upon whom the abortion was committed, but the complaint is groundless. The declarations and exclamations were indicative of pain and suf fering, were made by the woman in her last illness, and they did not refer to the past. They were clearly competent. Board v. Leggett, 115 Ind. 544, 18 N. E. Rep. 53, and authorities cited.

Dr. Smith was called as a witness by the state, and, so far as we can discover, gave no testimony different from that which the state required and expected from him. There is nothing in the record indicating that the state was surprised by his testimony, or that it was regarded as prejudicial. It is crue that the witness said, in a general way, that the woman was suffering from & nalarial fever, but he was not, when originally called, asked by the state as to whether there were symptoms indicating an attempt to produce an abor tion. The testimony of the witness was strongly favorable to the state in one particular, inasmuch as it tended to show the appellant's intimacy with the woman upon whom the instrument was used. After the witness left the stand, and near the close of the case, he was recalled, and the counsel for the state addressed to him this question: "Did not Mrs. Chapman ask you, 'What in the world is the matter with her?' and did you not reply: 'I don't know. Whatever she has done or has been done, or whatever she has taken, is the cause of this sickness, and will be the cause of her death."" Subsequently Mrs. Chapman was called, and she testified that Dr. Smith was asked by her the question embodied in the interrogatory propounded by the state, and that he answered it as stated in the interrogatory. It is no doubt true that the state may, in the proper case, contradict its witnesses by evidence of contradictory statements made out of court. Conway v. State, 118 Ind. 482, 21 N. E. Rep. 285. Justly limited and rightfully applied, the statutory rule is a wise and salutary one; but if not properly limited and employed, it may be very unjust and mischievous. If a party may call a witness, elicit from him only what is expected and what is not prejudicial, and then prove statements made out of court by the witness, great harm may be done the adverse party. It happens, as the decisions and the books show, that witnesses make careless or reckless statements out of court which they will not make under oath, and such statements ought not to be brought out by the party who produces the witness, unless the testimony of the witness is prejudicial to him. It is, indeed, doubtful whether they can be brought out where there was no obligation upon the party to call the witness, and the testimony was what the party knew or had reason to believe the witness would give. It is true that evidence of such statements is theoretically evidence affecting credibility only, and is not evidence of the facts embraced in the contradictory statements; but nevertheless evi

often influence the jury. The limitation placed upon the statutory rule by the decisions is a wise one. That limitation is this: Where the witness gives no prejudicial testimony upon the point to which the contradictory statements relate, evidence of statements made out of court is not competent. Where the party calling the witness is surprised by his testimony, or where it is prejudicial, then contradictory statements as to the point upon which the evidence is prejudicial is competent; otherwise not. Hull v. State, 93 Ind. 128; Conway v. State, supra, and cases cited; Miller v. Cook, 124 Ind. 101, 24 N. E. Rep. 577. In the case last cited it was rightly held that the contradictory statements must relate to the point upon which the evidence is prejudicial, and so we hold here. While we incline to the opinion that the contradictory statements were improperly admitted in evidence, still we should be unwilling to reverse the judgment for the error, if it was one, for the reason that we think that the erroneous ruling, conceding it to be such, could not possibly have affected the result.

We are unable to perceive upon what ground the court permitted the state to show that the woman upon whom the abortion was produced was buried at the expense of the county. The evidence was not competent; but for the error in admitting it, if there were no other errors in the record, we should not be inclined to reverse the judgment.

The evidence that some one did use means to produce an abortion upon the woman named in the indictment is sufficiently clear and satisfactory to warrant the inference of guilt. There are circumstances tending to prove that the accused either used the instrument himself, or caused some other person to use it. The criminating circumstances are, we repeat, such as warrant the inference of guilt, but they do not absolutely require it. The evidence upon the material point, as to who actually used or caused to be used the instrument by which the miscarriage was produced, was wholly and purely circumstantial. The case is not, therefore, one in which we can say that a mistake in defining a "reasonable doubt," or an error in charging the law upon the subject of a reasonable doubt, will not compel a reversal of the judgment. If the case were one of direct and satisfactory evidence, or one where the circumstantial evidence was so convincing and clear that we could say without hesitation that the verdict was right, possibly we might affirm the judgment of conviction, under the rule laid down in Heyl v. State, 109 Ind. 589, 10 N. E. Rep. 916, even though the instructions are not entirely satisfactory. We are, however, required to decide whether the instructions given upon the subject of reasonable doubt are correct, as applied to a case where the evidence of guilt is purely circumstantial. The settled rule is that instructions upon a single subject must be considered together, and not in fragmentary parts; and if, thus considered, they correctly declare the law, they will not be overthrown, even though detached

or isolated parts may not be accurate or clear. If, therefore, the series of instructions upon the subject of reasonable doubt, considered as a whole, are not erroneous, the attack of appellant's counsel must fail. In obedience to the settled rule that all of the instructions must be considered, we group these instructions, and consider them as an entirety. They read thus: "(3) The defendant is presumed to be innocent, and, before he can be convicted, the state must prove him guilty beyond a reasonable doubt. (4) A reasonable doubt arises when the evidence is not sufficient to satisfy the minds of a jury to a moral or reasonable certainty of the defendant's guilt. A reasonable doubt is not an unreasonable doubt; it is a doubt for which a reason can be given. It is not a mere surmise or guess that the defendant may not be guilty of what he is charged. (5) The defendant is to have the benefit of any doubt. If, however, all the facts established necessarily lead the mind to the conclusion that he is guilty, though there is a bare possibility that he may be innocent, you should find him guilty." No one of these instructions fully informs the jury of the weight of evidence required to produce the moral certainty which is essential to a conviction of a felony. No one of them gives the test by which to measure the evidence; at all events, no such test is given as is required by the decisions in the cases of Bradley v. State, 31 Ind. 492-505; Jarrell v. State, 58 Ind. 293297; Knight v. State, 70 Ind. 375; Garfield v. State, 74 Ind. 60; Bebymer v. State, 95 Ind. 141; Brown v. State, 105 Ind. 385, 5 N. E. Rep. 900; Farley v. State, (Ind.) 26 N. E. Rep. 898, (March 13, 1891.) But we could possibly sustain the instructions, notwithstanding this defect or omission, inasmuch as no specific instructions were asked by the appellant, if there were no affirmative errors in them. The drift of the entire series upon the essential point, what constitutes a reasonable doubt? is unfavorable to the accused. The jury are repeatedly told what does not constitute a reasonable doubt, but they are not informed what does constitute such a doubt. If, therefore, there are statements directly against the accused, they must be regarded as prejudicial; and, if erroneous, we must reverse the judgment. The fifth instruction declares that, "if all the facts es. tablished necessarily lead the mind to the conclusion that he is guilty, though there is a bare possibility that he may be innocent, you should find him guilty." This is not the law. It is not enough that the evidence necessarily leads the mind to a conclusion, for it must be such as to exclude a reasonable doubt. Men may feel that a conclusion is necessarily required, and yet not feel assured, beyond a reasonable doubt, that it is a correct conclusion. Life and liberty cannot be taken where evidence does not do more than necessarily lead to a given conclusion. Jurors must act freely, and without compulsion, in deciding against life or liberty, for so say the decisions upon the subject. The evidence must lead to the conclusion so clearly and strongly in a case like this, where the evidence is purely circumstantial, as to ex

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clude every reasonable hypothesis consistent with innocence. It is, however, not necessary that the evidence should pro. duce absolute certainty in the minds of the jurors, or that it should dissipate mere conjectures and speculative doubts. Kennedy v. State, 107 Ind. 144, 6 N. E. Rep. 305. The law, as declared by an eminent author, and approved in Sumner v. State, 5 Blackf. 579, is this: "On the one hand, absolute, metaphysical certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt. 1 Starkie, Ev. 577. Professor Greenleaf says: "Neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate a full belief of the fact to the exclusion of all reasonable doubt." 3 Greenl Ev. (14th Ed.) § 29. It is often true that a preponderance of the evidence will necessarily lead the mind to a conclusion; but, where human life or liberty are at stake, reasonable doubt must be removed, and the removal of reason. able doubt is not always essential to a necessary conclusion. A necessary conclusion may logically appear to result, and yet all reasonable doubt be not removed. We do not hold the instruction erroneous because of its statement as to the effect of the bare possibility of innocence, but because it directs the jury that, "if the facts established necessarily lead the mind to the conclusion" that the accused is guilty, they must convict him. It is very doubtful whether the statement that the doubt "must be one for which a reason can be given" is correct, but as to that we give no opinion. Carr v. State, (Neb.) 37 N. W. Rep. 630; Cowan v. State, (Neb.) 35 N. W. Rep. 405.

One of the jurors made affidavit that his eye-sight was so defective that he was unable "to distinguish one from another of the faces of the witnesses; that he did not see the face of the defendant; and that he did not see the expressions of the witnesses testifying, nor observe their deportment or demeanor. We think that the juror was not competent to sit, even in cases where the testimony consists entirely of the statements of the witnesses. Again and again have verdicts been allowed to stand because of the effect declared to be exerted by the demeanor and deportment of witnesses; and, surely, no one who cannot see the expression of faces, nor observe deportment and demeanor, can justly weigh testimony. But in this instance various articles were placed before the jury, and used as illustrative of the testimony, none of which were seen by the juror. Clearly, his unfortunate infirmity incapacitated him from properly observing the evidence. The accused was not negligent, for he, by his counsel, fully examined the jurors as to their qualifications. The answers of the juror of whom we are speaking were such as to lisarm suspicion of his disqualification, and there was nothing to indicate that his eye-sight was defective. The state insists that a circumstance which occurred during the trial ought to have warned the defendant's counsel of the juror's infirmity. But

we think otherwise. The circumstance was not such as to make it the duty of counsel to note it, and ask for another jury. Counsel, by sworn statements, declare they did not observe it, and we see nothing in the occurrence to justify the inference that they did observe the juror's infirmity. Nor are they contradicted, for the utmost that can be said of the counter-affidavits is that the affiants believed that counsel did note what occurred. Judgment reversed, with instructions to sustain the appellant's motion for a new trial.

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In 1834 an owner of land surveyed and platted it for a town-site, and at the same time dedicated by implication a landing on the river for the loading of flat-boats. The dedication was accepted, and the landing used until 1857, when it was washed away by a change in the river. Afterwards the river again changed, and the landing was restored by alluvial formation. The commerce on the river, however, had meanwhile ceased. Held, in an action by the town against the dedicator's grantees, such an abandonment as would defeat recovery.

Appeal from circuit court, Owen county: G. W. GRUBBS, Judge.

Howland & Pickens, for appellant. Beem & Hickam, for appellee.

COFFEY, C. J. This was an action by the appellant against the appellee in the Owen circuit court, to recover the possession and to quiet title to the land described in the complaint. The complaint consists of two paragraphs. The first al. leges that the appellant is the owner in fee-simple and entitled to the possession of the land, and that the appellee unlawfully keeps it out of possession. The second paragraph alleges that the appellant is the owner in fee-simple of the land, and that the appellee is asserting an unfounded title thereto, which casts a cloud upon the title of the appellant. The cause was tried by the court, who, at the request of the appellant, made a special finding of the facts proven, and stated its conclu. sions of law thereon. The appellant excepted to the conclusions of law, and assigns as error that the circuit court erred in such conclusions. The material facts in the case, as disclosed by special finding, are that on the 18th day of November, 1834, John R. Freeland, then the owner in feesimple of the west fractional N. W. 4 of section 21, in township 9 N., of range 4 W., comprising all of said N. W. 4 west of White river, caused to be surveyed and platted what has since been known as the town of Freedom. The plat was never acknowledged, and was not recorded until the 10th day of August, 1841. As shown by the plat, Randolph street, Wall street, Spring street, Market street, Hill street, Limestone street, and Franklin street run east and west, and Water street runs north and south; the latter being on the

extreme eastern boundary of the town, and is 60 feet in width. At the time the plat was prepared there was a strip of land 80 feet wide between Water street and White river, extending from Franklin street south to a point midway between Spring and Market streets. This strip was impliedly dedicated by Freeland to the public as a common for the purpose of making, loading, and landing flat-boats then used to carry freight on the river, and for access to the river. The dedication was accepted by the public and the citizens of the town, and used by them for the purposes for which it was dedicated, until about the year 1852. Between the years 1834 and 1852 the river washed away the land so dedicated to such an extent as that the west bank of the river ran near the east edge of Water street, and by reason thereof said strip was not, and, indeed, could not, be used by the public for the purposes intended by the dedication. About the year 1862 the business of flatboating on White river was entirely abandoned at the point in controversy, and has never since been resumed. After the change in the stream, and the abandonment of the dedicated land for the purposes, above stated, the river again, by gradual process, changed its course at this point; and for more than 30 years prior to the time this cause was tried the 80 foot strip above described and all its accretions have been claimed by the appellee and his grantors, who have kept the same in cultivation as farm lands, so far as they were capable of cultivation, and have paid the taxes on the same. About the year 1857, the land dedicated being partially washed away at some points, and wholly in the river at other points, the same fell into disuse by the public, and by the town of Freedom, as a boat-yard, or landing, and has not since that date been used for public pur. poses. At the time Freeland platted the town of Freedom he retained a strip 100 feet wide on the north side of the town, and a like strip on the south side, neither of which was included in the platted territory nor in the dedication. The accretions caused by the gradual change in the river attaching to the strip dedicated by Freeland, and to the land retained by him, not dedicated nor included in the platted territory, now amount to about 25 acres. The appellee makes title to the land by a regular chain of conveyances from Freeland to himself. Neither the town of Freedom nor the public has at any time, within 30 years prior to the trial of this cause, had possession of or used or occupied any of said land, except those portions of the strip dedicated, and which have been used, for the purpose of access to a church and to reach a public highway; but it has not been used for any of the purposes intended by the dedication, or for which it was accepted by the public. The town of Freedom was incorporated in June, 1888. town, as incorporated, includes the land in controversy. Under these facts, the court found, as a matter of law, that the appellant was entitled to the land dedicated, and no more. The appellant claims the land in controversy under the implied dedication made by Freeland in 1834, while

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