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Action on a promissory note by Charles
Palmer against William Poor. Judgment
for defendant. Plaintiff appeals.
W. A. Kit-

Wm. S. Diven, for appellant.
tinger and L. M. Schwinn, for appellee.

statement in an account current may be corrected. Her claim has been allowed, and the allowance confirmed by the court, but the statement contained in the executor's report that it has been paid to her is erroneous. We can conceive of no reason why the court may not cause the mistake to be rectified. The ELLIOTT, C. J. The appellant's complaint appellee was not bound to sue Dickerson on is founded on a promissory note which it is his bond, nor was she bound to file a claim alleged was executed by the appellee to A. J. against the estate. Whether she might have Selby, by Selby indorsed to Theodore Fields, sued on the bond is not the question; for the and by the latter to the appellant, before question here is whether she has a right, as maturity and for value. The note is negotilegatee, to have a mistake in an account cur-able by the law-merchant. The third pararent corrected. The will is not the founda- graph of the appellee's answer admits that tion of the action, and it would have been he signed the note, but avers that after it censurably bad pleading to have made it an was signed it was altered without his knowlexhibit to the complaint. It was not neces-edge or consent by inserting the figure "8" sary to make the heirs of Dickerson parties, before the words "per cent. interest," thus nor was it necessary to make his administra-making it bear interest at the rate of 8 per tor a party. The statute of limitations is cent. annum, whereas, as it was written pleaded in several paragraphs of the answer, when signed, it did not bear interest. The but we think without avail. Under the pro- alteration in the note was a material one, and visions of the statute, the court had the pow- would undoubtedly vitiate the note had it reer to make corrections in the record, and to mained in the hands of the payee. "It is a cause mistakes in account currents to be rec- material alteration," says Mr. Randolph, "to tified. Until the final settlement is made, add an interest clause, even without any accounts and reports may be reviewed and er- fraud on the holder's part." 3 Rand. Com. rors corrected. Rev. St. § 2404. We do not Paper, § 1756. This conclusion is fully susdecide that the appellee was entitled to a tained by the decided cases. Hert v. Oehler, money judgment, for that question is not be- 80 Ind. 83; Bowman v. Mitchell, 79 Ind. 84, fore us, as there is no motion to modify the and cases cited; Schnewind v. Hacket, 54 judgment, nor is the evidence in the record. Ind. 248; Shanks v. Albert, 47 Ind. 461; We say the evidence is not in the record, be- Boustead v. Cuyler, 116 Pa. St. 551, 8 Atl. cause it appears that at the time the bill of Rep. 848, 1 Amer. & Eng. Cyclop. Law, 509. exceptions was signed the oral testimony was The ruling question, therefore, is whether not written in it. It is well settled that ora! the material alteration will avoid the note in evidence must be embodied in the bill before the hands of the appellant. Our opinion is it is signed by the judge. It is only by virtue that, upon the facts stated in the answer, it of the statute that written instruments can does vitiate the note in his hands. The rule be made part of the bill by reference. Strat-sanctioned by our cases is thus stated in ton v. Kennard, 74 Ind. 302. Judgment af- Bowman v. Mitchell, supra: "When an infirmed.

(121 Ind. 135)

PALMER v. Poor. (Supreme Court of Indiana. Nov. 23, 1889.) PROMISSORY NOTES-DELIVERY-ALTERATIONS.

1. Plaintiff, an aged and ignorant man, was approached by certain persons, who falsely represented that they were introducing paints for a paint company, and offered to send him 10 gallons free, and asked him to write his address on a postal card. Afterwards the postal-card was presented to him, upon which was written an order for 100 gallons, 10 to be free of charge, and it was demanded that plaintiff sign a note in payment, and through fear of violence, with which he was threatened, he signed the note, which was at once snatched up, and carried away, against his will and demand. Held, that the note was not delivered.

2. In an action by an indorsee, an answer that the note was altered after its execution is prima facie an allegation that the alteration was made by the plaintiff, and requires a reply.

3. Adding the figure "8" before the words "per cent. interest" in a note is a material alteration.1 Appeal from circuit court, Madison county; D. Moss, Judge.

1As to what are material alterations in written instruments, and their effect, see Bank v. Wolff, (Cal.) 21 Pac. Rep. 551, and note; Publishing Co. v. Aldine Press, (Pa.) 17 Atl. Rep. 608, and note; Evans v. Lawton, 34 Fed. Rep. 233, and note.

strument is altered after its execution, it will be presumed, until the contrary is shown, that the alteration was made by the party claiming under it, or by one under whom he claims; and it is not necessary, in an answer stating that an instrument sued on has been altered, to allege that it was altered by the party claiming under it, or by one under whom he claims." Cochran v. Nebeker, 48 Ind. 459; Noll v. Smith, 64 Ind. 511; Eckert v. Louis, 84 Ind. 99; Koons v. Davis, Id. 387. The answer made a prima facie case, which the appellant could only defeat by showing that there was negligence on the part of the maker of the note; that the note was acquired for value, without notice of any fraud, and before maturity. Giberson v. Jolley, ante, 306, (this term;) Koons v.

Davis, supra.

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In the case of Marshall v. Drescher, 68 Ind. 359, the circumstances were such as to create the implication that the holder of the note had authority to fill the blank left in the instrument, and it was upon this ground that the note there under consideration was held valid. The case of McCoy v. Lock wood, 71 Ind. 319, asserts the doctrine that a material alteration will avoid a note even in the hands of a bona fide in

dorsee; refers to the cases of Holland v. | rity without notice, and that he paid value Hatch, 11 Ind. 497, Schnewind v. Hacket, for it. Giberson v. Jolley, ante, 306, (this

54 Ind. 248, and Collier v. Waugh, 64 Ind. 456, with approval; and denies that a note in the hands of a bona fide holder is enforceable where it was altered by writing in it a place of payment. The decision in that case is therefore strongly against the appellant.

term;) New v. Walker, 108 Ind. 365, 9 N. E. Rep. 386; Eichelberger v. Bank, 103 Ind. 402, 3 N. E. Rep. 127; Scotten v. Randolph, 96 Ind. 581; Mitchell v. Tomlinson, 91 Ind. 167; Coffing v. Hardy, 86 Ind. 369; Baldwin v. Barrows, Id. 351; Baldwin v. Fagan, 83 Ind. 447; Zook v. Simonson, 72 Ind. 83; Harbison v. Bank, 28 Ind. 133; Smith v. Association, 93 Pa. St. 19; Munroe v. Cooper, 5 Pick. 412.

The fourth paragraph of the answer contains much useless verbiage, but there are enough material facts stated to constitute a defense. Rejecting the useless matter, and summarizing its material allegations, its sub- The answer contains one paragraph, duly stance is this: The defendant was old, in- verified, denying the execution of the note, firm, and ignorant. The payee of the note and under this paragraph it was competent and the indorsees fraudulently conspired to to prove that the note was altered after it cheat and defraud him. To effect their fraud- had been signed, as well as that it was not ulent purpose, they falsely represented to delivered. The evidence that there was a him that they were introducing paints for material alteration of the note is strong and the New York Roofing Company; that they satisfactory, but so is the evidence that the would send to him 10 gallons of the paint appellant bought for value, before maturity, free of charge. They asked him to furnish and without notice of any fraud. Waiving his address. He complied, and wrote it on a a decision of the question as to whether the postal-card. Afterwards two persons in the appellee was entitled to succeed upon the service of the conspirators came to him, and ground that the note was materially altered, one of them represented that he was an at- (although our inclination is with him on that torney at law. They presented the postal- question,) we put our decision upon the card, upon which was written an order for ground that the evidence satisfactorily shows 100 gallons of paint, 10 gallons to be free of that the note was not delivered, and for that charge, and 90 gallons to be paid for at $2.25 reason we sustain the judgment. Delivery per gallon. This order was written above is part of the execution of a promissory note, the defendant's signature, and was there aud until delivered it is destitute of force. written without his knowledge. The agents 1 Daniel, Neg. Inst. § 63; Mahon v. Sawpresented the card, stated to the defendant yer, 18 Ind. 73; Prather v. Zulauf, 38 Ind. that unless he signed a note they would do 155; Cline v. Guthrie, 42 Ind. 227; Pickering violence to him, and would at once sue him v. Cording, 92 Ind. 306. It cannot be justly in the United States court, compel him to said that the appellee was guilty of neglipay a large amount of costs, and sell his farm. gence in suffering the payee to get possession Clark, one of the agents who represented the of the note, for the evidence makes quite a confederates, pretended to draw a weapon strong case in appellee's favor, much strongfrom his pocket, while the man with him er than the case of Cline v. Guthrie, supra. stood guard at the front door of the defend-The verified plea of non est factum stands as ant's house, and demanded that the defend- a complete defense, unaffected by the other ant should sign the note. The defendant answers, and the appellant cannot avail himwas then at his house, on his farm, no one self of the statements in other answers as with him but his wife, and she, as was the conclusive admissions. A denial is not neudefendant himself, was old, feeble, and ill. tralized by affirmative pleas. The defendant, through fear of violence, signed his name to the note as he was ordered to do. As soon as it was signed Clark snatched it up, and, against the will of the defendant, carried it away. The defendant demanded the return of the note, but Clark hurried from the house with it. No paint was ever delivered to the defendant, and he never received anything of value from the payee of the note or his confederates. The answer shows a fraudulent conspiracy, and shows, also, that by a cunningly devised scheme the confederates secured the defendant's signature to the note, and it is therefore unquestionably sufficient, irrespective of the allegations of force and violence. It would be good even if it did not show that the appellant was a conspirator, participating in the fraud; for it is well-settled by our decisions that, where a note is obtained by fraud, the holder cannot recover upon it unless he shows that he bought it before matu

We do not find it necessary to approve or condemn the decision in Stevens v. Burr, 61 Ind. 464, but we think it proper to say that some of the expressions there used are broader than the facts required, and that these expressions cannot be regarded as authoritative. We are clear that the affidavit for a change of judge was not such as the statute requires, inasmuch as it does not state any one of the causes enumerated, but merely avers that the plaintiff "believes that he cannot have a fair and impartial trial before the regular judge of this court." Judgment affirmed.

(121 Ind. 201)

FIRESTONE v. HARSHBERGER.
(Supreme Court of Indiana. Nov. 27, 1889.)
DISQUALIFICATION OF JUDGE APPLICATION FOR
CHANGE BY ATTORNEY.

Where a party subscribes and swears to an affidavit for change of judge which properly sets

forth a statutory cause for change, it is error to deny the application because he fails to appear in person, and make the application and file the affidavit. Stevens v. Burr, 61 Ind. 464, explained.

Appeal from circuit court, Madison county; D. Moss, Judge.

Wm. S. Diven, for appellant. Gerard, for appellee.

(121 Ind. 160)

MCCOY v. STATE ex rel. TRUCKS.
(Supreme Court of Indiana. Nov. 25, 1889.)
BASTARDY-APPEAL FROM JUSTICE'S COURT-BILL
OF EXCEPTIONS..

1. In bastardy proceedings in a justice's court, after a finding that defendant is not proven to be Pierse & the father of the child, a judgment that defendant be discharged is a final judgment, from which appeal may properly be taken.

2. Where it appears that one not the prosecuting attorney moved for an appeal in the jus

the motion to dismiss the appeal, it will not be attorney appeared in the latter court, and resisted held to have been taken without authority.

3. An indorsement of the date of presentation on a bill of exceptions is not a compliance with Rev. St. Ind. 1881, § 629, which requires the date to be stated in the bill.

Appeal from circuit court, Delaware county; ORLANDO J. LOTZ, Judge.

Proceedings by the state ex rel. Flora Trucks against Nathan McCoy. The defendant appeals.

David T. Taylor and Gregory & Silverburg, for appellant. Thompson, Marsh & Thompson, for appellee.

ELLIOTT, J. The appellant declared upon a promissory note negotiable under the law-tice's court to the circuit court, but the prosecuting merchant, executed by the appellee. The second paragraph of the answer is badly drawn, but we think it states facts constituting a prima facie defense to the action. The facts pleaded are very much the same as those contained in the answer discussed in the case of Palmer v. Poor, ante, 984, and upon the authorities there cited and for the reasons there given we hold the answer good. The appellant subscribed and swore to an affidavit asking a change of judge, and properly set forth therein one of the statutory causes authorizing such a change, but he did not come into court in person and make the application, nor in person file the application or affidavit. The application was made and the MITCHELL, C. J. This is an appeal from affidavit filed, as the record shows, by the at- a judgment in which it was found and adtorneys of the appellant. It is contended by judged that the appellant was the father of a counsel that the decision in Stevens v. Burr, bastard child begotten by him of the body of 61 Ind. 464, sustains the ruling of the trial the relatrix, and in which it was also adcourt denying the application. We said in judged that he pay a specified sum to secure Palmer v. Poor, supra, that some of the ex- the maintenance and education of the child. pressions in Stevens v. Burr were too broad, At the preliminary hearing the justice of the and that they could not be regarded as au- peace before whom the proceedings were inthoritative. We now hold that the only stituted found that the defendant "was not point authoritatively decided in that case is proven to be the father of the bastard child," that the party must himself make the affida- and "adjudged that he be discharged." vit, and that it cannot be made for him by Thereupon the record of the justice continues: another. There the affidavit was not made "Thomas Bosworth, on the part of the state, by the party, and our judgment is that the moved for an appeal to the Jay circuit court." court was there simply speaking of the case In the circuit court the defendant moved that actually before it, and that it did not mean to the appeal be dismissed, on the ground that decide that an attorney might not present or Thomas Bosworth was neither the prosefile the affidavit made by his client. Taking cuting attorney, nor in any manner authorall that was said by the court into considera-ized to act as his deputy, and that the appeal tion, it is evident that it had in mind the important fact that the affidavit was not made by the party, and it was that fact which influenced its decision. No one who has any knowledge of law, logic, or rhetoric will contend that an opinion or a discourse is to be judged by detached expressions or from fragmentary parts. It is elementary learning that all that is said or written upon one subject or point must be considered in determining what meaning a speaker or a writer intended to convey. This rule is applied in jurisprudence to statutes, pleadings, contracts, instructions, and judicial opinions, and in literature it is of universal application. It has been decided again and again that what an attorney does in the progress of a cause in court is the act of the client, and there is no conceivable reason why this rudimental rule should not apply to applications for a change of judge. For the error in denying the appellant's application the judgment must be reversed.

had therefore been taken without competent authority. It is objected that the court erred in overruling this motion. The motion was properly overruled. It is settled that the state may appeal from the judgment of a justice of the peace discharging the defendant in a bastardy proceeding. Morris v. State, 115 Ind. 282, 16 N. E. Rep. 632, and 17 N. E. Rep. 598, and cases cited. Where an appeal has actually been perfected, no matter by whom, the court acquires jurisdiction of the case, and when the prosecuting attorney or his deputy appears in the circuit court, and prosecutes the appeal to final judgment, that amounts to an adoption or ratification of the act of the person who took the appeal. Unruh v. State, 105 Ind. 117, 4 N. E. Rep. 453. Assuming that the appeal was taken at the instance of the relatrix, upon the motion of counsel employed by her, since the prosecuting attorney recognized what had been done and resisted the motion to dismiss the appeal, the defendant does not occupy a position which

entitles him to assert that the appeal had been taken without the authority of the prosecuting attorney.

It is further insisted that the motion to dis

(121 Ind. 180)

JONES v. FOLEY. (Supreme Court of Indiana. Nov. 25, 1889.) DEFECTIVE TAX-TITLE-LIEN-APPEAL-RECORD.

1. Under Rev. St. Ind. 1881, § 6497, and prior auditor's tax-deed of the lien of the state upon the acts, providing for a transfer to the grantee in an land conveyed, and for the sale of the land there

in an action of ejectment by plaintiff relying upon court to decree and foreclose the lien on the propsuch tax-deed, which is found defective, for the

out by him, though there is no averment that plainordinary form of one for the possession of real estiff relies on the tax-deed, and the action is in the tate.

2. As the act provides for a transfer to the grantee of "the lien which the state had on such

land for state, county, township, and all lawful purposes," it is proper to include in the lien the amount paid by the grantee for city taxes levied subsequently to the sale.

tax-title which is found defective, and decree is 3. In ejectment, where plaintiff relies upon a made making the amount paid by plaintiff, and also the amount paid by him subsequently for city taxes, a lien on the property, it is not necessary to bring into the record all the evidence in order to present the purely legal question of the right to include the amount of such city taxes in the lien.

Appeal from circuit court, Decatur county; JOHN G. BERKSHIRE, Special Judge.

miss should have been sustained because the justice of the peace failed to render a final judgment. The record of the justice shows, however, that he did render a final judgment. After finding the evidence insufficient to sus-under, it is proper, under the established practice, tain the charge that the defendant was the father of the bastard child, it was "therefore adjudged that he be discharged." The find-erty in favor of the plaintiff for the amount paid ing was to the effect that the defendant was not guilty. This was followed by a judgment that he be discharged. Askren v. State, 51 Ind. 592. This was a proper judgment, and one from which an appeal might be taken. Various other questions are made challenging the propriety of rulings of the court in refusing to give certain instructions asked on the appellant's behalf, and in admitting and excluding evidence offered during the progress of the trial. It is contended that the bill of exceptions purporting to contain the evidence is not properly in the record. While we have examined the several questions thus presented, and do not find any error in the ruling complained of, we do not state each of the questions made, because the record is in such a condition that none of the questions referred to are properly presented. The questions relating to the refusal of the court to give the instructions asked are not presented under rule 30, as might well have been done, accompanied by a statement of the judge that there was competent evidence material to the point covered by the instructions, nor is the bill of exceptions which purports to contain the evidence properly in the record. The statute (section 629, Rev. St. 1881) which regulates the signing and filing of bills of exceptions contains certain mandatory requirements, viz., that "the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions," and that "the date of the presentation shall be stated in the bill of exceptions." Rigler v. Rigler, ante, 776, (present term.) There is nothing in the bill of exceptions to show the date of its presentation to the presiding judge. We find in the transcript, following the bill of exceptions, and below the signature of the judge thereto, this statement: "Indorsed on said bill of exceptions is the following, viz.: Presented December 7th, 1886. ORLANDO J. LOTZ, Judge.'" This statement in the transcript was presumably made by the clerk, but this cannot be regarded as a part of the record, and, if it should be so regarded, still an indorsement on a bill of exceptions showing the date of its presentation is not equivalent to stating the date of its presentation in the bill. As we have seen, the requirement of the statute is that the date of the presentation shall be stated in the bill. Buchart v. Burger, 115 Ind. 123, 17 N. E. Rep. 125; Orton 7. Tilden, 110 Ind. 131-139, 10 N. E. Rep. 936. The judgment is affirmed, with costs.

Action of ejectment by Abigail C. Jones against John J. Foley. Judgment for plaintiff. Defendant appeals. Rev. St. Ind. 1881, § 6497, is as follows: "Sec. 6497. Lien, when Transferred to Grantee. 228. If any conveyance made by the county auditor, pursuant to a sale made for the non-payment of taxes, under this or any former tax-law, shall prove to be invalid and ineffectual to convey title, for any other cause than such as are enumerated in the section immediately preceding the last section, the lien which the state had on such land, for state, county, township, and all lawful purposes, shall remain in full force, and shall be transferred by such deed to the grantee, and vested in him, his heirs and assigns, who shall be entitled to recover from the owner of such lands the amount of such legal taxes, together with all lawful charges, with interest at eight per cent. per annum from the date of such sale, and also the amount of all subsequent taxes paid, with like interest; and such claim shall be a lien upon such lands, and the same shall be bound for the payment thereof. In case judgment shall be rendered against the person holding the title from the auditor, as aforesaid, for the recovery of such lands, in an action of ejectment or other action, either at law or in equity, the court shall ascertain the amount due to the party holding such tax-deed for principal and interest, and for all improvements made by him on such lands, and shall decree the payment thereof within such reasonable time as may be determined by the court. In default of such payment, the court shall decree that such lands be sold therefor, or sufficient thereof to pay the amount of such improvements, principal and interest due, to the party having the auditor's

deed: provided, that there shall be no right | pleadings proper, with the usual general moof redemption of such property after the date tions, are always a part of the record without a of sale, and that the sale shall be without the benefit of appraisement laws."

John S. Scobey, for appellant. Ewing & Ewing, for appellee.

bill of exceptions, although special motions are not; and where lega questions arise such pleadings must be properly before the court, but it is not necessary that matters should be carried into the record which are not necessary to clearly and fully exhibit the nature of the legal questions of which a decision is sought. It is seldom necessary to bring all the evidence into the record. The only cases which now occur to us in which this can be necessary are those wherein the question is whether there is any evidence tending to sustain the finding or verdict. In other cases the record can be so made up as to present the questions of law much better without the evidence than with it, and in most cases it uselessly cumbers the record, darkening and confusing the case, rather than making it clearer and less obscure. In Mercer v. Corbin, 117 Ind. 450, 20 N. E. Rep. 132, we said: "We should be glad to encourage a practice

ELLIOTT, C. J. The complaint of the appellee is in the ordinary form employed in actions for the possession of real estate, and it does not state that the title claimed is founded on a tax-deed. The trial court adjudged that the appellee did not have title, but decreed that he did have a lien for taxes paid by him, together with the statutory penalty and interest. The appellant's counsel argue that the appellee was not entitled to have a lien declared, as his complaint does not show that he claims through a tax-sale, and that, having failed to make out a case for possession, he cannot recover upon the cause of action stated in his complaint. There is plausibility in the argument, but we think that under the peculiar provisions of our stat-that will abbreviate the record, and we think ute, and by virtue of the continued practice that in many cases, where questions arise on under it, the ruling must be that the court instructions, or on rulings in admitting or may establish and foreclose a lien where the excluding evidence, statements may be emtitle fails, although the complaint is nothing bodied in the bill of exceptions which will obmore than a general one to quiet title or to viate the necessity of bringing all the evidence recover possession of land. It is probably into the record." The purpose of rule 30 is true that section 3 of the act of March 6, 1883, to induce parties to abandon the practice of is ineffective, for the reason that the section bringing into the record a great mass of matit professes to amend had already been amend-ter which is seldom anything more than mere ed by the act which took effect without the rubbish. Where, however, the appellant asapproval of the governor on the 5th day of sumes to bring all the evidence into the recMarch, 1883, (Elliott's Supp. §§ 2143-2149.) ord by a bill of exceptions, and elects to preBut we need not decide this question, for we sent the appeal in that mode, he must pursue think that under the act of 1881, and prior the course pointed out by the decisions govacts, the practice has become established, and erning such cases; but that course is not the ought not to be departed from, so that it is only one he is bound to pursue, nor, indeed, not material what statute is now deemed to is it the best one. McCoy v. State, ante, 986, be in force. The legislative intention to per- (Nov. term, 1889.) mit the foreclosure of liens for taxes in actions to quiet title or to recover possession is quite clearly manifested in all the statutes, and it is our duty to give effect to that intention.

We have no doubt that the trial court did right in including the city taxes paid by the appellee in the judgment. A land-owner knows, as matter of law, of which no citizen can be ignorant, that his property is subject We do not agree with appellee's counsel to pay its proportion of all taxes, municipal that it was essential to bring all the evidence as well as state and county; and, knowing into the record in order to present the ques- this, he must know-for this, too, is matter tion as to the right of the court to include in of well-known law-that, if Le suffers his the judgment taxes levied by the city of land to be sold, the purchaser at the tax-sale Greensburg, and paid by the appellee after he will acquire a right to pay all the taxes, and bought at the sale made for unpaid taxes. thus protect his right under his purchase. Where purely legal questions are presented Sloan v. Sewell, 31 Ind. 180-182; Jenkins v on the instructions, on the facts or on rulings Rice, 84 Ind. 342; Lawson v. Hilgenberg, 77 in admitting or excluding evidence, it is not Ind. 221; Woodside v. Wilson, 32 Pa. St. 52; necessary to incorporate in the bill of excep- Robinson v. Gaar, 6 Cal. 275. Municipal tions all the evidence given in the case. It corporations are governmental instrumentalis sufficient, in such a case, to bring into the ities, and taxes levied by them are levied by record, by a bill of exceptions, the rulings, virtue of an attribute of state sovereignty the motions of other proceedings on which delegated to them, and taxes so levied must the rulings were founded, and so much of the be taken notice of by property owners. They evidence as is necessary to fully show the nat- constitute liens upon his property to the same ure and effect of the rulings, accompanied by a extent as other taxes, and must refunded statement of the judge showing that there were by the property owner to a purchaser at a facts, or that there was evidence tending to es-tax-sale who pays them. Justice v. City of tablish facts, making the rulings relevant and Logansport, 101 Ind. 326; Millikan v. Ham, material. It is understood, of course, that the 104 Ind. 498-502, 4 N. E. Rep. 60; Watkins

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