doubt, we think, but what at common law a plaintiff out of possession. The second parguardian could agree to an arbitration. agraph alleges that the plaintiff is the ownHutchins v. Johnson, 12 Conn. 376; Strong er in fee and entitled to the possession of v. Beroujon, 18 Ala. 168; Weston v. Stuart, all that part of the fractional N. E. of sec11 Me. 326; Smith v. Kirkpatrick, 58 Ind. tion 36, in township 33 N., of range 4 W., 254; Morse, Arb. 25; Caldw. Arb. 24; Hutch- which lies south of the middle line of the ins v. Johnson, 30 Amer. Dec. 622, and note. Kankakee river, in Starke county, Ind., and We think the judgment should be reversed, that defendants, without any legal right at the costs of the appellants, as the first er- whatever, wrongfully hold, detain, and keep ror committed by the court was in overrul-the possession thereof from the plaintiff, and ing the demurrer to the complaint. McCole v. Loehr, 79 Ind. 430. Judgment reversed, at the costs of the appellants, back to the filing of the demurrer to the complaint, and the court below is instructed to sustain the demurrer to the complaint, and to grant appel-jection is not well taken. lants leave to amend. (120 Ind. 352) SPHUNG et al. v. MoORE. (Supreme Court of Indiana. Oct. 16, 1889.) EJECTMENT PLEADING-DEEDS-BOUNDARIES. 1. In ejectment a description of the land sued for as "the fractional north-east quarter of section 36, in township 33 north, of 4 west, lying south of the Kankakee river, in Starke county, Indiana, "is sufficient. have kept him from the possession for the past year. The objections made to each of the paragraphs of complaint is that they are indefinite, and do not properly describe the real estate sought to be recovered. This obEach of the para graphs properly and definitely describe the real estate in question. The finding of facts show that on the 4th of March, 1850, the United States granted to the Wabash & Erie Canal the N. of the S. E. 4, and that part of the N. E. fractional 4, of section 36, township 33, range 4 W., lying south of the Kankakee river, containing 122.70 acres; that on the 14th day of January, 1866, the Wabash & Erie Canal executed a deed for said land to Alvin M. Higgins; that on the 2d of April, 1872, said Higgins executed a deed for said land to Joseph Glenn, and that on the 1st of April, 1880, the executor of said Glenn, by due authority, executed a deed for the entire interest of said Glenn to the plaintiff, who still holds such interest; that the said lands are the same lands described in the complaint; that said lands lie 4. Where the patentee of "the north half of on the south side of the Kankakee river or the south-east quarter, and that part of the north English lake; that, when originally surveyed east fractional quarter, of section 36, " etc., "which by the authority of the United States, said lies north of the Kankakee river, containing in all 122.70 acres," conveys "the north-east quarter river or lake was meandered, and the meanof section 36," etc., "containing 122.70 acres," the der line of said river or lake was across the deed passes title to all of the land in said north-north-east quarter of said section 36; that east fractional quarter lying south of said river. 2. And so is the description "all that part of the fractional north-east quarter of section 36, in township 33 north, of range 4 west, which lies south of the middle line of the Kankakee river, in Starke county, Indiana. 3. Where the facts found in ejectment show the plaintiff to be the owner in fee of the land sued for, and a proper judgment is rendered thereon, such judgment will not be reversed because the conclusions of law merely state that plaintiff was seised of a good and sufficient title. 5. A patent for a fractional quarter section, the strip of land between the said meander 5. A patent for a fractional quarter section, which is bounded by a meandered stream, passes line and the river contained about 43 acres, title to all land within the lines of said quarter which is not a part of the bed of the river, section between the meandered line and the wa- but is dry land, and not subject to overflow, ter's edge. except a small strip along the margin of the stream; that the defendants, without the consent of the plaintiff, took possession of a small portion of the land in said north-east Appeal from circuit court, Starke county; THOMAS J. MERRIFIELD, Judge. Henry R. Robbins, for appellants. Stanton J. Peelle and George W. Beman, for ap-quarter of said section 36, included within pellee. OLDS, J. This is an action in ejectment brought by the appellee against the appellants. The court found the facts specially, and stated the conclusions of law, and rendered judgment for the appellee. such meandered line and the margin of the river, and held such possession against the will of the plaintiff; that the portion of said land so occupied by the defendants, in time of high water, is almost covered with water; that the defendants assert no title whatever to the portion of such land so occupied by The first error assigned and discussed is them. Upon the foregoing facts the court the overruling of the demurrer to each para- stated the following conclusions of law: (1) graph of the complaint. The complaint is That the plaintiff has a good and sufficient in two paragraphs. The first paragraph al- title to the lands described in the complaint; leges that the plaintiff is the owner in fee (2) that the lands so described in the comand is entitled to the possession of the frac-plaint include the premises so taken possestional N. E. of section 36, in township 33 sion of and occupied by the defendants, and, N.. of 4 W., lying south of the Kankakee accordingly, that the defendants are trespassriver, in Starke county, Ind., and that said ers on the rights of the plaintiff. The dedefendants now hold and have possession of fendant excepted to each of the conclusions said land unlawfully, and without right, and of law. The defendants then filed a motion for one year last past have unlawfully kept for a new trial, which was overruled, and exceptions, and the defendant then filed a fore described; also a deed from the execumotion for a venire de novo, the grounds tors of the last will and testament of said stated in the motion being on "account of Joseph Glenn, deceased, to the plaintiff. the insufficiency of the special finding of The land conveyed by said deed from the exfacts and conclusions of law thereon," which ecutors was described in the deed as the N. 1 motion was overruled, and exceptions, and of the S. W., and that part of the N. E. the court rendered judgment in favor of the fractional, of section 36, township 33 N., of plaintiff. range 4 W., of the principal meridian of InIt is contended that the conclusions of law diana, which lies south of the Kankakee rivdo not entitle the plaintiff to a recovery, for er, containing in all 122.70 acres. Objection the reason that the conclusion of law is that was made by the appellant to the introduction the plaintiff is seised of a good and sufficient of each of these deeds and the certificate, on title; that, if he had an equitable title, it the grounds that they did not, nor did either would be a good and sufficient title, and yet of them, describe the land described in the not entitle the plaintiff to recover on his complaint. This objection was properly complaint, which alleges that he is the owner overruled. The description in the deeds in fee of the real estate. The facts found in from the Wabash & Erie Canal to Higgins, this case show the plaintiff to be the owner and from Higgins to Glenn, included all the in fee of the real estate, and a proper judg-land in the north-east quarter of said section ment was rendered in the cause. The fact 36, and included the land in said quarter secthat the court stated an erroneous conclusion tion lying south of the Kankakee river, deof law, or failed properly to state the conclu- scribed in the complaint, and the evidence sions of law, is not available as error by an introduced constituted a valid chain of title exception to the conclusions of law as stated, from the United States to the plaintiff, and when a proper judgment is rendered on the sustained the finding of the court. facts found. Slauter v. Favorite, 107 Ind. 291, 4 N. E. Rep. 880, and authorities there cited. If a proper result has been reached, the judgment will not be reversed for a harmless error. There was no error in overruling the motion for a venire de novo. The It is contended by counsel for the appellants that as the land occupied by the appellants was situate between the meandered line and the river, that it was not included within the grant to the Wabash Canal, and conveyed by the deeds and mesne conveyances The next question we shall consider is the through which plaintiff claims title. In othalleged error in overruling the motion for a er words, counsel claim that the meandered new trial. The land in controversy was line constituted the boundary line of the originally granted to the Wabash & Erie Ca- north-east fractional quarter of section 36, nal by the general government. In the se- and, that line being a distance from the bed lection of the land by the trustees of the ca- of the river, the plaintiff is not a riparian nal the tract in question was described as the owner. In this counsel are in error. N. E. of section 36, township 33 N., of meandered line does not constitute the boundrange 4 W., containing 122.70. Subsequent-ary line, but the Kankakee river constituted ly the commissioner of the general land-of-the boundary, and the plaintiff was a riparifice, as ex officio surveyor general of Indiana, an owner. Ross v. Faust, 54 Ind. 471; corrected the description on the official plat Ridgway v. Ludlow, 58 Ind. 248; Edwards in the general land-office at Washington, and v. Ogle, 76 Ind. 302. State v. Bank, 106 Ind. that of the register of the district land-office 435, 7 N. E. Rep. 379, hold that a purchaser and on the original plat of the lands with the of swamp land takes whatever there may be state authorities at Indianapolis, and certified within the subdivision of land purchased by that such correction had been made, and that him. See 106 Ind. 452, 7 N. E. Rep. 389. the correct description of such land was the It is not material in this case to decide N. of the S. E., and that part of the N. whether the water's edge or the thread of E. fractional, of section 36, in township 33 the river constituted the true boundary line, N., of range 4 W., of the principal meridian as the land occupied by the appellees was sitof Indiana, which lies south of the Kankakee uated within the subdivision of land purriver, containing in all 122.70 acres, and chased and owned by the appellee and besuch certificate of the commissioner of the tween the water's edge and the meandered general land-office was annexed to the ap-line, and was a part of said north-east quarproval list of lands selected and approved to ter of said section 36, lying south of the Kanthe company in his office, which certificate kakee river. There is no error in the case. was properly certified and recorded in the Judgment affirmed, with costs. recorder's office of Starke county, Ind. The plaintiff, to make out his case, introduced a deed from the Wabash & Erie Canal to Alvin M. Higgins, and a deed from Alvin M. Higgins to Joseph Glenn, the said deeds each describing the land conveyed as the N. E. of of section 36, township 33 N., of range 4 W., containing 122.70 acres. Plaintiff also introduced the record of the certificate of the commissioner of the general land-office hereinbe (120 Ind. 377) COOPER v. STATE. (Supreme Court of Indiana. Oct. 18, 1889.) HOMICIDE-PLEA IN ABATEMENT-NEW TRIAL. 1. A plea in abatement for irregularities in drawing the grand jury is demurrable when the irregularities complained of are not included in the fined by Rev. St. Ind. 1881, § 1656, and the plea is causes to which the right of challenging is con filed, without special leave of court, after a plea of | causes specified. It may be that in case a "not guilty" has been entered. 2. An instruction which omits the word "vol- person accused of crime has no opportunity untary" in giving the statutory definition of mur- to make the challenge, the facts upon which a der is not fatally erroneous when the omitted word challenge might have been predicated could is supplied in effect in a subsequent instruction. be pleaded in abatement at the proper time; 3. Where the defendant in a trial for murder testifies as to all the circumstances of the homi- but the grounds available as a basis for chalcide, which occurred more than three years before, lenge cannot be extended by plea in abateand seeks to justify it on the sole ground of self-ment. Besides, the right to file a plea in defense, a new trial will not be granted on the abatement was waived by pleading to the inground of newly-discovered testimony to the effect that defendant had been drinking to excess for sev- dictment, and applying for and obtaining a eral months before the homicide, and was on the change of venue, which was equivalent to a verge of delirium tremens. general continuance. 4. That some of the jurors, in a capital case, leave the jury-room while deliberating on the verdict, for the purpose of going to a water-closet, does not entitle the defendant to a new trial when it appears that these jurors were only separated from the others for a few minutes, during which time they were accompanied by a sworn bailiff and were guilty of no misconduct. Appeal from circuit court, Jefferson county; W. T. FRIEDLEY, Judge. F. M. Griffith, John M. Linck, and James A. Works, for appellant. Louis T. Michener, Atty. Gen., and J. H. Gillett, for the State. An objection to the qualification of grand jurors, or to the mode of drawing or constituting the body, must be made before pleading to the indictment. If not made until after plea the objection is waived. U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. Rep. 1; Cooper v. State, 64 Md. 40. "Though the demand upon the prisoner at the arraignment is to say whether he is guilty or not guilty, he may, instead of answering this question, **plead in abatement. *** And * * he must plead in abatement or demur now or not at all, for his right to do either is waived by the plea of guilty' or 'not guilty."" 1 Bish. Crim. Proc. § 730. "Without leave of court, which is granted only in very strong cases, the plea of not guilty' cannot be withdrawn to let in a plea in abatement, for, on principle, a plea of not guilty' admits all that a plea in abatement contests, and after a plea of not guilty' a plea in abatement is too late. A plea in abatement also cannot, it has been held, be filed after a general continuance." Whart. Crim. Pl. § 426. The plea was, as we have said, intrinsically insufficient; and, not having been filed until after the defendant pleaded "not guilty," which plea does not appear to have been withdrawn by special leave of court, there was ample justification on either ground for the ruling of the court in sustaining the demurrer. MITCHELL, J. An indictment was returned in the Switzerland circuit court, charging the appellant, Cooper, with the crime of murder. After arraignment and plea of "not guilty" the defendant applied for and procured the venue of the cause to be changed to Jefferson county. After appearing in the circuit court of the latter county, he withdrew his plea of "not guilty," and pleaded in abatement, assigning as reasons for abating the indictment: (1) That the grand jury was not drawn within a period not more than one week preceding the commencement of the term at which the indictment was found and returned. (2) That two of the persons drawn as grand jurors were drawn by the names of C. H. Bascom and J. C. Ricketts, respectively, their Christian names being otherwise omitted. (3) That only three of the persons drawn and It is objected that the court erred in definsummoned as grand jurors appeared in court; ing the crime of manslaughter, in that it that the places of the three who failed to ap- omitted the word "voluntary." In all other pear were filled by the sheriff from the by- respects the definition follows the statute litstanders; and that the record does not show erally. It is not perceived how the defendthat the persons thus called were examined ant could have been prejudiced by the omistouching their qualifications. (4.) That the sion of this word. Besides, the omitted word court appointed one of the persons thus called was, in effect, supplied in an instruction subfrom the by-standers as foreman of the grand sequently given. The rule is firmly estabjury. The court sustained a demurrer to the lished that if, upon considering all the inplea. In this there was no error. The inter-structions together, it fairly appears that the vention of mere irregularities in drawing and organizing the grand jury, which involve no charge of fraud or corruption, and which in no way prejudice the substantial rights of the defendant, assuming, in the absence of any thing appearing to the contrary, that the body as constituted was composed of persons Other instructions given by the court are duly examined and qualified, and not sub- made the subject of criticism. What has ject to any of the statutory causes of chal- been said above is applicable to all those to lenge, is not available as a plea to abate the which objection is made. Without setting indictment. Whart. Crim. Pl. (9th Ed.) out the instructions, or indulging in extend350; State v. Mellor, 13 R. I. 666. Section 1656, Rev. St. 1881, specifies certain causes for which a grand jury may be challenged, and confines the right of challenge to the v.22N.E.no.15-21 law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate. ed comment upon them, it is enough to say that certain expressions may be found in each of those pointed out as objectionable, relating to abstract principles of law, which, when considered apart from the instructions | There is no diligence whatever shown, nor as a whole, may not be strictly and technical- do the facts averred present any excuse for ly accurate, but, with the exception that they the failure to exercise diligence; (2) the eviseem unnecessarily long and numerous, they dence alleged to have been newly discovered are not justly subject to animadversion. It is not of such a character as to raise a reamay not be amiss to remark that as a rule, sonable presumption that the result of a secwhenever instructions extend beyond a clear ond trial would be different from the first. and concise statement of the law applicable It is incredible that the accused, after having to the facts as admitted or claimed to be lived a life of comparative sobriety, should proven in the particular case, they become have indulged in a course of continued dissihindrances, rather than aids, to a jury, if pation for several months, until he had non-professional men, unacquainted with the reached the verge of delirium tremens, and abstract principles and technical language of that, after recovering therefrom, and regainthe law. Thomp. Trials, § 2333. Moreover, ing his faculties, he should have been so utwhile it appears that the court gave certain terly oblivious to his previous condition as instructions set out in a bill of exceptions, it not to know anything about it, or its effects does not affirmatively appear, either by im- upon him, until the affidavits of others were plication or by direct statement to that effect, read in his hearing. It should be stated that that the instructions set out in the bill were the homicide occurred in November, 1884, all that were given. In the absence of such after which the accused fled the state, and affirmative statement, or something from was not apprehen‹led and tried until after a which the fact could be implied, we could period of more than three years had elapsed. not reverse a judgment unless an instruction It cannot escape observation that he and his complained of was so radically wrong as to friends should have remained in total ignobe incurable. Puett v. Beard, 86 Ind. 104; rance of his impaired mental condition durGarrett v. State, 109 Ind. 527, 10 N. E. Rep. ing all this time, and until after an unsuc570; Grubb v. State, 117 Ind. 277, 20 N. E. cessful defense had been made on another Rep. 257, 725. theory, stoutly contended for, and that in some undisclosed manner the evidence upon which a defense of insanity was then proposed should be discovered so soon after an adverse verdict. The newly-discovered testimony amounts to nothing more than that the accused had indulged to excess in drink for several months prior to the homicide, and that he was on the verge of delirium tremens. The statements made by the several witnesses that his mental faculties had thereby become impaired to such a degree that he was not responsible for his acts, were mere conclusions, which cannot be regarded. Warner v. State, 114 Ind. 137, 16 N. E. Rep. 189; Grubb v. State, supra. It is not pretended that the homicide occurred while the accused was in a fit of delirium; and the mere fact that he had, by several months excessive drinking, brought on a nervous con The appellant predicated his defense wholly upon the theory that he had taken the life of a human being in what he believed to be the lawful and justifiable defense of his person. He went upon the stand as a witness in his own behalf, and gave an intelligent and detailed account of all the circumstances and inducements, as he claimed, that led up to and culminated in the homicide. After a verdict finding him guilty of murder in the second decree, the defendant assigned as one of the grounds for a new trial that since the return of the verdict he had discovered new, competent, and material evidence, which is embodied in the affidavit of six or seven witnesses, whom it is alleged can be produced if a new trial should be granted. These persons all depose, in substance, that, for several months prior to the homicide, the accused indulged the habit of drinking intoxi-dition bordering on delirium, would be very cating liquors to such an extent as that he either had, or was upon the verge of having, the delirium tremens about the time the homicide occurred; and that in their opinion he had, by continued drinking to excess, so impaired his mental faculties that he was of unsound mind, and not responsible for his acts. As an excuse for not exercising diligence in not discovering the above evidence prior to the trial the accused deposes that he was not aware of the fact that his mind had become affected by drink until he heard the affidavits of the newly-discovered witnesses read, and that he never had any knowledge or intimation of the facts set forth in the affidavits before going into the trial. Counsel for the accused deposed substantially to the same effect. It does not appear how it came about that the new evidence was discovered after the return of the verdict. The showing was insufficient for the reasons: (1) slight evidence of insanity. As is said in Insurance Co. v. Foley, 105 U. S. 350: "An attack of delirium tremens may sometimes follow a single excessive indulgence." New trials for newly-discovered evidence ought only to be granted after the most careful scrutiny of the evidence alleged to have been discovered, and when it raises a violent presumption that a different result would be reached upon a second trial. Thomp. Trials, § 2759; Hines v. Driver, 100 Ind. 315. It is shown that two or three of the jurors, accompanied by a sworn bailiff, went from the room in which the jury were deliberating to the water-closet. The affidavit of the bailiff shows that they were not absent to exceed three or four minutes; that they were in his charge all the time; and that no communication was made to them; and that they were guilty of no misconduct. A separation by one or more jurors for a necessary purpose, attended by the proper officer, is not such misconduct as entitles a party to a new trial: Riley v. State, 95 Ind. 446. The foregoing are all the points that are presented in such a manner as to require notice. There was no error. The judgment is affirmed, with costs. (120 Ind. 254) CITY OF ANDERSON . BAIN. running east and west, one-half block north of appellee's lot, to Lane street, a street running east and west, one block south of Canal street. On the 6th day of April, 1885, the common council of the city of Anderson passed an ordinance for the opening, grading, and graveling of a new street 54 feet in width, extending from Williams street to Lane street, two blocks in length, and crossing Canal street at the south-west corner of appellee's lot, which new street was located upon and included said 14-foot alley on the west of appellee's lot, and the 40-foot strip 1. Under Rev. St. Ind. §§ 3166, 8167, all pro- owned by the city as aforesaid, and desigposed street improvements appertaining to the nated said new street as "School Street.' acquisition, opening, laying out, altering, and straightening of streets and alleys within a city Said city then gave notice that they would remust be referred to city commissioners appointed ceive bids for the opening, grading, and gravannually by the circuit court, but, preliminary to eling of said street, and, in pursuance of such such reference, the common council shall refer the matter to an appropriate committee, who shall notice, contracted with one John Green to examine the matter, and report at the next meet- open, grade, and gravel said street in according of the council on the expediency of so refer-ance with plans and specifications adopted by ring; and, when the committee report, the coun- the common council, and said Green comcil shall take a vote on the question of referring the matter to the city commissioners. If two- menced the said work in the summer of 1885, thirds vote in favor of referring it, the matter is and completed it during that year. This acreferred; if two-thirds do not so vote, the question is brought to recover damages to the tion of the improvement is ended. Defendant city changed an alley, running beside plaintiff's lot, appellee's property, the lot aforesaid. The from an alley 14 feet wide to a street 54 feet wide, cause was put at issue, and there was a trial, without referring the matter to the city commis- resulting in a judgment in favor of the apsioners for assessment of benefits and damages. That Held, that the city exceeded its powers, and that it pellee. The errors assigned are: (1) was liable to plaintiff for such damages as she had "the complaint does not state facts sufficient sustained by reason of being deprived of the right to constitute a cause of action." (2) "The to have the damages resulting to her by the change court erred in overruling the demurrer to the of the alley into a street assessed by the city comcomplaint." (3) "The court erred in susmissioners. taining the demurrer to the second paragraph of answer." (4) "The court erred in overruling the motion for new trial." (5) "The court erred in overruling the motion in arrest of judgment.' 2. The complaint alleged damage resulting from the grading of the street, but did not allege that the alley had a prior established grade. It proceeded on the theory that, as the city had failed to refer the matter to the city commissioners, it was liable to plaintiff for all damages sustained by reason of grading the street, and cutting it below the level of plaintiff's lot. There was no allegation of damage resulting from the change in the width of the alley. Held, that damages caused by the grading of the street were not recoverable, and a demurrer to the complaint should have been sus tained Appeal from circuit court, Madison county; D. Moss, Judge. The complaint alleges that the plaintiff is the owner of the lot, (describing it,) upon which there are now, and for more than two years have been, valuable buildings, consisting of a two-story dwelling-house, a woodhouse, and other out-buildings, which lot abuts and adjoins on the west side thereof its entire length 144 feet along a public alley 14 feet wide, which alley was laid out and ded Eli B. Goodykoontz, and Frank P. Foster, for appellant. Henry & Ryan, for ap-icated to the public use as a part of said “Stillpellee. well's Second Addition." That on the 6th day of April, 1885, said defendant, by its comOLDS, J. The appellee was the owner of mon council, pretended to pass, enact, and lot No. 11, in T. N. Still well's Second addition adopt an ordinance for the opening, grading, to the city of Anderson. Said lot fronted and graveling of a new street within the corsouth on Canal street. There was an alley porate limits of the city, designated as "School 14 feet wide along the north end of said lot; Street," (describing the street,) stating that also an alley 14 feet wide running along the the west line of plaintiff's lot constituted the entire length of said lot on the west side east line of said new street. That the plainthereof. Said Canal street, and the alleys tiff's wood-house upon said lot is situate uprunning along and beyond said lots, had been on the west line of said lot, and abuts upon laid out and dedicated to the public use long said street, and that her stable upon said lot before the acts and damages complained of is situate upon the alley on the rear of said in this case. The city of Anderson owned a lot. That after the passage of said ordinance, strip of ground, 40 feet in width, adjacent to and in pursuance of the terms thereof, said and along the west side of the alley, which ran along the west side of the said lot owned by the appellee, extending the entire length of said lot, and beyond the same, both north and south; said 40-foot strip owned by the city extending from Williams street, a street city, by its common council, undertook to and did enter into a written agreement and contract with one John Green for the building, digging, constructing, and making said new street according to the terms of said ordinance, contract, and specifications of the city |