Volume 1 — Blackford's Indiana Reports

THIS cause had originated in the General Court of the late Indiana territory, and was, with all the other causes pending in that Court at Corydon, at the commencement of the state gov* ernment, transferred into this Court by an act of the state legislature at their first session. Tuesday, May 6,

— The plaintiff moved for a writ of supersede as in this case, on the ground, that the judgment had been rendered on an award made after the time limit-, ed by the rule.

APPEAL, from the Switzerland Circuit Court. — The appellee moved the Court to dismiss this case, because it was not shown, that the appeal bond had been executed.in the clerk’s office of the Circuit Court.

— A motion was made by the appellees for the dismission of this suit. The certified copy of the appeal bond did not show, that the original had been executed in the clerk’s office; and in supportofthe motion, it was contended, that no other evidence was admissible to prove that fact.

— The defendant in error moved the Court to quash the writ of supersedeas, and also the writ of error, issued in this case, on the ground, that the supersedeas bond was not shown to have' been executed in the clerk’s office of this Court, nor of. the Court below.

— The following entry ■in this case, of April term 1812, is the first notice of it in the record of the proceedings below: “Conner v. Mills.

— Trespass on the case, for that the defendant, as a constable, by virtue of an execution, sold the plaintiff a horse, declaring at the time of sale, that he was the property of the execution debtor, and he would sell him as the law directed; that relying on this statement, the plaintiff purchased the horse at the constable’s sale; that after-wards the horse was seized by virtue of a search warrant as the property of another person, and by order of a justice of the peace,…

— Assumpsit by the assignee against the assignor of a promissory note. Plea, non assumpsit.

— This was an action of debt by Driskell against Cole, upon the judgment of a justice of the peace in ICentucky. The declaration contained a particular description of the recovery before the justice, and the usual reference to the record by the prout palet per recordum. Plea, nul tiel record. Replication, there is such record, <iyc., concluding with a verification. — Judgment for the plaintiff below.

— This was an action ofassumpsit for work and labour. Plea, the general issue.

— This was an action of assumpsit. Plea, non assumpsit. The evidence in the cause was made a part of the record by a bill of exceptions. Verdict for the plaintiff below. A motion for a new trial, on the ground that the verdict was not warranted by the evidence, was overruled, and judgment rendered upon the verdict.

---Ejectment. Smith, the landlord, was admitted to defend on the usual terms. The evidence, as shown by a bill of exceptions taken at the trial, was as follows: In April, 1812, a judgment was obtained in the General Court of the Indiana territory in favour of Goodwin, against Joseph Brown and James M'Campbell. By virtue of an execution on that judgment, the premises were sold as the property of M'Campbell; and Bigger, the lessor of (he plaintiff below, was the purchaser.

— An attachment issued in this case against the property of James Hamilton and Miihael Jones, upon an affidavit, which merely stated, as to the former, that he was a sojourner of the county in which the writ was sued out, and that the ordinary process of law could not bé served on him.

— This was an action of ejectment for a house and lot in Vincennes. Robert Buntin and Henry Dubois, executors of Lawrence Bazadone, were admitted defendants instead of the tenants in possession.

<p>If the jury, in an indictment for a misdemeanor, instead of finding the.defendants guilty and assessing the flue, merely say, We fine the defendants 10 dollars each, the verdict will not authorize a judgment against the parties charged.</p>

<p>APPEAL from the Dearborn Circuit Court. — Ejectment for _ a tract of land in Dearborn county. The demise laid was for seven years from the first of April, 1809, Plea, not guilty. No rimiliter was added. Jared, the defendant below, moved the Court to instruct the jury, that to entitle the plaintiff to recover> |je must prove a clear legal title in his lessor to the premises in question. The Court refused to give the instruction. — • Verdict and judgment for the plaintiff below.</p> <p>The appellee moved to amend the record, by an enlargement of the term from seven to fifteen years. The appellant objected to the amendment, and contended for a reversal of the judgment on these grounds: 1st, That issue had not been joined in the Circuit Court. 2dly, That the Court were bound to give to the jury the instruction required,</p>

<p>The Court, to affirm 'a judgment, may, ex officio, award a certiorari to com píete the record.</p>

the Jackson Circuit Court. — This was an indictment charging Durham with unlawfully playing a game of cards called Loo, and betting on the game, at Craig’s tavern in Brozmstozen, contrary to the statute, &c. Plea, not guilty. The jury found the defendant guilty of playing as charged, but not guilty of betting. A motion to stay the entering up of judgment was made and overruled, and judgment was rendered upon the verdict..

' — A foreign attachment against the estate of Bond was sued out by Patterson. The record did not show whether any affidavit or declaration had been filed in the cause. The attachment stated, that as it appears by the affidavit of Samuel Patterson that Merican Bond stands indebted to him in the sum of 1500 dollars,” &c. No other description of the debt appeared in the record. — Judgment by default against the defendant below, for the amount named in the attachment.

— Assumpsit by Peltier for money had and received to his use, by the defendants’ testator. The defendants pleaded, 1st, the general issue; 2dly, the statute of limitations. Upon the first plea the plaintiff below took issue. To the second he demurred, and the defendants joined in demurrer. — The second plea was adjudged unconstitutional. — Verdict.and judgment for the plaintiff in the Circuit Court.

<p>He who desires a new trial, must receive it as to the whole case.</p> <p>The defendant may' be acquitted as to one of two distinct charges in an indictment, and found guilty of the other,</p> <p>if the record show a competent Court at the commencement, and no change be afterwards noticed, it will be presumed that the Court first named, continued throughout.</p> <p>In an indictment, the judgment on a verdict of guilty, must not be dependent on any contingency, nor subject to any future decision, but must be certain and final.</p>

; — Indictment for retailing spirituous liquors without license. Plea, not guilty. Verdict and judgment against the defendant below.

— Assumpsit for work and labour. Plea, non assumpsit; similiter thereon. After Campbell, the plaintiff below, had closed his testimony, the defendant tendered a demurrer to the evidence, which the Court refused to receive. To this refusal the defendant éxcepted, and a bill of exceptions was accordingly sealed. — Verdict andjudgment for the plaintiff below.

— This was an action of debt by Bullitt and Jones against Crenshaw and Congleton, upon a sealed note for the payment of money. The declaration did not profess to set out the note in terms, but merely its legal effect. Upon oyer it appeared that the note commenced, “For value received we promise to pay,” &c. In the declaration the words “for value received” were not inserted. Demurrer for the variance, and judgment in favour of the-plaintiffs below.

— This was a suit in Equiiy by the president and trustees of New Albany against John Conner.

— Debt upon a sealed note for the payment of money. Ple.a, nonest factum. S'ift^. liter. The attesting witnesses were non-residents. It was prq' ed that one lived in Missouri, the other in Louisiana. Upon proof of their hand-wriling the note was received in evidence, and the plaintiff had a verdict andjudgment.

— Trespass against Vanblaricum for an assault and battery. Plea, son assault demesne. Replication, de injuria. The defendant below moved for a continuance of the cause upon an affidavit of the absence of witnesses, &e. The motion was overruled, and the proceedings thereon made a part of the record by a bill of exceptions. — ■ Verdict and judgment for the plaintiff in the Circuit Court. The refusal of the Court to grant the continuance, was the only error assigned.

— A motion was made by the appellee to dismiss this case, because the appeal bond had not been executed, by the principal, but by the surety alone.

— Trover by Fullen against Heddy. The property was described in the declaration as “a certain black mare of the value of 100 dollars.” Plea, not guilty. Verdict as follows, “We of the jury find for the plaintiff 80 dollars in damages.” Judgment thereon. The errors assigned were: 1st, That the verdict was defective. 2dly, That the property was insufficiently described.

— -An execution issued in favour of Cline on a judgment against Green, whose property was thereupon taken and sold. Afterwards, this execution and the proceedings thereon, upon the motion of Green, and without any previous notice to Cline, were quashed by the Circuit Court, on the ground that the execution had issued without the order of the plaintiff.

— Assumpsit by Clayton against John and JY. Noble for goods sold and delivered. The suit was commenced on the 22d of December, 1818, and the promises upon which the action was founded, were alleged in the declaration to have been made “some time about the 10th of December, 1817.” The defendants pleaded in abatement, that the promises, &c., if &c., were made jointly with Dunn, Ludlow, and L. Noble.

— Trespass for mesne profits by Duchane against Buntin and Dubois, after a recovery in ejectment. The declaration was not only for the rents, issues. and profits, but for specified injuries done to the premises, and for the costs of the ejectment.

— Assumpsit on a promissory note. Plea, the general issue. The note was in the French language, but was declared on as if it had been in English. The variance, at the trial, was held immaterial. The damages were laid in the declaration at 300 dollars. The jury gave a verdict for 322 dollars and 28 cents in damages; for which sum, together with costs, judgment was entered during the terra.

— Polly, a woman of colour, was brought before the Circuit Court by Lasselle, in obedience to a writ of habeas corpus. He stated in his return that he held her by purchase as his slave; she being the issue of a coloured woman purchased from the Indians in the territory north-west of the river Ohio, previously to the treaty of Green-ville and cession of that territory to the United States. — The Court below remanded the woman to the custody of Lasselle.

— This was an indictment for murder. Plea, the general issue. The jury found the prisoner guilty •, and sentence of death was accordingly pronounced against him.

— This was an action of debt on a promissory note, made by Bates and John, the defendants below. The note, was payable to JY. and A. Hunt, who assigned it to R. W. Hunt, the plaintiff below. The defendants, by special plea, denied the assignment of the note. Special demurrer to the plea, and joinder in demurrer. The Circuit Court sustained the demurrer, and rendered final judgment in favour of the plaintiff.

— Debt by the assignee against the obligors of a sealed note, dated the 24th of June, 1818. The note was for the payment of 300 dollars on -or before the 4th of January, 1820; together with interest from the date, in case of the non-payment of the principal when due if demanded. The declaration averred a presentment of the note for payment on the day it became due, and before and afterwards; and that payment had been refused.

— This was an action ef slander by Margaret Wood against the defendant below, for charging her at Franklin county, in this stale, with fornication. Plea, not guilty. — At the trial, after one of the plaintiff’s witnesses, named Martin, -had been sworn in chief, and examined on her part, he was asked on the cross-examination by the defendant, if he were not interested: he answered in the negative.

— Goodwin, the plaintiff below, brought an action of debt against Clark, JYew, Harrison, and Brown. The declaration, after reciting the arrest of the two former, and that the others were returned not found, was in the usual form, against Clark and JYew, upon a common bond for the payment of money (1).

' — This was a suit in Equity for the payment of a lost bond. No affidavit of the loss of the bond was annexed to the bill. — Payment was decreed by the Circuit Court.

— Harrington sued Knipe in an action of covenant. Whilst the suit was pending, the parties agreed to refer it to arbitration; and on the 17th of August, 1819, they respectively executed bonds of submission to abide by the award of arbitrators. According to the condition of the bonds, the award was to be made in writing, and returned to the Court at the September term next ensuing; and the submission was to be made a rule of Court.

— This was an action 0f debt by the Farmers and Mechanics’ Bank of Indiana, on a promissory note. The declaration did not aver, that the attorney at law for the bank had been appointed under the corporate seal; nor did it set out the act of incorporation. General demurrer to the declaration, and joinder in demurrer. — Judgment in favour of the bank.

ERROR, to the Franklin Circuit Court. — -This was an action of assumpsit by the payees of a bill of exchange against the drawer, in consequence of the non-payment of the drawee. Thé declaration showed, that the bill in question had not been presented to the drawee for payment, until the day after the third day of grace. General demurrer to the declaration, and judgment for the defendant.

<p>ERROR to the Switzerland Circuit Court.</p>

— This was-an acti'onon the case by Elizabeth Cunningham, an infant, by her next friend, against Shields and wife, for slanderous words spoken by the wife concerning the plaintiff. The words charged in the second count were as follows: “Doctor Eddy made an appointment with Elizabeth Cunningham, (meaning the plaintiff,) scaled the-, walls and went to bed to her, (meaning the plaintiff,) at Mrs...

<p>ERROR to the Clark Circuit Court.</p>

<p>A purchaser of real estate cannot hold against a prior equitable title, if he have notice of the equity either before the payment of the purchase money, or the execution of the deed.</p> <p>Notice of an equitable right, given to a purchaser by the tenant in possession under the claimant, is as available as if given by the party himself.</p> <p>In case of conflicting equities, precedency of time gives the advantage in right.</p>

<p>ERROR to the Floyd Circuit Court.-r-Indictment for an assault and battery. Plea, not guilty. Yerdict and judgment a.gainst the defendants below»,</p>

— Debt on a sealed note for 100 dollars. Plea, no valid consideration. Judgment for the plaintiif below, the defendant in error.

<p>ERROR to the Washington Circuit Court.</p>

<p>A count in debt on simple contract for goods sold and delivered, may be joined with -a count in debt o.n a specialty.</p> <p>Counts in assumpsit, and in debt, cannot be joined.</p> <p>Two persons may make use of one seal in the execution of a bond, and it will be the deed of both.</p>

— Assumpsit by the payees against the drawers of a bank check. General demurrer to the declaration, and judgment for the defendants.

<p>In an action ex contractu against two, the sheriff’s return of “not found” as to one does not authorize the plaintiff, under the statute of 1817, to proceed to judgment against the other alone; a return of “no inhabitant of the coussty” being necessary, in such a case, by that statute.</p>

<p>ERROR to the Franklin Circuit Court.</p>

<p>errqR to the Wayne Circuit Court;</p>

<p>ERROR to the Franklin Circuit Court. — This cause was argued at the last term, when the following, opinion was deliver-, ed:</p>

Ejectment on the demise of Buntin and Dubois, executors of Bazadone, for a house and lot in Vincennes. Verdict and judgment for the plaintiff below.

<p>ERROR to' the Floyd Circuit Court.</p>

<p>ERROR to the' Knox Circuit Court,</p>

<p>APPEAL from the Knox Circuit Court.</p>

— In this case there was a generabdemurrer to the declaration, and judgment for the plaintiff below, the defendant in error.

Ejectment. The declaration contained three counts on several demises of separate lands: one demise by Bingham in 1810; One by Johnson in 1818; and one by Wyatt and Hovik in 1819. Plea, not guilty. The evidence was as follows: In August, 1809, Lemon, being'in possession, conveyed the premises to Bingham; in July, 1818, Bingham conveyed them to Johnson; and in April, 1819, Johnson conveyed them to Wyatt and Hovik.

<p>ERROR to tbe Harrison Circuit Court.</p>

— Scire facias on a mortgage, issued by an assigned. The defendant craved oyer of the mortgage and assignments. The mortgage was to Miller, his .executors, administrators, and assigns, (without mentioning the word heirs;) and the scire facias did not aver that Miller was alive. The. assignments on the mortgage were as follows: “For value received, I hereby assign my right and title to the within mortgage, and guaranty the same to Jonathan Bassett. 11 July, 1818.

<p>■In trespass against six persons for an assault and battery, the writ was served, pn only four; no notice taken of the others in the sheriff’s return; and (Jpc-. declaration against them all: Held, that the plaintiff might proceed to judgment against those on whom the process had been executed.</p> <p>Though one or all may be sued on a contract, if joint and several, an intermediate number cannot; nor can the plaintiff enter a nol. pros, as to any, and proceed against the rest, unless one plead something as a personal discharge. But for an- assault and battery, the plaintiff may sue one, or all, or any number of the parties; and, at any time before judgment, he may enter a nol. pros, as to some, and proceed against the others.</p> <p>In trespass against several for an assault and battery, the jury may find some guilty, and others not; but they cannot sever the damages as to those found guilty, according to the different degrees of guilt. In law, those guilty at all are jointly and equally so, and the damages against them must be assessed entire.</p>

— Debt on a bond with a penalty of 224 dollars, conditioned for the conveyance of real estate. To the declaration, in which the breaches were assigned, there was a demurrer; but no joinder in demurrer. Leave was asked to withdraw the demurrer, though it does not appear to have been withdrawn. Final judgment for the plaintiff below, the defendant in error, without a writ of inquiry, for 124 dollars debt, with interest and costs.

— The plaintiffs below, defendants in error, were not resident in the state, and the defendant therefore obtained a rule on them to show cause why the suit should not be dismissed for want of security for costs. Before the expiration of the rule security was given; and the rule was discharged. The defendant then moved for a continuance on the ground that as the security had not been filed before the commencement of the suit, he was not bound to come prepared for trial.

— Covenant by the . „ , ... m. . . • assignees oí a lessor against the lessees.

THIS was a suit in equity, transferred from the Knox Circuit Court previously to a decree, on account of the interest of the circuit judge (1).

<p>APPEAL from the Clark Circuit Court. — The verdict and judgment in this case were in favour of the appellee, who was the plaintiff below.</p>

— Upon the affidavit. of Leavenworth, charging Tipton, late sheriff of Harrison, with fraud in not-executing a capias ad-satisfaciendum issued in Leavenworth's favour, the Court granted a rule calling upon Tipton to show cause why an attachment for contempt should not issue against him. On the expiration of the rule, no cause being shown, the attachment issued.

— Case by Paxson and others against Conner for the disturbance of a ferry. Plea, not guilty. The evidence is spread bn the record by a bill of exceptions. In 1815, the defendant below purchased a town lot in New-Albany, situate on the land side of Water street; and, in 1817, obtained a'license from the proper Court for a ferry across the Ohio river from that lot.

<p>A. sold and delivered to B. a quantity of wheat, for which B. promised tó pay A. as much flour as the wheat was worth, when requested: Held, that in a suit against B. on this contract, the plaintiff must aver and prove a special demand of the flour.</p> <p>Held, also, that if the declaration be amended, on the calling of the cause, by an averment of such a demand, it is a substantial amendment, and entitles the defendant, under the statute, to a continuance.</p>

<p>To an action on a specialty, the want or failure of consideration may be plead-, ed in bar, under the statute; but not at common law.</p> <p>A plea, showing that the consideration of the bond on which the suit is brought, was the making of a good and sufficient deed in fee-simple for real estate on a day prior to that fixed for the payment, and averring that the plaintiff,_ having no title to the premises, neither did nor could perform his part of the contract, is a good bar to the action.</p> <p>If the purchase-money for real estate be payable by instalments •, the first before the deed is to be made; the second, on the same day; and the last, on. a subsequent day: the promise to pay the first instalment is independent > and that to pay the second and tail'd, dependant. A suit lies on the promise to pay the first instalment, without showing a previous execution of the title, or offer to execute it; but not on the promise to pay the second or third,</p>

— Debt on a writing obligatory payable to the plaintiffs, as administrators of the estate of Prentiss, deceased. The defendants demurred specially to the declaration, and showed for cause, that there was no profert of the letters of administration. Judgment on the demurrer in favour of the defendants.

<p>An appeal lies to this Court, from the judgment of the Circuit Court on an ap. peal from the decision of two justices of the peace, in cases of forcible entry and detainer.</p> <p>The complaint filed with the justices, in cases of forcible entry and detainer, cannot be objected to for mere matters of form.</p> <p>If a verdict be so imperfect that judgment cannot be rendered on it, a venire facias de novo may be awarded upon the plaintiff’s motion, either on payment of costs or not in the discretion of the Court.</p>

<p>A judgment creditor, having sued out one execution, may abandon it before it is executed, and sue out another of a different sort. So, if part only of the judgment be levied, and the execution be returned, the plaintiff may have another writ of the same or of a different sort, at his election, for the residue.</p>

<p>in an action on the assignment of a note or bond, by the assignee against the assignor, the consideration of the assignment need not be set out in the declaration ; but the time when the suit against the maker was instituted, judgment obtained, and execution issued, or the circumstances of excuse for not suing him, must be stated.</p> <p>Bills of exchange by the law merchant, and promissory notes by statute, maybe declared on as specialties; but this privilege may be waived, and, where there is a privity of contract, the holder may declare on the original consideration, and give the bill or note in evidence.</p> <p>To fix the liability of the assignor of a note, or bond, under our statute,, the general rule, except nr cases of notorious insolvency or of something equivalent, is, that the assignee.must bring a suit against the maker, or obligor, and proceed in the ordinary course of law for the collection of the debt; and that, as to the execution, the return of a fi. fa., “no property found,” is prima facie sufficient.</p> <p>In a suit by the assignee against the assignor on the original consideration of the assignment, the note and assignment, with the facts of due diligence, are competent evidence; not conclusive to be sure, but from which, when nnrebutted, the jury may infer the existence of a precedent,debt, to the amount of the note, as set forth in a count for money paid, or for money had and received.</p> <p>Where the declaration is genera], the ’defendant may demand a bill of particulars.</p> <p>If the assignor whose assignment is special get the note again, he is considered prima facie the owner, without showing a receipt or re-assignment from his assignee.</p> <p>No special damages, except interest, are recoverable under either of the counts, for money had and received, or for money paid; and quare, whether interest is, under the latter.</p>

In this case the Court held, that in an action against partners on a promissory note signed with the name of the firm, a plea denying the partnership of the defendants amounts to the general issue,… Held: that in an action against partners on a promissory note signed with the name of the firm, a plea denying the partnership of the defendants amounts to the general issue, and is therefore had on special demurrer; hut that it cannot he objected to on general demurrer.

— This Was an action .of debt against the defendants below, the appellants, upon the following sealed note: “For value received this 2d of Oo 1820, we the trustees of the first presbyterian congregation in the town of Madison, Indiana, do bind ourselves and our successors in office to pay to Brook Bennett or order on demand ygg dollars, with interest from the 23d of May, 1820.

— This was an indictment for perjury against the plaintiff in error; in which the of-fence was charged to have been committed on the trial of an issue joined between J. Campbell and JV. Strong, the former being plaintiff and the latter defendant. At the trial of the indictment, the record of a cause in which the prisoner had been sworn as a witness, was offered in evidence: the suit was commenced by /. Campbell against JV*.

— Indictment for counterfeiting 44 eagles, current gold coin of the United States, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana. Plea, not guilty. Yerdict and judgment against the prisoner. The only special error assigned was, that a state Court has no jurisdiction in such a case.

<p>ERROR to the Fayette Circuit Court,</p>

<p>ERROR to the Fayette Circuit Court.</p>

<p>ERROR to the Harrison Circuit Court.</p>

<p>Debt by B. against A. on a bond conditioned as followsWhereas A. has oh. tained an injunction upon B.’s ferry until the Court of Chancery order otherwise, and has sued at law to try B.’s right thereto; now if A. indemnify B. from all damages in consequence of the injunction, should the right to the ferry be established in B., then the bond to be void. Plea, that B.’s right to the ferry had not been established, &c., and that the grant to him of the ferry was erroneous. — Held, thatthe plea was no bar to the action, the word* in the condition of the bond, relative to the establishment of BJ's right ta the ferry, being repugnant to the clause of indemnity and void. Held, also, that those repugnant words being mere surplusage, the instrument was a good injunction bond under the statute.</p> <p>Such obligations as injunction bonds should receive a liberal construction: the intention with which they are executed cannot be mistaken, as they are prescribed by statute for a particular object.</p>

<p>ERROR to the Dearborn Circuit Court.</p>

<p>ERROR to the Dearborn Circuit Court.</p>

<p>ERROR to the Washington Circuit Court.</p>

<p>APPEAL from the Owen Circuit Court.</p>

<p>ERROR to the Clark Circuit Court.</p>

<p>To an action of debt, the defendant pleaded a release, which he averred to have been lost and destroyed by accident. The plaintiff replied by denying this averment in the plea, and protesting that he had not released. Held, that the replication was good without being sworn to; the' statute which requires an affidavit, when the execution of a writing is denied, not being applicable to the case.</p> <p>A protestation is not a denial, in the suit in which it is made, of the allegation protested against.</p>

<p>ERROR to the Franklin Circuit Court..</p>

THIS was a suit in equity, transferred from the Knox Circuit Court previously to a decree, in consequence of the interest of the circuit judge. The proceedings against the complainant, on an execution mentioned in the bill, had been enjoined by the Court below, until the hearing of the cause.

<p>In a suit by notice and motion, under the statute, against the collector of county taxes and his sureties, the description of the bond in the notice must be as particular as it should be in a declaration.</p>

<p>On the trial of a cause, material evidence offered by the defendant was improperly rejected; and there was a verdict against him. ’The Court, in consequence of that mistake, granted a new trial to the defendant, provided he should consent to go to trial on a certain day of the term, or show a good cause of continuance. The defendant refused to comply with the terms, and a judgment was accordingly rendered against him on the verdict. — Held, that, as the verdict was illegal, the judgment rendered upon it was necessarily erroneous.</p> <p>Held, also, that, under the circumstances of the case, the verdict should have been set aside unconditionally, a new trial granted, and the cause permitted to progress as if no previous trial had taken place.</p>

<p>in cases of domestic attachment, — that the bond had been executed in the clerk’s office and approved of by him; and that the same, with the affidavit, had been filed in his office before the attachment issued, — are facts which may appear by the clerk’s certificate on the papers, or may be proved by the clerk, or in any other mode, like other facts.</p>

<p>Debt will not lie on a writing obligatory for the payment of a certain sum its “ United States’ bank notes or its branches.” Covenant is the proper action. In suits commenced.by attachment, the writ must appear in the record.</p>

<p>In a proceeding by notice and motion, under the statute, by the administrator of an execution creditor, against a late sheriff for not returning an execution in favour of the intestate, the defendant may deny the representative character of the plaintiff by a plea of ne unques administrator.</p>

<p>?l an obligation for the payment of money be set out in the declaration, with-cu* any day of uayment being specified, it must be considered as payable immediately: and if the obligation read oh oyer be payable on a day sub^ sequent to its date, the variance is fatal on general demurrer.</p> <p>An obligation was described in the declaration as given for the payment of 137 dollars, and the one read on oyer was for that sum to be paid in bank notes r Held, on general demurrer, that the variance was fatal.</p> <p>Across the end of an obligation for the payment of 137 dollars, the following words were written: “The amount of this no ’té to 6e paid in notes ofi the bank of Kentucky, or the branch bank of Madison at Lawrenceburgh :n Held, that those words constituted a part of the contract.</p> <p>Debt will not lie on an obligation for the payment of a certain sum in the •notes of a specified bank: covenant being the proper form of action.</p>

<p>APPEAL from the Knox Circuit Court.</p>

<p>ERROR to the Clark Circuit Court.</p>

<p>An instrument of writing containing the words sealed with my seal, &c., but having no seal on it, is not a deed.</p> <p>If the declaration describe a bond as the cause of action, and the writing shown on oyer be not sealed, the variance is fatal on demurrer.</p> <p>If the defendant demand oyer of a deed referred to in the declaration, without being entitled.to it, and it be granted, the deed becomes a part of the declaration.</p> <p>In private contracts, when a man describes himself as an agent, but covenants that he himself, or that his principal, will do a certain thing, and executes the deed in his own name, he alone is liable; the term agent being a mere deseripiio persona. But when, as agent, and with the requisite authority, he executes a bond for and in the name of his principal, binding him alone, the principal is responsible, the agent is not.</p> <p>If -a bond set forth, that -3. B. as agent' of C. D. legally appointed for the purpose, binds the said C. D. to make a title, &c., and it be executed thus, «3. B. (seal,) agent for C. D., it is the deed of C D., provided the agent’s authority be sufficient.</p> <p>When an agent exceeds his authority, he may be liable himself, but his principal is not.</p>

<p>Incumbrances on real estate, sufficient to warrant a vendee in refusing a conveyance, and rescinding the contract, are not limited to deeds and matters of record. A written lease for any number of years, without seal, ia such an incumbrance. So is a lease by parol for a term not exceeding three years,</p> <p>it must be presumed — the record not showing the evidence — that the instructions given to the jury were applicable to the case, and had an influence oa the verdict.</p>

<p>ERROR to the Clark Circuit Court.</p>

THIS was a suit in equity, commenced in this Court on account of the interest of the circuit judge, in whose circuit the land mentioned in the bill is situate. — The bill states, that the complainant had sold the defendant a certain tract of land; had. taken no security for payment but the defendant’s bond; and had given possession without executing a conveyance.

ERROR, to the Washington Circuit Court. — Indebitatus assumpsit by Robertson against Goldsby for work and labour. Plea, the general issue. Special verdict, and judgment for the plaintiff below.

<p>APPEAL from the Union Circuit Court.</p>

— This was an action on uie cage for a malicious prosecution. The declaration contained two counts. The first alleged that the defendant had falsely, Set. before I. Esleb, a magistrate, &c. charged the plaintiff with having stolen out of the defendant’s mill seven bushels and a half of the defendant’s wheat; and had procured the magistrate to issue his warrant, Set.

— The record of this suit by the associate judges, on an administration bond, did not show for whose use the action had been instituted. Judgment, on general demurrer, for the plaintiffs below.

<p>IN an action of debt against an administrator, on a bond: of the Intestate, the defendant made default, and judgment was rendered against him for the debt and costs de bonis propriis. The Court held the judgment to be erroneous (1).</p>

<p>Assumpsit for work and labour performed under a parol contract, according to which the defendant was to pay for the work by a conveyance of certain real estate, when he should obtain the title: Held, that though the defendant might not be bound to convey, the contract being by parol; yet he could not be sued for the work, unless notice had been given him of its completion, and he had then failed to convey.</p> <p>Held, also, that if, when the work was completed, the defendant had not been able to obtain the title, he was entitled to a reasonable time to procure it; giving the plaintiff, if he required it, a written assurance that the deed should be executed according to contract.</p>

<p>ERROR to the Knox Circuit Court. — Vide a statement of ‘the proceedings in this case, previous to the execution of the writ of inquiry, ante, p. 56.</p>

— The note in this case was given by Beamon to Smirl, who assigned it to the appellees, the plaintiffs below. The appellants were the administrators of Smirl, the defendant below.

<p>INDICTMENT for larceny. Plea, not guilty. When the testimony was closed, the prisoner called upon the Court to instruct the jury to find a verdict in his favour, should they be of opinion that the offence proved amounted to burglary. This instruction was refused. The jury having retired, and not being able to agree, separated without leave of the Court. Upon this, the prisoner moved for a discharge. The Court overruled bis motion; discharged the jury against his consent; and awarded a. venire facias de novo, returnable instan ter. The prisoner was then tried and convicted.</p>

— Webb and his wife brought an action on the case against Wilcox, for slanderous words charging the wife with adultery. Plea, the general issue. Yerdict andjudgment for the plaintiffs below.

<p>A demurrer to the whole declaration containing several counts, must be overruled if one count he good.</p> <p>The statute, by giving a remedy against a collector of county revenue by notice and motion, or by requiring from him a bond with sureties for the discharge of his duty, does not thereby exclude the common law remedy ia assumpsit against him for the money collected.</p> <p>The county commissioners, being a corporate body expressly authorized by statute to sue and be sued in all matters which concern the county, may sue a collector of the county revenue who makes default.</p> <p>A county collector must pay the revenue into the county treasury, not to the commissioners: and in a suit against him by the commissioners for money collected, a non-payment to the treasurer inust be the breach assigned j not a non-payment to the commissioners.</p>

<p>ERROR to the Dearborn Circuit Court.</p>

Quaire, whether in actions of this nature, the purchase-money, with interest and costs, — or the value of the property, with the improvements, when the right of action accrues,- — should be the measure of damages (1).

<p>ERROR to the Knox Circuit Court.</p>

<p>ERROR to the Fayette Circuit Court.</p>

<p>To an action of assumpsit, the defendant pleaded two pleas in bar. The plaintiff having joined issue on one and demurred to the other, the issue in law was first tried and found in his favour. Held, that tihe plaintiff was entitled to the costs of that issue; but that he could not have final judgment, until he had also recovered on the issue in fact.</p>

<p>APPEAL from the Clark Circuit Court.</p>

— Case by L. Clary, a feme sole, against Templeton and wife, for slanderous words spoken by the wife concerning the plaintiff. The venue had been changed from Franklin county to Fayette.

<p>A judgment against B. was enjoined, and the injunction bond executed by B. with C. as his surety. The injunction was afterwards dissolved, and a fieri facias taken out on the judgment, which was returned illevied on the real estate of B., which remains unsold for want of buyers.” Held, that an action would not lie, under these circumstances, against B. and C. on the injunction bond; the taking of goods or lands in execution being a bar to a subsequent suit for the same demand, until their insufficiency is proved by a sale and return. ,</p> <p>If property, taken in execution, do not sell for a sufficient sum to satisfy the 'judgment, the plaintiff may, after the sale and return, proceed for the residue.</p>

<p>A defendant in replevin, as in other actions, may plead several pleas. Duplicity in pleading can only be taken advantage of by special demurrer.,</p> <p>A plea that the property of the goods is in a stranger, not in the plaintiif, is a goodbar to the action of replevin.</p>

- — Purdy was the' plaintiff below, and Funkhouser the defendant. The plea did not profess to answer the action, except so far as related to that part of the principal of the bond which was averred to have been paid, and to so much of.the interest as was alleged to have been released. The replication was to that part of the plea which relates to the interest.

-* — The obligations upon which this suit was founded, were as follows: one for 800 dollars; one for 1,200 dollars; and one for 700 dollars; payable as stated in the opinion of the Court.

<p>Scire facias on a mortgage; plea of payment; verdict for the plaintiff; and judgment for the amount of the verdict, to be levied on the mortgaged premises: Held, that this judgment — binding all the defendant’s property, and jeoparding his person — Was erroneous.</p> <p>The scire facias, in such a case, is in the nature of a bill in chancery to foreclose a mortgage, which never looks beyond the mortgaged premises. The judgment on a verdict for the plaintiff should be — that the lands, tenements, ' and hereditament, described in the mortgage. b,e taken in execution to s.a? tisfy the plaintiff-the amount of his damages so assessed by the jury, together with costs.</p> <p>In a scire facias on a mortgage including both real and personal property, the judgment for the plaintiff shoúld be against the former only; the statute not authorizing this mode of proceeding on mortgages of personal estate.</p> <p>If the whole cause of action be sho wh in the writ of scire facias, no declaration need be filed.</p>

<p>Jr an action by two as executors, the defendant, after oyer of the probate, pleaded in abatement, that one of the plaintiffs was not executor; the other only having proved the will and taken out letters testamentary. Held, that, under the statute requiring security of executors, the plea was good.</p> <p>Executors must prove the will, and take out letters testamentary, before the filing of their declaration.</p> <p>When there are two or more executors, each is liable only for the assets which come into his hands.</p> <p>A party has a right to withdraw a demurrer at any time before the judgment on it is recorded, unless the demurrer be frivolous,</p>

— Assumpsit by R. Price against S. Colman, The declaration contained but one count, and that was in indebitatus assumpsit for 102 dollars for 13 hats sold and delivered. Plea, non-assumpsit.

— This was a suit in equity by Smock v. Crumbaugh. The bill charges that the defendant, having the agent’s certificate for a lot in Indianapolis on which part of the purchase-money had been paid, applied to the complainant to borrow 200 dollars, and, to secure the payment, proposed to assign his right in the lot to the complainant; — that the complainant lent the defendant the money, took an assignment of the certificate to secure the payment, and, on the same day, gave the…

<p>In an action on a bond payable to several, all the obligees living must join iir the suit, unless it appear by the bond that their interests are several.</p> <p>If any of the obligees be dead, that fact should be shown in the declaration.</p> <p>If all who should join in the suit do not, the defendant may crave oyer of the bond and demur generally.</p>

<p>ERROR to the Franklin Circuit Court.</p>

Justices of the peace, by a statute of 1823, had a general jurisdiction to the amount of 50 dollars; and they could take judgments by confession for any amount not exceeding 100 dollars, provided the… Held: that the justice’s record of a judgment confessed, exceeding 50 dollars, must show the oath to have been taken, or he will be considered as having had no jurisdiction (1).

<p>A defendant, after a verdict and judgment against him in assumpsit, filed a bill in chancery for a new trial on account of newly-discovered evidence; averring that due diligence had been used, without effect, to procure the evidence previously to the trial: Held, on demurrer, that the bill would lie.-</p>

<p>It was agreed between Jl. and B., that the former should furnish the latter with a specified quantity of various enumerated articles; and that the latter should pay the former 200 dollars for them at a future time. -3. sued for the 'money — averring the delivery of the kinds of articles agreed for to the value of 200 dollars, and their receipt by B. in full satisfaction of the agreement ; but the particular quantity of the articles furnished was not stated. Held, that the performance of the precedent condition Was averred with sufficient certainty.</p> <p>Where there is a precedent condition, its performance or that which is equivalent must be shown.</p> <p>Ah accord and satisfaction as to a precedent condition is equivalent to a performance.</p>

<p>Assumpsit. Pleas, non-assumpsit and no consideration. Held, that a record showing the pendency of a prior suit for the same cause of action, is inadmissible as evidence under these pleas. The defendant should have pleaded in abatement.</p> <p>Held, also, that a former judgment wholly reversed in error, is no defence to a subsequent suit for the same cause of action.</p>

<p>ERROR to the Jefferson Circuit Court.</p>

<p>Grand jurors may be challenged by any person previously to his being indicted, provided he be at the time under a-prosecution for an offence about to be submitted to the jury.</p> <p>The conclusion — “contrary to law” — of an indictment for murder, is sufficient.</p> <p>If the cause of challenge to a juror tend to his infamy, he cannot be examined on oath respecting it. The challenge must be supported by extrinsic proof.</p> <p>An indictment for murder contained two counts; the first charging the prisoner with killing aman by shooting him; the second, by assisting another in stabbing him: Held, that on proof of either of the charges, there might be a general verdict of guilty.</p> <p>By statute the names of eighteen men must be'drawn from the box to be summoned as grand jurors. The jury however when convened, may consist of any smaller number not less than twelve.</p> <p>The record did not contain the form of the oath taken by the grand jury, nor o.f that taken by the officer attendant on the petit jury; but only stated that they had been sworn: Held, that in the absence of any contrary proof, the legal oaths fuustbe presumed to have been administered.</p> <p>■The record did not state that the petit jury had been returned by virtue of a venire. The statement was, «whereupon came the jurors of the jury, to wit, Szc. twelve good, &c. lawful men, &c. who were elected, tried, and sworn, &c.” Held, that this, was sufficient from which to presume that the jury had been returned according to law. Held, also, that the objection, being first made in this Court, came too late.</p> <p>If the record state the jurors to be householders of'the county, their residence therein will be presumed.</p>

<p><&. and B. resident in this state being at New-Orleans, the latter sued the former there on his indorsement of a note, which the maker had failed to pay when due. On being served with process, Jl. paid the money, and after his return sued B. in order to recover it hack. Held, that he had no right of action.</p>

<p>APPEAL from the Knox Circuit Court.</p>

<p>A constable collected the money due on an execution without any levy and sale: Held, that he was entitled to the fee allowed by statute for serving an execution.</p>

<p>ERROR to the Franklin Circuit Court.</p>

JBRROR to the Fayette Circuit Court. — Special assumpsit for not building a house, agreeably to contract. Plea, the general issue. A bill of exceptions, substantially as follows, was taken at the trial.

<p>In a suit against four defendants, an attorney appeared and pleaded in bar for them, and the plaintiff obtained a verdict: Held, that the judgment ought not to be .arrested, merely because the capias had been executed on only two of the defendants.</p> <p>Notice to produce papers as evidence, need not be given to the party himself: if given to his attorney at'law it is sufficient.</p>

<p>ERROR to the Clark Circuit Court. — Hughes was the plain-o * tiff in the Circuit Court, and Palmer and wife the defendants.</p>

— This was an action of slander by Robb agáinst Wheeler. Pleas, 1st, the general issue; 2dly, a special plea of justification. Verdict and judgment for the plaintiff below.

<p>Ir an action on a replevin bond, the defendant cannot question the constitutionality of the statute under which the bond was executed.</p>

<p>A judgment for a certain sum with interest from a previous date was replevied,, and afterwards, on a writ of error, altered as respected the interest: Held, that this did not affect the validity of the replevin bond.</p> <p>Buch an alteration in the judgment only operates to control the plaintiff as to the amount to be collected on the execution.</p> <p>An obligor in a replevin bond cannot move to set-it aside, on the ground that the replevin law is unconstitutional.</p>

<p>APPEAL from the Clark Circuit Court. — The verdict and judgment, in this case, were for the defendant.</p>

<p>A recognizance showed that it had been entered into before an associate judge of the county, but did not state him to be a judge of the Circuit Court: Held, that this was no objection to its validity.</p> <p>A recognizance to answer a criminal charge, need not show that the complaint had been made under oath.</p> <p>The condition of a recognizance stated, that the obligation was to be void if default should be made in the condition; but it also stated that if tile recognizor should appear, &c. the recognizance was to be void, otherwise in force: Held, that the words “to be void if default should be made in the condition,” did not affect the validity of the recognizance; they being repugnant to the object of the obligation, and to the other parts of the condition.</p>

<p>Subsequently to a judgment against M., a statute was enacted directing the debts of persons dying insolvent to be paid pro rata. M. afterwards died insolvent. Held, that the judgment had no priority.</p>

The declaration commenced as follows: Abram Van Vleet, administrator, &c. of James Scott, deceased, &c. complains of Robert D. Helm and Samuel Helm, &c. of a plea that they render to the said Abram, administrator as aforesaid, the sum, &c. The cause of action was a writing obligatory, by which the defendants below promised to pay Abram Van Vleet, administrator of the estate of James Scott, deceased, the sum of 130 dollars and 50 cents.

— This was an action of covenant by R. Moore against I. Mettler and J. Smith, on a writing obligatory for 125 dollars with interest, payable 12 months after date in merchantable whiskey, to he delivered at Lawrenceburgh at the cash market price. Smith appeared and confessed judgment for the amount of the obligation with interest; and Mettler made default.

<p>After a judgment against an administrator on a bond of the intestate, and a recovery against him in an action on that judgment suggesting a devastavit, the plaintiff sued on the administration-bond: Held, that neither the principal nor his surety could plead plene administravit.</p> <p>At common law, if an administrator when sued for a debt of the intestate omit to plead plene administravit, and judgment be given against him, assets are admitted; and he cannot afterwards plead that plea, in an action on the judgment suggesting a devastavit.</p> <p>The statute of 1821 changes this rule of the common law, and admits the plea in such a case; but does not extend the privilege to a suit on the administration-bond, brought subsequently to the recovery for a devastavit.</p>

<p>Covenant on an obligation for the payment of a certain sum, one halfin specie, and the other in bankable paper. Judgment on demurrer for the plaintiff., Held, that the damages should be assessed by a jury, not by the Court. Held, also, that the value of the bankable paper at the time it was to be paid, is the measure of damages for its non-payment.</p>

<p>APPEAL from the Marion Circuit Court. — Debt by Reed, against Henderson on a writing obligatory; and judgment against the defendant by default.</p>

ERRQR to the Vigo Circuit Court. — Debt on a penal bond, conditioned for the making of a title to a lot in Terra-Haute on a certain day, so soon as the purchase-money should be paid. The declaration averred the payment of the money, which the defendant by his plea denied. On the trial of the cause, the plaintiff applied for certain instructions to the jury, which were refused. Verdict and judgment for the defendant. The

— Debt by Whittington, a~ gent of Scott county, against Burch for money due to the county. Judgment by confession for the plaintiff.

<p>JL. executed a bond to B. for 1,000 dollars. B. assigned it to C., stating in the assignment that the bond was payable in certain bank paper. Held, that the assignee could maintain debt on the bond against the obligor, but that therecovery must be limited to the value of the paper mentioned in the assignment.</p> <p>Two pleas in bar of the whole action. An issue in law as to one, and in fact as to the other. Held, that though the former issue be first tried and found for the plaintiff, he cannot have final judgment until the latter be also found in his favour.</p>

<p>APPEAL from the Clark Circuit Court. — This was an action of ejectment by the appellee against the appellants.</p>

— Assumpsit by Tisloe against Graeter for money deposited for safe-keeping, and for money had and received. Pleas, non-assumpsit and payment. Verdict and judgment for the defendant.

<p>The plaintiff was a trader in partnership with others, and the agent of his • partners; but in a contract with the defendants, he had acted in his own name. Held, that the suit on this contract was correctly brought by the plaintiff without joining his partners.</p> <p>A quantity of wheat was delivered by the plaintiff to the defendants at their mill, to be exchanged for dour. The defendants put the wheat into their common stock of wheat. The mill was afterwards casually destroyed by fire, and the defendants refused to deliver the flour. Held, that the plain*' tiff had a good cause of action.</p>

<p>ERROR to the Vanderburgh Circuit Court.</p>

<p>Suit by the auditor of public accounts, against a collector of taxes and his sureties, by notice and motion: Held, that the notice, in such case, should contain a description of the defendants’ bond.</p>

— Debt by Wilson a* gainst Thompson and others onabondpayableto the plaintiff, with a condition to the following effect: Whereas execution has issued in favour of Wilson against Thompson and Naylor, and the constable haslevied upon theproperty of NayZojy nowif Naylor shall deliver the property at the time and place of sale, the obligation to be void. The declaration set out the condition of the bond, and averred a non-delivery of the property.

<p>A wife obtained in Kentucky a decree of divorce, with an allowance for alimony of a certain sum of money, and the use for life of one-third of her husband’s real property within that state: Held, that though the maintenance were inadequate, she could make no application to our Courts for any additional provision out of her husband’s real property within this state.</p> <p>Whenever a matter is finally determined by a competent tribunal, it is considered at rest forever. And this principle embraces not only what was actually determined, but every other matter which the parties might have litigated in the cause.</p> <p>In rendering a decree for alimony under our statute, the Court may take into view the whole property of the husband wherever it may be. The allowance may be made by a decree in favour of the wife for a gross sum or for an annuity, which decree would give her an incontrovertible demand against the husband wherever he or his property might be found; or it may be made by giving her a sufficient part of her husband’s property within the state.</p> <p>Alimony may be given incidentally, as on a divorce under our statute; buf no Court has any original jurisdiction to allow it. Hence, if an adequate provision for the wife be not made by the Court granting a divorce, no other Court can supply the deficiency.</p>

— Debt by Ferguson, assjgnee 0f Munden, the obligee, against Fugate, the obligor, on a writing obligatory for 255 dollars and 20 cents, dated the 9th of June, 1820, and payable the last of Avgust following. Two pleas: the first in bar, except as to 142 dollars and 80 cents; the second in bar, except as to 178 dollars.

<p>APPEAL from tbe Marion Circuit Court.</p>

<p>ERROR to the Fayette Circuit Court. — The plaintiff in the Court below, in this case, obtained a verdict and judgment.</p>

<p>Where all the items of an account are on one side, the circumstance of some of them being within five years, does not take the others of longer standing out of the statute of limitations. Aliter, where there are mutual accounts between the parties.</p>

<p>The statute for the relief of occupying claimants of land provides, that where the occupant in certain cases is willing to pay the value of the land without the improvements,, the successful claimant shall not be entitled to possession until he pays the occupant for the improvements: Held, that this provision is not unconstitutional.</p> <p>The statute also provides, that the value of the improvements, and of the land without the improvements, shall be assessed by three persons to be appointed by the Court. Held, that this part of the statute is unconstitutional and void: the assessment must be made by a jury.</p>

<p>ERROR to the Rush Circuit Court.</p>

— This was an action of debt by Taylor against Walpole on a promissory note made by the defendant to Cushing and Jewett, and by them assigned to the plaintiff. The declaration commences, “State of Indiana, Marion county, ss, James Taylor complains oí Luke Walpole of a plea, &c.;” and, after setting out the note and assignment, it states, “By means whereof an action hath accrued to the said James, &?c.n General demurrer to the declaration, and judgment for the defendant.

<p>ERROR to the Washington Circuit Court.</p>

<p>ERROR to the Wayne Circuit Court.</p>

<p>ERROR to the Vanderburgh Circuit Court.</p>

<p>ERROR to the Switzerland Circuit Court.</p>

<p>A writing obligatory executed by two persons began, “I promise to pay,”'&c., and concluded, “witness my hand and seal,” &e.: Held, that it might bo considered a several obligation.</p> <p>The judgment for the plaintiff, on a demurrer to a plea iñ abatement, is not final, but only a respondeat ouster.</p>

<p>ERROR to the Marion Circuit Court.</p>

<p>In debt against -9. and B. on a joint and several bond, for the payment of 515. dollars in United States’ bank notes, judgment was rendered against A. for. 124 dollars' and 81 cents, and, on demurrer to the declaration, in favour of B. Held, that covenant would afterwards lie against B. alone on the same obligation.</p> <p>Held, also, that the plea of B.’sbeing only a surety in the bond, and the obligee’s having given to A., before the bond became due, a further time of six months for payment, in consideration of «á.’s agreement to pay him 20 per cent, per ann. interest for the delay, was.no bar to the action against B,</p>

<p>ERROR to the Clark Circuit Court.</p>

<p>Covenant on a deed averred in the declaration to have been executed for the obligor by his attorney in fact: Held, that a plea denying the attorney’s au» thority must be verified by affidavit.</p> <p>If the clerk’s certificate, attached to the copy of a record of a Court of another state, have not the seal of the Court or officer granting the letters testamentary, the copy is not admissible as evidence.</p>

<p>A notice given in Daviess county in this state on the 20lh of October, to take depositions in Hamilton county, Ohio, on the 28th of the same month, is insufficient.</p> <p>In corhputing the time, in such case, one of the days named must be excluded from the computation.</p> <p>Words spoken here, charging a.person -with having committed larceny in another state, are actionable.</p>

<p>ERROR to the Clark Circuit Court.</p>

<p>Where a hew right is introduced by statute, the party complaining of its violation is confined to the statutory remedy, if one be prescribed. Aliter, where the right existed at common law, and an affirmative statute intervenes inflicting a new penalty. . ■</p>

<p>Assumpsit on a special contract by which the defendant promised to pay the plaintiff 9 dollars and 25 cents a month for 12 months’ work to be performed. The contract proved was for the payment of 92 dollars and 50 cents for 10 months’ work to be performed. Held, that the variance was fatal.</p> <p>In the case of a special contract, the plaintiff cannot recover on a general count, but must declare specially, where-the contract is open and in full force.</p>

<p>The sheriff cannot object to a replevin-bond, because it >ia not executed by the tenant, but by his surety alone.</p> <p>Such bond may be payable to the sheriff, though his deputy make the distress. If goods taken on a distress warrant be replevied without objection to the replevin-bond, and the time limited by law to replevy be expired, they cannot be re-taken by virtue of the warrant, on the ground that the replevinsurety is insufficient.</p> <p>In trespass against two the jury cannot sever the damages; hut they may find one guilty and acquit the other.</p>

<p>An execution-debtor paid.to the sheriff the amount due, except a small balance which could not then be ascertained, and promised to pay that when called on. The sheriff afterwards by virtue of the execution on which 15 dollars and 25 cents were due, without calling on the debtor, sold 100 acres of land worth 15 or 20 dollars an acre for 351 dollars and 25 cents. Held, that the sale was an abuse of the sheriff’s powers, and would be set aside by a Court of chancery, though a Court of law could not interfere.</p>

— Scire facias to revive a judgment. In September, 1819, the plaintiff obtained a judgment against Oliver, Jacobs, and E. John, for 1,500 dollars; and, in December following, R. John entered himself replevinsurety on the record. The scire facias averred these facts, and required the judgment-debtors and their replevin-surety to show cause why execution should not issue against them. Demurrer to the scire facias, and judgment for the defendants.

<p>A. having sold a tract of land to B. for a certain price to be afterwards paid, and B. having sold the land to C. for ready payment, a title-bond was executed by A. to C. The condition of the bond was, that as soon as B. paid the purchase-money to A., the latter should convey the land to G. Held, that A. was not bound to execute the conveyance, until he had received the whole of the purchase-money.</p>

<p>On a judgment against Jl.., 25., and C., a scire facias issued to have execution against the goods of Jl. deceased, in the hands of his administrator: Held, that the scire facias, not averring the death of B. and C., and the survivor-ship of Jl., was bad on demurrer.</p> <p>Quaere, Whether the administrator of Jl. could be subjected, jointly with B. and C. if living, to the judgment; or whether, as respects the personal charge, B. and C. were alone liable at law, as the survivors of Jl.</p>

<p>MOTION for an alias certiorari.</p>

<p>Debt on a sealed note by the assignee against the maker. Plea, that the note was given for certain town lots, and that the defendant was entitled to thebonefit of an act of congress for the relief of purchasers of public lands, which. the plaintiff refused to give him. Held, on demurrer, that the plea was bad.</p> <p>On demurrer to a bad replication, where the plea is bad and the declaration good, the plaintiff is entitled to judgment.</p>

— J. Badollet, J. C. S. Harrison, and R. Buntin, trustees for the United States, were ■the complainants. W. Lagow, JY Ewing, J. D. Hay, and B. Parke, trading under the firm of C. Smith's Vincennes steam-mill company, and W. Fellows, were the defendants.

<p>'The trustees of a town, by resolutions of the board, granted to A., his heirs and assigns, the rights and privileges of certain real estate, for the purpose of opening a canal or building a mill of public utility thereon; annexing to. the .grant a condition, that the improvements should be made within a certain time. For these- privileges, A, was to pay a certain per cent, on the proceeds of the improvements. A. assigned his interest to B. The legislature of the late territory afterwards, on the petition of B. and of some of' the trustees individually, passed an act vesting the fee-simple in the former, subject to. the condition contained in the resolutions. B. occupied the premiseserected thereon an expensive mill; and paid to the trustees the per cent, on the proceeds, in compliance with their demand. Ejectment' by the lessee of the trustees.</p> <p>Held, that it is generally necessary, in ejectment, for the plaintiff to show a right of possession in his lessor at the date of the demise, and at the time the action was commenced. .</p> <p>Held, also, that the legal effect of the resolutions of the board was not affected by the territorial statute, passed on the petition of B. and of some of the trustees individually; the petition being of no consequence, and the logislature having no power to transfer, at pleasure, an estate not belonging ia the territory.</p> <p>Held, also, that by their demand and receipt of the per cent, on the proceeds of the mill, the trustees admitted the improvements made, to be conformable to the condition annexed to the resolutions; — and that the moral policy of the law prohibited them from contending, that their title did not-authorize the grant.</p> <p>Held, also, that the resolutions, being neither deeds nor matters of record of a Court of record, cannot operate as a freehold conveyance, either according to the common law or to the statute of uses; — that they constitute, the condition being performed, a lease for an indeterminate period, with a reservation of rent; — and that the relation of landlord and tenant which they «reate, prevents the occupant under them from disputing the title of the trustees.</p> <p>Held, also, that the interest granted to Jl. would have been formerly a tenancy at will, which his assignment would have determined; but that the old tenancies at will being now generally superseded by tenancies from year to year which arc assignable, his estate for no expressed period with a reservation of rent, belonged to the latter class and passed to B. by the assignment.</p> <p>Held, also, that before the trustees could recover in this action of ejectment, which treats the defendant as a trespasser, it was necessary for them to put an end to the tenancy, by giving to the proper person half a year’s notice to quit, at that period of the year when the tenancy commenced.</p>

<p>The statute of 1825, authorizing special sessions, of the Circuit Court, does Hot warrant the finding of an indictment at the special term, against any other' person than the one for whose trial the Court was convened.</p>

<p>ERROR to the Hendricks Circuit Court.</p>

<p>On the trial of an indictment against A. for receiving goods, knowing them to be stolen, the -wife of C. was offered as a witness for the prosecution. The evidence was objected to on the ground that C. had been charged, on afS, ■lavit, before a justice with stealing the same goods, before A. was accused of receiving them; that the charge still existed; that the officers of justice’ were in pursuit of C,; and that the witness had frequently expressed fears that C. would be taken and convicted of the larceny. Held, that the objection was insufficient.</p> <p>The indictment contained two counts, one against B. for stealing, the other against A. for receiving the goods, knowing them to be stolen. Held, that the second count was not objectionable for not stating the time, place, value of the goods, &c.; these requisites being laid in the first count, and referred to in the second. Held,, also, that there was no misjoinder.</p>