Volume 1 — Indiana Reports

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

<p>ERROR, to the Dearborn Circuit Court.</p> <p>Mr. O. H. Smith, on behalf of Ohio county, and as amicus curicB, suggested to the Court that this was a fictitious suit. Pie insisted, therefore, that it was due to the Court for its own protection, and to those to be harassed by the proceedings, that the writ of error should be dismissed. He offered to prove the truth of the suggestion, and referred to the following authorities: Cowp. R. 37, 729.— 1 T. R. 56. — 4 Johns. R. 434. — Wright’s R. 91.</p>

<p>A judgment was rendered in tlie Ripley Circuit Court on the 28tli of February, 1843, in a suit on a contract made in the state of Illinois on tlie 14th of October, 1839. The debtor’s land was sold under an execution on tlie judgment. Held, (in a case where the execution law of Illinois was not proved,) that the sale must be governed by the laws of this state.</p> <p>The statutes of one state, unless proved, will not be noticed by the Courts of any other state.</p> <p>Quaere, whether the Courts of one stale are bound to give effect to the execution laws, though proved, of other states.</p> <p>The execution law of 1843 (tlie .contrary not being shown) must be presumed to have been in force in Ripley county when the aforesaid judgment was rendered.</p> <p>A sale of land on execution (the execution law of 1843 being in force when the judgment was rendered and the sale made), without appraisement and for less than its fair value, is void, though the purchaser had not actual notice of the irregularity.</p>

<p>Trespass. First count, for breaking and entering the plaintiff’s close. Second count, for seizing and carrying away the plaintiff’s goods. Third count, that before the committing, &c., the plaintiff had built a limekiln, &c., and that the defendant, contriving and wickedly intending to injure • the plaintiff in the premises, seized upon, entered into, tore down, and carried away said limekiln, with five hundred perches of stone in the same, of the plaintiff’s, of the value, <fcc., and converted the same to his own use. Held, that it must be considered, at least after verdict, that tile tim'd count was a good count in trespass, and properly joined with the others.</p>

<p>If the holder of a note for the payment of money taire from the maker, in consideration of the sum due on that note, a new note for the amount, payable with illegal interest, he has no right, afterwards, to surrender the new note, and recover from the maker the amount of the old one with legal interest.</p> <p>The maker is liable in such case only for the amount of the new note without interest.</p> <p>A note payable with illegal interest, may be declared on as a note payable without interest.</p> <p>The judgment for the plaintiff in this case being for more than was due, he was permitted to cure the error by entering a remittitur in this Court for the excess.</p>

<p>A bill to foreclose a mortgage executed by A., to secure the payment of a judgment obtained by the defendants against B. and C. B. entered his appearance, and died during the progress of the cause. His death being suggested, the suit was abated as to him. Default was made by A. and G., and a decree was rendered, pro confesso, against them. Held, that B. and C. were necessary parties, and that there should have been a bill of revivor against the representatives of B.</p>

<p>Retailing spirituous liquors without a license from the city of New Albany, is not an o'ffence against the state.</p> <p>The Supreme Court has no jurisdiction in any case which originated before the recorder of the city of New Albany, or any justice of the peace, where the amount in controversy exclusive of interest and cost is under twenty dollars. /</p>

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

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

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

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

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

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

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

<p>Under the charter of the White Water Valley Canal Company, an appeal from an assessment of damages, must be taken to the Circuit Cóurt of the county in which the land injured lies; and an appeal to any other Court is a nullity, and a bond given on such appeal is void.</p>

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

<p>la pleading, an averment that lands were sold, is equivalent to an averment that they were sold by deed of conveyance, and a denial of the conveyance is a denial of the sale.</p> <p>When a declaration in assumpsit contains a common count, after judgment for the plaintiff, on demurrer, a writ of inquiry should be awarded to ascertain the damages.</p>

<p>Courts will not grant a writ of mandamus where the party applying has a different legal remedy.</p>

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

<p>Circuit Courts try appeals from orders of tlie board of county commissioners de novo as Courts of original jurisdiction, and must bave before them the original papers in the case.</p> <p>Either party to a cause is bound to take notice of an appeal by the other, and the fact that the appeal is not taken until after the adjournment of the Court makes no difference.</p>

<p>Suit by the assignee against tlie assignor of a note. Suit was not brought against the maker of the note until five months after the date of assignment, and nothing was made. It was proved, that, at the time of the assignment, the defendant stated to the plaintiff that the maker was poor, had been unfoi-tunate, and if plaintiff would wait awhile he would get ■ his money. The defendant demurred to this evidence, and obtained judgment on demurrer. Held, that the jury might have inferred that the plaintiff’s delay in suing the maker was authorized by the defendant, and no laches could be imputed to him on account of such delay, and that plaintiff had a right to recover on the evidence.</p>

<p>A., the holder of a bond for the conveyance of a certain tract of land, assigned said bond to B., as a security for money advanced. B. permitted A. to place the bond in the hands of C., to be held as collateral security for a debt which he owed him. While it was in the hands of C., the assignment to 13. was stricken out, without his knowledge, and a new assignment made to C., D., and E., to secure debts which A. owed them. A. paid the purchase money, and C., D., and E., procured the conveyance of the land from the obligor to themselves, and the bond was cancelled. B. filed his bill in chancery against G., E., and E., to set aside the conveyance and vest the title in nimself, and obtained a decree to that effect. It was proved that A. continued in possession of the land after the assignment to B., offering to sell it with the knowledge and consent of B. Held, that the assignment to B. only amounted to an equitable security, or a mortgage for the advancements he had made. Held, also, that B. should have proceeded as in the case of a mortgage, and made A., or his representatives, parties.</p>

<p>ERROR to the Allen Circuit Coru’t.</p>

<p>Ifo legal judgment can be rendered on a cognovit unless the defendant appear either in person or by attorney, or there has been service of process, or of notice, in some mode prescribed by law.</p> <p>A defendant, filing a cognovit, cannot authorize a clerk of the Circuit Court to enter an appearance for him, though he be an attorney at law.</p>

<p>In a suit against an officer, on liis official bond, for liis neglect to return, and for falsely returning, a writ of venditioni exponas, tbe plea that the property mentioned in said writ never came to his hands, is bad.</p>

<p>In an action for slander, tlie charge complained of being tlie commission of an offence against tlie state, the same degree of evidence is necessary to sustain the plea of justification that "would be required to convict the plaintiff on a criminal prosecution for that offence.</p> <p>Under the general issue, and a plea of justification, in an action for slander, if the evidence adduced creates, in the minds of the jury, strong suspicions of the guilt of the plaintiff, the jury may regard such evidence in mitigation of damages.</p>

<p>Tlie statute of 1838, on the subject of descents, gives to the husband the real property in fee, in the same portions, and under the same circumstances, that it would have gone to the widow had he been the decedent and she the survivor.</p> <p>The 13th section of chapter 29 of that statute, made no enlargement of the husband’s common law right to the residue, after receiving one-tliird of the property.</p>

<p>Either party to a writ of habeas corpus, may sue out of this Court a writ of error to an associate judge trying the same, upon any final judgment thereon.</p> <p>The jurisdiction of a Circuit Court is limited, generally, to the hounds of the county in which it is hold.</p> <p>A warrant of commitment for contempt cannot he sent from the Circuit Court of one county to the sheriff of another.</p>

<p>In proceedings against a lunatic and a minor, to foreclose a mortgage, it is necessary tliat proof is made of t-lie exhibits, and that the record shows that such proof is made.</p>

<p>The vendor of real estate, by taking the vendee’s promissory notes for the purchase money, with a third person as security, waives his equitable lien on the land for such money, unless there be an express contract that such lien shall be retained.</p> <p>Such lien cannot be enforced against a subsequent purchaser, though he had notice from the vendee, at the time of purchase, that the notes were unpaid.</p>

<p>Proceedings must first be had between the ward and his guardian, requiring tlie latter to account, before the ward can sustain an action against the guardian and the sureties on his bond.</p>

<p>A defendant wlio pleads Ms discharge as a voluntary bankrupt, to defeat a suit brought against him for the recovery of a debt existing at the time of the passage of the bankrupt act, must also show that the debt is not within the exceptions of the act.</p> <p>Deed of conveyance to A. during her natural life, and to her children and assigns forever. Held, that, there being no words of inheritance in the conveyance, and the words “her children” being words of purchase and not of limitation, the rule in Shelley’s case does not apply, and a fee simple was not vested in her.</p>

<p>Where the introduction of improper testimony and objectionable witnesses are tbe errors assigned, the record must disclose what the witnesses stated, and the testimony objected to, or this Court will not interfere with the judgment below.</p>

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

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

<p>An insane person cannot sue by a solicitor.</p> <p>The act of 1843, which entitles the widow to select, at its appraised value, property of her deceased husband to the amount of 150 dollar’s, or to taire 150 dollars out of the proceeds of the sale thereof, applies to personal property only. .</p>

<p>All objections to the writ are waived by an appearance to the action.</p> <p>When a judgment of a justice of the peace is reversed on cerliorari by the Circuit Court, tlie cause is retained, and stands for trial on its merits. Tlie reversal extends no further back than to rectify the error complained of.</p> <p>If, in an attachment against a boat for debt, the boat be released by the giving of a bond, as prescribed by statute, the judgment should be rendered in personam against the master, owner, or consignee, as the case may be, who causes himself to be substituted as defendant.</p> <p>The bond given in such case stands as collateral security, and is similar, in most respects, to an appeal bond.</p>

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

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

<p>The title of the mortgagor to land mortgaged by him to the commissioners of the sinking fund to secure a loan, and sold by them, vests in the purchaser, freed from all assessments and taxes made or levied between the date of the mortgage and the date of the deed.</p>

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

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

<p>The failure of the obligor to comply -with the conditions of a bond executed for tlie sale of land, is no ground of equitable jurisdiction for the cancellation of that instrument.</p>

<p>The party alleging error must show error, or it will be presumed the Court did right.</p> <p>The provision of section 248, chapter 40, of R. S. 1843, that if either party shall call more than three witnesses to prove the same identical fact, such party shall pay the cost occasioned by such additional number, is general, and applies where witnesses are called to impeach the credibility of other witnesses.</p>

<p>Division cannot be made of two tracts of land by means of one suit, unless the two tracts are each owned by the same persons.</p> <p>Commissioners appointed to make partition cannot divide the land into town lots, and give a part thereof to the public for streets, without the defendant’s consent.</p>

<p>If, from the judgment of a justice of the peace against several defendants, one of them appeals to the Circuit Court, in his own name, without joining the others, the appeal should he dismissed.</p> <p>The dismission of a cause by the Circuit Court, on motion, without any reason appearing on the record in favor of, or against the dismission, must be presumed to be correct.</p> <p>Congressional townships are not liable for costs.</p>

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

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

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

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

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

<p>A judgment in. attachment, notwithstanding it appears that the debt attached in the hands of the garnishee was not due when the judgment was rendered against him, or that the affidavit does not state of what county the attachment-defendant was a late resident, is valid until reversed.</p> <p>A defendant pleading to an action of debt that a judgment in attachment was obtained against him, as garnishee, must aver thatthe judgment was for the same debt, or a part of it, for which the present suit was brought. A plea which professes to be a bar to the whole cause of action, when, if it is an answer at all, is only so as to a part, is bad.</p>

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

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

<p>The adjudication of a Circuit Court respecting- a contempt committed by a witness, by refusing to testify before the grand jury, cannot be reviewed in this Court.</p>

<p>A bill of interpleader will only lie when both the defendants claim the same debt, or duty.</p> <p>A party cannot sustain an interpleading- suit, if lie admits that, to either of the defendants, he is a wrong-doer.</p> <p>No bill of interpleader lies in behalf of a tenant against his landlord.</p>

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

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

<p>Debt on a bond conditioned for the payment of 500 dollars, in case a certain deed conveying land, be held valid and effectual in law. Plea, that the deed mentioned in said bond was not valid and effectual, because the obligee had not, nor hath now, good title to the land. Held, that the plea was good on general demurrer.</p>

<p>To render a party liable for representations of character, made by him, it is necessary to prove that they were fraudulently made.</p>

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

<p>The terms “corporal oath” and “solemn oath” are used synonymously, and an oath taken -with the uplifted hand may be properly described by either term.</p>

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

<p>Debt oil a sheriff's bond. Breach, that the sheriff conducted a sale of lands in an illegal and fraudulent manner, for the purpose of vexing and injuring the plaintiff; and did, by said illegal and fraudulent conduct, sell said lands at‘a great sacrifice, to plaintiff’s damage 50,000 dollars. Held, that this assignment was good on general demurrer, and that the averment, that the sale was conducted in an illegal and fraudulent manner, is compounded of law and fact, and is traversable.</p> <p>The pleas of non damnifícalas can only be pleaded when the suit is on a' bond of indemnity.</p>

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

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

<p>When a plaintiff has discontinued his suit, and commenced another action for the same cause, he can use the depositions lawfully taken for the first suit, by making it appear that they were duly filed in the Court, where the first cause was pending, and had remained there on file from the time such suit was discontinued until the time itwas proposed to use them in the other suit.</p> <p>Qucere, whether the certificate of the clerk, stating these facts, would be evidence thereof.</p>

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

<p>Debt on an appeal-bond against tbe surety. Breach, the non-prosecution of the appeal to effect. Plea, that the plaintiff filed an affidavit that the defendant was insufficient surety, and moved to dismiss the appeal; that a rule was entered requiring the appellant to file an additional bond, and, on his failure so to do, the appeal was dismissed. Held, that the plea was bad, and that a failure to give a further bond, when required, is a broach of the condition of the first.</p>

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

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

<p>No demand, is necessary before suit on a contract payable in specific articles when the time and place of payment are fixed in the contract, or when the time of payment is fixed and the place is left undetermined.</p> <p>On such contract a demand before suit is necessary when the place of payment is fixed by the contract, but the time is left undetermined; when the time and place are both left undetermined; and when the contract is to pay on demand; but on a contract to pay money, a demand is not necessary.</p>

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

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

<p>An indictment for perjury, on an oath made before a clerk of the Circuit Court, must show that the oath upon which it was founded was one which the clerk was competent to administer; a general averment.that the clerk had the competent power is insufficient.</p>

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

<p>A party asking a decree for the specific performance of a contract, must show that he is not in default, and has taken all proper steps towards performance.</p>

<p>Assumpsit against a guardian. Tlie declaration alleged that the defendant was indebted to plaintiff for boarding the wards, at defendant's request. Pleas, 1st. General issue; 2d. No assets in his hands belonging to his wards; 3d. That he was not guardian when the accommodations sued for were furnished. Demurrer to the second and third pleas sustained ; and judgment against defendant for 25 dollars, to be levied of the effects of the wards in his hands as guardian. Held, that the demurrer was rightly sustained, as the defendant was sued on his indivi'dual undertaking. Held, also, that the judgment should have been against the defendant personally.</p>

<p>A judgment is not a lien on land held by the judgment-defendant under a title-bond.</p>

<p>Transfers of land, lield under the act of congress of 1830, “ granting preemption rights to settlers before the issuing of patents,” are void; and the covenants in the deed of conveyance in such case, do not operate as an estoppel, but are also void.</p>

<p>A note made payable to partners in tlieir individual names, and assigned by one of the firm in the partnership name, can be given in evidence under the plea of non-assignment, in a suit by the assignee, against the mater -without further proof that the other partner authorized the assignment.</p>

<p>Debt on the bond of a justice of the peace, for money which a judgment-defendant paid to the justice on a judgment obtained against him by the relator, and which the justice refused to pay over on demand. The relator, after proving that the justice had admitted that the judgment was paid, but without saying to whom, offered to prove the following: that, after the rendition of the judgment, the judgment-defendant showed the witness a receipt which he said the justice had given him; that, after-wards, he asked the justice whether the judgment had been paid, and whether he gave such receipt, and that the justice answered affirmatively. The Court would not permit this evidence to bo given. Held, that the evidence was admissible, not to prove the contents of the receipt, but that the jury might take it into consideration in determining whether the justice was the person to whom the money was paid, or not.</p>

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

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

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

<p>When the judgment-debtor is not the owner of land at the time of the rendition of several judgments, but afterwards acquires it, each judgment becomes a lien at the same instant that the land is acquired, as if they had all been rendered at the same time; and, in such case, the execution first issued and levied has preference.</p>

<p>A bill of revivor was filed against an administrator and minor heirs, whose names were unknown to the complainant. Held, that the statute of 1838, under which the bill was filed, required at least the name of one of the heirs to be stated.</p> <p>In proceedings in chancery, on a bill of revivor, an order that the suit be revived is necessary before final decree.</p>

<p>The statements by the clerk disclosing the grounds upon which the Court acted in dismissing an appeal, form no part of the record, and cannot be regarded.</p> <p>The dismission of a cause by the Circuit Court, on motion, without any reason in favor of or against the dismission appearing in the bill of exceptions, must be presumed to be correct.</p>

<p>In a suit against the defendants for the breach of a contract to pay for wheat in specified quantities of flour and bran, the value of the flour and bran, not that of the wheat, is the measure of the damages.</p>

<p>In the case of a special contract, one party cannot, by a part performance only on his part, sue on such contract and recover for the part he has performed.</p>

<p>The lien of proceedings in attachment, instituted before proceedings in bankruptcy, rvill bind.</p>

<p>In replevin, the issuing of the writ to the sheriff is the commencement of the suit, and demand must be made before that time.</p> <p>A bailee cannot, as a general rule, be sued by the bailor for the deposit till after demand; nor is the bailee always bound to deliver his deposit on demand.</p>

<p>If an agent, appointed to sell lands, cause a conveyance to be made to himself, such conveyance, unless ratified by bis principal, will, on application of the principal or bis heirs, within a reasonable time, be set aside by a Court of equity, without inquiry as to its fairness.</p> <p>On setting aside such conveyance, the Court should not proceed to determine the particular share to be relinquished to each heir, without first ascertaining and decreeing the share due to each, talcing into consideration advances made, <fce.</p> <p>The contrary not being proved, it will be presumed, in this case, that an agent selling lands for his principal, and receiving the purchase-money therefor, has retained sufficient thereof to compensate him for his services and expenses.</p>

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

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

<p>Tlie bolder of commercial paper, assigned as collateral security, is a holder for a valuable consideration, but, in a suit on such paper, he can recover no more than the debt actually due him, if any part of it has been previously paid, or there is no consideration as between the original parties.</p>

<p>If tlie declaration in a suit by John Moore and Charles Dawes, on an order, avers generally that the order is payable to them, not setting' it out in h<zc verba, nor describing it as drawn to them in any particular name, an order payable to Moore and Dawes, is admissible evidence, and a declaration setting out such order under such general averment is not subject to general demurrer.</p> <p>The declaration need not state the place or time of the presentment of an order for payment, or the name of the person it was presented to, where the order is not drawu payable at a particular place or a particular time, and where it is not drawn on a particular person by name, but on "the treasurer,” &c., and a general averment in such case is sufficient.</p> <p>If a person draw a bill directly on himself, it is his promissory note and may be sued on as such.</p> <p>Quaere. If a demurrer to a special count was improperly overruled, and there were other good counts under which the order would have been admissible, whether the judgment should be reversed for the error in overruling the demurrer ?</p>

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

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

<p>Ejectment, Tbe appellees offered tbe following evidence: 1. A deed made in 1834 by M., conveying all bis interest, and, as attorney in fact for K. and ¡S., all tbeir interest in tbe land to G.; 2. a quit-claim deed from G, to tbe appellant, reciting that the land was conveyed to him in 1834 by Iff.; 3. Depositions proving that the appellees were the heirs of K. and S., and that the latter persons died before the deed was made in 1834. The appellant offered no testimony. Judgment for the plaintiff below. Meld, that the evidence was insufficient to sustain the judgment.</p>

<p>Debt upon tbe bond of a county agent. Tbe declaration alleged that the agent was dead and that the defendant was surety on the bond. Tbe fifth count alleged that D., the county agent, executed his official bond with P., B., and E., as sureties ; that, afterwards, <fcc., Z>. desired to have E. released from his liability, and V., the defendant, substituted in his place; that proceedings were had before the board of commissioners for that puipose; that E. was released, with the consent of J>., and without the knowledge or consent of P. and B.; and that V. then and there executed said bond. Breach — non-payment by D. of tbe money received by Lira by virtue of bis office. Held, tbat tbis count was good; that, if tbe erasure and insertion was made without tbe knowledge or consent of P. and B., they were discharged, but tbat tbe bond was valid against P>. and V. Held, also, tbat there was a sufficient averment, in substance, tbat tbe alteration was approved by tbe board.</p> <p>Tlie first plea to tbis count states that, at the time tbe name of E. was struck out, and when tbe defendant executed tbe bond, lie did not know tbat E.’s name was struck out; and tbat E. was released without tbe knowledge or consent of V. and B. Held, that this plea was bad; and tbat sucli release of E. did not affect tbe defendant’s liability.</p> <p>There were several pleas to tbe breaches assigned in tbis count, which say, in substance, tbat tbe money, áse., did not come into tbe bands of the agent, after tbe defendant’s execution of tbe bond. Held, tbat the pleas were bad because they gave no sufficient reason for the agent’s failure, after tbe defendant’s execution of the bond, to pay over the money, áse. A party is bound, in tbe absence of any misrepresentation of facts, by the legal effect of his contract, and be is presumed to know wliat will be its legal effect, and to intend tbat it shall have tbat effect.</p>

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

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

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

<p>If the Court give an erroneous instruction, but afterwards correct the mistake by giving a legal instruction, there is no error.</p> <p>Evidence which is admissible under a plea of liberum tenementum, is admissible under the general issue. '</p> <p>The Court will not reverse a judgment merely because a demurrer to a special plea was erroneously sustained, if the general issue is pleaded and the matter specially pleaded was admissible evidence under the general issue.</p>

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

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

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

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

<p>If a person, not made a party to a bill, appear and answer, he cannot assign for error that he was not made a defendant.</p> <p>By act of congress, March 3d, 1821, Canadian volunteer certificates are assignable.</p> <p>When the register of the land office admits, according to law, the location of such a certificate on certain land, and grants a certificate of the location, his authority for disposing of the land thus located is at an end; and the register’s subsequent sale of it, though to a person without notice, is not sustainable in a Court of equity against the location.</p> <p>The issuing of a patent is a ministerial act; if it issue by mistake-and without authority, the party having the previous equitable title to the land, may, by bill in chancery, obtain, from the patentee or his voluntary grantee, the legal title.,</p> <p>In such cases, though the question considered depends on acts of congress, the Courts of this state have jurisdiction.</p>

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

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

<p>The sureties on a recognizance to answer a criminal charge, may, at any time before judgment on scire facias, surrender their principal, and be released from liability on the recognizance, and such release does not discharge the principal.</p>

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

<p>The seduction of an innocent woman by a pretended marriage, the seducer haying a wife living, entitles the injured party to a compensation in money and is deemed in law a valuable consideration for a grant.</p> <p>If the consideration be valuable and adequate, the title of the grantee may be valid, notwithstanding the intention of the grantor to defraud his creditors thereby, if the grantee has no knowledge of such intention.</p> <p>The title of a purchaser at sheriff’s sale, relates back to the date of the judgment under which the premises were sold.</p>

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

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

<p>In an action for slander the plea of justification is inadmissible to prove the repetition of the charge in order to increase the damages.</p>

<p>A decree against infants, without proof, is- erroneous, notwithstanding the admissions of a guardian ad litem as to the truth of the allegations of the biü.</p> <p>Sales made by order of Courts haying competent power to make such order, will not be affected by the reversal, for error, of the decrees ordering the sales. .</p>

<p>ERROR to the Noble Circuit Coiu-t.</p>

<p>A conveyance of real estate, to be valid against creditors, must be bona fide and founded on a valuable, consideration.</p>

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

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

<p>When the Court has been requested to give the instructions to the jury in writing, it is erroneous to recapitulate the substance of the testimony verbally, notwithstanding the Court states that the jury should not take its statements.</p>

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

<p>The remedy of heirs for the rents and profits of real estate occupied by the widow of the testator, is, at law, and not in equity, unless they can show some peculiar equitable ground for the interference of the Court.</p>

<p>A Court has no power to make an alteration in the record after the judgment, in the absence of the defendants, and without their consent.</p>

<p>Assumpsit by Dundas, Lewis, Jones, Pittfield, and Howell. Tbe declaration averred that the plaintiffs were the owners of a certain tract of land, cfcc.; that the defendants made their certain writing, &a., whereby they acknowledged themselves tenants on said land, and agreed to pay the plaintiffs, &c. An agreement was produced corresponding' with that set out in the declaration except that it was signed “ T. Kirby, agent for James Dundas and others." Held, that it was not sufficient to prove the contract declared on without proof of its execution or explanation.</p>

<p>A discharge in bankruptcy is not a bar to a suit by one co-surety against another, for contribution, where the entire debt of the principal was paid by the plaintiff after the discharge of the defendant, and for which the parties litigant are bound as sureties.</p>

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

<p>Assumpsit upon a note payable in a horse worth 40 dollars and in cash, notes for the balance. The third and fourth pleas stated that the note was given in consideration of a tract of land conveyed by deed with a covenant against incumbrances; that at the time of the conveyance there were unpaid taxes oil the land unknown to the defendant; that the land was sold for these taxes and certificate given to the purchaser. Non assumpsit was also pleaded. Held, that the pleas were bad because they did not show that the land was not redeemable, or that there was an eviction under the incumbrance. Held, also, that the sustaining of demurrers to these pleas was no injury to the defendants ; for, if the pleas were a defence, the facts stated in them could have been proved under the general issue.</p> <p>The fifth plea alleged that, on the day the note became due, the defendant offered td deliver to the payee a horse worth 40 dollars; that he always had on hand a horse worth that amount ready to pay on the note; that the payee refused to receive the horse. Held, that the plea was bad, as there can be no legal tender in such case but of the whole that is due.</p> <p>Promissory notes which are tendered in payment, should be indorsed.</p> <p>A note payable in property may be declared on without setting out the consideration.</p>

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

<p>APPEAL from the De Kalb Circuit Court.</p>

<p>To maintain a suit on a note for the purchase-money of land, which is payable at the same time that the deed is to be executed, it is not incumbent on the payee to make an absolute tender of the deed; it is necessary but to offer it on the specified day, on condition of the defendant at the same time paying him the note.</p> <p>A plea that the payee was not, when the note was sued on, nor had he been from thence hitherto the owner in fee of the land is good, as it virtually denies the plaintiff’s ownership on the specified day on which he was to execute the deed, on payment being made to him by the defendant.</p> <p>A re-pleader will not be granted to a party who has committed the first fault in pleading and when the issue has been found against him, but where the issue is found in favor of such party he may have a re-pleader.</p>

<p>A recognizance cannot be impeached collaterally for the want of incapacity occasioned by drunkenness of the person by whom it was acknowledged.</p> <p>An execution issued after the year without revival, cannot, upon that ground alone, be avoided in a collateral suit, by one who was not a party to it.</p> <p>On a judgment against several joint defendants, an execution- may issue without an affidavit indorsed thereon, that the defendants have not sufficient property in the county in which they reside to satisfy said judgment, to any county in which any one of the defendants may reside.</p>

<p>A confessed judgment, rendered by a justice in favor of bis brother, is not void.</p>

<p>To sustain a suit for damages, on a covenant to convey real estate, occasioned by the non-conveyance, the plaintiff must show a demand of a deed or a sufficient excuse for the failure to make it, and the covenant- or’s want of title is a sufficient excuse.</p> <p>The defendants covenanted to convey to the plaintiff 200 acres of land such as they should select out of a tract they owned in Union township, &c., if the plaintiff elected to take them, on his paying the purchase-money. The plaintiff alleged in his declaration, that the defendants selected the said 200 acres, (describing them,) but they had not conveyed, <fcc. Held, that the declaration was not bad under the statute of frauds in not showing a covenant containing a particular description of the land to be conveyed, and that the plaintiff might prove by written, if not by oral, testimony, the selection of the land.</p> <p>An agreement contained a number of stipulations, damages for tlie breach of some of ’which would be certain, and of others uncertain, and contained a mutual covenant, that if either party should fail “ in any particular to abide by, observe, and perform the above written agreement, or any article, clause, covenant, or promise therein contained, by and on his or their part to be observed, kept,” &c., “ the party so failing, &c., shall pay the other party 10,000 dollars (and no greater or smaller sum) as, and for the damages occasioned by such failure,” &o. Held, that the sum was to be regarded as a penalty and not as liquidated damages.</p>

<p>Tho statute of 1848, in relation to mortgages, applies to mortgages executed, before its passage.</p>

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

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

<p>Probate Courts are Courts of general jurisdiction.</p> <p>Where there is a variance between the original petition for partition on file, and the entry on the order-book as to persons made parties to the petition, the latter must be taken as the authentic exposition of the facts.</p> <p>In proceedings on an application for partition in the Probate Court, it is sufficient that the record state there was satisfactory evidence of due service of process or publication of notice.</p> <p>Judgments of Courts of general jurisdiction having jurisdiction of the subject matter, cannot be impeached collaterally for error therein.</p>

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

<p>ERROR to the Tippecanoe Common Pleas.</p>

<p>An open book account cannot be assigned so that the assignee could sue thereon in his own name.</p>

<p>Notes given to the husband for the purchase-money of the land of the wife, and secured by mortgage to him, become the property of the husband, and when he dies they pass to his administrator, though it was the intention of the wife that the proceeds of the land should be appropriated in a certain way for the benefit of herself and children.</p> <p>In such case, an entry of satisfaction, by the administrator of the deceased husband, of the decree of the foreclosure of the mortgage, in consideration that the mortgagor would convey the land to the wife, is a fraudulent violation of the administrator’s duty, and the mortgagor and his grantees are parties to it, and it is void as to those who have an interest in the due administration of the estate.</p> <p>The administrator can complain of such fraud, and, by bill, have such entry of satisfaction set aside, and the non-joinder of the representatives of the former administrator is not a fatal objection on the hearing or in error to this Court.</p>

<p>An unliquidated, demand for damages is not a proper subject of set-off in an action at law.</p>

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

<p>It is not necessary in an indictment for permitting a horse to be run on a public highway, to state the termini of the highway.</p>

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

<p>In an action on a bond, a plea alleging that tbe defendant bad not broken bis said covenant in manner and form, &c., is good on general demurrer.</p> <p>A plea, that the bond was executed under a mistaken impression of its legal effect made on tbe defendant’s mind by tbe plaintiff, is bad.</p> <p>A defendant cannot plead contradictory matter to bis own bond.</p> <p>A plea of leave and license, to be good, must allege the leave and license to have been given by deed.</p> <p>The defendant agreed, for a valuable consideration, that if be should, after a specified time, practice medicine, &c., within certain limits, tbe plaintiff should recover of him 1,000 dollars as liquidated damages. Tbe Court instructed the jury that if they found tbe issues of fact for tbe plaintiff, they must assess the damages to that amount. Held, that the instruction was correct.</p>

<p>A fieri facias was levied, on the dower estate of the defendant. The Court set the levy aside on the ground that the personal property had not first been demanded. The order setting aside the levy contained a provision that the execution should be a lien on the personal property. A venditioni exponas issued directing the sale of the dower estate, and before sale the defendant died, insolvent. The plaintiff filed his bill to compel the appropriation of the entire assets of the estate to the payment of his debt, and the bill was dismissed on demurrer. Held, that he had-no lien on the personal property, and the bill was properly dismissed.</p>

<p>Assumpsit on a written contract to deliver a boat laden with corn on its arrival at New Orleans. Tlie boat sunk before if left the Wabash river, and the corn was destroyed. The defendant introduced oral testimony to show that the boat was delivered to the plaintiff at the time the contract was made. The Court instructed the jury that the only question was, whether the transfer or delivery of the property was made at the time the contract was completed. Held, that if it was admissible to prove by oral testimony such a delivery, the question was one of fact for the jury, and the defendant could not complain of the instruction.</p>

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

<p>McGarey’s enlargement of Evansville was intended to correspond with the original plat of that city, as to Hie size of the blocks.</p>

<p>An action for slander. The declaration alleged, by way of inducement, that the plaintiff was an unmarried woman, and the sister of Jesse Millison, and then alleged that the defendant, in the presence of divers persons, spoke and published the following false, <£tc., words, namely, “all the bravery you ever showed was in sleeping with your sisters,” (meaning the plaintiff,) thereby meaning that the said Jesse had been guilty, <fec. Held, that the extrinsic facts were not sufficiently alleged, and therefore the count contained no cause of action.</p>

<p>A Court granting a divorce on the application of a wife for tire cruel treatment, &a., of her husband, cannot, by decreeing alimony in lieu of dower, divest her of her dower-interest in her husband’s real estate.</p>

<p>An indictment for malicious trespass, charged that the defendant maliciously destroyed, &c., divers windows of the county seminary building, &c., the property of the county of Sullivan, &c. Held, that the indictment was good as in effect charging a malicious injury to public property. Held, also, that the injury charged was stated with sufficient certainty.</p>

<p>Debt on a promissory note given for the rent of certain lands leased to the defendant by the administrator for one year. The defendant proved that during the term of his lease a portion of said lands were sold to pay the debts of the intestate, but the defendant occupied the premises to the full end of his term. Held, that these facts did not constitute a sufficient defence.</p>

<p>A draft from the post-office department on a post-master, in a suit by the holder against the post-master, is no evidence of a demand against the latter, unless he accepted or promised to pay it.</p> <p>A due bill payable in bankable paper “when wanted,” is payable on demand, and will not draw interest until demand is made.</p>

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

<p>An officer levying on personal property must use ordinary diligence in preserving it. He may entrust sucli property to tke care of a servant, or tke execution-defendant, wko is required to use tke same degree of diligence, and tke officer is liable for kis negligence.</p> <p>If property levied on by an officer be carried off by kigk water, and tkat fact would excuse kim from selling it to make tke money on tke execution, it would be proper for kim to return suck fact as tke reason of kis not soiling tke property.</p>

<p>A. received a deed for land from B., and on tíre same day mortgaged it to the latter for the balance of the purchase-money due. A. died in possession, and B. assigned the mortgage to a third person, who foreclosed it. Held, that, under the statute of 1838, the widow of A. was entitled to dower in the equity of redemption — that being all the interest of her husband —and if the land had sold for more than the debt, she would have been entitled to dower in the surplus.</p>

<p>Assumpsit before a justice, and judgment for the defendant for 9 dollars. Appeal by the plaintiff to the Circuit Court, 'who there moved to dismiss the cause for irregularity in the proceedings before the justice. The defendant resisted the motion and judgment was rendered for the plaintiff for one cent and costs. Held, that there was no error in the judgment for costs, and the defendant could not object to the refusal of the Court to dismiss the cause.</p>

<p>Proof of the execution of a bond may be made by proving the hand-writing of the subscribing witnesses, after first showing that they do not reside in the state.</p>

<p>A common camel can maintain an action for a breach of a contract made with him by a master of a canal boat respecting the transportation and delivery of freight, and he may show by parol evidence that a receipt was given him by the master as captain of such boat, and that the freight named therein was to be earned by his boat.</p>

<p>A person is competent as a witness when, in the event of the success of the party against whom he is called, he would he liable to a less amount than he otherwise would if the party who called him should succeed.</p> <p>A. sold a tract of land to B., he sold it to C., and he sold it to D. and E. No deeds or contracts were executed, but each toot possession at each sale. B. never received any of the purchase-money from C., but the latter fraudulently collected the proceeds of a note which he assigned as the consideration. Held, that C. could not enforce a specific performance; neither could D. and E., as they acquired no equity greater than C. possessed.</p>

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

<p>£n a suit by the assignee against the assignor of a promissory note, it is not necessary to prove the execution of the note ; and if the note is a forgery, the indorser is liable on his indorsement.</p> <p>When objection is made to evidence, the record must show the causes of objection, and that they were pointed out to tlie Court below, or the overruling of the objection cannot be assigned for error.</p>

<p>The statute of 1843, requiring the county auditor to make out a list of all lands returned or remaining delinquent for non-payment of taxes, on the first day of October, annually, also requires the publication of the same, together with a notice of sale, immediately thereafter, for four-weeks successively, in some newspaper in the county having general circulation; and a publication of such list and notice fifty days thereafter is not a compliance with this statute, and a sale of land under such notice is void.</p>

<p>APPEAL from the Delaware Circuit Court</p>

<p>A note is prima facie evidence of settlement between the parties at tbe time of its date, and, in a suit on a note, the payee should not have judgment on his set-off, the items of which accrued before the date of the note, without evidence adduced to remove the presumption of settlement.</p>

<p>An indictment against the clerk of the Circuit Court of Warrick county, commenced as follows: “ ss. The grand jurors impanneled and sworn,” ¿sc., “ upon their-present.” Tho attorney for the state obtained leave to amend by inserting the word “ oath.” The first count alleged that tho money was extorted from tho comity of Warrick; the second count alleged that the money was obtained from the board of justices doing county business in said county. Held, that there was no error in the amendment, and that the second count was good. Held, also, that the county was a body politic, and may be the owner of money, and if money be extorted from its officers, the indictment may allege that the money was obtained from the county.</p>

<p>The Probate Court, when satisfied that any removed executor or administrator has assets in his, hands, can compel the payment or delivery thereof to the administrator or executor entitled thereto, by attachment or distress infinite; but such Court is not authorized to make a compulsory order in favor of such removed administrator or executor against his successor for a balance due by the estate to the former.</p>

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

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

<p>A. rented a field to B. to raise a crop of corn, and was to have bushels of corn per acre, or half of the crop standing in the field, as he should elect, for the rent; before the crop was made C. became the owner of A’s interest by assignment.. B. received no notice of the manner in which A. would elect to receive the rent, and no division of the corn or field was made, and C. turned a number of hogs on the field. The Court instructed the jury that the act of turning the hogs on the field was trespass. Held, that there was no error in this instruction.</p>

<p>The provision made by law for the support of the poor is a charitable provision, and the commissioners of a county cannot sue a husband for the support of his wife, who is a pauper.</p>

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

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

<p>The act of 1844 regulating the practice of law in Allen county, provides that if either party fails to comply with any rule on or before the proper rule day, the clerk shall note such failure on the rule book, and judgment shall be entered thereupon against the party in default, unless the Court for cause shown and on an affidavit of merits, shall set such default aside.</p>

<p>Heirs to whom land, has descended, and which has been sold by order of Court, may have the administrator’s sale to himself set aside by application in a reasonable time,|upon payment of the purchase-money and the value of the improvements. ^</p>

<p>An execution-defendant may waive tiie benefit of the condition in a delivery-bond which is prescribed by statute, and which permits him to sell the property at private sale, and, when sold, pay the appraised value thereof.</p> <p>In a suit on a delivery-bond, damages should not be given on the costs.</p>

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

<p>A legatee, whether general or specific, must obtain the executor's assent to the legacy before his title to the legacy can be complete and perfect; and if the legatee takes possession of the thing bequeathed without such assent, the executor may maintain trespass or trover against him.</p> <p>If the executor refuse his assent to a legacy without cause, the legatee is entitled to relief in equity.</p> <p>The executor can maintain a suit on notes and mortgages given to the testator, and which were by him specifically bequeathed.</p>

<p>A sheriff sold a tract of land worth 20,000 dollars, which was susceptible of division, on execution, for 75 dollars. There were but four persons present at the sale. Held, that the sheriff should have offered the land in separate parcels; and that it was his duty to exercise a sound discretion and not to strike off the property for a merely nominal sum.</p> <p>Objections to a sheriff’s sale may be made in an action of ejectment.</p>

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

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

<p>A grant of land, except as a release, is void as an act of maintenance, if at the time the lands are in the actual possession of another person claiming under a title adverse to that of the grantor.</p>