Volume 1 — Smith & Heiskell's Reports

Trespass. First count, for making a parish tax (First Parish in Amherst), Dec. 81, 1795, and illegally assessing the plaintiff seventy-five cents; making a warrant, directed to N. Kendall, by virtue of which he arrested the plaintiff, Jan. 1, 1798, and imprisoned him four days, till he was compelled to pay the tax and one hundred dollars to obtain his release.

<p>Amendments. — Effect of amendments made by striking out the names of some of the parties.</p> <p>Payment, — The right to direct the application of.</p>

Slander. Plea, not guilty. Verdict and judgment for the plaintiff. The Court instructed the jury inter alia as follows : “ The facts of uttering the slanderous words at divers times show malice, and ought to be taken in view by the jury in aggravation of damages.”

Scire facias to have execution on a justice’s transcript. The gene lacias alleges that the transcript of the judgment was filed on the 17th of August, 1842, in the clerk’s office, and that on the 26th of September, 1842, a certificate of the justice was filed, stating that on the 1st of September, 1842, an execution had issued on the judgment, which was afterwards, on the 7th of the same month, returned nulla bona. Demurrer to the scire facias, and judgment for the defendant.

<p>APPEAL from the Floyd Circuit Court.</p> <p>Ejectment for a lot of ground in the city of New Albany. The lessor of'the'plaintiff succeeded below, and the defendants appealed to this Court.</p> <p>The lessor of the plaintiff claimed title under one Hannah 31. Hallowed, and gave in evidence, among other things, the record of a suit in chancery, prosecuted in 1829, in the Floyd Circuit Court, to enforce the specific performance of a contract for the sale of said lot by J. N. and A. Scribner to the father of said Hannah. In this suit the said Hannah was plaintiff, and the heirs of J. N. and A. Scrih-iter — some of them infants — were the defendants. There was a. decree in favor of the said Hannah, and a conveyance was accordingly made, to her, by a commissioner, by order of the Court. It was contended that the decree was void, because the record did not show notice to the infant defendants. The record states that the bill was tiled at the 31ay term, 1829; that thereupon a guardian ad litem was appointed for the minor defendants; that at the October term, 1829, the plaintiff and the adult defendants appeared, &c., and that the infant defendants by their guardian ad litem, came and filed their answer, &c. The record does not state that process was issued or notice given by publication.</p>

<p>Promissory Notes. — In a suit by an assignee against the assignor, it may be shown in excuse for a want of diligence in sueing the maker, that the delay was authorised by the assignor.</p>

<p>ERROR to the Parke Circuit Court.</p> <p>At the August term, 1845, of the Parke Circuit Court, John P, Usher, an attorney of said Court, filed an affidavit, stating, in substance, that he was one of the solicitors of Denny Cook, who had heretofore filed a petition in the Probate Court of said county of Parke for the payment of a legacy bequeathed to him by one Jacob Helms. deceased, making the executors of the decedent and one William Helms parties; that afterwards while said cause was pending in the Probate Court, in the absence of the petitioner and his solicitors, who believed the cause would be continued pursuant to an arrangement previously made by the affiant with one of the solicitors of the defendants, and therefore did not attend, the defendants insisted upon a trial, and a decree was rendered for so small a sum as to be unsatisfactory to the petitioner; that at the next term after this decree was rendered, or as soon as he could do so after hearing that a trial had been had in his absence, the petitioner made a motion to have the proceedings set aside as void, and the Court then proceed to try the cause; which the Court refuted to do. Upon this affidavit an alternative mandamus was issued by the Circuit Court, requiring the probate judge either to proceed and try said cause, or to certify his reasons for refusing so to do. The probate judge refused to re-try the cause and returned an answer denying the jurisdiction of the Circuit Court to enforce a decision of the said cause by mandamus, or to take cognizance of his proceedings therein, in any other manner than by appeal or writ of error. To this answer there was a demurrer which was sustained, and it was thereupon ordered that a peremptory mandamus issue requiring said judge to vacate the decree entered in said Probate Court, and forthwith to proceed to try or otherwise dispose of said cause according to law.</p> <p>The probate judge, Marshall, prosecuted this writ of error to reverse the above order.</p>

Assumpsit upon a promissory note made by Oldffidd to one Grover, the assignor of Stephenson,, who was the plaintiff below.

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

This was an application by John Sheets, for a partition of two certain tracts of land. In Ms petition he alleged that he was tenant in common of one of the tracts with four of the defendants, and of the other tract with the same four persons together with two others. The petition was taken for confessed and commissioners were appointed to lay off the tracts into town lots, and make partition by dividing the said lots. . The partition was confirmed by the Court,

This was an action of debt upon a bond executed by the appellants to the appellee, for the due prosecution of an appeal from an award in favor of the appellee, on a claim for damages sustained by the construction of the White Water Valley Canal, prefered agreeably to the eleventh section of the charter of said canal company.

The bond was for the penalty of 500 dollars, and was apon condition that Shoup should make a deed to Cook and Cochran, as soon as he himself should obtain a deed for said tract of land from “ the estate of James Polls, deceased.” The bill then alleged that at the time of the contract Shoup was entitled to a deed from the heirs of said James Potts, and that on proper application to the Circuit Court of Franklin county, he could readily have procured one, but that he had…

Assumpsit. Plea, the general issue. Trial by jury; verdict and judgment for the plaintiff. Upon the day the cruise was docketed for trial, it was not heard, but continued to the tenth day of the term.

This was an action of ejectment, in which the children of one John Martin by Ms first wife were the lessors of the plaintiff, and the husband of his only child by a second wife ivas the defendant. Judgment for the plaintiff.

Debt by the plaintiff in error on a sheriff’s bond. Breach, that the relators had recovered a judgment in debt against Conover and Shaw ; that afterwards, the special bail surrendered said judgment-debtors and they were committed to the custody of the sheriff, who voluntarily suffered them to escape. The process in this suit was returned served on all the defendants except the sheriff, and was returned as to him not found.

This was an action to recover $80, had and received by the defendant to the plaintiff’s use. The general issue was pleaded.

This was a proceeding instituted to require the auditor of Marion county, to issue an order to the county treasurer, according to the provisions of sec. 117, eh. 12, 11. S., to refund the money paid by Langsdale, as purchaser of a certain tract of land sold for state and county taxes. The land was mortgaged to the state in 1836, to secure a loan made by the commissioners of the sinking fund.

Attachment, commenced by the plaintiff’s in error against Clarke and others, before a justice of the peace. Judgment by the justice against all the defendants on the 10th of June 1844. On the 3d of July, 1844, one of the defendants filed an appeal with the justice, which recites that he had appealed from the judgment, &c. The justice certified to the Circuit Court, at different times, three separate transcripts of his judgment, the last of which is considered the correct one.

This was a suit in chancery instituted by Seth Way against Man-love Crancr, Thomas Crancr and Mark Patty, to enforce an alleged lien upon certain real estate sold by the plaintiff. The bill charged that on the 25th of March, 1839, the plaintiff sold a certain farm to Manlove and Thomas Crancr, and conveyed the same to Manlove to be held in trust for himself and his co-purchaser.

<p>Tlie estate of a surety in a bond to the sheriff, for the faithful execution of office by :i deputy, remains liable for defaults of the principal which happen after the death of the surety.</p>

This was an action of assumpsit. The declaration stated that the defendant, at W., Dec. 11,1799, in consideration that the plaintiff, at the request of the defendant, had delivered him two feather-beds, with the furniture thereto belonging, of the value of $70, by his memorandum of that date, promised the plaintiff to redeliver the same to him on demand ; yet, though requested, at -r, on -, to do so, he had not done it, but had neglected and still neglects it.

Debt on judgment recovered February Term, Superior Court, Rockingham County, 1799; amount $1297.77. 1st plea. The judgment now sued reversed in part on review. Demurrer; joinder. [Other points which were raised in the case are omitted in this report.]

<p>Debt, to recover penalties for selling rum by retail without license.</p> <p>The declaration contained several counts. The first was as follows: —</p> <p>For that the said Joseph and Abigail, at said Brentwood, on the eighth day of December, 1801, they being then and ever since partners in trade at said Brentwood, without license first had and obtained in writing from the selectmen of said town of Brentwood, to which the said Joseph and Abigail then and ever since have belonged, did sell two gills of rum unto one D. L. in a less quantity than1 one pint by them sold and delivered at one and the same time. And the said Joseph and Abigail did then and there commit an offence against the law in that behalf made and provided; whereby they have forfeited, &c., and a plea hath arisen and accrued to the said Brown to demand, have, and recover, of the said Joseph and Abigail, the aforesaid sum of $6.66, to be disposed of according to law; yet, though often requested, they have not paid said sum, but detain it.</p> <p>The other counts were similar to the first.</p> <p>Demurrer to the whole declaration, and joinder.</p> <p>Two objections were made : —</p> <p>1. That the declaration does not conclude contra formam statuti.</p> <p>2. That two persons are jointly sued for an offence which in its nature is several.</p>

Davis, the plaintiff in error, sued Melvin and Bass in an action of trespass. Upon a motion for a new trial, one of the reasons filed was : — “ That the defendants daring the progress of the cause treated some of the jurors trying the cause, to spirituous liquors.” In support of his motion, and to establish the fact of such treating, '• the plaintiff proposed and offered to examine orally, on oath, Phillip Rider and William Pro, to which the defendants objected.

Trover for a swarm of bees. There was a second count for two hundred pounds of honey in the comb. The case was, the plaintiffs found a swarm of bees in a tree on the [defendant’s] land in Claremont, marked the tree, and notified the defendant, who cut down the tree, September, 1803, and converted the honey to his own use.

<p>APPEAL from the Franklin Circuit Court.</p> <p>This was an action brought by Dow against the appellants. The declaration alleged that the defendants,maliciously, &c., and without any reasonable or probable cause, procured a writ of attachment to be issued by a justice of the peace, commanding Braving, who was a constable, to summon one Boden, the captain of a certain canal boat of the plaintiff’s to answer the Canal Company in a plea of debt under 100 dollars, and also to attach the boat, &c.; that tin* constable by virtue of said writ, and by direction of said Canal Com pany attached the boat, being of the value of 800 dollars, which boat, through the negligence of the constable ivas afterwards sunk; that the writ was returned, the cause tried on its merits, and the defendants and the boat acquitted and discharged. Plea, not guilty. Verdict and judgment for the plaintiff.</p> <p>The main points relied on by the appellants arc stated in the following extract from the opinion given by the court.</p>

This was an action on the case. The declaration stated that the' defendants were duly appointed and qualified selectmen and assessors for the town of Langdon for the years 1787, 1788; accepted, and entered upon the duties of the said offices; “ that the defendants, as such officers, were by law obliged to make out under their hands, and deliver to the collector of taxes for said Langdon, for said years, a good and sufficient list of the rates and taxes by the said collector…

This was an action of debt. The declaration alleged that on the 18th of March, 1845, Wilson procured a writ of domestic attachment to be issued by the clerk of the Jennings Circuit Court against the property of Sumpter, which writ was delivered to the sheriff, who by the direction of Wilson took into his custody certain personal property of the plaintiff of the value of 235 dollars and 40 cents; and that said Wilson and Smith Vawter, made and filed their bond, condi. tioned…

This was a motion for a supersedeas in the case of a judgment of the Tippecanoe Circuit Court. The applicant, Rufus A. Lockwood, an attorney and counsellor at law, in obedience to a subpoena, appeared before the grand jury of the said court, to give evidence.

Rill in chancery against Henderson, Stapleford, and Prichard. It was shown by the record that on the 26th of October, 1844, the complainants appeared, and the defendants, Henderson and Prichard, also appeared. Stapleford, being called, made default, and on motion of the complainants’ solicitor, a demurrer to the bill, which had been filed by Prichard, was overruled, and upon like motion, a plea, which had been filed by Henderson, was rejected.

Debt on an official bond, against a constable, and his sureties. Two breaches were assigned. 1st. Failure to return an execution. 2d. Failure to collect the money on the execution. The defendants filed a plea to the first breach, alleging, in substance, that on the 10th oí May, 1845, the said Northern, he having previously gone out of office, delivered said execution before the return day thereof and before it had been executed, to one Peter II.

Debt against the defendant in error as one of the obligors of a joint and several bond, purporting to have been executed by the corporation of the town of Lawrencehurgh, with the defendant and several other persons as securities. The bond was made payable to the State, and the condition was, that said corporation would fit up and repair certain public buildings for the use of the county of Dear-born.

This was a bill in chancery to foreclose a mortgage. The bill was taken for confessed and a decree rendered for a sale of the mortgaged premises. The bill contained no allegation as to whether any proceedings had or had not been had at law for the recovery of the mortgage-debt, and this omission of the bill was assigned for error.

An indictment was, in this case, quashed in the Circuit Court, on the ground that it did not sufficiently state the time when the alleged offence Was committed.

EJECTMENT1 for a parcel of land in Plymouth, eighteen acres. The plaintiff declared that James Gorman was seised April 15, 1795, and conveyed to plaintiff to bold in mortgage. Plea: not guilty. The condition of the mortgage was to pay $110 in thirty months, with interest. The defence was payment. Melven’s creditors attached this debt due from Gorman ; and he has paid, or will be compelled to pay, the whole debt, principal and interest. There were several attaching creditors.

AL from the Carroll Circuit Court. on a note for fifty-five dollars. Plea, nil debet. It was aat before the plea was put in, the parties were together disputing about the amount due on said note, which amount ivas fixed at forty dollars, — that that sum was paid, and it was agreed that the suit commenced on the note was settled and to be dismissed at the plaintiff’s costs.

A petition was filed by the plaintiff in error, praying for the assignment of dower in lands of which her husband was seized during coverture, and which were aliened by him to the defendants in 1838, the petitioner having been, in 1844, divorced from her said husband upon a bill filed by her against him.

The plaintiff having procured an assessment of damages sustained from trespassing animals, filed it in the office of a justice of the peace, in the form prescribed by § 5, eh. 22, II. S.; appending thereto a statement that the animals were the property of the defendants. The justice thereupon issued a summons against the defendants, who appeared and moved to dismiss the cause for want of a sufficient cause of action.

Replevin, by the appellants against the appellee, for a canal boat. Pleas, 1st. non cry/I; 2d. non th'tinct; 3d. property in the defbndant 4th, 5th, and 6th. property in other persons. There was a trial by jury which resulted in a verdict for the defendant. Motion for a new trial overruled and judgment Jr idoiito.

This was debt on bond with condition to pay what should be awarded on special submission of certain actions then pending in court (the submission to be by rule of court) between plaintiff and tlie defendant Hobbes. After oyer of the bond and condition, the defendant Hobbes (Leavit, the other obligor, died since the commencement of the suit) pleaded, in bar, general performance.

This was a suit by the administrator of Samuel Reser deceased, against Jacob Reser, the father of the said Samuel, to recover eom-pensation for services rendered by the latter for the said Jacob, after the said Samuel came to thé age of majority and before he left his father’s house. The services rendered, were such as the said Samuel had been accustomed to render before he arrived at majority, and without any agreement on the part of his father to pay for them.

Debt for the value of forty-nine cords of wood. The defence set up was, that the wood was delivered in part payment for a tract of land, bought by a parol contract under which possession had been taken, improvements made, &c.

<p>ERROR to the Shelby Circuit Court.</p> <p>Scire facias in 1846, to obtain an award of execution upon a judgment rendered in 1840. Plea, a discharge obtained by the defendant, as a voluntary bankrupt, under the act of Congress of 1841. Replication, that before and at the time of such discharge, the defendant, Gatewood, was seized of an undivided seventh part of a certain tract of land, to wit, &c., in the following manner: One John Hughes being seized in fee simple of said tract, conveyed it by deed dated May 25th, 1833, to one Saudi Gatewood during her natural life and to her children (the defendant being one of them) and their assigns forever.</p>

<p>On motion in this Court to tax docket fees.</p>

The plaintiff, as administrator of E. Bacbelder, exhibited a claim to the commissioners appointed to receive, examine, and adjust the claims of the creditors to the estate of Jer. Stiles, deceased, represented insolvent, and under the administration of the defendants, his sons. The claim was this: The intestate, Jer. Stiles, was administrator of Breed Bacbelder.

Debt by Smith, administrator of Sweetzer, upon a sealed note made by Coe in favor of Sweetzer, for the payment of 500 dollars, one third in one, one third in two, and one third in three years from date.

Assumpsit, by an assignee against the makers of a promissory u note governed by the law merchant. The defendants pleaded, inter mi.alia, .that the note was assigned to the plaintiff only as collateral se- ■ 1 curity for certain money lent and advanced by him to the payees; ■kthat said payees had, before 1 he commencement of the suit, fully ■Í; repaid the plaintiff the money so lent, and that the defendants had paid the payees without notice of the endorsement.

This was an action on the case. The declaration stated, in substance, that the plaintiff was and is the owner of tbe privilege of a ferry across Connecticut River, at the landing-in Orford, and extending two miles above and two miles below; and that tlie defendants, without leave from the plaintiff, erected a bridge, September, f 802, across the river within tlie plaintiff’s privilege, and have kept it there ever since; wliereby tlie plaintiff is injured in his ferry and…

Assumpsit upon a promissory note. Pica, that the note was given for a part of the purchase money of a tract of land ; that a bond for a deed was given ; that the purchase money was all due ; that no deed had been tendered, and that none could be made, &c. Oyer of the bond and condition was obtained and the plea demurred to. The demurrer was overruled and final judgment rendered for the defendants. The bond was in the, usual form.

Trespass on the case. The declaration contained two counts. The second only need be noticed.

Assumpsit by Adair for the use of Burke, against Mountjoy, upon the following WTitten instrument: “ Know all men by these presents, that I, G. B. Mountjoy, do hereby bind myself to furnish Wilson Adair with the running gears of a good, new, two-horse wagon, equal to a wagon which James Wood is to make for Lemuel Burke, and to furnish said wagon on or before the 25th of December next, and also to lift a note that George Miller holds against the said Wilson Adair and due on…

<p>ERROR to the Jefferson Circuit Court.</p> <p>The plaintiff in error brought an action on the case against the city of Madison, alleging that on, &c., he was the owner of a tan-yard with tenements, fixtures, and large quantities of leather; and that the defendant erected a culvert and embankment across a certain stream on Second street, in said city, which was so unskilfully and carelessly erected, that by means thereof large quantities of water were made to overflow said tan-yard, which water injured and destroyed the property therein, to the plaintiff’s damage, Ac.</p> <p>The defendant pleaded, 1st, Not guilty. 2d. That said culvert was built-with the consent of the plaintiff, and that it was a benefit to him and of public utility. Issues were joined upon the pleas. Trial by jury, and verdict and judgment for the defendant.</p> <p>Upon the trial the plaintiff proved from the records of the city of Madison, that a resolution had been introduced at a meeting of the common council of said city, directing the appropriation of a sum of money for the improvement of a certain road, and that afterwards allowances had been made to divers persons for building a culvert and making an embankment on said road near Ross's tan-yard. The plaintiff, then, having shown that there were no other entries on the records relating thereto, offered to prove by parol, that the culvert described in the declaration was built under the superintendence of a committee of the council, and that appropriations were af-terwards made by the council to pay for the labor and materials employed and used in its construction. The parol evidence offered was excluded, and the Court instructed the jury, that if they found that the entries read from the records, constituted all the written evidence tending to prove that the defendant authorised the eon-struction of the culvert described in the declaration, they must .find for the defendant.</p>

Assumpsit for money had and received by the appellees against the appellant. Plea, the general issue. The facts were substantially as follows: Boyd and others, the plaintiffs below, recovered a judgment in the Tippecanoe Circuit Court, on the 19th of August, 1839, for 2583 dollars, against one Taylor. On the next day, in the same court, Starr & Smith obtained a judgment against the same person for 1112 dollars.

Indebitatus assumpsit, to recover one thousand dollars, money paid, laid out, and expended for defendants at their request. Plea : the general, issue. The following case was agreed on for the opinion of the Court. One Edward Hart recovered judgment and had execution-against the defendants. Little was arrested by plaintiff, a deputy sheriff, and escaped from his custody.

This was ejectment for two hundred acres, viz., Lot No. 55, in Barnstead. The plaintiff claimed to hold under deed of mortgage from John Drew, executed Sept. 26, 1795, received and recorded same day, about nine o’clock, P.M. John Drew’s title was by levy of execution on judgment against Andrew Drew and Jonathan Williams, April Term, 1794. Execution issued May 12, and was levied May 15, and returned to the office October, 1794.

The original action was ejectment, to recover land in Durham. The plaintiff claimed by virtue of levy of execution on the premises as John Drew’s property. Attachment on mesne process, July 25, 1795. Judgment at Strafford, May Term (24th), 1796; and levy made, and seisin delivered, June 21, 1796. John Drew’s title was by levy of execution on a large tract, of which the premises are a part.

On trial, before the jury, of the issue whether trustee or not, the evidence was that defendant acknowledged he owed John Ryan, son of Michael Ryan, the principal debtor, for services performed by John Ryan, who, it was agreed, was, at the time of performing the service, under the age of twenty-one. There was no evidence that the son was hired by the father to Brown, or that any contract had ever been made between Brown and Michael Ryan, respecting hiring the son.

This was an appeal from the decree of the judge of probate, making division, partition, or distribution of the estate of Benjamin Bellows, deceased intestate, among the heirs, viz. the appellant, and the appellee, in right of his wife. Both applied for division. The decree was made May 10, 1804 ; the same day appeal claimed and allowed.

This was an action of debt on a judgment rendered by Constant Murdoch, Esq., a justice of the peace for the County of Windsor, in the State of Vermont, on Aug. 29, 1801, for damages, #27.19, and costs, #3.08. Execution issued same day, and is returned in no part satisfied. The defendant, by leave of court, pleaded two pleas in bar.

<p>Official Bonds. — The effect of striking out the names of some of the sureties, and substituting new names for the purpose of releasing the sureties whose names are thus stricken out, upon the liability of the obligors.</p>

Assumpsit upon a promissory note. Plea, non assumpsit, without oath. Judgment for the plaintiff. The declaration described the note as made by Andrew A, Loudon, without alleging that he made it by any particular name or description. The note produced was signed “ A. A. LoudonThe defendant objected to its admission, but the objection was overruled.

EKEOR to the Boone Circuit Court. Assumpsit by Long against Chrisman and McLaughlin, for money had and received, and money paid. Judgment for the plaintiff. It appeared, that in November, 1838, there was a judgment rendered by the Circuit Court of the United States, for this District, in favor of Blackley, Strong, and Simpson, against Chrisman and McLaughlin, for the payment of which one Nelson became replevin bail.

This was an action of assumpsit for a legacy of $333.34, given by the will of Otis Baker to Thomas Baker, payable in three years from the decease of the testator, Otis Baker.

<p>VENDING- Spirituous Liquors. — Toan action of debt for selling without license, a plea alleging that the corporation could not grant a license to the defendant held had.</p> <p>Held Also, that the suit could be maintained in this case though the penalty recovered would not be received by the county seminary.</p>

This was an indictment for perjury, on which the defendant was found guilty, and judgment was rendered against him.

The bill of complaint, in this case, alleged, that Harris, by an agreement in writing under seal, sold to Castleman, the undivided half of a tract of land, containing about 454 acres, upon which the town of Clinton was built. That Harris had paid one-fourth of the purchase money for said tract to the government, and for the remainder had taken the stay pursuant to an act of Congress on that subject.

<p>Estoppel. — To make recitals in a deed operate as an estoppel, it should be shown that the prantce came into possession under the deed or was in some way connected with it.</p>

This was an action of the case [against the sheriff of Cheshire County], for the default of Isaac Temple, one of defendant’s deputies, in not safely keeping goods of W. Mills, attached on mesne process, so as to be enabled to levy plaintiff’s execution, which issued in the same suit. The first count stated, that the defendant’s deputy did not retain the goods till thirty days after judgment, but, before that time, released and discharged them from the attachment.

In 1832, Walcott filed a bill against Patterson and Pickering, to foreclose a mortgage. Separate answers were filed by the defendants.

This was an action of assumpsit, founded on a promissory note. Writ dated May 26, 1804; service, July 25, 1804. Plea in bar. April 20, 1801, will of Benjamin Leavitt proved; Benjamin, executor, accepted and qualified. Samuel Phillips, then in full life, and inhabitant of Andover, Mass. Administrator of the same place.

This was an action of assumpsit. There were several counts in the declaration (for several causes of action), on all of which issues were joined to the country, and found for the defendant at this Term, except the third, which was on a note of hand for $2.38, payable on demand, with interest, date, Sept. 14, 1801; to which there was a plea of tender, Feb. 12, 1803, at Orford, of $2.60.

There was a change, of venue from f igo county to Parke county, in the case of an indictment against one Beauchamp. Charges by the plaintiffs in error for guarding the jail in Parke county to secure said Beauchamp, were allowed by the Parke Circuit Court, and duly certified to the Board of Commissioners of Vigo county.

<p>COVENANT.- — In an action to recover rent due on a lease of a ferry, &o., the defence set up was an eviction from the leased premises, — held that the facts did not sustain the defence.</p>

Assumpsit by John R. Whitcomb against Hugh Stewart, for goods sold, The only question before this Court, was whether the deposition of one George Stewart was properly admitted in evidence. The plaintiff had previously instituted a suit in the Vermillion Circuit Court, against the defendant and one TJ-ndes, for the same cause of action now sued upon, in which the plaintiff was non-suited.

INdictment for assault and battery on .Samuel Hall. Defendant was convicted. His counsel, Mr. Bell, moved, in arrest of judgment, that there was no evidence that the indictment was found by the grand jury. The bill was signed by the solicitor, D. Everett, and by the foreman of the grand jury. But the words, “ this is a true bill,” were omitted.

Replevin for the taking and detention of two sows, alleged to be the property of the plaintiff. The defendant pleaded specially, a purchase of the sows at a sale by the marshal of the city of Richmond, under an ordinance to prevent swine from running at large.

<p>Report of referees recommitted. One referee (by desire of the party against whom ‘ the report was, and at whose request it had been, recommitted) refused to hear the parties again. The other two referees reported the same as before, and additional costs.</p> <p>First report accepted, and costs of recommitment taxed.</p>

A bill in chancery was filed by Robert Campbell, the appellee, to foreclose a mortgage executed by William Campbell.

This was an appeal from a decree of the judge of probate, founded on a petition presented to the judge ; the appellant setting forth that she was the daughter and heir at law of Hall Jackson, deceased, and a legatee in his will, of which will Libbey, the appellee, was executor; that the executor, on Aug. 5,1800, presented to the judge of probate an account of his administration, which was examined and allowed the same day, whereof no notice was given to the appellant as the…

Case, by the defendant in error against the plaintiffs in error for constructing a mill-dam across a certain stream, below Browning’s mill, and thereby causing the water to overflow said mill, &c. The defendants pleaded the general issue and liberum tenementum. The latter plea was demurred to and the demurrer sustained.

This was an appeal to the Circuit Court from the decision of the board of township trustees of Union township, Ohio county, to whom jurisdiction had. been given by a local law, upon an application for a re-view and re-location of part of a county road running through land belonging to Conaway.

<p>ERROR to the Dearborn Circuit Court.</p> <p>This was a bill in chancery, by certain of the heirs (some of them minors) of Col. Zcbulon Pike, deceased, against Gage, and others, also heirs of said Pike. Gage was the only defendant interested, the others being merely nominal parties. The bill charged, that on the 4th of October, 1827, the said Col. Pike, then being the owner of a certain tract of land containing seven hundred and fifty acres, and lying in Delaware county, Ohio, executed to said Gage, his son-in-law, a power of attorney to sell the same; — that Gage under said power, sold, during the fall of that year, to different persons, portions of said tract, making deeds and receiving payment therefor;- — that on the 10th of December, 1832, there being then unsold two hundred and ninety-two acres of said land, Gage, as attorney, as aforesaid, for the nominal consideration of 500 dollars conveyed them to one Rozencrantz, and immediately received from him a re-conveyance to himself; adopting this as a mode of vesting in himself the legal title thereto. The bill prayed that Gage should be required to account for the money received for the lands sold to strangers, and that the conveyance to himself should be set aside, &c.</p> <p>Gage answered, admitting his appointment as Pike's attorney, his sale of portions of said tract and receipt of payment, and the conveyance to Rozencrantz and re-conveyance to himself as charged in the bill; but insisting that he accounted to Pike in Ms lifetime for all the proceeds of said sales. As to the lands conveyed to himself, he said that Col. Pike was indebted to him in a sum exceeding their value, that he adopted the transaction complained of as a mode of obtaining payment, and that he settled with Col. Pike accordingly.</p> <p>The cause was submitted on bill, answer, exhibits, and depositions, and a decree was rendered, that Gage held said 292 acres in trust for the heirs of Pike, and that he convey to them severally, the portions specified in the decree.</p>

This was an action for money had and received, $50. The plaintiff claimed to recover two sums, one of $3.78, and one of $30. That part of the manuscript report which relates to the claim of $3.78 is here omitted. As to the claim of $30, the facts were, that in the taxation of costs, in a suit wherein Clarke had judgment against Robinson, Clarke certified that six witnesses travelled and attended who never did ; and their fees, $30 in the whole, were taxed.

Assumpsit by the appellant against Ilezekiah McMakin, Joseph G. McMakin, and William Henderson, upon a promissory note made by the three last named persons. Shaffer had procured a writ of foreign attachment against Ileze-kiah McMakin, on the 5th of December, 1842, which was, soon after, levied upon two horses.

The plaintiffs in error filed a bill in chancery to have a deed set aside. On the hearing the bill was dismissed. The material facts were as follows:— In February, 1842, John Sommerville, one of the defendants conveyed to Ms son Andrew, the other defendant, a tract of land worth about 500 dollars, and with the exception of a small amount of personal property, being all the property he possessed, for the nominal consideration of one dollar.

<p>Indictment for forgery. Defendant held genuine negotiable notes against A. lie forged others like them, and, on payment, gave up the forged ones, and retained the genuine.</p> <p>Held, forgery.</p>

This was ejectment, to recover lot No. 16, second range from north side of Weare, containing one hundred acres, more or less, thus bounded, &c. The declaration stated that the inhabitants of Weare were seised, Oct. 1, 1804, and by deed conveyed, leased, and demised to plaintiff, for the term of 999 years, since which defendant has dispossessed and ejected plaintiff. Plea: not guilty. On the trial, at April Term, 1806, the title of each party was introduced.

Replevin by Tatham against Underwood for a stock of goods in a store room. The latter had obtained posssesion of the goods lawfully and with the consent of the former. No demand of the goods was made by Tatham, until after the delivery of the writ of replevin to the sheriff.

Debt on the bond of a justice of the peace. Breach, — That Flood had recovered a judgment before the justice against one Pettit, — • that the latter had paid the amount of the judgment to the justice; and that Flood had demanded payment of the justice, which was refused. The defendant filed three pleas; one of which was, that no such money came to the hands of the justice. Judgment for the defendant.

This was an action of trespass for an illegal assessment of $8.51 011 the real and personal estate of the plaintiff in Dun-stable, in the year 1804. The plaintiff admits that the defendants were the assessors, and that the assessment was legal if his estate was not by law exempt from taxation.

<p>Promissory Notes. — No demand before suit is necessary, in the case of a note for a sum of money payable at a specified time, and in a specified article.</p>

Debt, commenced before a justice of the peace, by an assignee against the maker of a note. The plaintiff gave in evidence a sealed note, filed as the cause of action, made by the defendant in favor of “ T. 8. Allen and H. H. Hays,” and endorsed “ Allen and Hays.” He then proved that at the date of the note and for about one year after that date, the payees, Joseph 8.

The record in this case commenced as follows :— “ Be it remembered, that heretofore, to wit, at a term of the Henry Circuit Court began and held at the court house in New Castle, within and for the comity of Henry, in the sixth judicial circuit of the State of Indiana, on Monday, the 29th of October, in the year of our Lord, 1848, before the judges thereof, it was presented that Benjamin Clark, on the 1st day of January, 1846, at said county of Henry, ivas, &c.” Then…

Trover, by the plaintiff in error against the defendants in error, for the conversion of 400 canal land certificates, commonly called scrip, of the denomination of five dollars each. The defendants pleaded in bar, a release, of which the plaintiff obtained oyer. It was in the usual form releasing -Smith, one of the defendants, “ from all causes of action, debts, contracts, trespasses, damages, judgments, claims and demands whatsoever, either in law or equity.

This was an action of assumpsit, by Peered against 'Kincaid & Gould, for refusing to accept and pay for certain cattle according to contract, and also for cattle sold and delivered. In the Circuit Court, the defendants appeared, and Kincaid pleaded non assumpsit. Gould saying nothing in bar of the suit, the cause was, by agreement of the parties, submitted for trial on the issue raised by the plea of Kincaid, and for the assessment of damages against Gould.

This was an action on the ease, by the appellee against the ap-q pellant, for an arrest of the former, by procnrance of the latter, upon a capias, in a civil suit, while the appellee was attending in court, f‘ as a suitor in a cause.

This was an action of assumpsit on a promissory note, dated at Westford, June 10, 1805, made by defendant to one J. Abbot or bearer, for $5, payable on demand at Westford, after sixty days, for value received. The declaration stated that the defendant was, at Jaffrey, June 10, 1805, specially requested to pay the plaintiff, who was then the bearer, &c. There was also a count for $7, money lent. This cause was submitted to the Court on a case stated.

<p>APPEAL from the Tippecanoe Circuit Court,</p> <p>A writ of habeas corpus was sued out by Hardin A. Farkington, to obtain the custody of two infant children, alleged to be unlawfully detained by Elizabeth, his wife, and one David Bush, her brother-in-law.</p> <p>The last named parties, by way of return to the writ, made answer, admitting that said children were in the possession of said Elizabeth, and alleging that said Hardin was nearly, if not entirely, destitute of property, and of such indolent habits that it was not probable he would ever have the means to make suitable provision for them. The said Elizabeth also alleged that she had separated herself from her said husband, because the latter had treated her with cruelty, and had neglected to provide for her maintenance.</p> <p>The Court, after hearing evidence adduced by both parties, decided that the petitioner was entitled to the custody of the children, and made an order to that effect, whereupon, the respóndante, after ant; unsuccessful motion for a re-hearing, appealed to this Court.</p>

This was an action of replevin brought by the appellants, to r-cover a quantity of store goods from the possession of the appelh There were three pleas upon which issues were taken, one of which denied the ownership of the appellants and asserted ownership ini the appellee. Trial, and judgment for the defendant.

Ejectment by the appellee against the appellant. The former claimed title under a deed executed to him by one; Miller, and the latter relied upon a sheriff’s deed, made pursuant to a sale of the property upon a judgment, in attachment, against the said Miller, The main question in the case was, whether the proceedings in attachment -were valid.

This was an action of trover for two oxen, six cows, two three-year old steers, ten other young cattle, one horse, eighteen sheep, three hogs, twenty tons of E. hay; all valued at I--. Plea: the general issue. This cause was opened to the jury at last Term, when it appeared in evidence that Adams & Nazro sued one Nathaniel Emerson. Calvin Bragg was the deputy sheriff who served the writ. He attached certain personal property of Nathaniel Emerson.

Tuts was an action of ejectment, in which the plaintiffs, ás church-wardens, demand against the defendants an undivided moiety of a tract of land and three dwelling-houses thereon, &e., situate in Portsmouth, containing fourteen acres, more or less,, bounded as follows, &e., and is the same which Samuel Sherburne, late of Portsmouth aforesaid, esquire, deceased, by his last will and testament, devised to said church ; whereupon said Brown and Larkin, as wardens as aforesaid,…

This was an indictment for perjury. The indictment charged that on, &c., the defendant came before the clerk of the Madison Circuit Court, and made a certain affidavit in. writing, and therein did falsely, wilfully, and maliciously depose and swear that he, the defendant, was worth over and above all demands against him 3000 dollars in real estate, whereas, in truth and in fact, the said defendant, at the time he took said oath, was worth only the sum of 500 dollars in real…

<p>APPEAL from the Knox Circuit Court.</p> <p>Debt, by the appellees against the appellants. The declaration contained a special, and the common counts. The special count set out, in Jicec verba, the following instrument in writing:</p> <p>“ Three hundred and seventy-eight dollars and six cents. Vin-cennes, Indiana, March 24, 1843. The treasurer of the vestry of St. James's Church, will pay to the order of Moore & Dawes, the sum of three hundred and seventy-eight dollars and six cents, with legal interest from the 7th of March, 1843, until paid, being the balance due them on their contract. By order of the Wardens and Vestrymen of St. James's Church, Vincennes, Indiana, S'. It. Grccnhow, Secretary of Vestry.”</p> <p>It was averred that said instrument was delivered to the plaintiffs, and that payment thereof had been demanded by them of the treasurer of the vestry of St. James's Church, and such payment refused; of which the defendants had notice, &c.</p> <p>A general demurrer to the special count was overruled, and interlocutory judgment upon it was entered for the plaintiff. A jury was then called to try the general issue upon the common counts and to assess damages upon the special count. Final judgment for the plaintiffs.</p> <p>The evidence was upon the record, and the only question made in this court, was upon the judgment of the court below, in overruling the demurrer.</p>

Assumpsit, commenced before a justice of the peace for the valu of a quantity of wheat delivered by the plaintiff to the defendants A bill of particulars, stating the dates of the delivery of difieren parcels of the wheat, at a specified price per bushel, was filed as th cause of action. There was a trial before the justice on the general issue, and : judgment for the defendants. On appeal, in the Circuit Court, then was a trial with a similar result.

This was replevin, for taking and impounding at Derryfield, Aug. 4, 1806, ninety-two cribs of pine boards, value $184. Writ dated Aug. 4, 1806 ; served Aug. 5, 1806. Avowry: Jona. Greeley by writ attached the boards (defendant, deputy sheriff, made the attachment) as the property of one Samuel Stevens, whose property they were; this attachment made Aug. 5, 1806. Plea : the property of plaintiffs, and not the property of Stevens ; and prays return.

<p>APPEAL from the Delaware Circuit Court.</p> <p>Assumpsit upon a note for the payment of sixty dollars, in a horse worth from forty to fifty dollars, and in cash notes on different individuals for the balance. The note was given by Henley to one Jobs, and was assigned by the latter to the plaintiff.</p> <p>The defendant pleaded six pleas in bar. The first and second stated that the defendant tendered the horse and notes to Jobs, the payee, and that the tender was refused. There were replications in denial of these pleas and issues. .</p> <p>The third and fourth pleas stated, that the note was given in consideration of a tract of land, conveyed by the payee to the defendant, by deed, with a covenant against incumbrances; that at the time of the conveyance there were unpaid taxes on the land which were not known to the defendant; that the land was afterwards sold for those taxes and a certificate given to the purchaser.</p> <p>The fifth plea a%ged, that as to so much of the cause of action as related to the delivery of a horse, the defendant, on the day the note became due, offered to deliver to the payee a horse worth forty dollars, and that he had always had on hand a horse worth forty dollars, ready to pay on the note to any person authorised to receive him; and that the payee refused to receive the horse.</p> <p>General demurrers were sustained to the third, fourth, and fifth pleas.</p> <p>The sixth plea was non assumpsit, and the cause was submitted to the Court on the issues upon this, and upon the first and second jileas. Judgment for the defendant.</p>

<p>APPEAL from the Parke Circuit Court.</p> <p>This was a trial of the light of property between assignees of a judgment debtor and execution plaintiffs. It was carried by appeal to the Vigo Circuit Court and from thence by change of venue to the Parke Circuit Court. During the pendency of the suit, one of the claimants, Harrison, died. The trial resulted in favor of the execution plaintiffs, who were the defendants in the Court below, and in this Court.</p> <p>The plaintiffs, Caldioell and Harrison, relied upon an assignment executed by William, McMurran, on the 9th of April, 1844, and purporting to convey to them a large quantity of real estate, and also all McMurran's goods, chattels, and merchandise, except such as might, by law, be exempt from execution, in trust, to be by them applied to the payment of certain specified and preferred debts, with power to sell the property and close up the business, in such reasonable manner as would best promote the interest of his creditors. This deed was duly recorded. The defendants claimed the property in controversy under their judgments, executions, and levies, insisting that the deed to the plaintiffs was fraudulent.</p> <p>The material facts connected with the assignment were as follows :—</p> <p>McMurran was the owner of a tan-yard and leather store at Terre Haute. His tannery and dwelling house were upon his own land. Harrison was a clerk, and Caldioell a journeyman in his employment, and both boarded in his family. The deed to them was made in consequence of McMurran"s embarrassments and inability to pay his debts. They were also creditors; and were young unmarried men, not very competent to manage so extensive a trust as was committed to them. The deed of assignment embraced the house in which McMurran lived, the furniture in it not exempt from execution, the premises on which was the tannery, &c., with other property. No visible change took place after the assignment in the relations between the assignor and the assignees. McMurran, with Ms family, continued to occupy the house and furniture as before ; Harrison and Caldwell continued to board with Mm, and he and they still worked together about the tannery. No sale of the household furniture was made for some months, and none was made of the real estate. The assignees appeared to have been governed in the settling of debts, the appropriation of the property, and the management of the business generally, by the directions of McMurran, in some instances, even to the violation of the provisions of the deed of assignment: as in using the finished leather assigned for the payment of debts, in paying for green hides purchased by them. After the assignment, considerable amounts of property were transferred by McMurran to Harrison separately, the object not being specified. At the time of the assignment, McMurran stated that he did not mean to pay the debt due Rose, because the latter had had him arrested on a capias. In the month of October, succeeding the assignment, McMurran removed to Si. Louis, and in addition to his household furniture, which he took with him, Caldwell forwarded to him from the tannery, two boxes of leather, weighing at least 900 pounds, concealing their contents from the wagoner who carried them. A small portion of the creditors provided for in the assign-merit verbally assented to it.</p> <p>A debtor has a right to prefer any one or more of his meritorious me creditors. This position is so well settled, both in England and in ijfthis country, that none now deny it.</p> <p>; When an assignment is made for the benefit of a meritorious creditor, an interest in the property conveyed passes to theecsfeí que trust, upon the execution of the deed, without express assent, provided there is no dissent; and the property becomes vested whenever the trustees enter upon the trust. Neilson v. Blight, 1 John. Cas. 205; 11 Wend. 247; 1 John. CM R. 229-261; 4 id, 136.</p> <p>The acts of the trustees subsequent to the deed cannot vitiate it, vif it was fair in its inception; the trustees being liable to the cestui i que trust for the mismanagement of the trust property.</p> <p>Although the trustees may have abandoned the property after en- . ⅝ tering on the trust, the right of the cestui que trust would not be aifected. He might reclaim, the property and, by resort to equity, ■ ompel the trustees to continue the trust; — the property being vested x m the creditors by the deed.</p> <p>■ The declarations of a vendor, either before or after a sale, are in.-' admissible as against the vendee, — the vendor being a competent witness. This is the general rule unless a conspiracy is proved, in which case, they are admissible only on the ground that th<u hearsay character is removed. 8 Cow, 622; 7 id. 759; 9 id. 89; ■ John, 426; 11 id. 185; 8 Wend. 490; 12 id. 44-161.</p> <p>Where the consideration is a meritorious debt which the credo "■ is honestly seeking to secure, the fraudulent intent of the grant' ' unless known to the cestui que trust, and participated in by him, ecu not vitiate the deed; and if the deed be fraudulent as to some of ■ preferred creditors and not as to others, it wil[be sustained for iw benefit of those creditors whose claims are just. Mabury v. Bros 7 Wheat. 556; 11 id. 78; Astor v. Wells, 4 id. 466; Naylor v. iU. dick, 4 Day, 150; 3 id. 340 ; 14 John. 498 ; 3 John. Ch. R. 378; 12 Mass. 456; 14 id. 245; 12 Pick. 89; 3 Mete. 63 ; 3 Monroe, 1; 1 J. J. Marsh. 226; 1 Binn. 159-502; 1 Doug. 86; 1 Burr. 467; 2t 827; 5 T. R. 235; 1 Atk. 463; 3 M. & S. 371 ; 4 East, 1.</p> <p>No fraud was proved in this case. It was not fraudulent upon part of McMwrran to prefer Ms creditors, nor upon the part of th ■■ < ■ creditors to assent to the preference. The conveyance was : fraudulent because a portion of those creditors were made traste nor, because the present defendants have been postponed or deb ■' ed, for that is a necessary incident to the right of preference; because all the property held by McMwrran was not conveyed in deed, as it is not pretended that the preferred creditors knew of -i, connived at the concealment; nor, because the deed was made Me Aturran’s house, where the deferred creditors could have no kno-. ¡ i edge of it, for it is inconsistent with the idea of giving preference creditors, that those deferred should be informed of the fact; i--r because the trustees were not extensively business men; — they w- ■ < large creditors and had a right to the management of property wMcli was intended as an indemnity to them, and by taking upon themselves the trust, assumed the individual responsibility of counting to the cestui que trust for the faithful disposition of property conveyed.</p> <p>In no view of the case, therefore, has there been shown to have existed, at the time of the execution of the deed, a particle of that ■ fraud contemplated by the statute.</p> <p>We think the evidence undoubtedly shows that the trustees were cognizant of McMurran’s fraudulent object, and lent themselves to carry out that object.</p> <p>The facts apparent on the face of the deed show it: — ■</p> <p>1st. The resulting trust to McMurran himself; — the deed professes to convey all his property {excepting so much as is exempt from execution), for the benefit of certain specified creditors, but makes no provision for the application of the overplus after those creditors are satisfied.</p> <p>2d. The absence of schedules describing the property, and of specifications and estimates of its value.</p> <p>3d. The great discretion left in the trustees as to the time, mode, and manner of executing the trust; leaving it in their power, without a violation of its terms, to trifle with the rights and interests of the creditors.</p> <p>4th. The fact that none of the preferred creditors except the tras-tees themselves, arc in any manner parties to the deed, either binding themselves by it or accepting its provisions.</p> <p>That such was the fraudulent intent of the deed, is also shown : — •</p> <p>By the character of the trustees selected, one being a brother-in-law of McMurran, and the other a journeyman in his employment, both being members of his family, and totally incompetent to fulfil such a trust.</p> <p>By the reservation of property not included in the deed. The deed professes to convey all McMurmri’s property of every description, excepting only such as was exempt from execution, but he secretly reserved his notes and accounts, and assigned them to Harrison. Some of them were assigned the day after the deed was made. There was found, also, a large quantity of property, not described in the deed, secreted in the shop under the supervision of the trustees.</p> <p>By the continued possession of McMurran. Up to the time of the levy of our executions, there was no sign whatever of any change in the property, and no visible marks of a transfer. The business of the tannery was managed and carried on exactly as before, and if the property was in any other sense in the possession of the trustees from what it was before, that possession was collusive and merely apparent. The case of Jordan v. Turner, 8 BlacLf. 309, gives the whole law on this point.</p> <p>That such was the fraudulent intent of the deem is also shown by the fact, that though the notes to Harrison were drawn about the time the deed was made, they were dated back four or five year and were made, to bear ten per cent interest. Admitting McMurran owed Harrison, why should he have paid him more than ordinary legal interest, when so many of his creditors must suffer by his failure ? This is glaring evidence of collusion, and casts a suspicion on those notes which nothing but positive proof of the justness of the debt can remove, and such proof was not adduced.</p> <p>If the declarations of McMurran, which were received in evidence, were illegal and inadmissible, still the weight of the above facts would scarcely be affected, for they appear independently of Mc-Murraris statements.</p> <p>But McMurran's statements were rightly admitted. 11 Wend. 536: 18 id. 360; 2 Cowen & Hill’s Notes, 178-602-603 ; 1 Rawle, 362-458 ; 10 Serg. & R. 419-426; 12 id. 328-330; 3 Car. & P. 395.</p> <p>The deed, being executed without the knowledge or assent of the preferred creditors, (except the trustees) vested nothing in them. A conveyance iij trust for the benefit of certain creditors, is void as against other creditors, unless assented to and accepted by the creditors preferred. 5 Mass. 144; 13 id. 146 ; 17 id. 454; 1 Pick. 357; 10 id. 408; 11 id. 298.</p> <p>Other courts have decided that when a trust is created for the benefit of a third person, without his knowledge at the time, he may afterwards, affirm the trust and enforce the performance. 1 John. Ch. R. 119 ; 3 id. 261; and other cases in New York. But, certainly, in such ease nothing vests until the trust is accepted and affirmed.</p> <p>The exception of the law in favor of bona fide purchasers from a fraudulent grantor, does not apply to cases of this kind. One who takes a deed or mortgage from a fraudulent grantor, upon an antecedent debt, though without notice of the fraudulent intent, does not stand in the situation of a bona, fide purchaser. 2 John. Ch. R. 512-603; 5 id. 331; 7 id. 65; 4 Paige, 77-215; 11 Wend. 538; 13 id. 570; 1 Atk. 538; 2 id. 397-630; 3 id. 304.</p> <p>A deed fraudulent in part is altogether fraudulent. If it was a correct principle, that the ignorance of the cestui que trust of the fraud which actuated the grantor and trustees, would protect the deed and make the property vest in the trustees, it would lead to the most absurd results. There are numerous cases in which deeds have been set aside as fraudulent, when the e%$tui que trust was entirely without notice. 1 Iredell’s Cases, 490 ; 14 John. 464 ; 5 Cow, 570 ; 4 Dallas, 76 ; 4 Bibb, 466.</p>

This was trespass for an illegal assessment, made by defendants as selectmen of Atkinson, Jan. 1, 1808. Defendants justified as selectmen and assessors ; the plaintiff an inhabitant of Atkinson, and lawfully assessed as such. Replication traverses plaintiff being an inhabitant of Atkinson. Rejoinder takes issue on the traverse.

This suit was commenced by a bill of interpleader. The bill charged that Strong & Miller, co-partners, at Logon spurt, Indiana, cm the 3d of September, 1840, bought of Corning & Horner, co-partners at Albany, New York, trading under the firm name of “ Corning & Co.,” a bill of goods amounting to 428 dollars and 37 cents, on a credit of six months.

Assumpsit on promissory note, made by defendant to plaintiff, for $100, date Feb. 20, 1806, payable in six months, with interest. Indorsed, Sept. 17, 1806, $20 ; Oot. 20, 1806, $45. Writ: date Oct. 27,1806 ; service Nov. 6,1806.

Assumpsit on a promissory note. The declaration described the note as dated July 23, 1804, for $64.34, payable on demand with interest. Plea: general issue. This cause was tried at September Term, 1806. Verdict for defendants. Review entered, February Term, 1807. The cause committed to a jury. The note produced was for $64:34: The words “ thirty-four cents ” were crossed. Plaintiff said, intended to be for $64, only. Objection was made to the note being received in evidence.

<p>Aliens. — An alien who died in 1832, having taken no steps to become naturalized, could not transmit a title to lands purchased by him to his heirs.</p> <p>The lessors of the plaintiff’ reded upon an act of the legislature, which, they claimed, vested a title .in them. Held, that it was not established by the proof, that, the premises in controversy were embraced by the act.</p>

This was an action of trespass, for assaulting and beating the plaintiff, February, 1806, at Concord, and imprisoning him ten hours, &c. Herbert justified under a writ of attachment issued by Samuel Green, a justice of the peace, at the suit of T. W. T., treasurer of the Fourth New Hampshire Turnpike, by virtue of which, as constable of C., he arrested and detained him in custody, till released by the attorney for • the plaintiff in that suit.

The material facts disclosed by the bill, answer, and depositions in this case were as follows:— John Thomas died in the year, 1839, leaving a widow and fifteen children. He made a will, devising all his personal property to his widow, {‘ for the use of his children, but if she should marry, then she should have only what the law allows her.” All his real estate except the widow’s third part, was to be divided among his children when they became of age.

Assumpsit by Gharkey against Halstead, commenced before a justice of the peace. The cause of action was an account consisting' of various items, amounting in the whole to 99 dollars and 28 cents. The defendant filed an account as a set-off, amounting to 264 dollars and 76 cents. The justice gave judgment for the plaintiff foi 26 dollars and 35 cents. The cause was again tried in the Circuit Court, on appeal, anc the defendant obtained a verdict for 125 dollars and 75 cents.

Assumpsit by Dundas, Lewis, Jones, Pittjield, and Howell, against Jesse and Henry Warden.

This was a scire facias brought by the plaintiff against Alpheus Nimms, as bail of Isaac Brown. Pending this writ, Nimms died, and his death was suggested on the record. Lockhart Willard was appointed administrator of Nimms, and, pursuant to the Act Regulating Process and Trials in Civil Causes, passed Feb. 9,1791, ed. 1805, 93, a scire facias was duly served on' Willard, issued from the clerk’s office of the Court of Common Pleas, where the suit was pending.

<p>ER1ÍÍ >lt to (lie Marion, Circuit Court.</p> <p>TM plaintilf in error ahí indicted, with three older persons, for obtaining goods by false pretences, ("pon the trial, bo was found guilty, and judgment was rendered accordingly.</p> <p>By a bill of exceptions, it appeared, that at the commencement of the trial, the defendant requested the Court to reduce to writing the charges that should be gi\en to the jury. Only one witness was in-trodueed by the prosecutor and eleven witnesses were introduced by the. defendant. Some of the defendant's wifne-'ses testified to for-liter statements of the prosecuting witness conllicting with his tesfi-mony in material points: and some others testified that the moral character of the prosecuting witness was not good, and that the defend ant sustained a good character in his neighborhood.</p> <p>After the argument of the ease had been dosed, the president judge told the jury, that in order to call their attention to the evi-donee of the witnesses, he would recapitulate, substantially, their statements, as he understood Them, without undertaking to state ail that was said by the witnesses, and that they (the jury) should not take ids statements of what the witnesses said, but should act upon their own recollection.</p> <p>The president judge, then, though objection was made by the de-fondant, proceeded to recapitulate, verbally, the testimony ghen by the witnesses in relation to the lads chai god in the indictment, but did not notice the testimony in relation to the moral character of the prosecuting witness, or to the character of the defendant. After closing this verbal recapitulation, the Court gave a written charge instructing the jury what proof was necessary to sustain the allegations in the indictment.</p>

This was a scire facias against defendant, as indorser of writ, Jesse-v. plaintiff, to recover costs taxed for plaintiff, who was defendant in that suit, S. C. May Term, 1806. Defendant pleaded, -— 1. That an offset was filed in the cause, Jesse-v. David Kingsbury, by defendant, and that this is a waiver of remedy against indorser; because the set-off may have occasioned the recovery of costs, and not the want of merits in the cause of action. 2.

Dower (writ dated Sept. 2, 18Q6) ; the count in the form prescribed by statute, ed. 1805, p. 153. The plaintiff was the wife of Shubael Geer, now deceased, late of Charlestown, and demands her reasonable dower of a messuage, &c., in Charlestown, bounded as follows, &c., which was in the seisin and possession of the husband, whereof he was seised in fee during the coverture. The defendant pleaded several pleas.

Assumpsit, on a common count for money paid. Plea, that, the cause ot action originated in the following manner, namely — -On the 2d of September, 1M9, the defendant drew a bill of exchange directed to one Durbin, and delivered the same to the plaintiff, thereby re queslingsaid Durbin to pay the plaintiff, or order, at the Merchants’ Bank of New Orleans, four months after date, one thousand dollars.

Absolem Kingsbury, Feb. 5, 1800, was appointed administrator on the estate of Daniel Perrin.

Assumpsit upon a note, by Ellis Worthington and John Hough, the defendants in error, against the plaintiffs in error. Held: that there was no error in permitting the amendment to be made, or in refusing the continuance. Peek v. Williams, 5 Blaekf. 374. The note sued on, was described in the declaration, as a note for the payment of 388 dollars and 88 cents. The note offered in evidence was for the payment of 308 dollars and 88 cents.

. Ejectment, to recover four hundred acres of land in Claremont, original right of John Temple. (Original writ teste Aug. 14, 1800. Verdict at October Term, 1808, for plaintiff. Review' entered, May Term, 1804. At May Term and October Term, 1805, and May Term, 1806, jury did not agree. At May Term, 1807, verdict for plaintiff as before.) Motion for new trial. 1.

Debt by the payee upon a note signed by James, Samuel, Giles, and John Mitchell. The three first filed several pleas in bar; and upon the trial, they introduced the last, namely, John Mitchell, as a witnes - to prove that the note had been fraudulently obtained by the plair tiff. He bad not been served with process and had not appeared to the action, and he had obtained a discharge under the bankrupt lar since said note became due.

<p>Libel. — The publishers and proprietors of a newspaper are responsible for a libel, published in an impression of their paper issued and circulated to their subscribers, in the ordinary course of their business, though the libel was inserted in their absence by persons employed by them in their printing office, and without their knowledge or consent.</p>

<p>Vendor and Purchaser. — To sustain a suit on a note for purchase money, payable at the samo time that a deed was to be executed, it is not necessary that the payee should have made an absolute tender of the deed.</p> <p>A plea that the payee was not the owner of the land sold at any time before the note became due, is a bar to the suit.</p> <p>Practice. — Trial on immaterial issues tendered by the replications to a bad and to a good plea. If the finding be for the plaintiff, in such cases, what course should be pursued.</p>

This was an appeal from the order of three justices (made on the application of Kingstown), charging Plastow with a certain sum expended by Kingstown in the maintenance of J. E., illegitimate son of M. N.; and ordering Plastow to maintain the pauper in future. The pauper (it was admitted J. E. was a pauper) was about three or four years old.

<p>The horse of S. was taken damage feasant in L.’s cornfield; and, there being no pound in the town, was confined in L.’s barn, situate in the same cornfield. L. immediately sent S. the following written notice, properly dated, signed, and directed: —</p> <p>“ A dark-red horse is taken up doing damage in my cornfield, and is impounded; the damage estimated at $2. The horse is supposed to be yours. . . .”</p> <p>S. immediately came to L.’s barn, where the horse was, and conversed with L., but made no objection to any uncertainty in the notice, or required any more particular information.</p> <p>Held, that, if there was any defect in this notice, it was cured by S.’s appearance, without making any objections.</p> <p>Whether written notice is necessary in all cases, quaire.</p> <p>In a case of impounding, the report of appraisers appointed by a justice is conclusive as to the trespass and the quantum of damages.</p>

<p>APPEAL from the De Kalb Circuit Court.</p> <p>Assumpsit, commenced in 18-15, by McCollnagh and KraJuuriJpi, against Dawson, on several promissory notes, da ltd the i?tli of October, 1836. Some of the notes were payable in one year, and some in two years from the date. They were all payable to John S/iumr and Samuel Edsall, trustees, Ac., and were assigned by the pajees to the plaintiffs.</p> <p>The defendant pleaded, inter alia, that tin1 notes sued on were executed in consideration of the sale of certain town, lot* bj the payees Or trustees, &c.; that upon such sale and the execution of the notes, the payees executed to the defendant a written contract, which stated that the defendant, on the 17th of October, 1836, had purchased the lots from the payees, as trustees appointed by the Altai Circuit Court to sell, &e.: that the defendant had paid one fifth of the purchase money and had given Ms notes for the residue ; and that should the defendant or Ms legal representatives, pay the notes as they should respectively become due and payable, then and in that case, the payees or their successors; would convey the lots to the defendant, Ms heirs or assigns, by a good and sufficient deed in fee simple with covenants of general warranty. Averment, that neither the trustees nor their successors, had conveyed the lots or either of them, or tendered or offered to make a deed for the same, to the defendant or Ms assigns, according to the tenor and effect of said agreement or otherwise, on or before the day the last named notes, payable in two years, became due and payable, that is to say, on the 17th of October, 1838.</p> <p>A replication to this plea alleged, that the payees of the notes sued on were, by a decree of the Allen Circuit Court, appointed trustees to sell certain town lots, and authorised to execute to the purchasers certificates, stating that the trustees or their successors, upon the sale being approved by the Court and the purchase, money duly paid, should convey the premises in the certificates described to the purchasers, their heirs or assigns; that in pursuance of said decree, the payees, on the 17th of October, 1836, sold to the defendant the lots mentioned in the plea; that the defendant paid one fifth of the purchase money, and for the residue gave the notes described in the declaration; that upon the execution of the notes, the payees executed to the defendant a certificate of purchase, which is the written contract mentioned in the plea; that the suit in which the aforesaid decree was made was certified to the Supreme Court, where said sale was confirmed; that the plaintiffs, the successors of the payees, on the 7th of August, 1844, before the commencement of this suit, and before the defendant had paid said notes or any of them, tendered to the defendant a good and sufficient conveyance in fee for the lots, and demanded payment of the notes; that the defendant failed to pay the notes ; and that the plaintiffs have been at all times since, ready and willing to deliver the deed on the payment of the notes, and now bring the deed into Court, &c.</p> <p>The deed alleged in the replication to have been tendered was set out on oyer. It appeared to have been executed by the plaintiffs and purported to convey to the defendant the fee simple in the lots; but it contained no covenants whatever.</p> <p>There was a general demurrer to the replication and judgment for the defendant.</p> <p>The defendant contends that he has shown a contract by which the deed was to be made on a particular day, and that the time for the making of the deed is of the essence of the contract. Admitting for the present, that judicial sales of this kind are governed by the same rules as private sales, in respect to tendering deeds before suit is brought, still as this Court has already settled the construction of such a contract, it will only be necessary for me to refer to the eases of Owen v. Norris, (5 Blackf. 479), and Burroughs v. Yount, (6 id. 458), to show that this plea was bad.</p> <p>It would be a hard rule, to say, that because the vendor had favored his debtor by giving him a longer time for payment than he had contracted fox', and that too for the exclusive benefit of the vendee, that the vendor thereby forfeited all his right to sue on the contract, although no injury had resulted to the vendee. I admit that when the time is certainly fixed by the tex'ms of the contract, so as to become of the essence of the contract, there must be a strict and literal performance or an offer to perform by the party who seeks to enforce it at law. But when, as in this case, time is not of the es-sonco of the contract, something more than a mere lapse of time must occur to defeat the recovery of the purchase money, if the vendor tenders a deed before suit, and before an offer of payment and demand of the deed.</p> <p>The 12th plea was drawn in reference to the case of Cunningham v. Guinn, 4 Blackf. 342 ; and the contract in that case is almost verbatim with this. In that, the Court said: “If the assignee of the plaintiff failed, on the day, to perform his part of the contract, and showed no legal excuse for the failure, the purchase money cannot, and ought not to be recovered.” This is the law in England and America, as recognized by the highest authorities of both countries. 2 C. & P. 286; 1 R. & M. 394; 1 Peters, 455; 2 Wheat. 336; 2 Scam. 488; 12 John. 190; 4 Taunt. 334; 5 id. 625; 2 Yes. 57; 1 P. Wms. 201.</p> <p>As to an excuse for the non-performance, or offer to perform on Ithe day, “ the rule of law is so inflexible as not to admit of any excuse, however strong, for a failure to perform the contract at the H time fixed, but it is otherwise in a court of chancery, if a party can ( show that he has been prevented by inevitable accident, or by any justifiable excuse, from performing his part of the contract at the Í time stipulated.” Longworth v. Taylor, 1 McLean, 202.</p> <p>Iln this case one question is, whether the parties have made time (the day) of the essence of their contract. Dawson gave Ms notes I for the remainder of the purchase money not paid in hand, and McCullough and Brackenridge, as trustees or commissioners, executed - a contract or certificate of purchase, the whole of which, taken together, form the mutual contract. The stipulation on the part of the trustees in regard to the point in question, was to the effect, 1 hat if Dawson would pay the notes as they respectively became due, &c., then the trustees would convey, &c. The particle “ as ” has various meanings, according to the words it is connected with. -When applied, as here, to make or fix a period of time, it means “ at th-same time that.” See Walker’s Dictionary. It seems to be hard!; necessary to affirm that this is the ordinary meaning of the word in common parlance, when applied to fix a period of time, and, inffi; <!, whenever it refers to time it can have no other meaning.</p> <p>Substituting this definition for the particle, the contract would he, that if Dawson would pay the notes respectively “ at the time that ” they became due, then, (and, of course, then only,) the trustees would convey, &c. If this definition be correct, all question about i nr construction of the contract, in the particular referred to, ought to be at an end.</p>

Assumpsit. There were two counts. 1. Money had and received, Oct. 21, 1807. 2. On promissory note made by bank, July 4, 1806, $7. Plea: the general issue. At the trial, May Term, 1808, the plaintiff proved that be presented this note, with others, at the bank, Oct. 21, 1807, amount $1,500, and requested specie; was at the bank from 9 to 12.30. Cashier paid $200 or $300, in the course of the forenoon, in change and crowns; refused to pay any other way than one bill at a time.

Debt on recognizance; for that .the said David Stevens, before C. H., Esq., one of our justices assigned, &c., at-, in said county, on-, acknowledged himself indebted to the State of New Hampshire in the sum oh $25, to be levied on his goods and chattels, lands and tenements, and, for want thereof, on bis body ; on condition, nevertheless, that if one B. S., of -, should personally appear before the aforesaid C. H., Esq., &c., at-, on-, to answer to the matters and things…

A bill in chancery, filed in this case, and which was dismissed on the hearing below, charged that Joseph Wright died, intestate, in January, 1843, leaving a widow and several children. That the complainant, Basel/, was duly appointed administrator. That all the assets which came to the hands of the latter, after deducting the amount to which the widow was entitled, was the sum of 35 dollars.

This was trespass, (a) for breaking into plaintiff’s dwelling-house in Portsmouth ; tearing down doors, walls, stairs, &c., carrying away part, &c. Plea: general issue; with leave to give special matter in evidence. At the trial, February Term, 1808, it appeared in evidence that the plaintiff and defendant owned a dwelling-house.

Assumpsit, for work and labor, and money paid. Pleas — Ost. Non assumpsit. 2d. Payment and set-off. Similiter to the first plea, but no answer to the second. Cause submitted to the Court and final judgment for the plaintiff. On the next day after the trial and judgment as above stated, the Court permitted the plaintiff to file a replication in denial of the second plea.

This was assumpsit on account annexed to writ. Defendant pleaded non-assumpsit, and set-off. At the former trial, February Term, 1808, jury gave defendant, Twombly, balance, $2.36. He remitted $2.26, and took judgment for 10 cents, and costs. [The original plaintiff, Dame, then brought this review.] At this Term, jury gave defendant balance, $4.50.

This was an action of the case, (a) Tbe declaration stated that one Joseph Cliattle, at Court of Common Pleas, Rocking-ham, January Term, 1807, recovered judgment, against one D. Swett, for $131.02, debt and costs; that Swett was committed. on the execution, to the jail in Amherst, and that the plaintiff and one Mellendy (b) were his sureties in bond for the liberty of the jail-yard, penal sum $262.04; that tbe defendants, on Aug. 13, 1807 (well knowing the premises), took…

This was a suit upon the same bond described in the record of the suit instituted by The State ex rel. Hummell v. Comparet and Others, in which the judgment was reversed by this Court at the November term, 1845. 7 Blackf. 553. The proceedings were exactly similar, and the judgment*in this case, which was rendered about the same time, was also erroneous, in consequence of there being a fatal variance between the bond produced on oyer, and that described in the declaration.

This was a real action, to recover land in Cornish. Plea : the general issue. At May Term, 1808, a verdict was given for the plaintiffs, subject to the opinion of the Court on a case stated. The defendant relied on certain votes of the proprietary, whereby he alleged that the plaintiffs, who were once the owners of the demanded premises, had parted with their title. The plaintiffs raised several objections as to the validity and effect of these votes.

Assumpsit for money had and received to the use of the intestate, June 3,1805. Plea: the general issue. The parties agreed on a statement of facts, in substance as follows: — June 3, 1805, Bigsby, Oaks, and Patterson arrested the intestate at Charlestown, on an advertisement signed by defendant, alleging that defendant had arrested the intestate in Vermont, and that he had escaped from his custody (defendant was a constable in Vermont).

Assumpsit on a promissory note. Demurrer to the declaration, (a) Causes. 1. The declaration contains the following words, in describing the date of the note declared on: “ First day of June, Anno Domini eighteen hundred and seven.” These words are not in the English tongue. 2. The note declared on is stated to have been payable in nine months from date, and it is not averred that the time had elapsed before this action commenced. 3.

Assumpsit on three promissory notes. Writ dated Feb. 17, 1807. Pleas: general issue, and statute of limitations. Replication: new promise. At the trial, last Term, Livermore, J., summed up to the jury. He seemed inclined to think the evidence produced by the plaintiff not sufficient to take the case out of the statute of limitations. The jury found for the defendant. Motion for a new trial.1

<p>SlaNDer. — To sustain a plea of justification, the jury should have the same amount of evidence, as would he sufficient to convict the plaintiff upon a criminal trial for the offence charged.</p>

Debt by the defendant in error against the plaintiffs in error, on a delivery bond executed in 1846. The declaration set out the condition of the bond and assigned breaches. General demurrer to the declaration; demurrer overruled; and the cause submitted to Re Court for an assessment of damages. The finding of the Court was, that the goods levied on were worth 500 dollars, and that the plaintiff’s damages amounted to 223 dollars and 52 cents.

<p>An imprisoned debtor, who had given bond for the liberty of the jail limits, was entitled to his discharge, if the creditor failed to make payment in advance, for his support. Six weeks before another payment by the creditor would be due, the debtor, with intent to deceive the creditor, and induce him to believe there had been an escape, and so not to advance any more money, gave out, and caused it to be reported, that he was about to go out of the limits to Connecticut, and on the same day concealed himself in a swamp within the limits, and continued there concealed, without the plaintiff’s knowledge, for six weeks, and until the day after the time for making the next payment. The creditor ■was thereby deceived, and induced to believe that the debtor had escaped, and so omitted to advance the money for the debtor’s support. After the creditor had so failed to make payment, the debtor, claiming that he was for this reason discharged, went out of the limits. The debtor’s sureties in the prison bond were privy to this deception and concealment on the part of the debtor.</p> <p>In an action on the prison bond against the sureties, held, that the sureties could not avail themselves of an omission by the creditor, thus induced by the fraud of the debtor, and that the creditor could-recover against the sureties for an escape.</p>

Ejectment for 1280 acres of land in Tippecanoe county, by Doe, on the demise of Lockwood. Verdict and judgment for the plaintiff. The lands in controversy were sold by the sheriff of Tippecanoe county, by virtue of an execution, to Lockwood. The execution was issued at tbe instance of Lockwood, and the entire tract of land, consisting of two sections, and containing 1280 acres was offered, and sold to Mm for 75 dollars. The tract was worth about 20,000 dollars.

Debt upon a constable’s bond against the principal and his sureties. In the declaration, the bond was alleged to have been made by Samuel Geddes, John R. Blan, Edward Archibald, and Stephen S. Colms. Without oyer, the defendants pleaded non cst factum, upon which plea issue was taken.

Debt upon a writing obligatory. Plea, non est factum. Trial by jury, and verdict and judgment for the plaintiff.

This was a bill in chancery filed by Clymcr against Browning, R, Baldridge, and M. Baldridge.

This was an action of trover, for the conversion of two four-year old oxen, two cows, and one steer. The defendant pleaded not guilty. The evidence of the property in the plaintiff, and conversion by the defendant, was, in substance, as follows: — The plaintiff held a note against one Peter Wright, of Stoddard, for the payment of a certain sum, by a certain day, in neat cattle, to be delivered at a certain place in Stoddard, and to be appraised by indifferent men.

Assumpsit, on account annexed. First item: for collecting debt due defendants at St. Vincent; commissions, — two and a half per cent, — $116.97. Second: to freight of sixty-four puncheons of rum from St. Vincent to Portsmouth; the rum was received for the debt; brought in the [vessel] O. P., whereof plaintiff master and one-third owner; at $7 per puncheon, — $448. There was a second count for the freight, and a third for money paid, &c. Plea : the general issue.

[Covenant, on a charter-party of affreightment. At November Term, 1813, the following case was stated for the opinion of the Court:] — In an action, in a plea of covenant broken on a charter-party of affreightment, between said Cutts, of the one part, and said Frost and one Richard Cutts, Jr., of the other part, dated the second day of September, A.D. 1810.

Tins is a writ of dower. The demandant, who was the widow of John Drew, demands dower in certain land in possession of tenant, which was in the seisin and possession of her late husband, and whereof he was seised in his demesne as of fee, during the coverture. The tenant pleads, as to all except eighteen acres, with the buildings ; describing the said eighteen acres : 1. That the said John and the demandant were never lawfully married.

Debt by Boyd, as the assignee of a title bond, against the obligors, Alexander and George Holmes. Demurrer to the declaration and judgment for the defendants. The declaration alleged that the bond was payable to Delavan Martin and Francis F. Jewett; that Jewell assigned his Interest in the bond to Alphonso Martin; and that the said Alphonso Marlin and Delavan Martin assigned the bond to the plaintiff.

<p>Landlord and Tenant. — In an action upon a note, the defendant set up as a defence that the note was given for the rent of certain premises belonging to the estate of an intestate, leased to him by the payee, as administrator, and that before his term expired, a part of said premises were sold to pay a debt of the intestate. It appeared, however, that die defendant had occupied the premises to the full end of his term, and it was held that the defence was insufficient.</p>

Assumpsit, by Hazzard'against Goodwin, on the common counts. Pleas: Non assumpsit, payment, and set-off. Trial by jury, and judgment for 98 dollars and 21 cents in favor of the plaintiff. On the trial, there being a long list of open and unsettled accounts in evidence on the part of each party, the defendant introduced the following draft “Transportation of Mails. Post-Office Department. Draft No. 5043. To Samuel Hazzard, P. M. at New Castle, Indiana.

This was ejfectanent, to recover one-third of Lot No. 37, Second Division, in Brookfield. Each of the defendants, Robinson and Cate, disclaims all but 20) acres, without bounding the same, and defends the residue. It was agreed that one Rebecca Footman was entitled, by descent, to one-third of the lot. David Rogers [under whose deed the plaintiff claims] claims her share by levy of execution, Sept. 14, 1811. One exception only was taken to the levy.

Scire facias on recognizance. Scire facias issued March 7, 1812, returnable to September Term, 1812. The recognizance was taken before D. M. Durel, J. P., Jan. 18, 1812.

APPEAL Irom the Franklin Circuit Court. This was a suit against the owner of a canal boat, to recover damages for the breach of a contract, made by the master, to deliver certain flour in Cincinnati. The declaration averred that on the 4th of November, 1847, John Deford, being master of said boat, received from the plaintiff' 90 barrels of flour, as evidenced by a receipt in writing, and that 58 barrels of said flour never were delivered.

<p>Under the statute of 1701, a deed attested by only one witness will not pass the land, even as against the grantor. An instrument, not attested as the statute requires cannot operate as a common-law conveyance ; the mode of execution prescribed by the statute excludes all other inodes.</p>

This was an action of ejectment in which the plaintiff below succeeded. The only question in the case, was, whether the blocks in the Lower, or McGary's Enlargement, of Evansville, are eighteen poles square, or eighteen poles one way, by eighteen poles and eighteen links, the other. That question depended on the construction to be given to the plat of .paid Enlargement, as made by Me Gary, the proprietor.

This was an appeal from an injunction granted by the Circuit Court, to restrain proceedings in an action at law, upon a bill of discovery.

<p>APPEAL from the Sullivan Circuit Court.</p> <p>Assumpsit by Thomas B. Crane and Abiachcr Creme, against Henry French. The declaration contained the money counts, and also a special count upon an agreement by the defendant, to sell the plaintiffs, a flat-boat loaded with corn, for 707 dollars and 40 cents. The plaintiffs averred that they paid the defendant 200 dollars in ad-vanee, according to the terms of the contract, and that the defendant was to deliver the boat and com to the plaintiffs, or their assignee, at New Orleans, but failed to do so. The defendant pleaded the general issue, and also a plea of set-off for the price and value of a boat and three thousand bushels of corn. Upon the trial, the jury found a verdict for the plaintiffs, for 215 dollars damages, and a motion for a new trial having been overruled, judgment was rendered accordingly.</p> <p>The evidence, and the instructions given by the Court were set out in a bill of exceptions.</p> <p>The plaintiffs proved by T. M. Doughty, a parol contract between the plaintiffs and the defendant, which was finally reduced to writing, signed by the witness as agent of the plaintiffs, and left in the possession of the defendant. This contract was as follows;</p> <p>“Articles of agreement made and entered into this 29th day of May, 1846, between Henry French, of Sullivan county' and State of Indiana, of the one part, and T. B. & A. Crane, of Putman county and State of Indiana, of the other part, witnesseth: That the said French sells to the said Cranes, his flat-boat, seventy-five feet long by eighteen wide, loaded with good corn, for the sum of 707 dollars and 40 cents, to be paid in the following manner:-Said Cranes to pay said French 200 dollars in advance, the receipt whereof is hereby acknowledged, and the balance said Cranes pay French on the arrival or delivery of the boat ill New Orleans; — said boat and load shall be insured at Cranes' expense, and in the name of the captain, who shall have full control until it arrives at New Orleans, when it shall be delivered to said Cranes or their consignees, and at the delivery, said Cranes shall pay to the captain or French the residue, and on their failure so to do, they forfeit the 200 dollars already paid. The whole expense of running the boat and load shall be paid by the said Cranes, and the whole shall be considered French’s until the Cranes pay or tender the said French, or agent, the balance of the purchase money. The said French shall be responsible for the delivery of the boat and load, by the captain, at New Orleans, to said Cranes or their consignees, and in ease of the loss of the boat by staving, or otherwise, the insurance money shall be paid to said Cranes, except so much as will pay the balance of the purchase money, which shall be retained by the captain for said French.</p> <p>T. B. & A. Crane, by P. M. Doughty. ”</p> <p>On the same day, after the above contract was made, a receipt for the com was given to the defendant, as follows:</p> <p>“ Me rom, May 29th, 1840. Received of Henry French two thousand seven hundred and eighty-seven bushels of corn,</p> <p>T. B. & A. Crane, by P. M. Doughty.”</p> <p>The same witness stated, that at the time the above contract, and receipt were signed, he paid, as agent of the plaintiffs, 200 dollars to the defendant; — -that the loading of the boat had been completed on the 28th of May, and on the same day, the boat had been moved by the witness and two boat hands in the employ of French, from the landing of French to another landing, Bratton's, about one mile below, and on the Illinois side of the Wabash river.</p> <p>There was proof that on the 27th of May, French had objected to the boat being moved. It did not appear that he either objected or assented to its removal on the 28th, but on the 29th, as was stated by one of the witnesses, there was much difficulty, on his part, because the boat had been moved. He insisted he would not be answerable for the boat, unless insured at the landing, but when Doughty signed the contract and receipt he seemed satisfied. The usual mode of insurance upon the Wabash, was to insure from the time the boat started on her trip. When French, before the contract was signed, insisted that the boat and cargo should be insured at the landing, Doughty refused, on the ground that the premium would be doubled in amount.</p> <p>It was proved by one Bratton, that he was employed as steersman oí the boat by French, — that the boat was good, — that be recommended moving it, — and that his landing was better and safer than that of French.</p> <p>One Complain stated, that he received the boat from Doughty at Bratton's landing; that French recommended him, and Doughty hired him to take charge of it; that he was told, if any accident happened the boat to write to Doughty at Terre-Haute, or to the plaintiffs at Grcencastlc, but he did not recollect any reference to the defendant.</p> <p>Doughty expended 94 dollars, including his own labor, in fitting out the boat, which had been partially sunk at French's landing before the loading was completed. While at Bratton's landing, Gam-plain was in charge of the boat for some time, and then left it in the care of one Hayworth. Finally, the boat sunk and the com was lost.</p> <p>The following letter was proved and read to the jury:</p> <p>Gill’s Prairie, Sullivan Co., Ind., June 25th, 1846.</p> <p>Dear Sir: — I take this opportunity to let you know, that the man you left the boat in care of has moved to Sullivan, twelve miles from the boat, and he has left the boat in care of Sylvester Hayworth, and on Sunday night, the 7th of this month, he came and told me the boat was about to sink. I got hands and went and pumped her out dry; there were twelve or thirteen inches of water in her, consequently, it would be four inches deep on the com. Sir, Sylvester Hayworth came to-day and told me the boat leaks very bad, and he cannot take care of the boat any longer, and the boat will sink if something is not done with it immediately, so you bad better come in haste and see to it. Please write if the boat is insured or not. Sir, the boat is likely to be lost, come immediately, and the corn can be taken out and put in pens on the bank of the river.</p> <p>Yours, with respect, Henry French.</p> <p>To Mr. Doughty, or Mr. Crane, of Grcencastlc.</p> <p>The above being all the evidence that was material, the defendant below requested the Court to instruct the jury as follows:</p> <p>*• That from the time of the execution of the contract, and receipt for the com by Doughty, for the plaintiffs, and the payment of the 200 dollars to French, the property in the said boat and corn was vested in the plaintiffs, the Cranes, and the said boat and com was entirely at their risk.</p> <p>“ That the provision of the contract, ‘that the whole shall be con sidered French's until payment by tbe Cranes’ has not, upon a reasonable construction of the whole instrument, any reference to the right of property, but only to the reservation of a lien for the balance of the price.”</p> <p>The Court refused to give these instructions and gave the following :</p> <p>“ The question is, was there a transfer and delivery of the property — the boat and com, by French to the plaintiffs, at the time the written contract was completed between Doughty, as the agent of the plaintiffs, and the defendant? If so, the loss was the plaintiffs’ and the defendant is entitled to recover of the plaintiffs, the balance unpaid on the contract. But if no transfer of the property passed from French to the plaintiffs, at the time the contract was completed, if French was to retain possession, and had the right of property in the boat and com until the arrival of the same in New Orleans, and the payment by the plaintiffs of the balance due, or if any act was to be done by French subsequently to the contract, which act was necessary to pass.the title in the same to the plaintiff's, there was no transfer of the right of property in the boat and corn to the plaintiffs till that act was done, and the plaintiffs are entitled to recover of the defendant, the boat and com being lost while in his possession, the 200 dollars and expenses and interest.”</p>

The defendant pleaded the general issue, and property in himself. Judgment lor the plaintiff. The plaintiff below claimed the cattle under a purchase from the defendant. The latter refused to deliver them, claiming a lien for unpaid purchase money. The material facts proved were as follows: Michael, a butcher, contracted with Bradley, who was a resident of Johnson county, for the purchase of 16 head of fat cattle.

Trespass quare clausum fregit, by Lathrop against Rodgers, for breaking the close of the plaintiff, being a certain field upon which a crop of Indian com was growing, and turning thereon a large number of hogs. Pleas, — not guilty. Judgment for the plaintiff. There was proof that in the Spring of the year during which the alleged trespass was committed, one Chambers was the owner of the field, and that he rented it to the plaintiff to raise a crop of com.

This was an action of assumpsit, to recover the moneys expended by the plaintiffs for the maintenance of Mary Hart, grandmother of the defendant, under § 7 of the act of Feb. 15, 1791, for the punishment of idle and disorderly persons and for the support and maintenance pf the poor. The parties agreed on a statement of facts, on which two questions only were submitted. 1.

On the application of Fickle, the judgment was opened and a new trial granted by the justice, which resulted in a judgment in favor of Waterhouse for 9 dollars and 99 cents. Fickle then appealed to the Circuit Court, and there obtained a verdict for 3 dollars. He remitted 4 dollars and 99 cents, and a judgment was rendered in Ms favor for one cent and the costs.

Petition for the assignment of dower in land which had been owned by Peter Diddy, deceased. The defendant, Ellis, who was the appellant in this Court, pleaded in bar of the petitioner’s right to dower. The petitioner demurred specially to the plea. The Court sustained the demurrer and decreed the dowser prayed for.

Debt by the appellant against the appellee, upon a note executed by Hays, in favor of Campbell, during the life time of the latter, to wit, on the 12th of December, 1846, for the payment of 100 dollars one day after date. The declaration also contained the common counts, for money had and received, and an account stated. The defendant pleaded the general issue, and also, payment with notice of set-off.

William Russell filed a petition against Sarah Russell, praying for a divorce. She answered, denying the allegations of the petitioner, and filed a cross bill charging him with cruel treatment, &c. The Court below dismissed the petition and granted a divorce upon the cross bill, decreeing Sarah Russell 400 dollars alimony, in lieu of dower.

<p>There can be no demurrer to a writ of review.</p> <p>If the general issue was the only plea in the original action, a demurrer to the declaration cannot be filed on review.</p> <p>In an action by bail against sheriff, for falsely returning non est as to principal, the declaration alleged that the sheriff “ could have taken ” the body of the debtor.</p> <p>Held, that this did not state a good ground of action, and that it would be held bad upon motion in arrest of judgment.</p>

A county treasurer, being elected for three years and until his successor is elected and qn,edified, may hold over for an indefinite period if no successor is elected and qualified. Tulcy and Others v. The State, at the present term. An averment in the declaration that the treasurer continued in office until a certain period beyond three years, is equivalent to an averment that no successor was elected until after that period.

Assumpsit by the Board of Commissioners of Switzerland county, against Benjamin Hildebrand. The declaration contained three counts. The first, was for the board and lodging of the wife of the defendant. The second, was for the board, lodging, (fee., of the wife of the defendant in the poor-house of Switzerland county.

Assumpsit, by Thomas Carpenter, of Rehoboth, Mass., executor of Thomas Carpenter 2d, late of same place, against Benjamin Wild, of Chesterfield, N. II. The first count was upon a note made by the defendant to the plaintiff’s testator. The defendant’s third plea was, that the plaintiff never was executor of the last will, &c., of Thomas Carpenter 2d, nor ever administered any of his goods as such.

Assumpsit by the appellee against the appellant, upon two notes or due-bills, payable by Morgan to Trimble, one dated March 20th, 1846, for 73 dollars and 8 cents, and one dated March 1st, 1847, for 299 dollars and 39 cents. The declaration also contained the common counts. Pleas: The general issue and set-off. Bills of particulars of open accounts were filed by both parties. Trial by the Court, and finding and judgment for the plaintiff for 410 dollars.

Action for money had and received. Plea: non assumpsit. The plaintiff offered in evidence a copy of a probate record of proceedings of a probate court, holden at Plymouth in said comity, on the twelfth day of February, 1813, containing the confessions of the said defendant, in answer to certain interrogatories put to him by order of the judge of probate, on complaint against said defendant for concealing, carrying away, and embezzling the money, goods, and chattels of the…

This was an indictment for a malicious trespass, charging, that the defendant did, at, &c., “ unlawfully and maliciously, destroy and injure divers windows, then and there affixed into and upon a certain county seminary building, there situate, of the value of twenty dollars, of the property of the county of Sullivan aforesaid, to the damage of said county,” &c. Upon the trial, several witnesses testified that they, with others, met in the seminary on the night of the 1st of…

On oyer of the writ, it commands a coroner to attach the goods or estate of defendant, sheriff of the county of Grafton, to the value of. $600, and summon him to appear, &c. Defendant pleads, in abatement, that the plaintiff’s writ and process is an original writ and process of attachment, and does not agree with the form' of original writs and processes by the law of this State made and provided, because it wants the words “ and, for want thereof, to take the body of the…

<p>ERROR to the Probate Court of Union county.</p> <p>This was an action of debt brought by James W. Cryst, executor of George W. Cryst, deceased, against Christian Cryst.</p> <p>The suit was founded on two sealed notes, executed in December, 1839, by the defendant, and payable to the testator.</p> <p>There were two special pleas, stating, in substance, the following facts:—</p> <p>In 1830, George W. Cryst being the owner in fee of a certain quarter section of land, made his will and devised the east half thereof to his son Resin Cryst. The defendant, Christian Cryst, afterwards purchased of Resin, with his father’s knowledge and consent, the interest which Resin claimed in the land under the will, and gave his notes for the price. (1't did not appear, however, that there was any written evidence of such purchase.) After that purchase, namely, in 1839, George W. Cryst, the devisor, conveyed the land devised to Resin Cryst, to Christian Cryst, the defendant, receiving in payment the notes now sued upon, together with a mortgage on the same premises to secure the purchase money. The pleas alleged that this arrangement was made to avoid a judgment, which one Woods had against Resin Cryst in the Union Circuit Court; that Resin Cryst died before his father, leaving a wife, to whom administration of his personal estate was granted in the State of Louisiana, and an infant son, William Cryst, his sole heir and distributee; that George W. Cryst died on the 27th of March, 1844, sixteen days after the publication of the Revised Statutes of 1843, without revoking his said will; that letters testamentary thereon were granted to the plaintiff, James W. Cryst; that the notes given to Resin Cryst for the purchase of his interest are outstanding against the defendant ; that the administratrix and heir of Resin claim the notes now sued upon; and that the estate of George W. Cryst is solvent.</p> <p>There were replications to the pleas which were demurred to. The demurrers were overruled and the plaintiff, now the defendant in error, had judgment.</p> <p>The sufficiency of the pleas, is the only question involved in this case.</p> <p>The facts disclosed by them show that the notes sued upon, or the proceeds of the land sold to Christian Cryst, belong to William, the infant son of Resin, and the action should have been brought in his name.</p> <p>Resin died before his father, and at common law the devise would have lapsed, but the Revised Statutes of 1843, (eh. 30, p. 489, § 23) save the devise.</p> <p>It is contended by the defendant in error, that the sale by George W. Cryst to Christian, was an implied revocation of the will as to this land. At common law it would have been so, but the 17th section of the chapter of the Revised Statutes above referred to, preserves the will from revocation. 1 Bouv. Law Die. 520; 4 Kent’s 'Comm. 533, note a. On the sale by George W. Cryst, he took back an “estate” which passed under his will to the heir of Resin. A mortgage is an estate within the meaning of the 17th section; and in such a case, the word should be taken in its largest sense. It can make no difference that the mortgage money usually belongs to the executor; it is an estate, and so far as it secures any unpaid purchase money, it passes by operation of law to Resin Cryst’s heir.</p> <p>The pleas aver the taking of the notes and mortgage, in the name of George W. Cryst to avoid the payment of the Woods judgment, and that they were taken in trust for the heir of Resin. These facts, the plaintiff in error insists, are not denied by the replications, and as the sale of the land raises a presumption only of revocation, it may like every other presumption be rebutted by parol testimony. If the notes and mortgage were taken as alleged in the pleas, that presumption is rebutted.</p> <p>Should it be contended that this will is governed by the law in force at the time it was made, we reply, that every will as to its validity and construction, must be governed by the law in force at the time of the testator’s death. The will is ambulatory, and subject, at all times during the maker’s life, to his express and implied re vocations.</p> <p>If the land had not been sold by the testator, the legal estate, under the devise, would have passed to Resin's heir. On this point there can be no doubt. Is the case altered ? If a sale has been made and a new estate taken back by the testator; will not the new estate, whatever may be its form, pass to the heir of the de-visee ? In point of law, the heir is an assignee of the estate and the sum secured by the mortgage, in the same way and upon the same principle that the executor is an assignee. In the Court below, it was contended, that the action was correctly brought in the name of the executor, though the money, when recovered, might in the course of administration go to the heir of Resin. But if the money belongs to the heir, he alone can sue for it.</p> <p>The 15th, 16th, and 18th sections of the 30th chapter of the Revised Statutes, are almost transcripts of the New York statute on the subject of implied revocations. The 17th section is not found in the New York statute; and no reasonable doubt can be entertained, that that section was introduced to pass every possible interest which the devisor could have in the land devised. It is by no means necessary, that the devisor should have taken back, on making the conveyance, a descendable interest. An estate for the life of another, an estate in mortgage, for years, or at will w'ould answer the object of the section. The devise would operate to transfer any interest which the testator had at the time of making it, and if he should take back, after a sale, precisely as large an interest as he had devised, it would be extraordinary if the devise would not operate upon it.</p> <p>An estate for years, on the death of the tenant belongs to the executor, and so does a mortgage. Suppose the tenant devises the estate for years, and afterwards sells and takes back the same or a new estate, can there be any doubt that the 17th section would transfer the new_interest to the devisee? We think there can be none.</p> <p>The will was revoked, so far as concerned the devise to Resin Cryst. A sale of the estate devised operates as a revocation, for the testatox* must die while owner of the land, or the will cannot have effect upon it. 4 Kent’s Comm. 525; Cotter v. Layer, 2 Is. Wms. 622; Rider v. Wagner, id. 332; Mayer v. Gouland, Dickens, 563; Knollys v. Alcock, 5 Yes. 654; Vawser v. Jeffery, 2 Swanst. 263 ; Walton v. Walton, 7 John. Ch. R. 258. We think the reasonable construction to be given to this will, is, that it was revoked pro tanto. If so, it, certainly, was the duty of the executor, and of none other, to take the notes and collect them. R. S. p. 514, § 144.</p> <p>The 17th section of chapter 30, cannot be applicable to the case; for, although the will operates from the death of the testator only, the statute, can only operate on the will as it found it, and the land having been sold before the present statute came in force, the construction given to it by the plaintiff in error is not legitimate.</p>

Case against the sheriff, for the default of his deputy, Mitchell, in not keeping property attached in a suit brought by the plaintiff against one Niles. Trial before Livermore, J. It appeared that Mitchell delivered the attached property to one Aspinwall, and took his receipt therefor.

This was a scire facias. It recited the judgment obtained by the plaintiff, as executor, against the estate of the defendant’s testator; the suing out of execution ; the marshal’s return of nulla bona; it then suggested waste by administrator, and concluded with a prayer for execution against the administrator de bonis propriis.

Scire facias against replevin bail. The original judgment was in favor of Elias N. Shimer, administrator, &c., against Hiram H. Lewis and George W. Lewis, and was rendered on the 29th of November, 1839, by a justice of the peace. On the same day, Lee Isaac entered himself replevin bail. On the 29th of August, 1840, William T, Leans and Lewis C. Lewis entered themselves additional bail.

<p>ERROR to the Vermillion Circuit Court.</p> <p>This was an action of ejectment for the west half of the northeast quarter of section No. 8, in township No. 18, in the county of Vermillion, and the west half of the south-east quarter of section No. 5, in the same township. There were eight demises; — the first being laid as the joint demise of all the lessors of the plaintiff, and the others as the separate demise of each of them. The cause was submitted to the Court upon a statement of facts agreed to by the parties, and the judgment was in favor of the defendant.</p> <p>It appeared that John Haine died seised of the premises in controversy in October, 1830, leaving the following named persons his children and heirs at law, namely: Jacob Haine, Samuel Haine, James Haine, Harriet Haine, Mary Maine, Elizabeth Mauser, married to Daniel Mauser, and Catherine Hansicker, married to George Hansicker. After the death of John Haine, and before the suit was brought, Mary married Francis Kendrick, Harriet married James Christy, Samuel died, leaving a daughter, Catherine, his only heir, and Elizabeth died, leaving Mary, married to William Gilbert, and Rebecca, James, John, George, Martha, and Sarah Mauser her children and heirs at law. The above named children of John Haine who were living, with the husbands of the married daughters and the heirs of those deceased, were the lessors of the plaintiff.</p> <p>The defendant claimed title under a commissioner’s deed, made pursuant to an order of the Probate Court of Vermillion county, and the case turned upon the question whether that deed, and the proceedings upon which it was based, were sufficient to divest the title of any or of all the plaintiff’s lessors.</p> <p>By several entries upon the order book of the Probate Court, it appeared that at the November term, 1833, Francis Kendrick filed a petition setting forth that he, together with Jacob Maine, George Han-sickcr and Catherine, his wife, Samuel Haine as guardian for James and Harriet Haine, minors, and Daniel Mauser and Elizabeth, his wife, were the legal heirs of John Haine, deceased, and joint owners of the following tracts of land, to wit:</p> <p>The south 40 acres of the east-half of the south-west quarter of section No. 8, township 18, range 9.</p> <p>The west half of the north-east quarter of section No. 8, township 18,range 9.</p> <p>The west half of the south-east quarter of section No. 5, township 18,range 9.</p> <p>The south 40 acres of the east half of the south-west quarter of section No. 7, township 18, range 9.</p> <p>Also, 40 acres in range 10, the number not recollected.</p> <p>The record stated that satisfactory evidence was before the Court, that due notice had been given of this application for partition, by publication in the “ Wabash Herald” at least four weeks, successively, prior to the first day of the term, and that the Court, on said application, appointed three commissioners to make partition, &c.</p> <p>At a subsequent term, the commissioners reported that the land was not susceptible of an equitable division, and the Court, thereupon, made an order directing them to sell the land, at auction, after giving notice of the time and place of sale, &c. Afterwards, at the May term, 1834, the commissioners reported that they had sold said land lo various persons, setting out the tracts sold to each purchaser, with the price, &c. The sales were approved and con-iirmed by the Court, and the commissioners were ordered to make deeds to the purchasers. They did, accordingly, execute a deed to David Smith, the defendant in this suit, for the tracts of land in the declaration mentioned, which he had purchased, at the sale, at the price of 1064 dollars.</p> <p>The record also showed that the proceeds of the sale were divided amongst the heirs of the said John llainc, deceased, under the direction of the Court, the shares of the married daughters, except that of Elizabeth Mouscr, being received by their husbands, those of the minors by their guardian, and that of Mouscr and wile by 11cm-sic/ccr, as their attorney in fact.</p> <p>1st. The petition was insufficient to authorise the Court to entertain jurisdiction, because it does not describe the lands sought to be divided with sufficient precision; one of the tracts being mentioned in very general terms, there being no mention made of the State or county in which the land was situated, and one of the tracts in controversy in the present suit, namely, the west half of the south-east quarter of section No. 5, &c., being omitted, or misdescribed as the west half of the nortk-east quarter of section No. 5, &c.</p> <p>In this latter particular, the original petition, on file in the clerk’s office, disagrees with the entry upon the order book reciting the substance of the petition filed, in which entry the last mentioned tract of land is correctly described.</p> <p>2d. Mouscr and wife are not named in the original petition, and, therefore, they were not made parties and not bound by the proceedings.</p> <p>In this respect, also, the original petition differs from the entry upon the order book, which states that the names of Mouscr and wife were contained in the petition.</p> <p>3d. It does not appear that the requisite notice was given.</p> <p>4th. Kendrick had no right to exhibit the petition without his wife being joined.</p> <p>5th. The report of the commissioners that the land was not susceptible of an equitable partition, was not sufficient to authorise the order of sale, as the original report also misdescribes the tract of land above mentioned in the same way that the petition does, and differs from the order, directing the sale, in which the said tract is again correctly described.</p> <p>6th. It does not appear that any proof was made of the title of the petitioner, and the decree does not ascertain the rights of the several parties.</p> <p>For these reasons, it was contended, the Probate Court had no jurisdiction, and all its proceedings in the case are coram non judice.</p> <p>The plaintiff in error objects to the order of sale :</p> <p>1st. That it does not agree with the petition, either as to the land or the owners.</p> <p>2d. It does not appear that the lands are in Vermillion county.</p> <p>3d. It does not appear that publication was made in the proper paper.</p> <p>4th. The last mentioned tract of land is not sufficiently described.</p> <p>5th. It does not ascertain the rights of the parties.</p> <p>We answer to the first four of these objections, that however sufficient they might be on error, they cannot be examined collaterally, this being the judgment of a competent court. To the fifth we answer, that it cannot be examined collaterally: and that it is not true in fact; the recital is that they are joint owners, and the in-tendment is that they are equal owners. 2 Cm. Dig. 483.</p> <p>The plaintiff quotes Broum v. Me Queen, (6 Blackf. 208.) in which it is said, “ the Probate Court is an inferior court created by statute,” and seems to infer from this that it is an inferior court of special and limited jurisdiction, in the sense of the common law.</p> <p>We answer : The Probate Court is a court of record, and as such, its proceedings “ import in them such incontestable credit and virtue, as that they admit no averment, plea, or proof to the contrary.” Co. Lift. 260, a; Kemp v. Kennedy, 5 Craneh, 173; Walkin's case 3 Pet. 193; and, therefore, the common law doctrine, of inferior courts of special and limited jurisdiction, does not apply to the Probate Court.</p> <p>By the statute governing this case, the full effect of the process, orders, and decrees of the Circuit Courts, is given to the process, orders, and decrees of the Probate Courts. R. S. 1831, p. 154. And the powers of the Circuit Courts in partition, are given to the Probate Courts, (Acts of 1833, p. 114, §10) and those powers are prescribed in the Revised Statutes oí 1831, p. 387.</p> <p>The first position of the plaintiff in error is, that it is the filing the petition and proof of notice, that gives the court jurisdiction. But our first position is, that the judgments of our own courts of record, if they had jurisdiction of the subject matter, are only erroneous and not void, for the want or irregularity of the process, or notice, or want of jurisdiction of the person. The United States V. Armidon, 6 Pet. 709; Rhode Island v. Massachusetts, 12 id. 708; Walkin's case, 3 id. 193; Kemp v. Kennedy, 5 Cranch, 173; Shdhorn v. May, 6 id. 267; Wise v. Withers, 5 id. 230; Ráster v. Fortner, 2 JBinney, 40; Gold v. Strode, Garth, (quoted in 2 Wms. Saund. 101, note 2); Grignon v. Astor, 2 How. U. S. R. 338.</p> <p>• Irregular process is void, but an irregular judgment of a competent court is only erroneous. De Reimer v. Cantillon, 4 John. Ch. R. 92 ; Shottenkirk v. Wheeler, 3 id. 275; Prigg v. Adams, 2 Salk. 674; 6 Miss. R. 399.</p> <p>The plaintiff cites Biglow v. Stearns, (19 John. 39,) and relies on the dictum of Ch. J. Spencer, (p. 40-41) that, “if a court whether of limited jurisdiction or not, takes cognizance of a cause, without having gained jurisdiction of the person, by having him before them in the manner required by law, the proceedings are void.” We deny the truth of this, in the extent of the words used. It is a mere obiter. The case before the Court was a conviction in a court not of record, before a justice of the peace, without appearance. The cases cited for the rule are all cases of similar convictions, or of proceedings in the courts of other States. Not one case is cited of proceedings in a domestic court of record. These cases are: Borden v. Fitch, 15 John. 121; Kibby v. Kibby, Kirby’s R. 119 ; Phelps \. Holkar, 1 Dali. 261; Kilburn v. Wordsworth, 5 John. 41; Johnson v. Ward, 8 id. 90; Fenton v. Garlick, id. 197; Pawling v. Bird, 13 id. 193; Grumon v. Raymond, 1 Day, 40; all cases of judgments in other States. Smith v. Bercchize, 2 Strange, 993; a conviction, Perkins v. Proctor, 2 Wils. 382; a bankruptcy case. Barton v,' Root, 10 Mass. R. 262; Mills v. Duryee, 9 Cranch, 481; judgments of other States. Mills v. Martin, 19 John. 7; a judgment of a Court Martial.</p> <p>There are two other cases in New York, both founded on the judgments of other States, namely, Starbuck v. Murray, 5 Wend. 148; Shumway v. Stüman, 11 id. 452; and one on a probate order of sale, Bloom v. Burdick,1 Hill, 140.</p> <p>There are some cases in New York which seem opposed to the above view. Rut they only seem so; and notwithstanding some loose language of the Courts, in fact they confirm it, as the exception shows the rule. Latham v. Edgcrton, 9 Cow. 227; and the cases 7 id. 468; 6 id. 593; 4 id. 80-540.</p> <p>The plaintiffs’ counsel refer to the Opinion of Lord Redcsdale in Bennett v. Hamid., (2 Seh. & Lef. 577). that “the purchaser has a fight to presume that the judgment or decree is correct; but he is bound to see that the proper parties are before the court.” We have always understood these words to mean, not that an objection to the decree could be made collaterally, so as to avoid its operation on the parties to it, for want of jurisdiction; but that the purchaser must see that the owner of the title was a party to it.</p> <p>The plaintiffs’ second proposition is, that proceedings in partition are peculiar; and that in partition cases, a compliance with the law must be shown, even when in question collaterally. A series of New York cases are cited: Jackson v. Brown, 3 John. 459 ; Jackson v. Woolsey, 11 id. 446; Gallatin v. Cunningham, 8 Cow. 374; Dunning v. Corwin, 11 Wend. 647; Walworth's case, 15 id. 448.</p> <p>The first reported partition case in New York is Jackson v. Brown. C was the owner in 1802, and sold to I), who continued to own the interest of C and resided on the land in 1805, when the petition in partition was filed. But C, and not 1), was made the party and received the notice. This is precisely the case put by Lord Redcsdale in Bennett v. Hamil. The proper and only question, on the ejectment, was this: Was D bound by a decree to which he was not a party? Unfortunately, the judge, who delivered the opinion on a correct judgment, uses loose language, and says the proceeding was void,” when in truth the decree was good enough, but was not operative for want of the right party to it. The principle decided in this case, is, judgments do not bind strangers to them.</p> <p>In Jackson v. Woolsey, objections were made to the proceedings in the particular case. The conclusiveness of the judgment in partition was suggested by counsel. The Court examined the objections, and sustained the proceedings in partition. But is this authority on the one question, because the Court preferred to examine and decide the other?</p> <p>Gallatin v. Cunningham, was in error, and the original case will be found in 1 Hopkins, 48. The chancellor set aside the partition for gross fraud, and does not examine the question of regularity. In error there was an affirmance; but the Court refused to give the grounds of their decree. 1 Cow. 385. There arc two opinions given ⅞ by Woodworth, judge, and CoUen, senator. They agree as to the fraud. Woodworth held also, that the proceedings were void for irregularity, but cited no authority; this Golden denied, and cited Bennett v. Ramil, (2 Sch. & Lef. 577,) and De Reimcr v. Cantillon, (4 John. Ch. R. 85).</p> <p>In Dunning v. Corwin, a claim was set up under a judgment against “ unknown owners.” It was held, that the judgment did not affect any individual in particular, without a compliance with the statute; and so, it seems, the New York statute expressly provides. 13 John. 488.</p> <p>This case, Dunning v. Corwin, in its facts resembles the Hollings-worth case, in 4 Peters, 466. In both, the only question, is, can the owner be affected by a decree against “ unknown owners,” unless the statute, which creates his liability as an “ unknown owner ” is pursued? It is that, and that only, which makes him a party. It is true, that in each of these cases the judges, in their argumentation, passed beyond the facts involved, and asserted general rules not recognized by authority. Butin Foot y. Stephens, (17 Wend. 483,) the rule we assert was recognized, Dunning v. Corwin was denied, and the record of a domestic judgment, by default, was held conclusive without process or appearance.</p> <p>With Foot v. Stephens, the following cases agree: Cook v. Darling, 18 Pick. 393; Granger v. Clark, 22 Maine, 128; and now, we ask, are the New York cases illustrations of any rule of the common law? And, has it been mooted and decided in New York, that proceedings in partition, in the courts of general jurisdiction, can be impeached collaterally for want of compliance with the statute?</p> <p>There is a distinction recognized in England, between courts of record of general jurisdiction and courts of record of limited jurisdiction. In the one ease, the judgment, of itself, is absolute verity; in the other, the record must show a subject matter within the juris-? diction, and then, the judgment is conclusive. Ladbrook v. James, 1 Willes, 200; Sailers v. Lawrence, id. 416. This rale seems to have been applied, in the United States, to the exercise of mere statutory powers by courts of general jurisdiction. The following cases are illustrations: Shriven's Lessee v. Lynn, 2 How. 43; Thompson v. Tol-mie, 2 Peters, 157; Yoorhccs v. The United States Bank, 10 id. 449; Doe v. Wise, 5 Blackf. 402.</p> <p>In Voorhees v. The United States Bank, the question is discussed, whether when special powers are given, to be exercised in a particular manner, the mode is a condition on which the validity of the exercise of the power will depend, and the negative is held by the Court.</p> <p>Hence, we conclude that, as in this case, the record of the proceedings of the Probate Court, show by the petition, a subject within its jurisdiction, the decrees of sale and of confirmation are, collaterally, conclusive.</p> <p>This then is an answer to the several objections above stated. There are some other objections made by the plaintiffs, all which will be affected by the above general rule, and can also be otherwise sufficiently answered.</p> <p>It is said the petitioner, Kendrick, is not a “ proprietor,” within the meaning of the statute. Zimmerman v. Huff, (20 Wend. 100,) is cited to show that owners and proprietors, in New York, mean persons seised in fee. The petition states that Kendrick was seised in fee, and that is now determined by the judgment of the Probate Court. He was, in fact, a tenant by courtesy, and that, we think, is an estate and a freehold. Co. Lit. 351, a.</p> <p>It is said the report is void, because there is a variance between it and the order. We depend on the petition, order, and confirmation. In Shriver's Lessee v. Lynn, (2 How. 43,) the land sold was only in the confirmation.</p> <p>The defendant says that the parties ratified the sale by the receipt of the purchase money; but the plaintiffs object, that some of the parties are women, whose husbands acted without them; some infants, for whom a pretended guardian assumed to act; and that one party was represented by a person for whom no sufficient authority was shown. We answer:</p> <p>1st. Payment to the husband is payment to the husband and wife; the receipt of the husband is the receipt of the husband and wife, whether her land is sold by the act of the parties, or by authority of law.</p> <p>2d. The record states that the heir appeared, &c. We deny that this statement can be contradicted collaterally. So, the admission of the guardian by the Court, is conclusive that he was guardian. Rex v. Carlisle, 2 B. & A. 262; Reid v. Jackson, 1 East, 355.</p> <p>3d. The agent was received by the Court, and this is conclusive, even in a foreign judgment. Mallory v. Gibbons, 2 Campb. 502.</p> <p>The only remaining question then is, what is the effect of the ratification by the receipt of the purchase money? The defendants say it is conclusive even in Massachusetts, where probate courts are not courts of record. 2 Mass. 213; 4 id. 121; 9 id. 507; 14 id. 432; 16 id. 128: 5 Pick. 110.</p>

This was scire facias; the writ stating that the plaintiffs, at the C. C. P., holden at Gilmanton, first Tuesday of August, 1813, recovered judgment against the goods and estate of Henry Mellen, late of Dover, deceased intestate, in the hands of the defendant, administratrix of his estate, for the sum of $2,552.57, damages, and $9.90, costs of suit; that execution, which issued on the same judgment, was duly returned to the C. C. P., at January Term, 1814, nulla lona; and…

Covenant. Defendants conveyed to Edward Hall, Sr., a lot of land containing one hundred acres, supposed to be in Croydon, and covenanted to warrant the same to Hall, his heirs and assigns. Hall, the grantee, conveyed the same lot, with similar covenants, to one Ezekiel Hall. The latter conveyed a part of the lot, say about eighty acres, by metes and bounds, to plaintiff, Edward Hall, Jr., in fee, with similar covenants.

The appellant in this case filed a bill in chancery, which was dismissed on demurrer. The facts stated in the bill were as follows: In February, 1847, the complainant obtained judgment in the Cass Circuit Court, for 200 dollars, against Elizabeth Me Bean. On the 17th of the same month, a fieri facias issued on said judgment, and was levied by the sheriff, on the 23d of February, 1847, on a certain dower estate of the execution defendant.

This was debt on a judgment recovered in the Supreme Court of Judicature of the State of Vermont, third Tuesday of August, 1813. The defendant pleaded nil debet, on which issue was joined.

Assumpsit upon a promissory note, by Jones, against Shoaf and another. Judgment in favor of Jones for the amount of the note. It appeared by a bill of exceptions, that at the October term, 1846, the parties appeared and the defendants were ruled to plead on or before the third rule day, which was the 11th of January, 1847, and the defendants having failed to do so, they were defaulted upon the rule book on the 12th of Januaiy, 1847.

<p>Vendor and Purchaser. — The heirs of an intestate, whose real estate has been sold by an administrator, under an order of a Probate Court, and purchased by himself, have the right, upon application in a reasonable time, to have such sale set aside,</p>

•Hickson filed a bill in chancery against Wellman, Matthew and In-graham Little, and the President and Directors of the Madison and Indianapolis Rail Road Company. The object of the bill was to have certain conveyances of real estate, which had been executed by Wellman to the Littles, and by the latter to said President and Directors, set aside. The bill was taken as confessed against Wellman. The other defendants answered.

The following indictment was found against the defendant in this case. “ The grand jurors for the said State of Indiana, upon their oath present, that Michael Bouscr, late of said county, on the 20th day o Angus.t, 1847, at said comity of Madison, a certain collection of a portion of the citizens of the said State of Indiana, then and there being collected together for public worship, did then and there within less than two miles of said collection, to wit, within one half…

This was an action of debt, for a penalty, founded on § 8 of the statute of Dec. 16, 1796, entitled “An Act regulating Fees,” which provides that any one taking more than the legal fee “ shall forfeit and pay, to the person or persons suing for the same, the sum of $80 for every such offence; to be recovered by action of debt, in the Court of Common Pleas; besides being liable to an action for damages, by and for the party injured, to recover back the sum or sums so…

Trover for a horse and mare. Plea: the general issue. Trial. Verdict for plaintiff, which the defendant moved to set aside. Two questions were considered at the Law Term. The clecisión upon one of these questions is not here reported. The facts material to the understanding of the decision upon the other point are stated in the opinion.1

Libel for salvage, for rescuing the brigantine from the French captors, Nov. 28, 1800. Plea: denying right to salvage. William Kennedy, the libellant, deposes that he was a mariner on board the brigantine Washington. The brig was taken by a French privateer between St. Vincent and St. Lucia; all the hands taken out except the captain (Ricker, one of the respondents) and the libellant; and six of the privateer’s men put on board : steered for Guadaloupe.

This was assumpsit, to recover $8.69, money bad and received to the plaintiff’s use (there was a sebond count for $40 had and received, inserted probably with a view to give the C. C. P. jurisdiction). Plea: the general issue. On the trial, at last Term, the facts appeared to be [as follows:] — Dec. 9, 1806, plaintiff and defendant submitted (by parol) all demands to arbitration.