Volume 10 — Indiana Reports

<p>One coobligor may, it seems, deliver a bond to another coobligor, as an escrow; but the deliyory of an instrument to an obligee or payee, or the agent of either, is absolute in law.</p> <p>Parol evidence is not admissible to vary the legal eifeet of such delivery, or the terms of the instrument delivered.</p>

<p>In a suit against a railroad company for damages for injuring cattle, the witnesses estimated the value of the property variously, from 30 dollars to 40 dollars.' Held, that the Court might find the value to he 37 dollars.</p> <p>Section 3, ch. 93, Acts of 1853, is unconstitutional.</p>

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

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

<p>APPEAL from the Jennings Court of Common Pleas. °</p>

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

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

<p>Where a bidder at sheriff’s «ale prevents others from bidding, by representations touching the object of his bid, and buys the property at a price much below its value, the sale is void, as against public policy.</p> <p>But where no person was influenced by such representations, except the attorney of the execution-plaintiff, and it did not appear that he would have bid more than enough to cover the debt, a sale for the amount of the debt was held valid, though that amount was much less than the value of the property.</p> <p>The representation in this case was, that the bidder wished to purchase the property for the use of the execution-defendant ánd his family; but the statement was not reduced to writing.. There was no contract or understanding between the purchaser and the execution-defendant, nor did the latter advance any part of the purchase-money, nor was there any proof of fraud. Held, that no trust was created.</p>

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

<p>In a suit upon a promissory note payable in certain railroad scrip, where the maker had failed to pay in such scrip, the market value of the scrip is the measure of damages.</p>

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

<p>Until error is assigned, a case is not in the Supreme Court for any purpose ■whatever.</p> <p>And where error is assigned, if there be no brief in the case, it may be regarded as waived.</p>

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

<p>Indictment for receiving stolen property. The state was permitted to introduce testimony tending to show that the person of whom the defendant had received the property, had stolen other property of the same kind, from another person, at a different time. Held, that this was error.</p>

<p>APPEAL from the Tippecanoe Court of Common Pleas.</p>

<p>APPEAL from the Tippecanoe Court of Common Pleas.</p>

<p>Suit upon a loase, assignment and guaranty. The lessee agreed to make certain improvements on the premises. The lessor assigned the lease or agreement to the appellee, and guarantied that the lessee would perform his part of the contract within 10 dollars’ worth of work. The assignee sued the lessor.</p> <p>Held, 1. That the lease, assignment and guaranty were a sufficient cause of action.</p> <p>2. That it was not necessary that the consideration for the guaranty should be set out.</p> <p>"Where no objection was made to the sufficiency of a cause of action in the Court below, the objection cannot be taken in error, if there bo enough to bar another action for the same cause.</p> <p>Evidence going to contradict or explain the face of a written contract containing no terms of art or mystery, or ambiguity, is inadmissible.</p> <p>A local usage or custom must, at least, appear to bo long continued, uniform and generally known, to entitle it to consideration in explanation of a contract.</p> <p>The recognition of local usages is, as a general rule, contrary to the public policy of this state; indeed, it seems, that a good usage or custom in this state should, in addition to the common-law requisites, be shown to prevail throughout the state as a single locality. ° ^ "</p> <p>Aliter, with commercial usages. ,</p> <p>In the absence of words of limitation, the term to clear, a,s applied to remoying timber from land, means, to remove all the timber of every size, except the stumps; and parol evidence of a local meaning of the word is inadmissible to explain a written contract.</p>

<p>APPEAL from the Decatur Court of Common Pleas.</p>

<p>If A. place notes in B.’s hands for which the latter is to account, and after-wards A. draw an order on B. payable out of the first proceeds of the notes, and B. accepts it, it is no defense to a suit on the acceptance for B. to say that the notes were put into his hands before the order was drawn.</p> <p>An order may be accepted by parol.</p> <p>A continuance to obtain testimony is rightly refused where the fact sought to be proved is unimportant.</p> <p>An immaterial issue of law left undecided is no cause for reversal.</p>

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

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

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

<p>This case is precisely like The Indianapolis and Cincinnati Railroad Company v. Townsend, ante, 38.</p>

<p>APPEAL from the Hamilton Court of Common Pleas.</p>

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

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

<p>APPEAL from the Decatur Court of Common Pleas.</p>

<p>Action against a sheriff and his sureties, on his official bond. Breach, failuro to deliver an execution to his successor, or to return it, &c. The action accrued under the statute of 1849, but was brought under that of 1852. Held, that the amount of the recoveiy was governed by the statute of 1852; and that the defendants might give evidence of the insolvency of the execution-defendant, for the purpose of showing the amount that the sheriff might probably have collected.</p>

<p>Suit by a guardian of minor heirs against a lessee of the administrator for the use and occupation of a certain shop. The defendant set up his lease, the validity of which the plaintiff denied. The defendant introduced as evidence an order of Court authorizing a sale of the rents and profits for the payment of debts, and a second order, confirming the administrator’s report of the leasing of the property. Ho then offered the lease in evidence, but it was excluded. It was contended that if the orders were all the proceedings authorizing the lease, it was inadmissible; and if they were not, all the proceedings should have been introduced. Held, that a party may prove the facts in his case in the order which he may prefer; that it cannot be presumed that if the lease had been introduced, the defendant would have rested his case upon it and the orders; but that, on the contrary, it must be presumed that the proper proceedings had preceded the order of confirmation.</p> <p>The statute of 1843 authorized administrators to lease real property for the payment of debts, where adversary proceedings were had, at least to the extent of malting those interested in the land parties, and giving them notice. Where such proceedings were not had the leasing is of no validity.</p>

<p>APPEAL from the Spencer Court of Common Pleas.</p>

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

<p>APPEAL from the Johnson Court of Common Pleas.</p>

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

<p>APPEAL from the Hamilton Court of Common Pleas.</p>

<p>The act of 1852 establishing Courts of Common Pleas graduates the salaries of the judges, partly upon population, partly upon territory, and partly upon population and territory combined. Edd, that the act is not uniform, within the meaning of the constitution.</p> <p>The provisoes in § 38 of that act are void.</p>

<p>An instruction inaccurately worded, and erroneous as an abstract proposition, is nevertheless right, if it is correct in its application to the evidence, and not calculated to mislead the jury.</p> <p>An appellant cannot assign as error an instruction in his favor.</p> <p>An instruction prayed should be based upon facts assumed to be proved by af the evidence bearing upon them, and not by a portion only of the evidence-</p> <p>The Court must decide the effect and sufficiency of evidence Where the evidence offered can legally produce but one result; but the Court will not assume that but one effect will be produced by the evidence upon a given point, unless such evidence has a fixed legal import, and is such that no other in- • ference can be drawn from it.</p> <p>An instruction too narrow to cover the merits of the case, should be refused.</p> <p>The Court is not bound to give an instruction unless it ought to be given precisely as prayed.</p>

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

<p>The defendant, in this case, claimed as a set-off the amount of a note made jointly by the plaintiff and himself, alleging that he, defendant, was only surety, and that he had paid the whole note. To prove this, he called the plaintiff as a witness. Plaintiff testified that defendant had paid the note, and then went on to testify to a series of arrangements between him and defendant, by which he had satisfied the latter. Defendant then offered himself as a witness touching these further facts, but he was rejected. Held, that he should have been admitted.</p>

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

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

<p>The Court, on motion, will set off judgments of the same or of different Courts.</p> <p>Where one of the judgments thus set off has been assigned, the Court will not except the amount of a lien thereon of which the assignee had no notice.</p> <p>In this state, attorneys haye no general lien on judgments for fees.</p>

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

<p>Upon an indictment for larceny, evidence is not admissible to show that the defendant has a general disposition to commit that offense; nor that he had been guilty of a similar offense; much less that he had been guilty of a felony of a different character.</p> <p>Where an attempt has been made, by exciting the fears of a prisoner, to procure him to make confessions, and there is reason to presume that the attempt had that effect, evidence of his confessions is inadmissible.</p>

<p>A party may rescind a contract entered into when he was so far intoxicated as to render him incompetent to contract, within a reasonable time. Whether the party was so intoxicated, is a question for the jury. A contract of sale of property intended to be used for gaming, is not void under our statutes.</p>

<p>APPEAL from the Howard Court of Common Pleas.</p>

<p>By eh. 18, Acts of 1855, the objection that the complaint does not set forth a sufficient cause of action, may be made on appeal, though not raised in the Court below.</p> <p>An injunction will lie to prevent the commission of a mere trespass only in cases where irreparable injury would result and the plaintiff has no other remedy.</p>

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

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

<p>A note payable at a bank, is payable in the bank; and a note payable at or in a bank, is payable to the holder, or his agent, in the bank, at its counter.</p> <p>The term bank does not necessarily refer to a chartered banking institution; though it includes all such, and is used in our constitution simply in reference to that class of banks.</p> <p>Charters are not requisite for banks of deposit and discount.</p> <p>The legislature, by § 6, ch. 77,1 R. S. 378, intended to place private and chartered banks of deposit and discount upon the same footing.</p>

<p>Sections 96, 97 and 98, 2 B. S. p. 374, with regard to arraignment and pleading, apply alike to prosecutions by indictment and information.</p> <p>On appeal, in such cases, the record must disclose an arraignment and a plea pleaded or entered upon the minutes of the Court.</p> <p>A separate trial cannot he demanded as a matter of right, after the jury has been sworn, and the evidence partly heard, even if the statute gives the right, when properly claimed, to persons prosecuted by information.</p> <p>Where there has been no arraignment, and the defendant has not pleaded, quotre, what would be the effect of a motion to set aside the swearing and impanneling of the jury to enable him to plead!</p> <p>In criminal prosecutions the Court must charge the jury. Upon request by either party, the charge must be in writing. But such request should be made, or written instructions prepared by counsel presented, in time to enable the Court to give them due consideration. Where the request was not made till the Court was proceeding to give an oral charge, — held, that it was too late.</p> <p>Under the statute against “notorious lowdness or other public indecency,” a prosecution will not lie for using obscene language, or singing obscene songs.</p> <p>The legislature will be presumed to have acted with regard to the settled judicial interpretation of words, where a different rule has not been established by that body.</p>

<p>Where in a proceeding in attachment against real estate, there was no description of the property, in either the sheriff's return or the judgment:—</p> <p>Hdd, 1. That the proceedings were void for uncertainty.</p> <p>2. That they cannot be explained by extrinsic evidence.</p>

<p>A bond given by a debtor to secure to one of his creditors a secret preference over the others, as an inducement to him to sign a deed of composition, or other substantially similar instrument, is fraudulent and void, notwithstanding the creditor stipulating for such preference may have been the last to sign such instrument; and the debtor himself may set up the fraud, in defense to a suit upon the bond.</p> <p>Good faith is required in every arrangement or settlement made by an embarrassed debtor and his creditors, whether it amount strictly to a composition deed or not.</p>

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

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

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

<p>APPEAL from the Blackford Circuit Court. -</p>

<p>APPEAL from the Fayette Court of Common Pleas*</p>

<p>In a doubtful case, a sale of real estate made by trustees of an express trust to one of their number, will be set aside.</p> <p>■The Courts will scrutinize such transactions, where trustees are parties, with the greatest care, especially whore they are promptly brought before a Court, ■ and rights have not intervened affecting the case with hardship.</p>

<p>If in a suit for the value of property wrongfully taken, under circumstances rendering it impossible for the plaintiff to know its amount or value, the defendant fail to show the same, the jury must solve all doubts in relation to amount and value most strongly against the defendant.</p>

<p>APPEAL from the Warren Court of Common Pleas.</p>

<p>APPEAL from the Wayne Court of Common Pleas.</p>

<p>An affidavit for surety of the peace is not had for being in the alternative as to the injuries feared.</p>

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

<p>The purchaser at sheriff’s sale of land to which the execution-debtor has no title, can recover from the debtor the amount of the purchase-money paid to the sheriff, though no fraud in relation to the sale be imputed to the debtor.</p> <p>The complaint, in such case, need not allege a demand.</p>

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

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

<p>A person is estopped to deny the existence of a railroad corporation, at the time he contracted with it as such.</p> <p>If he deny its existence at a subsequent time, he must show how it ceased to exist.</p> <p>Where a general denial is pleaded, special denials embraced by it are demurrable.</p> <p>Suit upon a subscription of stock. The complaint set forth the article subscribed to, alleged performance on the part of the company, and a subsequent promise to pay, by defendant. Answer, 1. The general denial. • 2. Payment. Held, that the latter was new matter, not provable under the general denial, and the paragraph* setting it up was not demurrable.</p>

<p>APPEAL from the Tippecanoe Court of Common Pleas. jrj</p>

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

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

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

<p>APPEAL from the Morgan Court of Common Pleas.</p>

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

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

<p>The Court may permit the parties to perfect their pleadings, at any time, upon the issues formed before the submission of the case to the-jury; but it cannot permit a party to amend so as to present a new issue after the evidence and the argument have been heard.</p> <p>Qawre, whether the Court should permit a reformation of the whole pleadings, at any time, upon cause shown.</p> <p>In cases where,-under the former practice, general assumpsit might be brought where there had been a special contract, an action may now be brought upon the implied legal engagement or obligation of the defendant to pay for the services or thing ordered or received by him, without reference to the special' contract.</p> <p>If the defendant, in such case, would avail himself of the special contract, either to defeat the action or to fix the measure of damages, he must plead it, and produce it in evidonce.</p> <p>But if, in such a proceeding, the existence of a special contract is developed by the evidence, the plaintiif must show its stipulations, and that he has complied with them on his part, or that he has been prevented from doing so > an^- must make it appear that he is in a condition to recover without regard to it.</p>

<p>In a suit brought by the assignee to foreclose a mortgage executed to secure the payment of a promissory note, a paragraph of the answer admitting the assignment by denying that the assignee is the real party in interest, but alleging no facts which would enable the Court so to decide, is bad on demurrer.</p> <p>As was formerly the rule in equity, so by our statute, the real party in interest must bring the action, except where the statute has otherwise provided; and in a suit by the assignee of a promissory note, an answer showing affirmatively that the plaintiff is not the real party in interest, and that he is not authorized to sue by any of the statutory exceptions, is good.</p> <p>Where a demurrer to a pleading has been sustained, the refusal of a continuance to enable the party filing it to obtain answers to interrogatories framed to elicit evidence to sustain Ms pleading, is not error.</p> <p>Though a party in his complaint name himself plaintiff, and other persons defendants, it does not follow that all the defendants named will necessarily continue their adverse relation to him throughout the action, and if one of such defendants, being a proper party to the action, cease, in the progress of the pleading, to be adverse to the plaintiff, such defendant cannot be examined as a witness on the plaintiff’s behalf.</p> <p>If in a suit by the assignee of a promissory note against the maker, the payee be joined as a defendant, and he fail to demur or answer, and afterwards file a pleading, in the nature of a reply to the answer of his co-defendant, and the issues formed were such as to enable the Court to determine how much the assignee was entitled to recover from the maker, and what deductions the maker was entitled to for payments made severally to the payee or the assignee, and thus the amount for which the payee would be responsible,— such payee is a proper party to the action.</p>

<p>APPEAL from the Carroll Court of Common Pleas.</p>

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

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

<p>APPEAL from the Marion Court -of Common Pleas.</p>

<p>The use of land for a highway for such a length of time that public accommodation and private rights might be materially affected by an interruption of the enjoyment, is sufficient to raise a presumption that the owner intended a dedication to the public.</p> <p>It is not necessary under our statute that the highway should have been established by authority.</p>

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

<p>A. purchased of B., by a verbal contract, a parcel of land, paid part of the purchase-money, took possession, and made improvements; but afterwards they agreed to rescind the contract, A. agreeing to surrender the possession and improvements abotit the first of March, and B. agreeing to give A. a horse worth 110 dollars, and certain notes. The horse was delivered and accepted. On the 28th day of February, A. tendered the possession, &c., and removed from the premises. B. refused to execute the notes. A. brought suit.</p> <p>Held, 1. That the contract was not void for uncertainty. 2. That it was not void by the statute of frauds.</p>

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

<p>An agreement between the principal maker and the payee of a promissory note, without the consent of the surety, to extend the time of payment, in consid eration of usurious interest, does not discharge the surety.</p> <p>In a suit upon promissory notes, an answer admitting the execution as surety, setting up payment as to part, and a discharge as to the balance, by an agreement between the principal and the creditor for an extension of time for a valid consideration paid to the latter, without the consent of the surety, — is good on demurrer.</p> <p>Judgment by default may be taken against a defendant properly served until process; and where an entry of default was not made, it is amendable in the Court below, and on appeal, the amendment will be presumed to have been made.</p> <p>A motion for leave to amend after the evidence has been heard is addressed to the discretion of the Court, and where neither the evidence nor the proposed amendment are in the record, this Court cannot say that the Court below has abused its discretion.</p>

<p>APPEAL from the Grant Court of Common Pleas.</p>

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

<p>APPEAL from the Marion Court of Common Pleas.</p>

<p>A person subscribing to tbe capital-stock of a corporation conditionally, is not to bo considered a stockholder, or as liable on the subscription, until the company has performed the condition upon which Ms undertaking depends. When that is done, he becomes a stockholder by force of the agreement of the parties, and the subscription becomes absolute.</p> <p>Parol evidence is admissible to give eifect to a written instrument, by applying it to the subject-matter, by proving the circumstances under which it was made, whenever without the aid of such evidence the application could not be made in the particular case.</p> <p>But such evidence is not admissible where there is no uncertainty in the instrument, especially if it contradict the terms of the instrument itself.</p> <p>Evidence not pertinent to the issue is inadmissible.</p>

<p>APPEAL from the Tippecanoe Court of Common Pleas.</p>

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

<p>Suit to enforce the specific performance of a contract for the sale of real estate. The action was founded upon a title-bond, whereby the obligor agreed to convey the land, on the payment of a certain sum of purchase-money, with interest. The land was held in trust for the obligee, and the bond sued on was made in consideration of that trust. The obligee having died, his widow and sole heir tendered the purchase-money and demanded a conveyance, which being refused, she brought this s,uit. The Court found for the plaintiff, and adjudged that the defendant convey the premisos, &c. The next day after the judgment, the defendant moved the Court to vacate the' judgment and grant a new trial, under § 601, 2 R. S. p. 167. The motion was overruled. Held, that this was not error; that the case is not within any of the provisions of §§ 592, 601, 611, 612, 2 R. S. art. 29, p. 167.</p>

<p>APPEAL from the Huntington Court of Common Pleas.</p>

<p>A complaint to foreclose a mortgage must contain a description of the mortgaged premises, and allege that the mortgage was duly recorded in the county where the same are situate.</p> <p>An answer denying the execution of a written instrument, is not invalid because it is not sworn to; but such an answer excuses proof of the execution of the instrument.</p> <p>The printed statute-book of another state of the Union is not evidence in this state, unless it purports to have been printed under the authority of such state.</p>

<p>Where the defendant fails to appear, judgment may be rendered by default, without previously entering a rule for an answer.</p> <p>Causes pending at the close of a term of the Common Pleas, are continued by operation of law. No order of continuance is necessary.</p> <p>An affidavit of the non-residency of a party is not bad for not stating the cause of action, or for containing the qualifying words “ as the deponent verily believes.”</p> <p>The Court of Common Pleas has not jurisdiction of an action to foreclose a mortgage for 1,000 dollars or more.</p>

<p>APPEAL from the Madison Court of Common Pleas.</p>

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

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

<p>APPEAL from the Hamilton Court of Common Pleas.</p>

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

<p>APPEAL from the Scott Court of Common Pleas.</p>

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

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

<p>i Section 25 of oh. 20, I R. S. 1852, providing for allowances by county commissioners to clerks, sheriffs, &c., for extra services, is repealed by §§ 5 and 35, ch. 49, Acts of 1855.</p> <p>An appeal lies from the decision of a county board upon a claim by a county officer for extra services under the statute of 1855, as from any other judicial decision of such hoard.</p>

<p>A sheriff's return to an execution levied upon real estate, is admissible in evidence to prove the levy, sale and payment of the purchase-money, though it does not affirmatively state that the property was appraised.</p> <p>The fact that the return states that the property was sold to the highest bidder, does not admit the inference that there was no appraisement.</p> <p>It is only when property levied upon remains unsold, that the sheriff is required to return the appraisement with the execution; and even then, it need not be indorsed on the execution.</p> <p>"Where the property is sold, and the return does not show that it was appraised, an appraisement may be proved.</p> <p>"Where the rents and profits for seven years were offered, and there was no bidder, — held, that the shpriff was not required to offer a shorter term. Aliter, if he had received a bid.</p>

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

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

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

<p>Suit in the Common Pleas upon promissory notes. The defendant answered denying the jurisdiction of his person, because he was a brother of the judge. Upon a review of the statutes, held, that the objection should have been taken by way of application to change the venue.</p> <p>Held, also, that the fact that it was the defendant — the party objecting — to whom the judge was related, made no difference.</p>

<p>APPEAL from the Grant Court of Common Pleas.</p>

<p>A. and B., as par-tners, were indebted to C. by note. A. sold his interest in the partnership to JD. D. and B. agreed to pay all the debts of A. and B. ' Afterwards, D. sold his interest to B. Afterwards, A. gaye his individual promissory note to O. for an unpaid balance of the partnership debt, B. agreeing to assign to him promissory notes for the amount. C. thereupon surrendered the partnership note. A. brought suit against B. on the promise. There was evidence tending to prove a demand by A. before suit. Held, •that A. was entitled to recover.</p> <p>Tacts not denied by the answer, are to be taken as true on the trial.</p> <p>A variance amendable in the Court below, will be deemed to be amended in the Supreme Court.</p>

<p>On appeal to the Supreme Court in a chancery suit commenced and determined under the old practice, the Court presumes that all the evidence offered is before it, except the proof of such deeds, records, &e., as might be proven orally at the bar.</p> <p>And the Court examines the cause upon the law and the facts, and decides it upon its merits.</p> <p>Under the statutes ef 1831, 1838 and 1843, a bill for the assignment of dower was bad if it did not allege a demand before the suit was brought.</p> <p>And where no objection was taken to such a bill by demurrer but some of the defendants appeared and answered, while as to others the bill was taken as confessed, — held, that as to the parties answering, the cause should have been dismissed; and that a decree against the other defendants was erroneous.</p>

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

<p>Complaint in two paragraphs, 1. Upon a special contract; and 2. Bor work and labor and materials furnished. Motion to strike out the second paragraph, and also to compel the plaintiff to elect upon which he would rely, overruled. There was nothing in the record showing the two paragraphs to he for one and the same cause of action. Held, that there was no error.</p> <p>Parol evidence of the circumstances surrounding a contract in writing, as well as of the mutual acts of the parties in its fulfillment, is admissible to explain the meaning of the parties in the use of language otherwise obscure.</p> <p>And where the contract was abandoned by mutual consent, and each party did a portion of the work concerning which the contract was made, without regard to its provisions, parol evidence is admissible to show the value of the work done by the parties respectively.</p>

<p>APPEAL from Bartholomew Court of Common Pleas,</p>

<p>APPEAL from the Warren Court of Common Pleas.</p>

<p>This Court will not hold that damages for refusing to comply with an arbitration-bond, touching differences growing out of a contract, can he made matter of recoupment, where the complaint does not indicate that the cause of action had any connection with such contract, and the evidence is not upon the record, — if, indeed, it would in any case; and certainly such damages could not be made matter of set-off.</p> <p>Nothing can be recovered for use and occupation or for rent, where the premises were occupied under a contract of purchase, and that contract had been rescinded, and the property received hack by the vendor.</p> <p>This Court cannot say that the rejection of evidence was error, where there is nothing in the record showing its relevancy to the case made.</p>

<p>APPEAL from the Bartholomew Court of Common Pleas.</p>

<p>APPEAL from the Morgan Court of Common Pleas.</p>

<p>APPEAL from the Cass Court of Common Pleas.</p>

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

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

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

<p>APPEAL from the Shelby Court of Common Pleas.</p>

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

<p>APPEAL from the Shelby Court of Common Pleas.</p>

<p>APPEAL from the Grcmt Court of Common Pleas.</p>

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

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

<p>APPEAL from the Hamilton Court of Common Pleas.</p>

<p>Where a plaintiff offered in evidence a letter written by bimself, in which he attempted to charge the defendant with certain sums, as being due by the defendant’s admission contained in other writings, — Hdd, that the plaintiff should have produced those writings, to enable the jury to decide from the tenor of the whole whether he had placed a proper construction upon them.</p> <p>The admission of additional evidence, after the examination has closed and the argument commenced, is within the discretion of the Court; and the decision of the Court below in such cases, will not be disturbed by this Court, unless there appears to have been an abuse of the discretionary power.</p> <p>In a suit upon an unsettled account, the proof must go to the separate items; and evidence tending to show that the defendant is indebted to the plaintiff in some amount, is1 not sufficient to entitle the plaintiff to a verdict.</p>

<p>The Circuit Court having general jurisdiction, an objection to its jurisdiction must be raised by answer.</p> <p>Where the Court below has taken jurisdiction and rendered judgment, the presumption, on appeal to the Supreme Court, is in favor of the jurisdiction.</p> <p>Section 613 of the civil procedure act, 2 E. S. p. 168, has reference only to actions brought against a defendant not in possession, to quiet title, and not to cases where the defendant is alleged to be in possession and withholding the same, yet suffers judgment to be taken against him without answer.</p>

<p>Suit commenced before a justice of the peace for a balance due on a promissory note. Answer payment. The defendant offered in evidence two orders drawn by him in favor of the plaintiff after the note was due, which lie had proven to have been paid. He also offered to prove that the plaintiff had, since the note ivas due, received from the defendant 8,000 bricks. Held, that as the note was a money contract, and the transactions of which proof was offered were had after the breach of that- contract, it was necessary to prove not only an agreement to receive the orders and bricks, but a reception of them by the creditor, as a payment or satisfaction of the note; and for that purpose the evidence was admissible under the general issue, to the benefit of which, by the statute, the defendant was entitled.</p>

<p>The Court cannot refuse a guardian’s claim for services, because he does not show that he has not used the money.in his hands.</p>

<p>APPEAL from Switzerland Court of Common Pleas.</p>

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

<p>APPEAL from the Decatur Court of Common Pleas.</p>

<p>In a suit in chancery, where the code of 1852 was in force at the time of the finding or decree, the failure to more for a new trial is fatal to an appeal to the Supreme Court.</p>

<p>APPEAL from the Warren Court of Common Pleas.</p>

<p>APPEAL from the Cass Court of Common Pleas.</p>

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

<p>APPEAL from the Vigo Court of Common Pleas.</p>

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

<p>In a suit upon an account which appears upon its face to be barred by the statute of limitations, a credit given by the plaintiff within the period of limitation, does not take the account out of the operation of the statute, without proof that such credit was a payment by the defendant.</p> <p>But where the defendant, when called upon for payment, examined the account, including such credits, and pronounced it correct, — lidd, that the credits were admitted to be correctly entered as payments; and that the jury might infer from such admission a new promise to pay the residue of the debt.</p> <p>The affidavits of jurors may be received in support of their verdict; but not to impeach it. Much less will the statement of jurors, not under oath, be re- ' ceived to impeach their verdict.</p>

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

<p>APPEAL from the Tippecmoe Court of Common Pleas.</p>

<p>APPEAL from the Decatu/r Circuit Court.</p>

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

<p>APPEAL from the Franklin Court of Common Pleas.</p>

<p>APPEAL from the Warren Court of Common Pleas.</p>

<p>Where a motion to strike out a pleading raised a question of fact, and the record did not show what the fact was, the Supreme Court presumed that the motion was correctly overruled.</p>

<p>APPEAL from the Ohio Court of Common Pleas.</p>

<p>In this case the clerk’s certificate states that the transcript contains so much of the proceedings in the Court below, as the defendant’s attorney directed him to give. Held, that an appeal will not be entertained upon a transcript thus certified, except in a case authorized by statute.</p>

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

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

<p>Tho fact that a man believes his wife to be bewitched, does not show him to ho incompetent to make a contract.</p> <p>Tho fact that tho consideration of a contract is not, in the judgment of third parties, adequate, does not render the contract void.</p> <p>These are circumstances to be considered by the jury.</p>

<p>APPEAL from the Marion Court of Common Pleas.'</p>

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

<p>APPEAL from the Decatur Court of Common Pleas.</p>

<p>In a suit in tlic Common Pleas, the plaintiff laid his damages, in the conclusion of his declaration, at 1,000 dollars. The Court permitted him to amend hy reducing his claim to 999 dollars. Held, that the amendment was proper.</p> <p>Where all the evidence is not in the record, this Court cannot judge of the correctness of the ruling of the Court helow in the denial of a new trial, or upon any other point arising upon the evidence.</p>

<p>la a suit upon an account before a justice of the peace, the defendant made a written offer to confess judgment, which the plaintiff accepted, and judgment was rendered accordingly. On appeal to the Circuit Court, the written offer was transmitted with the other papers. On the calling of the case, the plaintiff moved that the appeal be dismissed; whereupon the defendant, upon affidavit that he had verbally withdrawn the written offer before the justice, moved for a certiorari, which motion the Court overruled, and dismissed the appeal. Held, that there was no error.</p>

<p>APPEAL from the Cass Court of Common Pleas.</p>

<p>A suit against a guardian upon a contract made by him touching his ward’s estate, is personal against the guardian, and not against him in his fiduciary capacity.</p> <p>Hence, he cannot, by resigning, cease to he a party to the suit and he made a Witness.</p> <p>A direction in the judgment in such a case that the levy be made of the effects of the ward, is error; hut it will be deemed to he amended in the Supreme Court.</p>

<p>APPEAL from the Grant Court of Common Pleas.</p>

<p>The Peru and Indianapolis Railroad Company v. Bradshaw, 6 Ind. R. 146, adhered to. t</p> <p>Where no valid cause of action, either at common law or by virtuo of any statute, is set up in the complaint, the plaintiif is not entitled to judgment, though a verdict he found in his favor. .</p>

<p>In an action against the trustees of the Wabash and Erie Canal for the killing of a horse by the falling of a bridge, the complaint did not aver that the plaintiff exercised reasonable care, nor that the injury happened without his fault. But one paragraph of the 'answer set up affirmatively that .the injury happened through the carelessness and negligence of the plaintiff, to which there was no reply. Ildd, that the defendant was entitled to judgment on the pleadings, notwithstanding a verdict for the plaintiff.</p>

<p>Application upon affidavit to set aside a judgment rendered by default in a suit upon a promissory note, in October, 1853. At the January term, 1855, the Court refused to set it aside. The affiant said he mistook the Court in which his cause was pending. Held, that the case is not within any of the statutes authorizing the Circuit and Common Pleas Courts to set aside judgments.</p>

<p>APPEAL from the Franklin Court of Common Pleas.</p>

<p>APPEAL from the Madison Court of Common Pleas.</p>

<p>A railroad company is not liable under tbe statute of 1853, for an injury to stock resulting from fright at their cars, where the animal was not touched by any car, locomotive, or other carriage belonging to the company.</p>

<p>APPEAL from the Hendricks Court of Common Pleas.</p>

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

<p>APPEAL from the Shelby Court of Common Pleas.</p>

<p>APPEAL from the Union Court of Common Pleas.</p>

<p>A suit, brought in. tho Common Pleas against a railroad company for killing cattle, is not governed by the statute of 1853, but by tho common-law mies.</p> <p>Hence, the complaint must charge negligence, unskilfulness, or willful misconduct, on the part of tho company or their agents, and that such negligence, &c., was the proximate cause of the injury.</p>

<p>APPEAL from the Jefferson Court of Common Pleas.</p>

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

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

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

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

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

<p>APPEAL from the Fountain Court of Common Pleas.</p>

<p>APPEAL from the Hamilton Court of Common Pleas.</p>

<p>APPEAL from the Shelby Court of Common Pleas.</p>

<p>In the assignment of causes of demurrer, the precise language of the statute need not be used.</p> <p>Suit upon the covenants in a deed. Breach, that the lands conveyed were encumbered by a mortgage, which the plaintiff had paid off. Answer, 1. That the plaintiff, when he purchased the lands, had notice, of the mortgage. 2. That the mortgage was not due. Demurrer, assigning for cause — 1. That the knowledge of the incumbrance was immaterial, as the defendant had expressly covenanted against it. 2. That the mortgage being an incumbrance, the plaintiff had a right to remove it, and sue upon the covenant.</p> <p>Held, 1. That the causes of demurrer were well assigned.</p> <p>2. That the notice of the incumbrance did not exclude it from the operation of the covenant.</p> <p>3. That the vendee had a right to remove the mortgage (even before it was due) and sue upon the covenant.</p>

<p>The Indianapolis and Broumsburgh Planlcroad Company, organized under the general plankroad act of 1855, had a right to erect a toll-gate on the portion of their road east of'White river (the road west of the river being completed), though that portion did not exceed one mile. In other words, the bridging of that stream was not a prerequisite to the right to collect toll upon the mile of road east of the river.</p>

<p>APPEAL from the Rush Court of Common Pleas.</p>

<p>If the acceptor of a bill of exchange fail to pay, and the bill be returned to the drawer, the latter may sue the former for non-payment.</p> <p>The acceptance of a bill raises a presumption that the acceptor has funds of the drawer in his hands; and where a drawer makes a bill payable to a third person, it is an acknowledgement that he owes that person.</p> <p>Upon the failure of an acceptor to pay, if the bill be found in the hands of the drawer with the blank indorsement of the payee upon it, the presumption is that he has discharged his debito the payee, and that he is entitled to enforce the acceptance of the drawee.</p> <p>In an action founded upon the return of a bill for non-payment by the acceptor, if the bill be shown to have been once in circulation, it will be presumed that it came back into the plaintiff's hands by payment, in the regular course by which dishonored paper goes back to the original parties, and that he holds the same in good faith; and he may recover though there be one or more indorsements in fall upon it, subsequent to the one to him, and he may strike out such indorsements.</p> <p>The indorsement of the payee is presumptive evidence that a bill has been in circulation.</p>

<p>APPEAL from the Pulaski Court of Common Pleas.</p>

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

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

<p>APPEAL from the Tippecanoe Court of Common Pleas.</p>

<p>Section 105, 2 It. S. p. 375, providing that where two or more defendants are indicted jointly, any defendant requiring it must he tried separately, does not extend to prosecutions by information.</p>

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

<p>APPEAL from the Decatur Court of Common Pleas.</p>

<p>APPEAL from the St. Joseph Circuit Court.</p>

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

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

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

<p>This case is decided upon the evidence.</p>

<p>APPEAL from the Cass Court of Common Pleas.</p>

<p>It is decided in this case, that the parties to the agreement recited in the opinion were, upon the evidence referred to, to be regarded, as to the public, as partners.</p>

<p>APPEAL from the Wells Court of Common Pleas.</p>

<p>Indictment in two counts against a constable for failing to pay over money. The first count charged a demand of the money by the execution-plaintiff, and a failure to pay to him. The second count charges a failure by the constable on the expiration of his term of office, to pay the money to the justice of the peace. The indictment was predicated upon the act of 1855.</p> <p>Held 1. That by § 3, 2 R. S. p. 480, it was optional with the constable to pay the money over to either the execution-plaintiff or the justice, and the act of 1855 does not change the law.</p> <p>2. That the first count was bad for not averring non-payment to the justice; and an averment in the count that the defendant then and 'there had the money, referring to the time when he collected it, does not aid the defect. The count should have alleged a failure to pay to either the justice or the execution-plaintiff.</p> <p>3. That the second count was bad for not averring non-payment to the execution-plaintiff.</p> <p>4. That each count in an indictment must be sufficient in itself; that averments in one count cannot aid defects in another.</p>

<p>The Supreme Court will not readily review the decision of an inferior Court in setting aside a verdict and granting a new trial.</p> <p>A contract cannot he confessed and avoided, and also denied by alleging a different contract, in the same paragraph qf the answer. Such allegation is surplusage.</p> <p>It cannot he said that the market value of a commodity is peculiarly within the knowledge of one person more than another, as the channels of information are equally open to all; and a party to a contract of sale of a marketable commodity, has no right to rely upon the representations of the other party touching the market value of that commodity.</p>

<p>A person is not liable to a criminal prosecution for destroying timber on lands of wbicb be bolds possession by virtue of a fraudulent contract of purchase.</p>

<p>Statutes in restraint of personal liberty must be strictly construed, with reference to the current of judicial decision, and to the practice existing at the time of and before their adoption.</p> <p>In the practice under the statute of 1852 touching the proceedings upon the writ in the nature of a ne exeat regno, a complaint, showing a prima facie case, as well as an affidavit and a bond, must be filed before the order of arrest can issue.</p> <p>If such writ issue without a complaint having been filed, it should be quashed. But in this case, no motion-was made to quash the writ; and the jury found specially that the defendants did not intend to leave the state, &c.; that the debt was not due when the proceeding was commenced, but that it was due at the time of the verdict. Held, that the writ should have been set aside and the defendants discharged on the return of the verdict — which, in the absence of an appearance, would leave the case standing as if a complaint had been filed and no process issued, to be continued of course.</p> <p>But the defendants in this case having appeared, a judgment on the verdict for the amount found due, was affirmed.</p>

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

<p>ON APPEAL from Decatur Court of Common Pleas.</p>

<p>At common law, the jury were, in criminal cases, the exclusive judges of the evidence; but they were bound to believe the law to be as the Court stated it in the charge.</p> <p>But the constitution of 1851 (art. 1, § 19), changed the rule; the jury are now the exclusive judges of the law and the evidence.</p>

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

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

<p>By the proviso of § 116, 2 R. S. p. 275, a suit by residuary legatees will lie in the Common Pleas, to set aside the settlement of an estate for a mistake by the executor in failing to account for money.</p> <p>But not for money paid to the widow, which neither the will nor the law allowed her. The only remedy, in such case, is an appeal to the Circuit Court, as provided by the first clause of the same section.</p> <p>That statute was intended to protect the executor or administrator from suits, except for mistake or fraud, where the order making a final settlement was not appealed from.</p> <p>Sections 138 and 139, 2 R. S. p. 280, apply to eases where distribution is to bo made to heirs, and not to a ease where it is to be made to residuary legatees.</p>

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

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

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

<p>APPEAL from the Huntington Court of Common Pleas.</p>

<p>APPEAL from the Huntington Court of Common Pleas.</p>

<p>This case is decided upon the evidence.</p>

<p>APPEAL from the Wabash Court of Common Pleas.</p>

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

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

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

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

<p>APPEAL from the Wells Court of Common Pleas.</p>

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

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

<p>APPEAL from the Switzerland Court of Common Pleas.</p>

<p>la a suit against a railroad company, by an employb engaged as an engineer in running a train upon the road, to recover for injuries sustained in such service, the plaintiff must allege and prove negligence on the part of the company, by means whereof the injury was caused.</p> <p>There is no implied warranty, generally, of the completeness or fitness of the road or rolling stock, as between the company and their employes.</p> <p>But there are many exceptions. Bor instance, if a defect existed in the road which was known to the company, but which it was impossible for them to remove immediately, and in consequence of such defect the road was unsafe but not impassable, and yet they should suffer an employb, in ignorance of the defect, to attempt to pass upon the road, and injury should thereby result to him, the company would be liable. So, on the other, hand, if the employh had knowledge of the defect, and the employers had not, the latter would not be liable. And where both parties had such knowledge, each takes the risk, unless the company undertake to give special directions as to the mode of operating.</p> <p>Whether it is the duty of the company or of their engineer to see to and keep in safe condition a crossing, or other unsafe point on a railroad, is a question of fact for the jury.</p> <p>It seems, that where an injury to an employe of a railroad company resulted from his own negligence or carelessness, in failing to discharge some reasonable duty; or whore the employfe and the company were equally to blame for the injury, the company is not liable.</p>

<p>Two of the questions arising in this case were decided in the case of the same company against Fitzpatiick, ante, 120.</p> <p>In a proceeding by a railroad company to appropriate lands fora right of way, the statements of witnesses touching the value per acre of the lands appropriated, are admissible.</p> <p>Where the jury, in such a case, were sent to examine the premises, and the record contained nothing in relation to the impression produced upon the minds of the jury by the examination, — held., that the evidence was not all in the record, though the bill of exceptions stated that it contained it all.</p> <p>Evidence is that which produces conviction on the mind, as to the existence of a fact.</p> <p>An occular examination of the premises alleged to have been injured, might, in this instance, have that effect, as well as an oral detail of circumstances.</p>

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

<p>APPEAL from the Wells Court of Common Pleas.</p>

<p>APPEAL from the Fountain Court of Common Pleas.</p>

<p>The reenactment of a former section of a statute in a later section, is not necessarily a repeal of the former section.</p> <p>A. died, leaving a second wife by whom he had no children, and several ehild- ' ren by a former wife, surviving him; and being, at the time of his death, seized in fee of a tract of land. Held, that, under our law of descents (1R. S. p. 248), the second wife was entitled to one-third of her deceased husband’s real estate for life only, as against his children by the former wife.</p>

<p>APPEAL from Miami Court of Common Pleas.</p>

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

<p>APPEAL from the Rush Court of Common Pleas.</p>