Volume 11 — Indiana Reports

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

<p>Action to recover land. The plaintiff offered in evidence a patent from the United States, dated in 1824, to one IC; and a deed, upon the back of the patent, from IC. to H., dated February 16, 1827, purporting to have been executed in the presence of witnesses; and, also, an indorsement of a certificate of acknowledgment of the same by IC. The deed was not recorded, and it was objected to for the reason that it was not acknowledged or recorded. It had not appeared, hy the pleadings, that the defendants were subsequent purchasers. The R. S. of 1824 were in force at the date of the deed. Held, that the deed was admissible in evidence; that its force and effect, as evidence, would depend upon the attitude in which the defendants were placed by the whole evidence when heard.</p> <p>Possession in good faith under a tax-title, although that title be imperfect, may be adverse.</p> <p>What length of time such adverse possession may have continued, is a question for the jury.</p> <p>Every man is presumed to bo in the legal seizin and possession of land to which he has a perfect title; and such seizin and possession are coextensive with his rights, and continue until he is ousted hy an actual adverse possession.</p> <p>An entry by one man upon lands of another, is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if under claim and color of right, it is an ouster — otherwise, it is a mere trespass.</p> <p>Twenty years’ adverse possession is, under the statute, a good defense to an action for possession.</p> <p>Whether a party’s possession extended back beyond the date of his deed; and if so, whether or not he held under such a person or by such claim and color of title, as to render such possession adverse — are questions for the jury.</p> <p>Where a deed was made in 1827, acknowledged before an unauthorized person, and never recorded; and, in 1826, the land conveyed by it was sold for taxes; but the collector’s deed was not made until 1829, and the title conveyed by the latter deed was rendered invalid by a non-compliance with the requirements of the statute, — held, that the purchasers, at the tax-sale, could not claim to bo subsequent purchasers for a valuable consideration, within the meaning of the R. S. of 1824.</p> <p>A claimant, under a tax-title, must prove that all the requirements of the statute have been complied with.</p> <p>The defendants, in this case, asked the Court to instruct the jury as follows: “ That, to make a valid tax-title [under the statutes of 1824], it is only necessary to prove, to the satisfaction of the jury, that the land was liable to taxation; that it was regularly assessed; that the duplicate and precept were regularly made out and delivered to the collector; that then the deed of the collector is prima facie evidence of the correctness of all the acts and proceedings subsequent to the delivery of such duplicate and precept.” The instruction was refused. Held, that this was not error; that the levy of a county tax should be proved.</p> <p>The Court instructed the jury as follows: “If you believe the evidence, you should find for the plaintiffs.” Held, that this was error.</p> <p>The testimony of a person who has been a public officer, touching the contents of a lost instrument framed by him whilst in office, drawn from a general recollection of what ho considered his official duty, under the law, in framing such instruments, is not sufficient evidence of such contents.</p>

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

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

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

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

<p>A. sold and delivered to B. G., partners, 11,250 pounds of pork, taking a memorandum of tlic price agreed upon, which was to be paid six months after the delivery of the pork. Afterwards, A. had a settlement with B. §• G., when he surrendered the memorandum and took the individual note of B. for the price of the pork, payable six months after the delivery. The note fell due My 1, 1854; A. did not sue upon it; on the 10th of November, 1854, B. failed. A. sued B. Sf G. upon the original debt, offering to cancel the note of B.</p> <p>Held, that the note of B. was not a collateral security; that it was but the written promise of one partner to pay a debt for which both were liable; that it gave A. no additional security; and that the failure of A. to sue upon it, or demand payment before B.’s insolvency, did not discharge the firm, and cannot be set up in bar.</p> <p>Held, also, that a charge assuming the fact that G. settled the partnership affairs upon the hypothesis that the original debt -was paid by the arrangement between A. and B., was properly refused; because whether G. did so or not, was a question for the jury.</p> <p>Held, also, that an admission by A. after B.’s insolvency, to the effect that the acceptance of B.’s note had discharged C., is no evidence that A., at the time he took B.’s note, agreed to discharge C.</p> <p>The taking of a promissory note from one of several joint debtors, or the note of a third person, for a preexisting, debt, is not a discharge of the debt, unless such is the express agreement.</p>

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

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

<p>Action by an employb of a railroad company against the company, to recover damages for an injury received whilst in the employ of the company as a brakoman, occasioned by the roughness of the road and the breaking of a defective axle. Demurrer to the complaint, for the fifth statutory cause, overruled. The objection was, that the complaint did not negative a knowledge, by the plaintiff, of the condition of the road and machinery. Held, that this was not necessary; that it was matter of defense, which would more properly appear in the answer.</p> <p>The case of The Indianapolis, &c., Railroad Co. v. Love, 10 Ind. R. 554, affirmed.</p>

<p>In an action for malicious prosecution, the defendant offered to prove, by the justice before whom the prosecution was instituted, and another witness, that he, defendant, had informed the justice of the nature of the offense committed by the plaintiff, and that he desired to commence a prosecittion therefor, if the same was a violation of the criminal law of the state; whereupon the</p> <p>• justice, after examining, the statute, by mistake, informed him that it was a larceny, and drew the affidavit for that crimo, in good faith, intending only to charge the plaintiff with the offense described by the defendant. The offense described to the justice was not a felony, but a misdemeanor. Hdd, that the evidence was admissible to determine the question of malice.</p> <p>To sustain an action for malicious prosecution, the prosecution must be shown to have been instituted maliciously and without probable cause.</p> <p>The want of probable cause is not sufficient without malice, and vice versa.</p> <p>Malice may he inferred from the want of probable cause, as a matter of fact; but no such inference arises as a matter of law — in other words, the jury may draw such inference, if they see proper, but they are not bound to do so.</p> <p>Any evidence tending to show probable cause, or to rebut an inference or proof of malice is admissible.</p>

<p>Proceeding commenced by process of foreign attachment issued under the statute of 1843. The affidavit was filed and the writ issued in April, 1853; but it did not appear that the writ was ever served or returned, nor that it was ever placed in the sheriff’s hands. No property was attached, no person garnished, nor wore any steps taken to bring the defendant into Court. The record stated that the writ issued, and contained a copy of it. Nothing further was done until December, 1853, when the defendant appeared and answered.</p> <p>Held, 1. That the statement that the writ issued does not imply that it was placed in the hands of the sheriff for service; that the inference is, that it remained in the clerk’s office, as he copied it into the record.</p> <p>2. That the action could not be deemed to have commenced before the delivery of the writ to the sheriff for service; and hence, it was not commenced until December, 1853.</p> <p>3. That the mere making out of a writ, without actual or constructive delivery to the officer for service, was the same as if no writ had issued.</p> <p>The provisions of the code, touching parties to actions, do not interfere with rights, but affect the remedy only.</p> <p>Where promissory notes, secured by collaterals, wore placed in the hands of an attorney for collection, and he placed them in the hands of others for the same purpose, and afterwards, by a verbal contract, he purchased all the client’s interest in the notes, taking a written assignment of the collaterals:—</p> <p>Held, 1. That the verbal contract vested in the attorney an equitable interest in the notes, and no other assignment or delivery of them was necessary.</p> <p>2. That under the code, suit upon the notes should be brought in the name of the purchaser, he being the real party in interest.</p>

<p>The provision of the statute that when a deposition is to be taken out of the state, the clerk shall, at the request of the party who designs talcing- it, issue a commission to the officer designated, &c., is imperative; and without such commission the non-resident officer has no authority to take the deposition.</p> <p>A deposition taken out of the state should be suppressed, if the notary, in his certificate, omit to say whether or not the adverse party was present at the talcing-.</p> <p>The non-production in evidence, on notice, of the books of a corporation, will not justify the admission of parol evidence of the fact sought to be proved by the books.</p> <p>As a general rule, an action, against a carrier, for the loss of goods sent by a vendor to a vendee, must.be brought in the name of the consignee; for the-law infers that, by the delivery to the earner, the goods become the property of the consignee, and this though the consignor pay the freight; but where, by agreement between the vendor and vendee, the goods did not become the-property of the latter, and he was at no risk in regard t®. them until they actually reached him, the consignor should sue.</p>

<p>A ivager upon the result of an election is illegal, being contrary to public policy, and the Courts will not aid the winner to recover the sum or thing lost from the loser, nor will they, if the loser has voluntarily paid it, entertain an action to compel the winner to repay it.</p> <p>The loser may recover from the stakeholder the amount ho has deposited, whether the wager has been decided or not, provided he demand the return of the stake before it has been actually paid over, after the event, to the winner.</p> <p>In this case, after the wager was decided, the loser requested the stakeholder not to pay until he could see the winner, as he wanted him to receive certain judgments, in lieu of the sum won. Afterwards, the winner demanded the stake, saying that he would not accept the judgments, and the stakeholder, having no express direction from the loser not to do so, paid it. Held, that the loser could not recover from the stakeholder.</p>

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

<p>Complaint in substance as follows: A. complains of B., and says, that, on, &c., the said B. did by the unlawful sale of spirituous liquor, at, &c., cause the intoxication of G., a minor, &c., and a son of the plaintiff, and in his employment, whereby, &c., the plaintiff was deprived of his services, &c., to his great damage, to-wit, 500 dollars, and the plaintiff demands judgment, &c. Held, bad on demurrer, both under the statute of 1853, supposing it to be in force, and at common law.</p> <p>As a general rule, in actions upon statutos, the complaint must aver every fact necessary to bring the case within the statute.</p> <p>At common law, the sale of liquor is not unlawful; nor is the seller liable for any improper use of the article sold, at all events, not unless he sell it with a knowledge that it is purchased with intent to be applied to such improper use.</p> <p>Under the statute of 1853, supposing it to be in force, the unlawful sale of liquor would subject the seller to a criminal prosecution; and, hence, he could not bo liable to vindictive damages in a civil action.</p>

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

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

<p>The conveyance of real estate by a parent to a child, will not operate as an advancement unless it be so intended.</p> <p>Section 372, R. S. 1843, p. 555, touching advancements, does not enlarge or limit § 134, p. 439 of the same. To constitute an advancement to a child “by settlement or portion of real or personal estate,” under the former section, such settlement or portion must have been so intended.</p> <p>Prima facie evidence of such intention may be rebutted, and the intention shown to have been otherwise; and this would involve questions of fact as well as of law.</p> <p>Where an administrator filed his account for the final settlement of an estate, and one of the heirs claimed the whole amount in the hands of the administrator, on the ground that the other heirs had been advanced, &c., and the subject was referred, and upon the report of the referee that he was entitled to the whole amount, judgment was entered accordingly, though the administrator demanded to have the question tried by a jury: Held, on appeal, that the trial by jury should have been granted, the record not showing that he had waived the right to such trial.</p> <p>A waiver of the right, by consenting to the reference, cannot be implied from the fact that the record does not show that objection was made.</p> <p>Whore the record is thus silent, and no written consent to the reference appears to have been filed, a trial by a referee will, as a general rule, be held erroneous.</p> <p>A party can waive his right to a trial by jury only in the modes specified by statute.</p> <p>The Supreme Court will not affirm a judgment in a case in which the trial by jury was denied, on the ground that the cause was fairly tried and determined on its merits by the Court.</p>

<p>The failure of the foreman to sign a verdict, is not assignable as error, if the point was not raised in the Court below.</p> <p>Complaint upon a special contract with a count for work and labor. Upon the trial it was not shown that the work was completed within the time specified, or that it ever was completed. Held, that there could be no recovery upon the special counts.</p> <p>Where a party to an entire special contract has not complied with its terms, but, professing to act under it, has done for or delivered to the other party something of value to him, which he has accepted, the party thus benefited is responsible, upon an implied promise arising from the circumstances, to the extent of the value received by him.</p> <p>The Court, in this case, refused to instruct the jury that, to entitle the plaintiff to recover under the common count, they must prove the work done, and the reasonable value of the same, under the circumstances; but instructed them that although the contract had not been fully complied with by the plaintiff, yet ho could recover the value of the labor done, &c., if the defendant derived benefit therefrom; and that in determining the value of the work, the jury should be governed by the contract price, as far as they could follow it. There was no proof of the value of the work except the contract. Held, that there was no error.</p> <p>This Court will not review a refusal to set aside a verdict on account of excessive damages, where substantial injustice does not appear to have been done.</p> <p>A party cannot be held liable for work and labor dono under a special contract which has not been complied with on the part of the plaintiff, unless he has, in some manner, accepted the same, or waived a strict performance.</p> <p>Aliter, in that class of contracts for work, in which, from the very nature of the work, it must be accepted as fast as done.</p> <p>A contract to clear and fence a certain piece of land within a certain time, making fence-rails of all the timber upon the land suitable for that purpose, and making fire-wood of all timber suitable for that use, &c., is of the latter class.</p>

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

<p>The declaration of a testator, made six or eight days after the execution of his will, is not a part of the res gesta, and hence, is not admissible in evidence to show fraud in obtaining- the will, especially where the will was in his possession at the time the declaration was made.</p> <p>And it will be presumed, where there is no evidence to the contrary, that the mil was in the testator’s possession, at the time he made such declaration.</p> <p>It is only requisite that a testator, at the time of making his will, should be of such sound mind and memory as to enable him to know and understand the business in which he is engaged. It is not necessary that he should be in the full possession of his reasoning faculties.</p> <p>Under the statute of 1843, a testator’s intent to revoke his will did not, of itselfj render the will inoperative; nor did the belief that the will had been destroyed, and his declaration of assent to its destruction, affect its validity.</p> <p>The requirements of the statute, touching the revocation of wills, must be strictly followed.</p>

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

<p>Under the original charter of the Indianapolis and Bellefontaine Railroad Company, that corporation had no general power to execute promissory notes and bills of exchange.</p> <p>The company was chartered for the specific purpose of constructing a railroad from Indianapolis to the Ohio state line, to connect there with a certain Ohio railroad; and no express power to execute bills and notes being given, they could make only such as might bo necessary or proper in carrying through that undertaking.</p> <p>They could not execute accommodation paper, or paper to aid an undertaking not contemplated by tlieir charter; and such paper, if executed, would be void in the hands of an assignee.</p> <p>A bill or note executed within the power of a corporation, but by an abuse of that power in the particular instance, would, if governed by the law merchant, be valid in the hands of a bona fide holder; but if executed entirely withont the corporate power it would not, if, indeed, there could be a bona j.j , ,, j. , fide holder or such paper.</p> <p>The charter of a corporation designed for the accomplishment of a particular object through the investment of the funds of private individuals, at all events if fairly obtained, is a contract, at least after interests have become vested under it, which the legislature cannot substantially impair without violating the constitution of the United States.</p> <p>The legislature, therefore, cannot make compulsory amendments materially affecting rights under such a charter, unless by virtue of some reserved power.</p> <p>But the legislature may alter such a charter with the assent of all the corpora-tors ; and that assent may be manifested in at least three ways — by asking the legislature to make the amendment; by expressly accepting an amendment enacted without request; and by acting upon and acquiescing in an amendment enacted without request.</p> <p>The Indianapolis and Bellefontaine Railroad Company, by acting under § 3 of the general railroad act of 1853, accepted the same as an amendment to their charter.</p> <p>Under theft charter as thus amended they may execute notes or bills to pay the expense of altering the gauge of another railroad, to enable them to transport freight and passengers over it in their own cars; and their bills accepted on such a consideration would be valid.</p>

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

<p>Negotiable paper may be sold for less than its face, and the purchaser can recover its whole amount from the maker at maturity, although he thereby gets more than legal interest for the use of Ms money.</p> <p>Whether the sale is made in good faith, or only as a subterfuge to cover usury, is a question for the jury, or the Court trying the cause; and where the Court finds such a sale usurious, and the evidence strongly tends to sustain the finding, the Supreme Court will not disturb it.</p> <p>The amount charged for exchange cannot be increased in consequence of the length of time a bill has to run: the rate of interest allowed by statute was intended to be the only compensation for the use of the money, and the risk in loaning it.</p> <p>Where an usurious .contract is made in this state, between citizens of this state,' and the security taken for its performance requires performance in another state, held, that the law of this state decides the fate of the security.</p>

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

<p>In a suit upon judgments taken by confession, for a Iona fide debt, the defendant cannot set up, as fraud in obtaining the judgments, that the plaintiff had failed to perform his part of a contract which was entered into by him as an inducement to such confession.</p> <p>Cline 7. Murrell et al., 9 Ind. E. 516, overruled.</p>

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

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

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

<p>Suit for the possession of personal property. The plaintiff offered in evidence the record of a chattel mortgage embracing the property, and also a certified copy of the same. Objection sustained. Held, that either was admissible under § 283, 2 R. S. p. 92, and § 10, 1 R. S. p. 301.</p>

<p>Suit to compel the cancellation of a due bill. The complaint stated that in a December, 1851, plaintiff sold defendant an interest of one-fourth in a steamboat and barge; that defendant then paid 1,500 dollars of the purchase-money; that the plaintiff did not then convey the interest in the vessels, but gave a due-bill for the sum paid as for money borrowed; that in July, 1852, before conveyance of the fourth interest had been made, plaintiff sold defendant the whole of the boat and barge, for 22,500 dollars, and made him a conveyance for them; that defendant was to pay in hand 3,500 dollars, of which sum 1,500 dollars was deducted in satisfaction of the due-bill, which would then have been given up, had not plaintiff forgotten that it had been given; that defendant still holds it, and threatens to sue upon it. Answer, denying that the due-bill was given for the purpose alleged, or had any connection with the sale, &c., or that it had been paid. On the trial, the defendant moved to suppress parts of a deposition as follows : 1. A witness testified to a settlement made in September, 1852, which, he says, “embraced, as I understood, all transactions between the parties up to that time.” The objection was, that witness did not give the source of his understanding, nor testify to facts within his knowledge. In a subsequent part of the deposition, witness, speaking of the same settlement, said “it was understood and agreed between the parties that the settlement was in full of all claims, &e., of either upon the other up to that time.” 2. In speaking of the same settlement, witness said defendant was allowed a credit of 1,500 dollars paid the year before on account of his purchase of the boat and barge; that it was paid in two sums, &c. He then said — “Neither of these payments appeared on the books, but I then made the entries by direction of the plaintiff, who stated at the time that defendant had paid the money. * * * The defendant did not give up or exhibit to me, or say that he had in his possession, * * * any receipt or voucher for the 1,500 dollars,” &e. The defendant was present at the settlement, and when the credit was given.</p> <p>Held, 1. That the ground of the witness’understanding was sufficiently shown.</p> <p>2. That the statement that the defendant did not exhibit or claim to have a receipt or voucher, &c., was relevant and proper, as the jury might infer from his silence that he claimed nothing on the due-bill, if they thought the cir.oumstances such as to induce some remark from him if he claimed it; and if this inference was not drawn the testimony was harmless.</p>

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

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

<p>In 1833, D. purchased a lot of the agent of state for the city of Indianapolis, for 25 dollars, the minimum price, payable one-fourth in hand, and one-fourth annually thereafter, until the whole should be paid. On default of the last payment by the assignee of D. in February, 1836, the lot was forfeited to the state. In July, 1856, S. entered, under the act of 1831 (Acts, p. 83, § 5), and tendered to the auditor of state, the official successor of the agent, &c., the price at which the lot was originally appraised, and demanded a conveyance, which the auditor refused. S. made affidavit for a writ of mandate, sotting forth the facts. The Circuit Court, on demurrer to the affidavit, refused the writ. Held, upon a review of the statutes, that the writ should he issued.</p>

<p>If, in a suit commenced and put at issue before a justice of the peace, the defendant plead a promissory note as a set-off, the plaintiff may, upon appeal to the Common Pleas, prove upon the trial that the note was assigned to the defendant after the commencement of the suit. No reply under oath, denying that the note was assigned to the defendant before suit is necessary, under the code of 1852.</p> <p>On the supposition that § 217, K. S. 1843, is continued in force to supply an omitted case, the omission of the plaintiff to deny, under oath, that the assignment was made before suit, would authorize the defendant to give the note and assignment in evidence, without proof of execution; and the assignment would be prima facie evidence that it was made at the date on its face; but the plaintiff might prove that it was not made until after the commencement of the suit.</p>

<p>A. drew a foreign bill of exchange for the accommodation of B., who was to accept it, and negotiate it wherever he could. It was not drawn to bo discounted in the State Bank of Indiana, or any of its branches, but B. got the bill discounted at that bank. It was protested, and a judgment recovered upon it. Neither the bill nor the judgment waived the appraisement laws. After execution had issued, the bank asked an order directing the sheriff to levy and collect it, without appraisement of the property he should levy upon. The motion was predicated upon an act of 1843 (Acts, p. 52, § 2), providing that whenever the bank should discount any bill of exchange, &c., prepared to be discounted in the same,&e., no appraisement should be allowed, &c. The motion was overruled. Held, that this was not error.</p>

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

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

<p>Suit upon a promissory note. Answer, the statute of limitations. Keply, that the maker of the note died within the twenty years. Held, that the reply was insufficient; that to defeat the bar, the pleader should have added that the suit was brought within eighteen months from the maker’s death.</p>

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

<p>Suit against A. as drawer and indorser, and B. as indorser of a bill of exchange, and also for property sold and delivered, &c. The complaint contained six paragraphs — the first four upon the hill, and the fifth and sixth charged them jointly for goods, &c. The first, third, and fourth paragraphs charged A. as drawer and indorser, and B. as indorser; the second, charged them as joint indorsors. A. was defaulted. B. answered in six paragraphs — 1, a general denial; 2 and 4, as to the fiz'st foizr paz-agraphs of the complaint, that the signature of the defendant was obtained by fraud, and without consideration; 3 and 5, that said signature was obtained without consideration; 6, as to the fifth and sixth paragraphs of the complaint, tlzatB. was not indebted, &c.; that A. on, &c., at, &c., fully accounted with the plaintiffs and found due them 5,000 dollars, for which said A. drew the bill of exchange sued on, which was accepted by the drawer', and upon request of the plaintiffs was indorsed by him to them in full satisfaction, &c. Reply by way of general denial. To sustain the issues thus formed, B. offered A. as a -witness, but the plaintiffs objected because said A. was a party, and interested, &e. The Court below decided that A. could not testify generally in the case. B. then said ho would propose certain points upon which he desired to examine A., but he did not do so. Held, that there was no error.</p>

<p>Suit by an insurance company upon promissory notes. Answer, that the company was indebted to the defendants in the sum of 999 dollars, on a policy of insurance, by which the company insured the defendants in the sum of 1,309 dollars on 187 tons of hay, at 14 dollars per ton, on board of a flatboat for transportation from Lawrencebnrgh to New Orleans; for that in pursuing said voyage, said boat was stranded by a peril of the river, sank, and became partially filled with water, whereby the hay was damaged 500 dollars; that the boat was so damaged that the defendants were compelled, in order to get the cargo to the port of destination, to reship it in a steamboat, the cost of which reshipment was 1,996 dollars, which was necessarily paid by the defendants; that defendants notified the company of the extent of the loss, and claimed one-half thereof from them — a like risk having been taken by another company; wherefore the defendants offered to setoff enough of the claim to satisfy the notes, and demanded judgment for the balance. Eeply, admitting the policy, but denying liability. Trial by the Court; finding for the defendants for 681 dollars, as the sum due on the policy; and entry of judgment for 380 dollars, that being the difference between the claim sued upon and the finding; and the bill of exceptions states that the plaintiff excepted to the finding and entering judgment against them for 429 dollars for the loss upon the hay, and for 748 dollars on account of extra freight, and also to the opinion of the Court in adding said sum of 748 dollars to the other amounts found by the Court; in order to make up the 20 per cent, loss required by the policy. The policy contained the following provisions: “Touching the perils which the said insurance company are content to hear and take upon themselves in the premises, they are of the rivers, fire, jettisons, enemies, and overpowering thieves (but no other thieves); provided, that the insurers shall not be liable, except in cases of general average, for any loss or damage on hoop or sheet iron, wire, tin plates, grain, seeds, cornmeal, paper, paper hangings, books and stationery, pictures, oil-cloths, musical instruments, choose, salt, hides, hay, hops, fruits, vegetables and roots, carriages and household furniture, furs, skins, and peltries, unless it amount to 20 per cent, on the aggregate value of such articles. Nor for loss or damage on flax, hemp, hempen yam, bale rope, cotton bagging, leaf tobacco, cigars, coffee, sugar, rice, bread and nuts, or any other property, unless it amount to 10 per cent, on the whole value at risk, exclusive of all charges and expenses incurred for the purpose of ascertaining and proving the loss.” Again: “And in case of any loss or misfortune resulting from any peril insured against, it shall be the duty of the party insured, his, her, or their agents or assigns, to use all reasonable and proper means for the security and preservation, relief and recovery, of the property insured, to the charges whereof the said company agrees to contribute in proportion as the sum herein insured bears to the whole sum at risk; and it is mutually agreed that the acts of either party, or of their agents, in securing, preserving, relieving, and recovering the property insured, shall not be considered or hold to be either a waiver or an acceptance of an abandonment.” Again: “And in case of disaster, the assured, his, her, or their agents or assigns, shall not sell the property insured (except at the port of destination) without express authority from the insurers, hut shall forward it, if recoverable, to the port of destination without unnecessary delay; provided that the articles of the cargo, which may be in a damaged or perishing condition, so as not to admit of delay, may be sold at public sale, at the nearest convenient market, for account and benefit of whom it may concern.”</p> <p>Held, 1. That the insurers were liable for the expenses of saving the cargo, without reference to the liability for actual loss to the article insured.</p> <p>2. That it was the duty of the master, when the boat became disabled, to forward the cargo, unless he had express authority from the insurers to do otherwise, in the earliest, cheapest, and most convenient mode.</p> <p>3. That under the stipulations in the policy, and the circumstances of the case, the expense of extra freight, being a direct consequence of a peril insured against, was covered by the policy, without regard to the memorandum of percentage.</p> <p>4. But that the defendants could not recover for the actual damage to the hay —that being less than 20 per cent.; and the expenses of recovering and forwarding the cargo cannot be added to the amount of such damage, to bring it up to the 20 per cent.</p>

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

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

<p>Where a child under ten years of ago, was examined by the Court touching her capacity to testify in a cause, and her answers disclosed that, though she was ignorant of the nature of the punishment for false swearing, yet that she comprehended the obligations of an oath, and believed that any deviation from the truth, while under oath, would be followed by appropriate punishment, — held, that she was a competent witness.</p>

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

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

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

At the February term, 1857, of the Ripley Circuit Court, Stephen S. Harding filed his affidavit, on which he moved the Court for a writ of mandate against the board of trustees of Franklin township, of Ripley county. The writ was issued in the alternative form, and made returnable at the same term.

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

<p>An appeal will lie from a decision of the trustees of a township, upon a controversy among the inhabitants of a school district, touching the location of a school-house, where petitions and remonstrances have been presented to such trustees, to the superintendent of public instruction; and the decision of the superintendent will be final.</p> <p>An injunction, and not a writ of mandate, is the proper remedy to prevent township trustees from erecting a school-house on a site selected by themselves ; but a mandamus is the proper remedy to compel the trustees to obey. a decision of the superintendent of public instruction, on appeal from them, establishing a school-house for the district.</p>

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

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

<p>Section 26,1 B,. S. p. 467, does not contemplate that suit shall be brought against a supervisor upon the relation of any one.</p> <p>The last clause of that section is directory to the township treasurer.</p> <p>Nor can any informer, under that section, bring a suit on his own volition, in the name of the trustees, by the treasurer. Such suit must be brought by the treasurer, and the suit, when brought, is under his control, and may be dismissed by him.</p>

<p>In determining who has the affirmative of an issue, regard is had to the substance and effect of the issue, rather than to the form of it.</p> <p>Replevin for a quantity of merchandize. Answer in avoidance, setting up that the defendant was entitled to a lien upon the goods for freight, wherefore the plaintiffs were not entitled to the possession of them. Reply, in denial. Held, that the burden of the issue was upon the defendant, and 'that he was entitled to open and close; and this notwithstanding the rule that allegations of value and amount of damage are not considered as true if not controverted, and notwithstanding the duty of the jury, in such cases, to assess the value of the property and the damages for its detention; for the questions as to such value and damages were merely incidental to the main question, as to the right to the possession of the property.</p> <p>Where the damages sustained by the plaintiffs must necessarily be determined by tbe facts disclosed on the trial, the amount of damage claimed in the complaint is not admitted by a failure to plead the general issue.</p> <p>Instruction to the jury upon a point touching which there was testimony, as follows: “In civil cases, the preponderance of evidence must govern the verdict. You will, therefore, upon this point, adopt that opinion which seems to prevail with the greater number of witnesses. Held, that this was error.</p>

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

<p>Action to recover possession of personal property commenced before a justice of the peace. Affidavit in substance as follows: That the plaintiff was a resident householder, and absolute owner and entitled to possession of the property, describing it; that defendant, a constable, by virtue of an execution against the property of plaintiff, levied upon said pi'operty, &c.; that plaintiff had not 300 dollars’ worth of personal property; that he claimed that said property was exempt, &c., and so informed the constable; that he demanded that his property be valued, and set off to him; that he selected an appraiser, and notified defendant thereof; that defendant refused to set off said property; whereupon the plaintiff demanded said property. Held; insufficient, under § 71 of the justices’ act, 2 B. S. p. 464.</p> <p>In actions for the recovery of personal property, justices of the peace must pursue and be governed by that act.</p> <p>Section 71, supra, is not in conflict with § 22, art. 1, of the constitution.</p> <p>That section of the constitution is not self-executing.</p>

<p>An administrator may take proceedings to avoid a conveyance of real estate by bis decedent, made to defraud his creditors, for the purpose of subjecting such estate to the payment of debts, before he is authorized by the proper Court to sell such real estate, if he show by his complaint that, upon a decree setting aside the conveyance, he will be entitled to an order to sell, which he may do by averring that the personal assets are insufficient to pay the debts.</p> <p>The complaint, in such case, need not allege that judgments have been rendered upon the claims for the payment of which the real estate is sought to be subjected to sale.</p> <p>The nature of such claims need not be alleged in the complaint,, to set aside the conveyance.</p> <p>The Circuit Court has jurisdiction of proceedings of this nature.</p>

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

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

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

<p>A receipt may be explained and controlled in its operation by parol evidence, though, as a general rule, a contract cannot; and where a written instrument includes both a receipt and a contract, it cannot, so far as it operates as a contract, bo controlled by parol evidence any further than ordinary contracts may bo.</p> <p>A judgment is a contract of record, and a demand, within the meaning of an instrument embracing “all demands” of one part}'- against another.</p>

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

<p>Where a party made a contract for the sale of a title-bond for a certain piece of land, and not having the title-bond in his possession at the time, he agreed for its subsequent transfer to the purchaser, but it turned out that the title-bond was for a different piece of land from that embraced by the contract; and the vendor not being able to fulfill his agreement, the purchaser brought suit in the Common Pleas to recover the amount paid by him on the making of the contract: — Held, on demurrer, that the title to real estate was not in issue.</p> <p>An administrator can appoint an agent to do particular acts. Thus, lie may employ an attorney, or an auctioneer, to sell goods which lie is authorized by Court to sell at public sale; or, where he is authorized by Court to sell property at private sale, ho may appoint an agent to negotiate the sale, within the limits fixed hy the Court, which sale he may approve, and report to the Court for ratification, &c.</p> <p>A foreign administrator may be proceeded against by attachment; and whore the complaint is against him in his fiduciary capacity, a judgment against him personally is amendable in the Supreme Court.</p> <p>Where a contract of an agent of such administrator does not relate to a subject-matter about which, as administrator, he is authorized to negotiate, he is personally responsible. Or, if the agent exceeded his authority, the agent might be liable.</p>

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

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

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

<p>Where the assignor of a promissory note, by sale and delivery without indorsement in writing, is deceased, a complaint upon it by the assignee must mate his personal representative a party, or show that there is no such representative.</p>

<p>The statement by a notary, in the certificate of the protest of a promissory note for non-payment, that he gave ■written notice of protest to the indorser, is equivalent to saying that he placed a written notice in the indorser’s hands.</p>

<p>Suit to foreclose a mortgage. The premises intended to be mortgaged were accurately described in the mortgage; but a piece of land not intended to be mortgaged was included in the description, by mistake. The mortgagee, in bis complaint, conceded the mistake. Held, that the mortgagee could maintain his suit to foreclose as to the premises intended to be mortgaged, without being required to reform the deed.</p> <p>Section 63, 2 B. S. p. 41, prescribing the manner in which a defendant may bring a now party into Court, contemplates that the party shall be a necessary one, against whom relief is sought and final judgment may be rendered ; and the answer, under that section, must not only state the matter relied on for relief, but it must contain a prayer for that relief against the proposed new party.</p>

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

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

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

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

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

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

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

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

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

<p>Where a paragraph of an answer contains, in addition to the general denial, allegations constituting separate grounds of defense, they may be stricken out on motion.</p> <p>Duplicity, by our statute, is not a ground of demurrer; but it is a violation both of the rules of pleading at common law, and of the third subdivision of $ 56, 2 R. S. p. 39.</p> <p>Where the articles under which a railroad company organized, provided that subscribers of stock should have the privilege of taking jobs of grading the road, furnishing ties, &e., at the estimate of the engineer, and lettings of such work wore publicly advertised to take place on a certain day, and the subscribers did not before or on that day, offer to take jobs, &c.; held, that they could not afterwards claim the right to do so.</p> <p>Parol evidence is admissible to show the date of the filing of the articles of association of a railroad company organized under the general statute of 1852, in the office of the secretary of state.</p> <p>The filing is no part of such articles. It is a fact separate from and independent of them. It is a fact separate from the indorsement of the fact of filing. The indorsement is not the filing; it can be no more iban prima facie evidence of the time of the filing.</p> <p>The filing of a paper, as between the party and the officer, is the delivery of it to the officer, at his office, to be by him kept as a paper on file; and such delivery may be proven by evidence other than the indorsement of the officer.</p> <p>Illegality in the election of the directors of a railroad company, is no defense to an action upon a subscription of stock.</p> <p>Where, by the terms of subscription, the stock of a railroad company was payable at such times and in such sums as the board of directors should, from time to time, require, but no assessment was to exceed 10 per cent, on the subscription, and assessments wore not to be laid oftener than once in sixty days: — Held, that no personal demand of payment of installments was necessary before suit; and that it was no objection that the assessments upon different subscribers wore not uniform in amount, so that they did not exceed 10 per cent.</p> <p>A representation varying from the terms of a written contract, is no defense to a suit upon that contract.</p> <p>A representation made to induce a subscription of stock to a corporation, to the effect that another corporation would do a certain act, involves the question of the power of that* ther corporation, under its charter, to do that act, and is, therefore, no defense to a suit on the subscription, if such corporation had not such power.</p>

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

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

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

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

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

<p>An assignment is not complete without a delivery; and where a promissory note is found in the hands of one who had made an indorsement thereon, which, if accompanied by delivery, would have amounted to an assignment, the presumption would be that the assignment was never completed, and he might, even after suit brought, strike Out such indorsement.</p>

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

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

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

<p>By § 796, 2 B. S. p. 222, an action against a corporation may be instituted in any county where the corporation has an office or an agent upon whom process may be served; .and § 30 of the same act (2 B. S. p. 34), is not in conflict with § 796.</p> <p>Bailroad corporations may be regarded as resident in each county in which they have an office or agency, or an officer or agent upon whom process may be served.</p> <p>A contract for fencing a portion of the track of a railroad, made by a general agent of the company, will, under our statute, bind the corporation.</p>

<p>Where the record does not affirmatively show the return of an indictment by the grand jury into open Court, a motion in arrest of judgment should be sustained.</p>

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

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

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

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

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

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

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

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

<p>Replevin for 1,700 bushels of com. The corn was raised by one Wright, upon land held by him of the plaintiff below by the following lease: “This article of agreement made, &c., between James Hawkins and Lewis Wright, of, &c., witnesseth that the said Hawkins has this day rented to the said Wright the farm on which he now lives, consisting of one hundred acres of tillable land, and twenty-five acres of pasture land, for which the said Wright agrees to pay to said Hawkins sixteen bushels of corn per acre for the tillable land, and for the pasture land he agrees to pay one hundred bushels of com— making, in all, one thousand seven hundred bushels, which com is to be husked and cribbed in good order. * * * The said Wright agrees that the said Hawkins shall hold the crop as security for the payment of the rent, claiming no right to sell, remove, or in any way dispose of, any part of the crop, until the rents are paid,” &c. Wright having raised a crop of corn, sold it to one Ford, ho having notice of the lien for rent. Ford sold it to E. and F., who had not such notice.</p> <p>Held, 1. That the property in the corn raised by Wright was in him, and did not by virtue of the latter clause of the lease, vest in Hawkins.</p> <p>2. That the contract was entirely executory — the crop having no existence at the time, the title thereto did not pass, and Wright might sell it without the consent of Hawkins, so as to vest a good title in the purchaser, at least if such purchaser had no notice of H.’s claim.</p> <p>3. But H.’s claim might, perhaps, be enforced against all persons having notice of it.</p>

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

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

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

<p>A demurrer to a paragraph of an answer, alleging for cause that “the same does not state matter sufficient to constitute any defense,” &c., is good. Qucere, whether this Court would, in any caso, treat as a nullity, a paper filed, as a demurrer, where no objection had been taken to it in the Court below.</p>

<p>A. obtained a judgment against B. upon which execution issued, but the sheriff could find no property. A. then made affidavit and complaint that B. had, a short time before the rendition of the judgment, sold a large amount of property to G., for which he had taken promissory notes for 10,000 dollars, none of which were yet due; and prayed an order for the application of so much thereof, when paid, as would satisfy the judgment, and forbidding the transfer of the notes. The proceeding was based upon \\ 522, 523, 524, 2 R. S. p. 153. Demurrer, on the ground that the affidavit and complaint showed that the notes were not due, overruled. Held, that there was no error.</p> <p>B. then answered that the notes' wore given for real estate, for which a conveyance was executed; that he, B., was to complete a house thereon, and gave his bond in 5,000 dollars, to that effect; that he was unable to comply with his contract, and G. had advanced 800 dollars' worth of materials, &c. Held, that if the answer was intended to cover more than 800 dollars, it was too indefinite; that if it was only intended to cover 800 dollars, or, indeed the 5,000 dollars, it was not an answer to the whole complaint; that the averment that B. could not comply with the contract does not, of itself, make the answer good, whilst the conveyance of the land and the contract therefor remain in force.</p> <p>The Court rendered judgment against G. for 403 dollars, 38 cents — that being the amount of the judgment, interest, and costs against B.- — and ordered that O. pay the same, with interest, on or before the time the first note matured, and that, in default of payment, an execution should issue against G., as upon other judgments. Hdd, that the judgment was wrong; that the order should only have enjoined and forbade the transfer of the notes by the holder, or the payment of the debt by the maker, until the debt matured, or until further order by the Court.</p>

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

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

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

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

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

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

<p>This case is precisely like Fleming v. The State, ante, 234.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>Where an indictment, under § 30, 2 B. S. p. 412, for uttering a false and forged deed, contained but a single count, charging'the uttering to A., and specially averring an intent to defraud him, and it appeared by the evidence that the uttering consisted in placing the deed on deposit with A., as an equitable mortgage, to secure a debt for board already due, and not to secure the price of future hoarding, and without the intent, on the part of the defendant, to board longer with A., as the latter well knew: — Held, that the case was not made out.</p> <p>Aliter, perhaps, if the indictment had charged an intent generally to defraud.</p>

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

<p>The Jeffersonville Railroad Company v. Martin, 10 Ind. E. 416, adhered to. The repeal of a statute on a given subject is properly connected with the subject-matter of a now statute upon the same subject, and does not violate the constitutional requirement that “every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title,” although the repeal of the former statute be not mentioned in the title of the new enactment.</p>

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

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

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

<p>Where a paragraph of an answer was rejected, but no exception was taken, nor was the paragraph made part of the record by a bill of exceptions, though a paragraph was copied into the transcript, purporting to be the one rejected, no question upon it is presented in the Supreme Court.</p> <p>Suit to recover land. The plaintiffs gave in evidence a deed from a person admitted by both parties to have been the owner of the land in fee simple at the date thereof. It conveyed the land to B., for the “sole use, benefit, and behoof” of the wife and children of H. The proof was, that H. was yet living; that his wife and part of his children had died since the execution of the deed; that the other children were the plaintiffs, and claimed under the deed. Held, that the deed was legal evidence; that the legal estate was executed and vested in the persons for whose use the trustee took.</p> <p>A question as to parties not made by the pleadings in the Court below, cannot be raised in the Supreme Court.</p> <p>The evidence given by the plaintiff in this case, is in the record. That given by the defendant is referred to thus: “ The defendant then gave in evidence the facts set forth in the second paragraph of his answer herein, (which paragraph has been heretofore set out in said answer). This was all the evidence in this cause.” Held, that the evidence is not in the record.</p>

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

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

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

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

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

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

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

<p>APPEAL from the Montgomery Court of Common -rv, • Pleas.</p>

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

<p>Suit by the payee against the makers of promissory notes. Answer, that before suit brought, the plaintiff sold and delivered the notes to A., and received from A. the price and consideration of said sale, &c.; that from the time of such sale, &c., up to the present, they have been wholly the property of A., and in his possession, and he is the only person who has any interest in them or their proceeds; that by said sale, &c., the plaintiff assigned the notes to A. without indorsement; that the plaintiff is not the owner of the notes, or either of them, nor has he any interest whatever in or to them; that he has not now, nor has he since said sale, &c., had, either of the notes in his possession; that the plaintiff did not direct or authorize the commencement of this action in his name, but it was commenced by the direction of A. alone. Held, good on demurrer.</p> <p>The notes sued on were executed in Michigan, and the complaint contained the following clause: “By the law of Michigan, in force at the date of the notes, and from thence hitherto, the said Ciarle [the plaintiff], or his indorsee, can alone maintain the action.”</p> <p>Held, 1. That it is uncertain, from this language, whether a statute is relied on or not; but it may be so regarded, as the doubt must operate against the pleader.</p> <p>2. That the clause of the complaint did not put the law of Michigan into the case — it amounted to nothing.</p> <p>3. That where a statute of another state is relied on, it mnst be fully recited in the pleading, that the Court may judge of its effect.</p> <p>Braclcenridge v. Baxton, 5 Ind. R. 501, overruled.</p> <p>The statute (2 R. S. p. 45) has changed the rule for pleading private statutes of this state; but no change is made as to pleading laws of another state.</p>

<p>APPEAL from an order of the judge of the Scott and Clark Court of Common Pleas, made in vacation on a writ.of habeas corpus.</p>

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

<p>Where process was dated December 22, and was served by the sheriff on the 24th of the same month, commanding the defendants to appear on the second day of the ensuing April term, and at the intervening January term, commencing on the 5th day of that month; judgment was rendered against the defendants by default. Held, that the process was a nullity, and the judgment illegal.</p>

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

<p>If parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one, is, in general, in the absence of fraud, evidence against all.</p> <p>They stand, in this respect, in a relation to each other similar to that of existing partners.</p> <p>The bill of exceptions in this ease commoneed thus: “Be it remembered, that on the trial of the above cause, the following was all the evidence given to the Court.” Held, that the words are not sufficient under the 30th rule, and, hence, the Court cannot presume that the bill contains all the evidence.</p>

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

<p>The defendants, in this case, first answered simply in abatement. This answer was disposed of by the Court, and thereupon they answered over to the merits. Held, that this seems to bo the most convenient practice; that, at all events it is not substantially erroneous.</p> <p>Suit by the trustee against mortgagors and their lessees in possession, to obtain a foreclosure and order of sale upon a trust mortgage. The mortgagors made default. The instrument upon which the suit was brought purported to be executed by the Cincinnati and Chicago Railroad Company, for the consideration, &c., to Marlin L. Bandy, convoying to him lands and rolling stock of the company “in trust for the uses and purposes following, to-wit: Whereas, a large portion of the debts of said railroad company have been secured by the personal indorsements of the present directors, and others who were formerly directors of the company, and for which they arc now responsible, among which is a debt to the Citizen’s Bank, at Richmond, Indiana, amounting to over 50,000 dollars. Now this conveyance is hereby declared to be in trust to secure and indemnify, first, the said persons who are bound for the said debt, &c., or who may at any time hereafter become bound therefor, either as makers, acceptors, or indorsers thereof, &c., and, secondly, to secure all the indorsers of said company against all other debts, &c., for which they are or may become in any manner liable as makers, &c. —the said trustee to hold all of said property until the said debt at the Citizen’s Bank, or some part thereof, shall become due, &c., and then, in ease of the non-payment thereof, he is hereby directed and required to sell the same, or so much thereof as may bo required to pay said debt,” &c. This instrument purports to have been acknowledged before Samuel Stokes, a notary public of Ohio, on, &c., and was recorded in Henry county, Indiana, on, &e., in which county the company had their principal office in this state. Trial upon the general issue, and certain special issues, the matters set up in which could be proved under the general issue. The facts upon which the decision was founded were as follows: I. The mortgage, or deed of trust, was executed November 10, 1854, in Cincinnati, Ohio. It embraces certain land and rolling stock of the company, but not the road bed. It was recorded in Henry and Wayne counties, but not in certain others through which the railroad in question extended, within ten days from its execution; and though it purports to have been, yet there is evidence tending to show that it never was, acknowledged. 2. The rolling stock embraced in it was never actually delivered into the possession of the trustee or mortgagee, but was retained and used by the company, in their lessees. 3. There were prior mortgages and liens upon the property. 4. The beneficiaries of the trust, and prior creditors, were not made parties to the suit; and the debt duo the beneficiaries, was usurious. 5. The company, by their directors, said Martin L. Bundy being one, on the 16tli day of October, 1856, leased the road, rolling stock, &c., to Wright §• Co. for five years, and put them in possession. The lease was executed in Cincinnati Ohio, and is set up by way of estoppel. 7. The debt for which the plaintiff and others are liable, and to secure which the mortgage was executed, was the debt of another company, consolidated with the present, and that the assuming said debt was without authority and void.</p> <p>Held, 1. That if-the beneficiaries should have been parties at all, they should have been plaintiffs; but it was not necessary that they should be plaintiffs.</p> <p>2. That the rights of prior incumbrancers could not be prejudiced by this proceeding; that, as a general rule, prior mortgagees are not necessary parties to a junior’s bill of foreclosure, though they may be proper parties.</p> <p>3. That the defense of usury was no bar; that the debtor does not set it up, and a third person cannot, without the debtor’s consent; that if it were allowed, it would not go to the whole cause of action.</p> <p>4. That the contract was not void because executed out of this state; that there is nothing in the railroad act requiring the directors of such corporations to transact their business within this state; that though corporations cannot migrate from one sovereignty into another, so as to become legal, local existences within the latter sovereignty, the migration of directors of a corporation does not terminate the existence of the corporation within the sovereignty which created it; that by our statute (1 B. S. p. 409), the stockholders are the corporation, and the directors are its agents; that by courtesy, corporations created in one state, are permitted to contract and sue in others; that if all the directors could so contract as agents, they may authorize one of their number to contract; that the place where the agent of a corporation enters into a contract, is, in general, immaterial — the important question arising being that of p.ower not of place; that the exercise of that power has relation to the place of their legal establishment; that the meetings of the directors of a business corporation are not analogous to the sessions of a judicial tribunal; that the corporation is organized by the election of directors, but the mere organization of the directors into a formal meeting for business afterwards, is a different thing; that it seems that corporations chartered in this state, and local to it, may have offices for business in other states.</p> <p>5. That the mortgage was not void because not executed directly to the creditors who made the loan to the company; that it was substantially within the power conferred upon the company to raise money by mortgaging their property.</p> <p>6. That although this railroad company was formed by a consolidation of other companies, and the debts secured by the mortgage wore owed by one of those companies, the consolidated company could, it seems, assume them; but that the transaction in this case did not amount to such assumption; that the directors of the company indebted are still the debtors, and the mortgage simply covers property belonging to them at the time of consolidation; that, in equity, it amounts to no more than if the latter company had mortgaged the property to secure her own debts, before the consolidation, and then entered into the consolidation with property subject to the mortgage.</p> <p>7. That regarding the instrument as a mortgage of chattels, the recording was sufficient to constitute constructive notice; that the place where the company kept their principal office in this state, must be regarded as the residence of the corporation.</p> <p>The acknowledgment bears the impress of the notarial seal, and the mortgagor admits it; but a Samuel Stakes testified that he did not, to the best of his recollection, take the acknowledgment, and that he knew of no other notary in Cincinnati of the same name. There was, also, a certificate of tho secretary of state of Ohio, that but one Samuel Stokes had been appointed a notary.</p> <p>Held, 1. That if the acknowledgment was not given, still, as the mortgagors delivered the mortgage to the mortgagee, and the latter to the recorder, as genuine, and it was regular upon its face, it seems, it ivas the duty of the recorder to place it upon record, and he having done so it was notice to all persons of its existence.</p> <p>2. That the acknowledgment ivas not disproved.</p> <p>3. That as no law of Ohio was produced, showing the authority of the secretary of state to certify as to the appointment of notarios, and as there is no deposition of the governor upon the subject, the Court does not know that he can have any official knowledge of tho premises.</p> <p>4. That an authority to certify copies of documents so that they may be admitted as evidence, would not extend to certifying other facts so that the certificate could have the effect of evidence; that facts which tho officer is not authorized by law to certify, must be proved as other facts.</p> <p>5. That the question whether the instrument sued on, (which this Court treated as 'a trust mortgage, in the nature of a mortgage), is a deed of trust ' or a mortgage, is immaterial, and could only have been material if the instrument had not been recorded.</p> <p>6. The mortgage having been duly acknowledged and recorded, no question arises upon the non-delivery of possession under it.</p> <p>After the execution and recording of the mortgage, the company, Bundy being one of the directors, leased the property embraced by it to Wright and others, for five years. Before tho expiration of the lease, the claims of the beneficiaries of the trust became duo, were not paid, and the trustee, for their benefit, proceeded to obtain an order for the sale of the property. The lessees pleaded the act of the trustee in participating in the lease to them, as an estoppel in pais of his right to foreclose and sell the property. Held, that no estoppel arises upon the facts.</p> <p>A precedent debt constitutes a valuable consideration for a mortgage.</p>

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

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

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

<p>The act “providing- for the election,” &c., “of supervisors of highways, and prescribing certain of their duties,” &c., 1 R. S. p. 462, is not objectionable as violating the right of trial by jury in civil casos. The constitutional provision saving that right does not extend to cases of assessment of damages for laying out and repairing highways.</p> <p>Nor does the act violate the article of the constitution relative to taking private property for public use.</p> <p>The taking of property authorized by § 16 of the act, is to be regarded as the act of the state, and, hence, prepayment need not be made.</p> <p>Quaere, whether surplusage in the title of an act may be rejected in the same manner as matter improperly introduced in the body of the act.</p> <p>Section 16, supra, is properly embraced in the act.</p> <p>The act affords to proprietors reasonable means of obtaining compensation for injury sustained.</p>

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

<p>APPEAL from the Lagrange Circuit Court. ^ ^</p>

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

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

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

<p>Under the present constitution, no bank of issue, except a state bank and free or private banks established pursuant to the provisions of the general banking law, can be established in this state.</p> <p>Notes in the similitude of authorized bank notes issued by any other bank of this state, to be circulated as money, are void; the issuers are not liable to pay them; and any consideration given for them may be recovered back.</p>

<p>The third paragraph of § 211, 2 B. S. p. 75, should not receive a construction as broad as its language will bear.</p> <p>It does not apply to a ease where the sale of the lands has boon set aside or declared void in a suit by the purchaser to recover possession within ten years, and the suit thereupon abandoned.</p> <p>It has reference to suits by the execution-defendant, or such as claim under him, brought to avoid the sheriff's sale by attaching it collaterally, where, until such suit, it has not been judicially set aside.</p>

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

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

<p>The obligee in a bond for the conveyance of real estate, is bound, in case of the death of the obligor, to accept a deed from his heirs, or from a commissioner appointed by the Court to convey for them.</p> <p>Death does not destroy the mutuality of the contract; each party takes the chance as to which may die first; and if either die before the execution of the contract, it is to be executed, on his part, by his heirs.</p> <p>There is no hardship in this. If the title be defective, it may be refused, either from the obligor or his heirs. •</p> <p>The personal covenant of the obligor does not, however, bind the heirs beyond the amount of the property they receive from the obligor’s estate.</p> <p>If thfe obligor make the deed, live a year afterwards, and then die insolvent, and afterwards the title fail, the grantee is without remedy.</p> <p>And if the obligor die before the deed is made, and the heirs or a commissioner make it, and afterwards the title fail, it seems, that the heirs would be liable to refund the purchase-money with interest, to an amount equal to what they received from the obligor’s estate.</p>

<p>The liquor law of 1855 expressly repealed that of 1853; and the Supreme Court having been for about three years equally divided upon the question of the constitutionality of that portion of the act of 1855 inhibiting the retail of liquors, which division left that part of the act in force during that period, —held, that although the entire act of 1855 has been finally declared void, it cannot be justly held that the act of 1853 was in force during that time.</p>

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

<p>Suit by a father for the seduction of his daughter. The Court refused to instruct the jury that “mere proof that.the defendant has, at one or more times, had sexual intercourse with said E., is not sufficient to maintain this suit.” But, on motion by the defendant, the Court instructed to the effect that the jury should find for the defendant, unless the plaintiff had proved that the defendant got his daughter with child. Held, that the substance of the instruction refused, being contained in that given, the refusal of the former was not error.</p> <p>The defendant asked the following instruction: “If you believe the plaintiff, the father, has misconducted himself in relation to his daughter, in allowing the defendant, a married man, to visit her as a suitor, and placing her in exposed situations, he cannot prosecute this action.” The Court refused the instruction in that form, but after striking out the words, “he cannot prosecute this action,” and inserting the words, “it is a circumstance you have a right to consider, in determining his right to recover,” &c., it was given.</p> <p>Held, 1. That the instruction might have been refused for not containing the further condition, that the plaintiff knew the defendant to be a married man.</p> <p>2. That the instruction, as given, was more favorable to the defendant than he had a right to ask.</p> <p>The Court gave the following instruction: “A disposition on her (the said E.’s) part to prevaricate, if upon immaterial points, should not affect her credit, if in her material statements she was corroborated by circumstances, or by other witnesses.” The following was also given, on motion by the defendant: “You should, in estimating the credibility of JE., take into consideration any variation in her testimony before the justice, &e., on the bastardy trial, and here; also any confession or statement made by her at any other time, whether in writing or otherwise, which does not agree with her statements upon this trial; also her manner of testifying, and her contradictions, if any; also her position in this trial, as the daughter of the plaintiff,” &c. Held, that, taking these instructions together, the.former could not have misled the jury.</p> <p>Upon the trial, after the argument had commenced, the Court permitted the daughter to explain her testimony. Held, that the Court must, in such cases, he permitted to exercise a sound discretion; and that all the evidence not being in the record, this Court cannot say that the Court below exceeded this discretion.</p>

<p>If A., acting as an officer, seize B. upon a proper warrant for Ms arrest, and B., after being informed that A. had such warrant, strike Mm while he is executing it, a prosecution for assault and battery will lie.</p> <p>And if facts exist which would justify the act, such as the illegality of the warrant, &c., the defendant must show them, otherwise the validity of the warrant, &c., will be presumed.</p>

<p>Indictment for forgery. Plea in abatement, that, “The defendant in this case, for plea in abatement to the indictment, says that, at the time this charge was being examined before the grand jury, and while the evidence was being heard, and the vote of the grand jury was being taken on the finding of the indictment, one Nelson Prentiss, and one John W. Dawson were before the grand jury, and took a part in the discussion before said grand jury, and in examining the witnesses, and advised and instructed the grand jury as to what they ought to do; that Prentiss and Dawson were not members of the grand jury, nor were they authorized to go before said grand jury as witnesses, or in any other capacity; wherefore,” &c. Reply, that, 1. “The state of Indiana, for replication to said answer of defendant, says, that she denies each and every allegation therein.” 2. “ Said state says, that said John W. Dawson and Nelson Prentiss were present in said grand jury room by the direction, and as the assistants, of Sandford J. Stoughton, then and still the prosecuting attorney of the tenth judicial circuit aforesaid, within which said county is situate.” Rejoinder, “ That neither said Dawson, nor said Prentiss, were appointed by said Stoughton in writing, nor were they either of them sworn to act, to-wit, as deputy prosecutors, or sworn at all.” Demurrer, for that, 1. “Thematters and things in'said rejoinder contained do not constitute a sufficient answer,” &c. 2. “ There is no necessity for the prosecutor to appoint his deputies in writing, nor that they should be sworn.” Demurrer sustained. The first paragraph of the reply was withdrawn.</p> <p>Held, 1. That the prosecuting attorney may attend the sittings of the grand jury, examine the witnesses, and advise the jury of matters of law.</p> <p>2. That as the pleadings leave it in doubt whether the participation in the discussions, and the advice to the juiy were of matters of law or fact; and as the jury might ask, and the prosecutor give, advice upon the law; it is presumed that the acts of the jury and of the deputy prosecutors were in accordance with their respective rights under the law.</p> <p>3. That as there was no averment of fraud or improper motives, or that the advice procured the return of the indictment, or had any influence, but, on the contrary the deputies seem to have acted in good faith, it seems that they were officers de facto, and their acts valid.</p> <p>4. That the better practice would be for the grand jury to permit no person to be present when they vote upon an indictment; but, it seems, they may permit the prosecuting attorney to be present.</p> <p>5. That although the sittings of the grand jury are secret, their proceedings may be disclosed in evidence.</p>

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

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

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

<p>That part of the case of Maize v. The State, 4 Ind. R. 342, in which a part of ,the liquor law of 1853 was held to be constitutional and valid, overruled. — ■ Davison, X, dissenting.</p> <p>The liquor act of 1855 repealed all laws inconsistent with its provisions; hence it repealed that of 1853; and though the former act has been declared unconstitutional, the repeal was effectual, and the act of 1853 was not revived. — Hanna, X, dissenting.</p>

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

<p>Where the record does not showthat an objection to the admission of evidence was made at the time each item of the evidence objected to was offered, the admission of it is not available as error.</p>

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

<p>A., who had long been in the habit of drawing and indorsing bills of exchange for the accommodation of B., to be filled up with such sums as the latter might want, but who had never expressly authorized him to put in the clause waiving valuation laws, signed, in blank, one of two bills as maker, and the other as indorser. The bill drawn by A. was accepted by B. as drawee, and indorsed by C. and D., and was filled up by E. and F., who added the clause waiving appraisement laws. The other bill was signed by B. as drawer, accepted by C. and JD. as drawees, and with A.’s indorsement upon it, passed over to E. and F., who filled it up as in the other case, inserting the clause waiving appraisement laws. Thus filled up, they were given to E. and F., in novation for two other bills to which A. was a party for the accommodation of B., and which did not contain the clause waiving appraisement laws. Upon these bills, E. and F. sued A., who answered, denying under oath that he drew the one, or indorsed the other.</p> <p>Held, 1. That the foregoing facts sustained the answer; that the insertion of the clause waiving appraisement laws by the plaintiffs, rendered both bills, as to the defendant, absolutely void.</p> <p>2. That, in such case, the Court is not authorized to hold the bills void so far as the clause inserted without authority is concerned, and valid as to the remainder; but that the case stands upon the same reason as that of the alteration of a note or bill of exchange already filled up, by the holder.</p>

<p>A judgment of foreclosure confessed in conformity to a yalid warrant of attorney, is valid.</p> <p>A warrant of attorney was executed after the R. S. of 1852 went into effect, authorizing T. to confess judgment in favor of P. on three promissory notes and a mortgage made to secure their payment, dated before the taking effect of the statutes. T. subsequently confessed judgment in pursuance of the notes and mortgage, under §§ 634 and 639, 2 R. S. p. 176, 177: — Held, that, as this statute affected the remedy merely, it was applicable to the case, and the judgment, in pursuance of its provisions, proper.</p> <p>A judgment of foreclosure for the whole amount duo and to become due, on several notes secured by the mortgage, if otherwise in confoimity to law, is not erroneous.</p> <p>A judgment rendered in such case, without stay of execution except on the amount due, is not therefore erroneous; and upon entering the proper replevin bail for the whole judgment, and paying each successive installment as the stay thereon expires, so that no execution shall issue, the defendant will be entitled to stay of execution on each installment, from the time when it falls due according to the teims of the contract.</p>

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

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

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

<p>Action by heirs against an administrator to recover certain sums for which he kad failed to account. Answer that certain heirs of B. were interested, and ought to be joined as parties plaintiff. Kopiy, that B., for a valuable consideration by way of advancement from A., his father (the decedent), in his lifetime, assigned his interest in the estate to said A., in writing, which writing is lost, and cannot be set out. Held, that the heirs of B. ought to have been made parties.</p> <p>An affidavit denying an attorney’s authority to appear for a party, and the overruling of a motion for a rule to show authority, are not necessarily a part of the record on appeal, but must be placed upon it by a bill of exceptions.</p>

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

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

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

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

<p>In a suit in a justice’s Court, the defendant may plead a set-off of more than 100 dollars, and claim judgment for an amount equal to the plaintiff’s claim and for costs.</p> <p>A party cannot, by a claim for damages, give himself a right to recover more than the facts stated by him will warrant.</p> <p>But if a party claim as damages less than the facts pleaded will warrant, he is bound by the sum claimed, and can recover no more.</p>

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

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

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

<p>An offer to confess judgment must embrace costs.</p>

<p>A paragraph of an answer professing to be an answer to the whole complaint, but in fact answering only a part of thereof, is bad on demurrer.</p> <p>The drawee of a bill of exchange may receive the same before its dishonor, by way of indorsement, and recover upon it as indorsee, against the drawer and indorser.</p>

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

<p>In a suit against heirs to compel the specific performance of a contract of their deceased ancestor for the conveyance of a tract of land, it is not necessary to" make such of the heirs defendants as have already conveyed to the plaintiff in pursuance of such contract.</p> <p>The defendants in such action, cannot give in evidence a conversation held in the absence of the plaintiff, between the witness and their deceased ancestor, concerning the ownership of the lands in controversy, unless the witness was referred by the plaintiff to the deceased for information concerning some disputed point, or uncertain question in relation thereto.</p> <p>A general assignment of error, to the effect that “the judgment should have been for the defendant, and not for the plaintiff,” is too general, and in ordinary cases will not be noticed.</p>

<p>APPEAL from the Daviess Circuit Court.,</p>

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

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

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

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

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

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

<p>Suit upon a forfeited recognizance taken in a prosecution under the liquor act of 1853. The affidavit information, and writ were made part of the complaint, and offered in evidence, over the objection of the defendants, on the trial. Held, that the prosecution was wrongfully instituted, the recognizance invalid, and the objections to the evidence good.</p>

<p>A., assignee of B., sued C. upon an agreement under seal between B. and O., by which B. sold and transferred to 0. his interest in all moneys that would have been paid to them by a bridge company upon a contract for work upon a bridge, for 225 dollars, to be paid to B. by C. out of the money received as the final estimate of the work. C. bound himself to complete the work according to the contract with the company, and released B. from all responsibility thereon. The complaint alleged, 1. That a final estimate had been made, and payment demanded, but averred a failure to pay. 2. That no final estimate had been made, but that the defendant had settled with the company and accepted, in full satisfaction of the sum that would have been due him on such final settlement, certain claims, &c., whereby said 225 dollars became due, which was demanded, &c. The fourth paragraph of the answer averred that the interest of B. was transferred to 0. subject to all the contingencies and conditions set forth in the contract with the company, and that the 225 dollars was to be paid only out of the final estimate, &c.; that defendant was ready to perform the work, but on, &c., the company discharged him, as by the contract they might; that he only received a partial estimate, a great part of which remained unpaid, owing to the insolvency of the company; that there was no final estimate, nor did he receive, on compromise, or otherwise, the money out of which the said 225 dollars was to be paid. The stipulations of the contract sustained the allegations of this defense, as to the right of the company to stop the work.</p> <p>Held, 1. That the fourth paragraph of the answer was good on demurrer.</p> <p>2. That the contract between B. and C. was made with reference to anticipated pr-ofits on the bridge contract, and the 225 dollars was payable only out of the final estimate.</p> <p>3. That A., not having at the time of the suit any interest in the claim sued on, was not the proper plaintiff.</p>

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

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

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

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

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

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

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