Volume 12 — Indiana Reports

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

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

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

<p>As a general rule, evidence should not be given, cither in criminal or civil cases, which does not directly tend to the proof or disproof of the matter in issue.</p> <p>Under this rule, the facts given to the jury in a criminal case should consist exclusively of the transaction which forms the subject of the indictment.</p> <p>Hence, the prosecution cannot prove another distinct offense for the purpose ' of raising an inference that the accused is guilty of the offense charged.</p> <p>Thus, where the indictment contained a single charge of incest, which was proved as laid, the state cannot-prove that the defendant had sexual intercourse with the prosecuting witness at any subsequent time.</p>

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

<p>Accounts for boarding, clothing, and educating the children of an intestate after his death, are not demands against his estate, and his administrator has no right to pay them.</p> <p>But where the intestate, in his lifetime, took the promissory note of A. for a large sum of money, at the same time entering into a parol agreement with A. that the latter should board, lodge, and educate certain of his children at an institution of learning of which A. was president and general agent, and that A.’s accounts therefor should be applied in payment of the note; and the boarding, lodging, &c., were furnished, during the life of the intestate, both before and after the maturity of the note, and continued to be furnished, pursuant to and in reliance upon the agreement, after his death; and after the death of the intestate, the accounts were presented to his administrator, and by him settled and allowed to go in payment of the note: Held, that the agreement was valid, and had it been fully executed at the maturity of the note, it would have constituted a bar to an action upon it. Held, further, that, as the intestate before his death permitted A. to continue to furnish to the children of the intestate the board, &c., after the note matured, thereby assenting that he should proceed to board and educate them, as originally agreed, in payment of the note; and as the administrator not only suffered him so to proceed, but allowed his accounts as a proper credit on the note,—A., as defendant in a suit upon the note brought by the administrator de bonis non, should be allowed to stand as he would have stood had his entire demand, as allowed by the administrator, accrued before the intestate’s death.</p> <p>Quaere, whether those interested in the estate might sue the administrator on his bond.</p>

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

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

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

<p>Suit by the assignee on promissory notes, and to foreclose a mortgage. Answer, admitting the execution of the notes and mortgage; that they were held by the plaintiff, as assignee, and had not been paid; but setting up a counterclaim as follows: That they were given to secure the payment of the balance of the price of a steam engine and boiler which, by agreement, A. D. k Go. manufactured for the defendants, to be used in a saw-mill, of which the makers had knowledge, and made them expressly for that purpose; that the payee was one of the firm of A. D. Co.; that said boiler was worthless, in consequence of defects in materials and workmanship; that soon after it was set up, owing wholly to said defects, it burst, by which it was destroyed, and damaged the defendants by injury to the mill, &c.; that the price paid was a fair price for a good article for that purpose; that defendants had no knowledge of the defects; that the value of the other machinery was less, after the bursting, than the sum already paid. Prayer, that the damages, &c., may be allowed, &c. Held, sufficient on demurrer.</p> <p>Held, also, that if the engine, &c., proved unsound and unfit for the purpose for which it was to be applied; and if, in attempting to apply it, the purchaser, without fault on his part, in consequence of such unsoundness and unfitness, suffered damage by the destruction of that kind of property which it was reasonable that the parties to the contract contemplated would be necessarily placed in close proximity to such machinery, the injury must be viewed as the natural and legitimate result of the breach of the warranty.</p> <p>Reply, l. A general denial. 2. Specific denials, and an averment that if defects existed they were not known to the makers, &c. 3. That the engine, &c., was put up under a contract in writing; that after it was set up and put in operation, the defendant accepted the same, and said contract was canceled and destroyed, and the notes and mortgage executed, &c. The specific denials in the second paragraph of the reply were stricken out, bn the ground that they but repeated the issue made by the general denial.</p> <p>Held, 1. That issues presented to a jury should be plain and simple. Repeated denials of the adversary pleading tend to complicate tho issues.</p> <p>2. That after the special denials were stricken out of the second paragraph of the reply, it was bad on demurrer.</p> <p>3. That the third paragraph of the reply was bad, because the alleged written contract was not set forth, either by copy or in substance; and beeauso the terms or acts of acceptance were not stated.</p>

<p>Where goods transported by a railroad arrive at the place of destination, and are placed upon the platform of the depot, at the usual place of discharging goods, ready for delivery to the consignee, in good order, and he is notified of their arrival, and pays the freight upon them, the liability of the company as carriers is at an end.</p> <p>If the consignee does not receive the goods, it seems that the carrier must take care of them for a reasonable time for the consignee; but his liability in that respect is that of a warehouseman, and not that of a carrier.</p> <p>But where tlie consignee has notice of the situation of the goods at the place of delivery, and pays the freight upon them, and afterwards, without neglect on the part of the warehouseman, the goods are destroyed, the warehouseman is not liable.</p> <p>It seems, indeed, that the payment of the freight under such circumstances, without any arrangement as to the farther custody of the goods by the warehouseman, is equivalent to a delivery, so far as to throw the risk of loss upon the consignee.</p>

<p>An order of the board of directors of a railroad company, assessing the subscriptions of stock, certified by the secretary of the company, though not authenticated as the statute requires, is admissible in evidence in a suit upon a subscription, if no objection be made (and if no ground of objection was ^Jhinted out in the Court below, the case stands in the Supreme Court as if none was made); and when so admitted it is as conclusive of the matters contained in it, as if it had been properly authenticated.</p> <p>In a suit upon a subscription of stock, to recover installments regularly assessed in accordance with tlie terms of the subscription, the subsc,riber is not entitled to notice of the assessment, or the time and place of payment, before suit brought.</p> <p>The contract to pay by installments is, in such cases, a promise to pay on demand; and the demand involved in the commencement of the suit is alone sufficient.</p>

<p>The statute provides for but one new trial, as a matter of course, in actions brought to recover real estate. ■</p> <p>A deed fair and valid upon its face, is evidence of an honest transaction; and, until it is assailed by evidence, effective as proof, that it was obtained by the fraud of the grantee, he is not required to adduce any evidence in its support.</p> <p>A. purchased a tract of land at sheriff’s sale, and subsequently conveyed it to the wife of B. Held, that, although the circumstances of the case may tend to induce the conclusion that A. purchased at the instance and with the money of B., yet the conveyance to the wife must be held valid, unless she is shown to have participated in some way in the fraudulent conduct of B.</p> <p>An instruction should be based upon a state of facts assumed to have been proved by all the evidence in the case bearing upon it, and not by a part thereof only; and this rale is especially applicable to cases involving the question of fraudulent intent, which is generally a question of fact.</p> <p>The wife is not bound by the acts and declarations of her husband unless she had knowledge of them.</p> <p>Where the wife recoives money during coverture, which is left under her' control and management by the husband, and which they both treat as her separate property, the jury may, from these circumstances, find that she was the solo owner of it.</p> <p>"Where a wife, with money belonging in part to herself, and in part to her husband, for the purpose of delaying and defrauding his creditors, causes his lands to be bought in at sheriff's sale, and afterwards conveyed to herself, her title, thus acquired, is fraudulent and void as to such creditors.</p> <p>The question of fraudulent intent in such cases is one of fact; but where the legal effect of an instrument, as it appears on its face, is to hinder or delay creditors, the Court will, in the first instance, pronounce it void.</p>

<p>An attorney who appears as a more amicus curias, has no right, in that character, to except to the rulings of the Court.</p> <p>A party may enter a special appearance and move to set aside defective process, and will not thereby waive the right to object to such defects.</p> <p>Where the sheriff's return to a summons is subscribed by his deputy, who does not use the name o.f his principal at all, but the record shows that the sheriff in person amended the return in open Court, and the defendant, without objecting to tlio return for that cause, entered a general appearance to the action, the return was held sufficient, although it should have been signed with the name of the sheriff by his deputy.</p> <p>If several paragraphs of an answer amount to no more than a general denial of the complaint, which is also contained in the answer, they will bo stricken out on motion.</p> <p>Where judgment has been rendered for the right party, but for excessive damages, it is ground for a new trial, and can only be taken advantage of under the code, by that method. -</p>

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

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

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

<p>Where the complaint in replevin alleges ownership and right to possession, in the plaintiff, possession by the defendant without right, and unlawful detention from the plaintiff; and the defendant answers, denying the detention, and setting up property in a stranger: Held, that there is a good issue without reply—the answer denying the detention, a material allegation of the complaint, and argumentatively denying property in the plaintiff by alleging property in a stranger.</p>

<p>At common law, a default could not be set aside at a term after the one at which judgment was rendered.</p> <p>By § 99, 2 R. S. p. 48, it is discretionary with the Court to relieve a party from a judgment by default, or refuse to do so, at any time within a year from the rendition of the judgment.</p> <p>Where a discretionary power is vested in an inferior Court, there must be a plain case of abuse of that discretion, to justify interference by the Supreme Court.</p> <p>An application for relief from such a judgment, made at the first term after a default, and based solely upon the affidavit of the defendant simply showing the employment of an attorney and his neglect to defend, was held to have been correctly overruled.</p> <p>And a second application, made at the next succeeding term, based upon the first affidavit and an affidavit of the attorney that ho did not understand that he was employed, although tbe defendant might have understood that he was employed, was hold to have been correctly overruled, for the reason that the affidavit of the attorney came too late—that ordinary diligence required that it should have been filed at the preceding term.</p> <p>Quaere, whether, if both affidavits had been filed on the first application, it would have been error to overrule it; and whether an application can, in any case, be renewed upon an additional showing, after having been once made and overruled.</p>

<p>Where a part of the appellants are barred by the statute of limitations, their names may bo stricken from the record, and the cause may proceed as to the parties not hatred.</p> <p>A decree against an infant will not he reversed simply because the evidence is not in the record.</p> <p>Where an agreement of parties would seem to dispense with the necessity of evidence, and the record contains none, it may be inferred that there was none.</p> <p>Where the record contained nothing which would seem to empower a guardian to admit a ease against his infant ward, a decree founded upon such an admission will not he sustained.</p>

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

<p>At common, law, it is for the Court, and not the jury, to decide whether, under the circumstances of the case, a confession of guilt is admissible; hut the statute allows all confessions, save those produced by threats, to be given in evidence.</p> <p>The words addressed to the accused must involve a threat; and the motive to confess, produced thereby, must be such as to so' operate on his mind as to render it doubtful whether the confession is worthy of credit.</p> <p>Prosecution for stealing three twenty-dollar gold-pieces. The defendant, upon his arrest, was told that there was "no use in denying it; that the gold-pieces had been found where he passed them; that he had better own up to it.” He then confessed the larceny. Held, that this language was that of inducement, and that, under the statute, the confession was admissible in evidence.</p>

<p>Where goods were ordered to be forwarded by the first boat leaving P. for the Wabash, it was held,, that the direction meant no more than that they should be forwarded at the earliest opportunity.</p> <p>A document of another state not admissible in evidence by the common law, will be rejected where the statute of the foreign state is not produced, though such a document of this state is admissible by our statute.</p> <p>The Courts cannot take notice of the statutes of a foreign state changing the common law.</p>

<p>Assumpsit by a railroad company on a subscription of stock. Trial upon the general issue. The plaintiffs proved by their secretary that certain books had come into his possession from his predecessor, as books of the company, one of which purported to contain subscriptions to their capital stock, and another, to contain their proceedings. Certain entries in these books wore admitted in evidence. The subscription-book contained resolutions of the directors, fixing the amount of a share, the terms, &c. To these, the declaration averred that the defendant placed his signature, with the number of shares he desired. The resolutions were specially set forth in the declaration.</p> <p>Held, 1. That the proof of the identity of the instrument offered in evidence, with that declared on, was sufficient, if, indeed, such proof was at all necessary.</p> <p>2. That under the issue, proof of the execution of the instrument was not necessary.</p> <p>3. That under the decision in Judah v. The American Live Stoclc Ins. Co., 4 Ind. R. 333, the admission of the extracts from the books of the company was not error.</p> <p>The terms of payment contained in the resolutions subscribed were, that one dollar be paid in hand on each share, at the time of subscribing, and that 10 per cent, on each share be paid every sixty days .after the work shall be put under contract. The work was put under contract in 1850; but there was no evidence that the defendant had notice of that fact, nor that any call had been made for the payment of installments, or payment demanded, though the declaration alleged such demand. Held, that such notice was not necessary.</p>

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

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

<p>Where a feme sole, being the payee of a promissory note, married prior to the statute of 1853 (Acts, p. 57), held, that the husband acquired a property in the note, and he, alone, could pass it by indorsement; and he could sue upon it without joining his wife.</p> <p>The husband’s right to the note, in such case, vested at the time of the enactment of the statute, was not affected thereby.</p>

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

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

<p>Suit upon an award. By the submission, the arbitrators were to “arbitrate all debts, dues, notes, judgments, and demands whatever, of every kind and nature, between the parties.” The award was as follows: “We, the arbitrators, having taken upon us the burden of the reference, and having duly considered the allegations and proofs of the parties, do make and publish this our award, of and concerning the matters to us referred, viz.: We find for Enoch Miller 4,329 dollars, including the Enoch Hays judgment in • the United States District Court, and the judgment of Jacob Hays against Benjamin Redman, jun., in replevin,” &c. Signed, &e. A copy of the award was filed with the complaint. It was objected that the complaint was defective for not averring that the award was made of and concerning the matters submitted.</p> <p>Held. 1. That the award was part of the complaint, and contained the neces- . sary averment.</p> <p>2. That the award is not uncertain for including the judgments to which it refers, in making up the aggregate.</p> <p>3. That although the judgments were not originally between the parties, it may be presumed, in view of the whole award, that, at the time of the submission, they had become existing demands between them, and were properly within the submission.</p> <p>The statute upon interest does not render the contract upon which an illegal rate of interest is reserved, wholly void, but simply avoids it so far as it reserves illegal interest.</p> <p>Thus, if illegal interest be given by an award, a defense, in a suit upon the award, seeking to annul the entire award for that reason, is bad. To bring such a defense within the statute, the amount of interest included in the award, should be stated in the pleading.</p> <p>A submission to arbitrators, where no cause is pending, and where there is no agreement to make the submission a rule of Court, is the mere act of the parties; and in an action to enforce the award, it is no defense to say that it is against law.</p>

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

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

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

<p>Action commenced before a justice of the peace, upon a promissory note. No answer. On the trial, the defense was, that the note was given for an illegal consideration, namely, for services rendered by the plaintiff for the defendant as clerk of the defendant’s lottery office. There was no evidence of ¿my special contract before the services were performed; nor was there any evidence that the plaintiff had performed any services of an illegal character.</p> <p>Held, 1. That the action having been commenced before a justice, evidence of the consideration was admissible without answer.</p> <p>2. In the absence of proof that the plaintiff performed acts of service which were expressly prohibited by law or public policy, it cannot be conclusively presumed that he did so, because ho was the employb of one who might have contemplated or performed such acts; nor can it be presumed, in the absence of proof of the teims of his contract, that by its stipulations he was to perform illegal acts.</p> <p>The constitutional provision against lotteries, is in restraint of legislative authority to authorize lottery schemes in the state, or the sale of tickets within the state in schemes organized without the state.</p>

<p>Suit upon a written agreement for the delivery of four thousand bushels of com on board of a canal boat—two thousand bushels to be delivered on the 20th of -August, 1856, and two thousand bushels on the 30th of the same month. Eve hundred dollars was to be paid down, 500 dollars on the 8th of August, 1856, and 200 dollars “upon the delivery of each load,” in all, 1,400 dollars. The complaint averred that the defendant was engaged in buying corn, and possessed a warehouse, at which the corn was to be delivered on board the boat. There was no controversy about the two thousand bushels first to be delivered. It was averred that before the 30th of August, at the instance of the defendant, the time for the delivery of the last two thousand bushels was extended, by agreement of the parties, without fixing any day for performance; and that on the 3d of September, 1856, the defendant informed the plaintiffs that the last two thousand bushels was ready for delivery whenever they would send a boat (but no day was fixed for such delivery), and requested payment, which was made. General averment of performance on the part of the plaintiffs, and that on the 6th of September, 1856, they demanded, and were ready to receive, said two thousand bushels; but that the defendant failed, and still fails to deliver the same, nor did he iave it to deliver. Answer, admitting the execution of the agreement, the payment of the money, and that the defendant was engaged in buying, &c., and averring that he delivered the first two thousand bushels; that at the time of payment in full, to-wit, September 3, 1856, he had on hand and ready for the plaintiffs, in his warehouse, the two thousand bushels yet at that time due upon the contract, and so informed the plaintiffs; that no arrangement as to the time of receiving the corn was made; that the corn not being called for by the plaintiffs, remained, &e., until the 6th of the same month, when it was destroyed by fire; wherefore it was impossible to put the same on board the boat; that the contract was fully performed by the defendant, except transferring the corn from the warehouse to the boat; that the property, after, &c., became and was the property of the plaintiffs, subject to their control. Demurrer, because the answer did not state facts sufficient, &c., sustained. Amended answer, admitting all the facts stated in the complaint, except the averments of performance by the plaintiffs, and averring that they did not perform, in this, that they failed to send a boat within a reasonable time, although the corn had been set apart and measured, and was ready to bo transferred to the boat at the time of the receipt of the full amount of the purchase-money, and remained so set apart, &c., until the morning of the 6th of September, when the same, yet being in the warehouse, by reason of the want of diligence upon the part of the plaintiffs, was destroyed by fire, &c. Demurrer, for the same cause as before, sustained. Held, that the original answer was bad, and the amended answer good on demurrer; that the admeasurement and setting apart of the com, and the payment in full of the sum to be paid on delivery, completed the sale; that the transfer of the com from the warehouse to the boat, although necessary to complete performance, was waived, as necessary to a completion of the sale.</p>

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

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

<p>In an action instituted in this state, upon a judgment rendered in another state, a plea of the statute of limitations of the latter state will not, as a general rule, be sustained.</p> <p>There may be a distinction between a statute limiting the time within which an action may be brought, and one simply raising a presumption of payment by lapse of time; but a defense based upon either relates to the remedy, and not to the merits, and is governed by the lex fori.</p>

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

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

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

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

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

<p>An assignment of error in this—that judgment was rendered for the appellee ■when it ought to haye been rendered for the appellant—amounts to nothing. If, under any supposable state of the evidence, instructions given would have been correct, it will be presumed, the record not showing the contrary, that such evidence did exist.</p> <p>In the absence of the evidence, it will be presumed that the action of the Court, in refusing instructions, was correct.</p> <p>Although the claims of judgment-creditors be several, they may unite in a suit to set aside a fraudulent conveyance, and subject the property to the payment of their judgments. At least, the defendant cannot complain of the joinder.</p> <p>There is no error in permitting a discussion before the Court, in the presence of the jury, touching the proper form of their verdict.</p> <p>The jury have a right to find a special verdict, unless otherwise directed by the Court.</p> <p>A conveyance executed with the intent to defraud creditors, is not rendered valid by the circumstance that it was executed upon an adequate consideration.</p> <p>If a conveyance’ be made colorably with intent to defraud existing creditors, it may be avoided by subsequent creditors.</p>

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

<p>Where the plaintiff’s covenant or stipulation constitutes only a part of the consideration of the defendant’s contract, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff might be compensated in damages, an action may be supported against the defendant, without averring performance by the plaintiff.</p> <p>Where a party, before the time fixed for the performance of an agreement, disables himself to perform it on his part, no demand of performance is ne-i cessary.</p>

<p>Suit upon a promissory note. The plaintiff assigned the note pendente lite, and moved to have the assignee substituted as plaintiff. The Court refused. Held, that this was matter of discretion.</p> <p>Upon the trial of this cause, it appeared that a written contract which was sot up in defense had been altered; but both the parties conceded the alteration, and the questions of value and damages were examined and decided upon it as originally executed. Held, that evidence touching conversations as to who had made the alteration was irrelevant.</p> <p>A verdict is good if the Court can understand it, though it be informal; and if it be so uncertain that the Court cannot understand it, the jury must be sent back with proper instructions as to the mode of framing it.</p>

<p>An objection to the rendition of judgment upon a report of referees, not based upon anything before the Court, may be disregarded.</p> <p>If referees err upon any question of practice during the hearing, objection must be made then and there, and incorporated in either a bill of exceptions or a statement of the referees in their report.</p> <p>Referees may be required to report the facts found; but that requirement does not extend to the evidence by which those facts are proved; and it is ground for rejecting the report, if they report the evidence instead of the facts proved. The rale as to special verdicts applies to special reports of referees.</p>

<p>The act “to authorize the business of general banking,” approved May 28, 1852, was repealed by that of 1855, upon the same subject.</p> <p>Banks organized under the former act, refusing to comply with the provisions of the latter, ceased to existas corporations at the time therein prescribed; and no judgment of forfeiture was necessary, to terminate their corporate powers.</p> <p>A contract made by the officers of such bank, in their corporate capacity, after its powers as a corporation had ceased, does not bind the stockholders.</p>

<p>In an action for slander, the Court may, in its discretion, after the jury is impanncled, permit the plaintiff to amend his complaint, by inserting a new sot of words; or by striking out part of a set of the words originally charged therein, to have been spoken.</p>

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

<p>An agent employed to drive stock from one place to another, has no power in virtue of such employment to sell the stock, in case it become foot-sore and unable to travel; and in case of a sale under such circumstances, the owner may recover his property by action against the purchaser.</p> <p>Where the principal has never held the agent out as having a general authority, it is the duty of one purchasing from him to inquire as to the extent of his authority; and, if he purchase without inquiry, he trusts the agent and not the principal.</p>

<p>Where a defendant pleads a set-off, the plaintiff may, without waiting for evidence in support of it, prove, in the first instance, that it had been settled by an arbitration between himself and the defendant; but, after having gone into such proof, he will not be allowed, at the close of the defendant’s evidence, to give additional proof of such settlement.</p> <p>A witness having stated his recollection of the facts, must not state his understanding and belief from such facts.</p> <p>Where it appears that the items of an account, claimed to be settled by arbitration, were reduced to writing, parol evidence of its contents is not admissible until some valid reason is shown for the failure to produce the writing.</p>

<p>B. brought an action of attachment against the steamboat Crystal Palace, and her master, K., came in and filed an undertaking, with F. as surety, for the payment of any judgment B. might recover. F. was in no other way a party to the suit. The Court rendered judgment against IC. and F., who appealed. Held, that the judgment against F. was erroneous; and that, inasmuch as he was not a party to the suit, and had no notice of the proceedings therein, he could avail himself of the error without having excepted in the Court below.</p>

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

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

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

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

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

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

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

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

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

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

<p>A bet upon the result of an election, is within § 28, 2 E. S. p. 435.</p> <p>An information is not bad for charging the time when an offense is alleged to have been committed, in figures.</p> <p>The contingency of a bet upon the result of an election, is determined when the popular vote is cast; though there may be difficulty in proving tire result until it is officially determined in the manner prescribed by the constitution and laws.</p> <p>A. and B. were contesting candidates for an office for which an election was to be held on the 14th of October-, 1856. Prior to the election, O. offered to purchase a hat of D. to he paid for in case A. should be elected at the election to be held on that day, and not otherwise. D. offered to sell the hat to C. and wait with him for payment until B. should be defeated, and upon these terms O. purchased.</p> <p>Held, 1. That the parties had reference to the pending election.</p> <p>2. That the contract was a wager.</p> <p>A sale of goods, to be paid for or not, according as an election may result, is as much within the reason and policy of the law, as any other form of bet or wager upon the result of an election.</p> <p>The Courts take notice judicially of the accession of the chief executive oí the confederacy or state. Thus, where at the time of the trial of an information against a person for betting upon the election of a certain candidate for governor, that candidate had entered upon the duties of the office, in pursuance to the election upon the result of which the bet was made, it was held, that no proof of his election was necessary.</p>

<p>Suit upon a promissory noto. Answer, that the note was in consideration of, and in part payment for, certain land described. Held, that this allegation is material, and must he proved; but strict proof is not required. -</p> <p>If the maker of a promissory note take it up by executing to the same payee new notes for the same amount, the consideration of the new notes is the same as that of the old; and the maker may set up a failure of consider£ttion in defense of a suit by an assignee upon the new notes.</p>

<p>If a mistake in not Having a witness sworn, is discovered before the jury retire, it maybe corrected by swearing the witness and rehearing his testimony; or the jury may be instructed to disregard his statements.</p> <p>If no motion be made upon the discovery of the mistake, the parties will be deemed to have acquiesced in the reception of the unsworn statements as evidence.</p> <p>And where such mistake was assigned as one of the written reasons for a new trial, but the record did not show, by affidavit or otherwise, when the mistake was discovered, if discovered at all before judgment, or whether any motion was made to correct it, the ruling of the Court refusing a now trial was sustained.</p>

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

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

<p>Suit by the assignees on a promissory note. Answer, 1. A set-off against the maker, before notice of assignment. 2. Payment to him before such notice. Afterwards, a third paragraph was filed, to the effect that, at the time the defendants delivered the goods and paid the notes, as in the two former paragraphs set forth, the maker was the owner of the note, and promised to deliver it to the defendants, but failed to do so, and fraudulently assigned it to the plaintiffs, without their knowledge, and without consideration; but that the legal interest in the note was, at the time of such delivery, &c., in the defendants, and that the plaintiffs never had legal title thereto. Prayer, that the maker be made a party.</p> <p>Held, 1. That the third paragraph was bad either as an answer, or iHs a petition for a new party, if one could bo presented.</p> <p>2. That it was but a repetition of an answer already in, and, therefore, issue upon it was not necessary.</p> <p>3. That as no reason appeared for making the proposed new party, he was a competent witness.</p> <p>A party should not be joined as a co-plaintiff who has not, as the pleadings stand, any unity of interest with those already plaintiffs; nor should such a new party be made merely for the purpose of settling matters between him and the defendant, in which the original plaintiffs have no interest.</p>

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

<p>In general a party may offer his evidence in the order he pleases; but where a previous fact is necessary to be proved, to render the evidence at all relevant, the Court may require proof of such fact as a condition of the admission of the evidence.</p>

<p>Evidence may be beard to show that there was no consideration for a deed.</p> <p>A deed drawn by mistake for a different interest from that intended to be conveyed, may be corrected if the mistake be clearly proved. A deed of gift is no exception to the rule.</p> <p>If a party, by such mistake, hold a greater estate than belongs to him, and convey it to an innocent purchaser, receiving the consideration, he may be treated as a trustee for the real owner.</p>

<p>A judgment cannot be reversed, under the code, for error in ruling upon a demurrer for misjoinder of causes of action.</p> <p>Action to enjoin the extension of a street through the plaintiff’s land. The complaint set up title. Answer, that the plaintiff had no title or interest in the land, rejected, on motion, as tendering an immaterial issue. A general traverse was also pleaded. Edd, that the matter of the rejected paragraph was material; but that as it might have been proved under the general traverse, there was no error in rejecting it.</p> <p>The Court of Common Pleas cannot, under the statute, try an issue involving the title to real estate, arising upon an application for an injunction.</p>

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

<p>Where the demand proved by the plaintiff is reduced below 50 dollars by any defense other than payment, the defendant is liable to judgment for costs.</p>

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

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

<p>A referee, acting under a reference to him of the matters in issue in a ponding suit, has no right to report the evidence given before him, though he may report the facts proved by it, if authorized to do so by the parties.</p> <p>The authorities upon this point are based upon the assumption that, under the statute there is hut one way of bringing the facts before the Court, viz., by requiring the referee to report the facts found and the conclusions of law, separately; and then, upon exception, the Court will review the decision of the referee as it would its own proceedings on a motion for a new trial.</p>

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

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

<p>Suit for the rescission of a contract for the conveyance of land, on account of fraud in obtaining the contract. The complaint alleged that one of the defendants was the plaintiff's agent for the care of the land and to procure a purchaser; that, in his correspondence as such agent, he fraudulently misrepresented the value of the land, and induced the plaintiff to sell it to the other defendant, who had notice of the fraud, for one-half its value—the defendants having a contract between themselves for the conveyance of one-half of the land to the agent, he furnishing half the purchase-money.</p> <p>Held, 1. That the correspondence was admissible in evidence to prove the agency, and, perhaps, the fraud.</p> <p>2. That the agent was a proper party to the suit.</p> <p>3. That the agent, being a proper party, could not testify as a witness in relation to matter going to defeat the action against both defendants, though lie might testify as to matters affecting the recovery, or the amount of it, against his co-defendant alone.</p> <p>A party from whom a contract has been obtained by fraud, may have his action for its cancellation, though it bo not signed by the defendant.</p> <p>In a suit for the rescission of a contract for the conveyance of land, on account of fraud in obtaining the contract, the defendants answered that they had made valuable improvements, but did not describe them nor state their value. Held, that the matter was not well pleaded; and that if it had been, it is not clear that the defrauding party could avail himself of the defense to prevent a rescission.</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 Marshall Court of Common Pleas.</p>

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

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

<p>It cannot be pleaded to a complaint upon a subscription of stock, that at the time it was made there was no such corporation, because the defendant is estopped by his contract to deny the corporation, and because, under the general railroad law, subscriptions of a certain amount of stock are necessary for the organization of a contemplated corporation, and for that reason and purpose are valid before such organization, and may be collected after-wards.</p> <p>The defendant, in a suit upon a subscription of stock, cannot set up a secret, fraudulent arrangement by which other subscribers were to have stock upon terms different from those specified in the contract. Such arrangements are of no avail to the parties in whose behalf they are made.</p>

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

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

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

<p>An information is not bad for being signed by the district attorney with the official title of “prosecuting attorney,” instead of “district attorney.”</p>

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

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

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

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

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

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

<p>APPEAL from the Helawa/re Circuit Court.</p>

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

<p>Although parties may be willing and competent to make partition of their lands among themselves, yet either of them may commence proceedings for partition under the statute, without first making an effort for an agreement npon the terms of partition without such proceedings.</p> <p>Where the Court ordered commissioners to set apart to each of the parties to the proceeding for partition one-fifth of the premises, the commissioners reported that the land was not susceptible of partition, without great detriment to the parties, and recommended a sale according to law. The defendants objected to the sale, and protested against the sale of their part, and asked that it might be set off. The objections to the report were, 1. That it was untrue. 2. That it did not set forth the facts upon which the opinion of the commissioners was based. But the Court ovenuled the objections and ordered the sale.</p> <p>Held, 1. That if the meaning of the report was, that the partition could not be made into fifths, as ordered, the Court erred in ordering the defendants’ part to be sold, without a report showing that tlreir part could not be divided from the rest without detriment, &c.; but if the report meant that the defendants’ share could not be so set off to them, then the second objection of the defendants to the report should have been sustained.</p> <p>2. That the report would have been sufficient, in the absence of any objection.</p>

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

<p>In 1835, in a proceeding for the partition of the lands of a decedent, certain land was assigned to the widow as her dower, and Ms lands, not being susceptible of partition, were ordered to be sold subject to the dower. The order of sale directed that the commissioners sell the land, excepting the widow’s dower. The commissioners reported that they had made the sale ' excepting the dower, describing it by metes and bounds. The sale was confirmed, and a deed made purporting to convoy to the purchaser all the interest of the heirs of the decedent in the promises, subject to the widow’s dower.</p> <p>Held, 1. That the order authorized the sale of the entire estate, subject to the widow’s dower; and the reversion vested in the purchaser.</p> <p>2. That the Court, under the statute of 1831, had authority to malee such order; that the language of the statute is broad enough to convoy estates in reversion as well as in possession.</p>

<p>An appeal lies from the decision of the Circuit Court in a proceeding for the assessment of damages.</p> <p>The general law providing for appeals to the Supreme Court (2 K. S. p. 158, § 550), repealed the provision of the statute (1 ,B. S. p. 395, § 1) making the decision of the Circuit Court final in such cases.</p> <p>The Court, in this case, by agreement of parties, ordered that three viewers should examine certain premises, and assess the damage occasioned by the construction of the road through them, and that if they should desire to hear evidence they must notify the parties; and the parties acquiesced in the order. Two of the viewers did not desire to hear evidence; but made their report upon their examination of the premises.</p> <p>Held, 1. That it could not be objected that the assessment was made without hearing evidence.</p> <p>2. That the viewers were not a jury; that by the agreement to an assessment by viewers, the right to a jury was waived; that the action of a majority of the viewers was sufficient.</p>

<p>Complaint against A. and B. for unlawfully talcing and detaining personal property. The property was delivered to the plaintiif, upon his giving an undertaking, &e. Answers, 1. In denial. 2. By A., property in a stranger. 3. By B., property in himself. Trial byjury; verdict as follows: “We the jury, find for the defendants.”</p> <p>Held, I. That the verdict being general, embracing all the issues, it finds the property to be in B. and also in a stranger, and hence, is inconsistent with itself, and bad.</p> <p>2. That the verdict did not authorize a judgment for a return of the property, because it did not determine the value of the property.</p> <p>3. That the verdict amounts to nothing more than a finding for the defendants on their denial of having taken the property; and that, in this view, the objection for inconsistency is obviated, and the verdict may stand, if the defendants see proper so to treat it.</p>

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

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

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

<p>A complaint upon a promissory note executed for the purchase-money of real property, and praying for the enforcement of the vendor’s lien against the same, is sufficient under the code, without an averment that a judgment had been obtained upon the note in the ordinary form, execution issued thereon, and a return of “no personal property found,” &c., or any equivalent averment.</p> <p>In an action brought to enforce a vendor’s lien upon a note given for the purchase-money of real property, a judgment directing the sale thereof, in the first instance, is erroneous, unless it appear from the record that the defendant had no personal property subject to execution out of which the judgment might he satisfied.</p>

<p>Where the parties in an action on appeal from a justice’s Court, agreed that several causes might be tried together in the Circuit Court, and one general verdict might he rendered, with a stipulation that if the amount recovered was less, by 25 dollars, than the sum of the recoveries before the justice, the plaintiff was to pay cost's in the Circuit Court:—Held, that an exception to the overruling of a motion to consolidate the actions, was waived.</p> <p>If in a suit upon a promissory note in which one of the defendants is principal and another surety, the defendants set up as a set-off an indebtedness of the plaintiff to the principal, the plaintiff may, in order to meet the set-off, set up in reply any indebtedness from the principal to himself, or to any former holder of the note, which is a legitimate subject of set-off; and the excess only of the defendant’s claim shall go in bar of the action.</p> <p>In determining whether a recovery on appeal from a judgment of a justice of the peace is reduced five dollars or not, the sums recovered are the guide, without regard to interest upon the justice’s judgment, or upon the claim sited on.</p> <p>In actions commenced before a justice of the peace, no reply is necessary. Hence, if, upon appeal to the Circuit Court, the plaintiff file a reply which loaves a part of the answer neither denied nor avoided, the defendant will not, therefore, he entitled to judgment on filio pleadings.</p>

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

<p>An answer setting up new matter which is untrue, and-intended merely to delay the trial, will be deemed a sham defense, though, in point of law, good on its face.</p> <p>Where a defendant, by answers to interrogatories under oath, concedes his answer to be false, the Court will strike it out, on motion, as a sham defense, though good on its face.</p>

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

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

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

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

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

<p>The pledgee of a promissory note, who settles with the maker and surrenders it, thereby becomes liable to account to the pledgor for the full amount thereof. ^</p> <p>If the pledgee of a promissory note, upon settlement, surrender it to the maker, in consideration of a sum of money equal to the debt for which it was pledged, and a reasonable compensation for collecting the same, and. another promissory note for the balance, the pledgor may demand citify such other note, or the full amount of the original pledge, after deducting the sum for which it was pledged, and such reasonable compensation.</p> <p>' If the pledgee of a promissory note settle with the maker and surrender it to him for a sum of money equal to, or greater than, the debt thereby secured, and another promissory note for the balance, the pledgor may maintain suit for the amount of the pledge without first having made a demand.</p>

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

<p>A report of commissioners appointed to make partition of real property, to the effect that the same was not susceptible of division, should not be set aside on the ground that it is false, without legitimate proof of its falsehood.</p> <p>Beal property which constitutes the stock in trade of a partnership that has no outstanding debts or liabilities, may, upon the application of part of the firm, be divided among the partners according to their respective interests therein.</p>

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

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

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

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

<p>The statute of 1853 in relation to the liability of railroad companies whoso roads are not fenced, for killing- stock, does not apply to aciions commenced in Courts of Common Pleas, and Circuit Courts; but only to such as are brought in justices’ Courts.</p> <p>The act of 1859 extended the rule established by the act of 1853 for the decision of causes brought in justices’ Courts, against railroad companies for killing stock, to actions of the same class brought in Courts of Common Pleas and Circuit Courts.</p>

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

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

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

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

<p>Where slanderous words are uttered in a foreign language, the complaint should set out the words in that language, with a translation.</p> <p>If slanderous words are charged to have been spoken in the English language, there will be a variance if the proof show that they were spoken in another language. The code has not changed the rule.</p> <p>After the jury are sworn, and have heal'd a part of the evidence, a new issue should not be tendered without cause shown; and if the issues are permitted to be changed, the jury must be re-sworn.</p>

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

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

<p>In a complaint setting up a breach of a warranty of soundness, the breach statocTmust be coextensive with the contract of warranty. It may negative the words of the contract. The particular unsoundness need not be stated.</p> <p>More particularity is necessary in declaring on a special, conditional, or partial warranty, than on a general and absolute warranty.</p> <p>It seems, that a breach of an affirmative character must be stated with more particularity than one of a negative character.</p>

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

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

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

<p>Unless defendants were shown to be non-residents of the state, they could not be proceeded against by publication, under the E. S. 1843, p. 833, § 14; and § 40, 2 E. S. p. 36, is substantially the same.</p> <p>The case of The Unknown, Sms of Whitney v. Kimball, 4 Ind. E. 546, approved.</p>

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

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

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

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

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

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

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

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

<p>an answer that the note was given for a tract of land to which the plaintiff fraudulently represented he had the fee simple title, when in fact the fee simple title was in a third person, does not oust the Court of jurisdiction.</p>

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

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

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

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

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

<p>Where part of an award relates to matters not within the terms of the submission, the whole award will be void unless that part can be distinguished from the residue.</p> <p>Whore an award thus embraces matters not authorized by the submission, the whole award will be void, unless it can be shown that such unauthorized part was so disconnected from the residue as to have no influence upon the . consideration thereof.</p> <p>Where a party undertakes, in his pleadings, to show that part of an award was unauthorized by the submission, and to maintain the residue, to entitle him to succeed, he must prove, 1. That the part which he seeks to have rejected relates to matters not submitted to the arbitrators; 2. That the residue is so distinct and complete in itself as to constitute a valid award after its rejection; and 3. That it had no influence upon the consideration of the residue.</p> <p>Where two of the arbitrators in such case, are called and examined as witnesses touching the matters submitted to them, and their testimony is conflicting, a writing signed by them, and containing that part of the award sought to be rejected, after it has been submitted to them, is competent evidence, to be considered by the jury in determining the relative weight that ought to be given to the testimony of such witnesses.</p>

<p>In an action upon a forfeited recognizance, a copy of the recognizance must be filed with the complaint, and a forfeiture is necessary to the maintenance of the suit; but the statute (§ 78, 2 B. S. p. 44_) does not require that the minutes of the Court showing the forfeiture, nor a copy thereof, should be filed with the complaint. The recognizance is a written instrument, within the meaning of the statute, while the judgment of forfeiture thereof is not.</p> <p>Complaint upon a forfeited recognizance. The substance of the second paragraph of the answer was, that the amount of the bail was not specified in, nor indorsed upon, the warrant of commitment. It did not deny that the amount had been fixed by the proper authority. Beply, showing that the amount of bail had been fixed by the order of the Court.</p> <p>Held, 1. That the reply was good if the answer was good; that if the answer was good, it was because it is to be inferred from it that the amount of bail had not been fixed by competent authority; and the reply meets that inference.</p> <p>2. That if it could not be inferred from the facts set up in the answer, that the amount of bail had not been fixed by competent authority, then the facts were wholly immaterial, and an issue upon them would have been immaterial.</p> <p>3. That it is not error to refuse to reject a reply to an immaterial answer, although the reply may not be responsive to it.</p> <p>4. Where the amount of bail has been properly fixed, a recognizance is not void because the amount is not indorsed upon the warrant of commitment.</p> <p>If in an action upon a forfeited recognizance, the answer admits the execution of the recognizance, its admission in evidence is not an error of which the defendant can complain.</p> <p>Action upon a forfeited recognizance. The state oifered in evidence the following order made by the Court at the time the indictment was found: “ Ordered, that on all bills of indictment returned by the grand jury at the present term of this Court for perjury, the defendant is required to enter into recognizance in the sum of 500 dollars, with surety in the like sum; for ‘passingn’ of counterfeit apparatus, in the sum of 1,000 dollars, with surety in the like sum; for aiding in the possession of counterfeiting apparatus, forgery, and grand larceny, all in the sum of 500 dollars,” &c. Parol testimony was offered to show that “passingn” was intended for the word “possession,” and the record was amended accordingly. Parol testimony was received that the order was intended to embrace the cause in which the recognizance was taken.</p> <p>Held, 1. That the order was sufficient to sustain a finding against the defendant, independently of the parol testimony.</p> <p>2. That the order was made in compliance with § 30,2 E. S. p. 356, and sufficiently fixes the amount of bail in the present case.</p> <p>3. That the words “passingn of counterfeit apparatus,” sufficiently indicated the crime for which .the indictment was found, and authorized the sheriff to take the recognizance; and the recognizance having been taken subsequently to the making of the order, no proof was necessary to show that the particular case was intended to be embraced in the order. Wobden, J., dissented.</p>

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

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

<p>A. brought suit against B., who filed an answer with interrogatories, which, without an affidavit of their materiality, he required the plaintiff to answer. The Court granted a rule upon A. for an answer to the interrogatories. C., the attorney of A., filed an affidavit that his client lived four miles from the Court, and knew nothing of the interrogatories; and upon this affidavit moved the Court to discharge the rule. B. at the same time moved for an attachment against A. for failing to answer the interrogatories. The Court discharged the rule, and refused the attachment.</p> <p>Held, that this ruling was, under the circumstances, correct, with reference to the provisions of the act of 1855, p. 59.</p>

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

<p>Under the statute (Acts of 1855, p. 59), if the plaintiff be absent at the calling of the cause, and fail to answer interrogatories, it is no cause for a continuance, without the affidavit proscribed by the same statute.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Parol evidence is not admissible, in the first instance, to prove the receipt of a judgment. If the receipt be upon the record, the record, or a transcript of it, must be produced. If it be upon a separate paper, and delivered to the opposite party in the suit, notice must be given to him to produce it on the trial, and upon his failure to do so, the contents of it may be proved by parol.</p> <p>In a suit upon an agreement to deliver a certain amount in cash notes, the value of the notes, as found by the jury, and not the amount stated in the agreement, is the measure of damages.</p>

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

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

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

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

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

<p>Suit by the assignees against the acceptors of a bill of exchange payable at a bank in Indiana. Answer, that the bill was given in consideration of a quantity of pig iron, which was warranted 'to be of a certain quality; that it was not of the quality warranted; that the assignees knew the consideration of the bill; and that they were agents of the payees of the bill. Demurrer sustained on the ground that by § 81, 2 B. S. p. 44, the law merchant is so changed that no defense can be set up to a bill payable at a bank, against a mala fide assignee.</p> <p>Held, 1. That the section, referred to simply enacts the rule of the law mcrchant, and is applicable to Iona fide assignees.</p> <p>2. But that the demurrer was correctly sustained, because of the indefiniteness of the answer.</p>

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

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

<p>Complaint as follows: That on, &c., plaintiff and defendant, at, &c., were partners in the business of, &c.; that on or about said day, they dissolved partnership, and plaintiff sold his interest to defendant for the sum of 466 dollars, and defendant gave his notes for 338 dollars, and assumed the payment of-due from plaintiff to L., which said defendant refused to pay, which sum was 88 dollars, 48 dollars whereof the defendant paid said L.; and that said L. also assumed the payment of 83 dollars, 50 cents, due from plaintiff to M., which said defendant refused to pay, and said M. sued plaintiff and recovered the sum specified, to the damage, &c.; wherefore, &c. Jleld, bad on demurrer.</p>

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

<p>The pendency of an action in one state cannot be pleaded in abatement of an action between tbe same parties and for flic same cause, in another state.</p> <p>The third clause of § 50, 2 R. S. p. 38, must be construed accordingly.</p>

<p>Suit against an administrator upon a promissory note purporting to have been made by his decedent. Answer, non est factum. There was conflicting evidence as to the handwriting of the deceased. Verdict and judgment for the defendant. In support of a motion for a new trial on the ground of newly discovered evidence, the plaintiff filed an affidavit setting forth “that, on the morning after the trial, he was for the first tíme informed that a certain B. knew something about the claim that he had upon the estate of M., deceased, and upon a note that was before the Court for investigation on yesterday; that he was this morning informed that Mrs. B. knew something of the matter in issue that was material, and forthwith procured her affidavit; that he can have the evidence of Mrs. B. if ho can have a new trial;, that she lives in the city of Madison, and he can have her evidence, and if he had known, or had the means of knowing it, ho would have had her testimony when the cause was tried; that his claim is just, and that said Hi. made said note, is absolutely true, and, were he alive no objection would ever have been made; that he wishes a new trial for justice only.” The affidavit of Mrs. B. sets forth “that in the month of January, 1853, she was in the store of the plaintiff in Madison, and M., since deceased, came in, and a talk commenced about a certain note that H. held against M., and M. made a payment upon the note in her presence; that she heard the amount named that he paid; but is not certain what the amount was, but it was between 20 dollars and 40 dollars, or thereabouts; that she saw it counted and laid in two piles, the small bills were put together in one pile, and the larger bills in another; that the money was all bank bills; that she saw the note, and heard II. read to M. payments made upon the note as marked upon it; that some of the payments were made by other persons than M.; that one of the payments was made by JT., one by P., one by X, and another by JX. She well recollects that M. said he would pay the balance of the note between that time and the spring; that she was waiting there to buy some goods, and had to wait until they got through. She does not recollect that she heard the amount of the note exactly; hut from all she heard, she thinks it was a considerable amount.”</p> <p>Held, 1. That the facts sworn to by Mrs. JB. identified the note, and, in the state of the evidence, might have changed the result.</p> <p>2. That the lateness of the discovery of the evidence was not owing to a want of diligence.</p> <p>3. That the evidence would not have been merely cumulative.</p> <p>4. That written reasons for a new trial are sufficient, if they, with reasonable certainty, apprise the Court and the opposite party of the ground upon which the new trial is asked. The language of the statute need not be followed.</p>

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

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

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

<p>To constitute a dedication, there should be a clear intention to devote the ground claimed to have been dedicated to the use of the public.</p> <p>Square 50 in the town of Indianapolis was dedicated to the public as a market space, by the action of the commissioners appointed to lay off said town pursuant to the act of 1821. (Acts of 1821, p. 44, § 4.) By an act of 1837, the south half of said square was exchanged for a part of the north half of square 48, and deeds in fee simple made. The deed to the town of Indianapolis, though it recites that it was given in consideration of the south half of square 50, does not express the purpose of the grant.</p> <p>Held, That by the act of 1837, the part of square 40 was dedicated to the public in lieu of the half of square 50; and that act, being a public one, entered into and formed a part of the deed, and rendered a statement in the deed of the purpose of the grant unnecessary.</p> <p>Held, also, that said part of square 48, hating been so dedicated, it could not be sold on an execution against the corporation of Indianapolis.</p>

<p>Where A. agreed -with a surviving partner that if the latter would apply the assets of the firm to the payment of an individual debt of the deceased partner, he, A., would pay the debts of the firm, it was held, that a right of action would accrue upon the breach of the undertaking by A., and that the measure of damages would be the amount that was to have been paid by A.</p>

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

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

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

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

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

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

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

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

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

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

<p>A brief must contain an abbreviated statement of the pleadings, proofs, affidavits, &c., with a concise narrative of the facts of the case, and a summary of the points involved, with a citation of authorities, if any are relied upon, and an argument upon, all these, characterized’ by perspicuity and concise- ' ness.</p>

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

<p>A sheriff lias power to appoint a person to do a particular act, as, to serve a certain writ, although such person may not be a general deputy or act under the oath required of such deputy by statute.</p> <p>A prisoner in the custody of a constable, is liable to arrest on process in the hands of a sheriff, at all events, if the constable he willing to surrender him.</p>

<p>Qucei-e, whether the code provides a substitute for the general common-law mode of setting aside a judgment or decree for fraud, where both parties appeared.</p> <p>Under § 99, 2 E. S. p. 48, a judgment or decree could not be set aside one day after the expiration of one year.</p> <p>It seems, that the common-law practice will not be revived to supply an omitted case, upon an application to set aside a decree for divorce and alimony; because the code has special provisions for the case, and it is not in accordance with the usages, the practice, or the legislation, in this state, to disturb judgments of divorce for any cause.</p>

<p>APPEALS from the Dearborn and Carroll Courts of Common Pleas.</p>

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

<p>Complaint upon an account stated, founded upon an order of a county board, a copy of which was filed therewith. It is stated in the order, that “The board now make settlement with B. in relation to the balance due said B., as assignee of P. and B., for erecting the county seminarybuilding, which settlement is as follows.” Then appear the charges and credits, running through several years, -with the following at the end: “Leaving a balance due said B. on said contract, at this date-, March 12, 1856, of 594 dollars, 27 cents, which is to be paid agreeably to the provisions of an order of this board in relation thereto, passed at its September session, 1856.”</p> <p>Held, 1. That the last clause quoted did not render it necessary to make averments different from those required in a complaint upon an account stated.</p> <p>2. That the clause in question was inoperative, because it states a condition to be made in faturo, which it was not shown could be made without the agreement of the plaintiff, by which some terms not disclosed were to be placed upon the payment of a sum acknowledged to be due by the former part of the entry; and because it was otherwise uncertain.</p>

<p>If aa indictment is conveniently legible, it will not be held bad because it contains interlineations; and in the absence of anything- appearing upon the face of a written instrument, or being shown extrinsically, tending to prove that interlineations wore made subsequently to its execution, it will be presumed they were made before or at its execution.</p> <p>In the absence of anything- tending to show the contrary, if the record recite a jury of twelve lawful men, it will bo presumc'd that the panel of jurors possessed the requisite qualifications.</p> <p>Eor evidence deemed sufficient to sustain a verdict of guilty, on an indictment for murder, see the opinion, point 3.</p> <p>The Court, in this case, gave the following instruction: “Evidence which tends to establish the defendant’s guilt, also tends, in an equal degree, to prove that he was present at the time and place when and where the deed was committed; and, if he seeks to prove an alibi, he must do it by evidence which outweighs that given for the state, tending to fix his presence at the time and place of the crime.” Held, that this was error; that if the evidence on behalf of the prisoner raises a reasonable doubt of the truth of • the charge, he must be acquitted, and this doubt may arise from the whole of the evidence in the case; that the rule is in nowise different in a case where the defendant sets up an alibi, from what it is where other affirmative matter is relied on.</p>

<p>Any matter for which a new trial may bo granted, is waived by the neglect of the party to move for a new trial.</p> <p>The overruling of a motion for a continuance is clearly within the first specification of § 355 of tiro code of civil practice.</p> <p>Errors in rejecting proper, or in giving to the jury improper testimony, or in giving to the jury improper instructions, or in refusing proper charges, are clearly within the eighth specification of the same section; but error in reference to the validity of the pleadings, is not within the section at all.</p> <p>Eor causes coining within the sixth specification of that section, a motion for a new trial must be made in the Court below, in order to present any question in the Supreme Court.</p> <p>The same principle requires such motion to be made for every cause specified in the statute for which a new trial may be granted.</p>