Volume 13 — Indiana Reports

<p>The contract stated in the pleadings in this case (see the opinion) is executory.</p> <p>Where no time is fixed for the performance of a contract; or where it is to be performed by a certain day (the right to perform it sooner not being precluded) ; or where the performance depends upon a contingency which may or may not happen within a year, the contract is not within § 1 of the statute of frauds. E. S. 1843, p. 589.—1 E. S. p. 299.</p> <p>But where, by its terms, a contract is not to be performed within the year; or where it cannot be performed within the year, according to the intent and understanding of the parties, as evidenced by the contract, it is within the statute.</p> <p>Where the agreement of the defendant upon which suit is brought, is not, inj any event, to be performed within a year, it is within the statute, although there maybe other stipulations providing for contingencies that would make-the plaintiff liable to the defendant within a year, and release the defendant altogether.</p> <p>A promise to pay money after the expiration of a year, is as much within the statute as a promise to do any other act.</p> <p>Although a contract may he performed on one side -within a year, yet if it cannot on the other, it is within the statute.</p> <p>Contracts of partnership are as much within the statute as other contracts.</p> <p>A fraudulent refusal to put a contract in writing cannot have the effect of putting it in writing.</p>

<p>The decision of this case cannot bo stated more briefly than it is stated in the opinion.</p>

<p>A change of venue must, in civil actions, be granted upon a proper application. The Court has no discretion.</p> <p>As a general rale, an application for a change of venue must be made and supported by the affidavit of the party, in person. The affidavit of his attorney will not compel the change.</p> <p>There are exceptions to this rule; as, in suits by or against corporations.</p> <p>It is within the sound, legal discretion of the Court to grant or refuse a change of venue upon application and affidavit by a person not a party to the record.</p> <p>A second affidavit for a continuance, at tho same term, for the same general reason, namely, the absence of witnesses—the first having been overruled— was held bad, because it did not show a reasonable excuse for the failure to embrace all the reasons for the continuance in the first application.</p> <p>The Court.has greater latitude of discretion in passing upon such applications, than in ordinary cases.</p> <p>In an action for seduction, the general character for chastity of the person duced, is in issue, and may be impeached or supported by general evidence; but she cannot he asked whether she had not been previously criminal with other men. But other persons may be called upon to testify as to their own criminal intercourse with her, and the time and place.</p> <p>The question of character is involved in the question of the amount of damages ; and, therefore, evidence of the character and the acts of the female seduced, is admissible, which would not be proper as to any other witness.</p>

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

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

<p>The rule that when a pleading is founded upon a written instrument, the original, or a copy thereof, must be filed with the pleading, is imperative.</p> <p>Thus, if a complaint founded upon a written instrument fail to aver that a copy has been filed, it cannot be assumed that it sots forth a sufficient cause of action; and the defect may be reached upon demurrer to the answer.</p> <p>Where the charter of a corporation contains no special provision upon the subject, less than a majority of the board of directors have no power to transact business. Their acts are absolutely void, and the corporation cannot ratify them.</p> <p>The law under which the company organized, and orders purporting to have been made by the board of directors, being in evidence, parol evidence may be admitted to show that a majority of the directors was not present when the orders were made.</p>

<p>This case is precisely like the case of Price against the same company, ante, 58:</p>

<p>Whore the only issue in a suit for work and labor, was raised by a general denial, it was held that evidence of payment was not pertinent.</p>

<p>While a feme sole occupied certain premises, she married, and afterwards, with her husband, continued the occupation.</p> <p>Held, 1. That for"the time she occupied as a feme sole, suit would necessarily be brought against her and her husband; but unless it were shown that he received property by her at marriage or afterwards, the judgment would be-levied of her separate property.</p> <p>2. That for the time the husband and wife occupied the premises, the suit and the judgment, prima facie, should be against the husband alone.</p> <p>Where the suit and the judgment in such case, were against husband and wife, jointly, there is a misjoinder both of causes of action and parties.</p> <p>Although a judgment cannot be reversed for a misjoinder of causes, and will not be reversed for a misjoinder of parties curable by amendment, yet if from both, an incurable error intervenes, the judgment will be reversed.</p>

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

<p>An indictment for robbery alleged that on, &c., at, &c., the said, &c., did commit an assault, &c., and did then and there unlawfully, forciMy, and feloniously take from the person of him, the said, &c., one, &c., of the personal goods of him, the said, &e., by violence to the person of him, the said, &c., and by putting him in fear. Held, sufficient without alleging that the taking was against the will of the person robbed.</p> <p>The indictment described the property thus: "One pocket-book of the value of fifty cents, one bank note of the value of ten dollars, one bank note of the value of five dollars, one piece of gold coin, of American coinage, of the value of five dollars.” Held, that the description was sufficient.</p> <p>No more particularity in the description of the property, is required in an indictment for robbery than in an indictment for larceny.</p> <p>An indictment for robbery need not allege a carrying away.</p> <p>What weight, if any, should be given to the statements of a witness who has been impeached by general evidence; or to the uncontradicted statements of a witness whose testimony has been, as to some points, successfully attacked by other witnesses—is a question for the jury.</p> <p>An instruction to the jury, assuming that there has been no impeachment of a witness, and that there is but one mode of impeaching a witness, namely, by evidence of general bad character, was held to be erroneous.</p>

<p>A justice of the peace has no power to grant a now trial or hearing of a criminal cause, after the prisoner has been once recognized, or the cause finally-disposed of.</p>

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

<p>Where an action is founded upon a recognizance, a copy of the recognizance must be filed -with the complaint.</p> <p>If a recognizor fail to appear at the term to which he is recognized, and forfeiture is not then taken, it cannot be taken at a subsequent term.</p> <p>The recognizance, in such case, is inoperative, and the bail discharged.</p>

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

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

<p>Qucere, whether the fact, that a juror sitting upon a trial is not a householder, is sufficient ground for a new trial, where the party asking the new trial was ignorant of the fact at the trial.</p> <p>The fact that a juror sitting upon a trial is ignorant of the English language, is sufficient ground for granting a new trial.</p> <p>The failure to examine the juror upon this point before accepting him, cannot be imputed as negligence. It may be presumed that the officer has called a jury competent in this respect.</p> <p>The fact of such incompetence may he proven by the juror’s statement under oath, without a violation of the rule that jurors are incompetent to impeach their verdicts.</p> <p>The grant of a charter for a road, a bridge, or a ferry, does not estop the legislature from granting a subsequent charter for a road, bridge, or ferry, which may compete with the former in the transportation of freight and passengers between given points; and the mere fact that the two run parallel, and mutually diminish the business of each other, is no ground for a claim by either for damages.</p> <p>The ground occupied by an existing company, or their franchise, maybe taken, if authorized by the legislature, by a subsequently chartered company, upon making compensation.</p> <p>Where any part of the road-bed or track of an existing company, or the property of an individual is taken, so that a proceeding under the statute may bo had for the assessment of damages, all the damages occasioned by the taking, both to the ground and franchise, must be assessed and recovered in the statutory proceeding.</p> <p>The appraisal of land damages, is a bar to claims for injuries by fire from engines, obstructing access to buildings, exposing persons or cattle to injury, cutting off the flowago of water, &c., even though such damages were unknown to the appraisers at the time of the assessment.</p> <p>But where no part of the property of an existing company, or of an individual, is taken, unless the statute plainly authorizes a proceeding to assess damages for consequential injuries, such damages may he recovered in an ordinary action at law.</p> <p>In the construction of the work for which the property of another is taken, reasonable care and skill must he exercised, or the party will be liable to an action for the tort, as at common law.</p> <p>In an action in the nature of an action on the case to recover such damages, it may be presumed that the plaintiff had claimed and recovered under the statute, such damages as the location selected would occasion.</p> <p>A party proceeding under the statute to recover such damages, may have an injunction till the damages are paid; and, perhaps, to control the location. In the proceeding for the assessment of damages, the question of location is examinable.</p>

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

<p>Complaint to recover possession of land, averring that it belongs to the plaintiffs and is in possession of the defendant, and had been for six years. Answer, the statute of limitations, and that the land had been sold, by order of the Probate Court, by an administrator, &c., in 1834, under whom the defendant holds as a remote vendee, &c., and that the suit had not been commenced within five years after the confirmation by said Court of said sale, nor within twenty years after the cause of action accrued. Beply, that the plaintiffs were the only heirs, &c.; that they were not made parties to any application to sell the land, nor had they any notice thereof, wherefore the sale was void; that they were infants at the time of the sale, and until the year 1845, and that the action was brought within twenty years after they arrived at Ml age. Demurrer sustained.</p> <p>Held,, that the pleadings show that the defendant, by virtue of the sale and conveyance by the administrator, confirmed by the Court, had been in possession six years, under color of title, and holding adversely to the plaintiffs; and hence the limitations of §§ 214, 215, 2 K. S. p. 75, are applicable.</p>

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

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

<p>A sale and conveyance of land, with the agreement that the vendor should hold possession and use the property until the vendee sold it, covenanting to then give up the premises in as good repair as when the vendee purchased them, upon the payment of a balance of the purchase-money, was held to be absolute; and the agreement was held to be, in effect, a mortgage to secure the balance of the purchase-money.</p> <p>The failure of the vendee, in such case, to pay the purchase-money within a reasonable time, would authorize a. foreclosure against him.</p> <p>And where damage to an amount equal to the purchase-money due, occurs to premises so held by a vendor, through his negligence or misconduct, the vendee may have an accounting with the vendor, and have his title quieted, without alleging a tender of the purchase-money. It will be sufficient if the complaint contain an offer to pay what may be found due the vendor.</p> <p>Where buildings upon premises so held by a vendor, are destroyed by fire, through his negligence or misconduct, he must rebuild them; otherwise the vendee will be entitled to a deduction from the purchase-money of an amount equal to the cost of rebuilding.</p>

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

<p>The charter of the city of Indianapolis does not empower the city council to subject to the control of the city sexton cemeteries other than those belonging to the city.</p> <p>Perkins, J.—The bodies of the dead belong to the surviving relatives, in the order of inheritance, as property, and they have the right to dispose of them as such, within restrictions analogous to those by which the disposition of other property may be regulated. But as they cannot be permitted to create a nuisance by them, they may be required, where population is dense, to 'bury them at a certain depth, or outside of where the population is dense, or likely to become so, and within a reasonable time after death, &c., but, it seems, that the burial cannot be taken out of their hands—they being able and willing to perform it.</p>

<p>Several persons became sureties for A., and to indemnify them A. executed a chattel mortgage to the sureties, jointly. The sureties paid nearly equal sums, and upon the abandonment of the property by A., a part of the sureties brought suit to sell the property to reimburse themselves, making the other sureties defendants. These defendants made default. The Court appointed a receiver to sell the property, and bring the proceeds into Court for distribution. Held, that in the distribution, the entire proceeds could not be applied in satisfaction of the amounts paid by the plaintiffs, but that they must be distributed pro rata among all the mortgagees.</p>

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

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

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

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

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

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

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

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

<p>By the statute of 1852, removal from the state is a sufficient cause, in the discretion of the Court, for the removal of a guardian. •</p>

<p>A person indebted by a note not negotiable, or not assignable by tbe law merchant, may be made liable as a garnishee, after the note has become due and before it is assigned, but not, as a general rule, before it becomes due, nor after be has bad notice of its assignment, if he roly upon such notice in bis answer.</p> <p>Tbe judgment rendered against him as a garnishee, will bar a subsequent action by an assignee who bad not given notice of tbe assignment prior to such judgment.</p> <p>He may be subjected to such judgment before the note is due, where all the parties are residents of tbe state, and are before tbe Court, so that the maker may be protected from a second liability; though be cannot be compelled to pay until -the note falls due.</p> <p>But the maker of a note or bond negotiable by tbe law merchant, cannot be ( subjected to such judgment, without proof by the plaintiff that tbe negotiable paper actually remains, at tbe time of the trial, in tbe hands of tbe debtor against whom tbe attachment issued, as bis property, or in tbe bands of a fraudulent assignee.</p> <p>The bonds of a railroad company are not, it seems, exactly governed by the law merchant. But they pass by delivery, like bank notes, so as to vest a complete title in the bona fide possessor; and they are entitled to all the privileges of commercial paper.</p>

<p>Where goods are delivered to a carrier, and they are not transported according to his undertaking, but are injured or destroyed, the rule of damages is the value of the goods at the place to which they wore to bo carried, less the freight.</p> <p>Quaere, whether a railroad company receiving goods directed to a point beyond the terminus of their route, is liable for such damages at the point to which the goods are directed.</p>

<p>The domicil of the parents at their death, is the domicil of their infant heir, and he cannot change that domicil of his own volition.</p> <p>The distribution of personal property descending to such infant, wherever situated, must be governed by the law of that domicil, and the property should be remitted there for that purpose; and the Court there is under no obligation to remit funds to another state for the education and maintenance of the infant.</p> <p>Hence, that domicil is the proper place for the residence and education of the infant, and a Court of another state may direct him to be delivered up to be taken to that place by the proper guardian; and although the power of a guardian is local to the state in which he receives his appointment, yet he is competent to receive the property or the custody of the ward when placed in his hands by such Court, to be taken to the state where both belong.</p> <p>But such guardian, to entitle him to receive the property or the custody of the ward, must malte proof of his guardianship.</p> <p>The Court must use a sound discretion in making orders in such cases.</p>

<p>The provision of the revised statutes, that process cannot run less than three nor more than thirty days (2 R. S. p. 454), the provision of the act of 1853, that in suits before a justice of the peace, against a railroad company, for stock killed, a day should be fixed for trial without specifying within what time, and that at least ten days’ notice thereof should be given by summons (Acts of 1853, p. 113), and the provision of the act of the same year, that where the principal office of the company is out of the stato, at least thirty days’ notice shall be given of the time and place of the pendency of suit (Acts-of 1853, p. 102), should be construed together; and in every summons the day of trial should be set not exceeding thirty days after the date of the summons.</p> <p>In cases bofore a justice of the peace, where service is too late for the day of trial named, it is the duty of the justice, under the code, if want of sufficient service bo not waived, to continue the cause to a future day, not unreasonably distant.</p> <p>Upon such service, therefore, though a judgment by default cannot be rendered till the statutory time of notice has expired, still the service operates to inform the party of the pendency of the suit, and he is bound to take notice of the subsequent action of the Court therein.</p> <p>Where service upon a railroad company having their principal office out of the state, in an action before a justice for killing stock, had been made ten days, and nothing appeared showing the justice that the case was not ready for judgment, and judgment was rendered upon such insufficient notice, it was held., that the defendants might have the judgment opened, on application, in ten days, or they might have it vacated in a direct proceeding at any time after ten days and before payment, or they might appeal. But it was held, also, that the case could not be dismissed on appeal; because the insufficient service was not ground of dismissal, but only of a continuance, beforo the justice; nor would the fact be ground of continuance on appeal, for a continuance in that Court would be granted or not, as cause might be shown then and there to exist.</p>

<p>Where nothing was claimed upon a paragraph of a complaint, and no evidence was offered in support of it, a trial without an issue upon it will not authorize a reversal of the judgment.</p> <p>A notice, given in Centreville, Indiana, December 23, 1856, to take depositions in Rochester, Monroe county, New York, on Thursday, the first day of January ensuing—the term of the Court in which the cause was to be tried, commencing on the first Monday of the latter month—was held to be sufficient.</p> <p>The Courts, in such cases, will take notice of the facilities of travel, in determining the time necessary to pass from point to point.</p>

<p>Where the pleadings show that money passed into the hands of the defendant as stakeholder of a wager upon the result of an election, an action may be maintained against him by the party who disaffirms the illegal contract, and notifies him thereof befox-e the money is paid to the other contracting party.</p> <p>Section 2, 1 B. S. p. 305, has reference to the rights and remedies of pax-ties to certain illegal contracts, as between themselves, and not to the right of action, nor the time within which it must be brought, against a stakeholder.</p> <p>Where the defendant withdrew the general denial, and was thereupon permitted to open the case, and all the evidence offered by him being rejected, the plaintiff was permitted to present his evidence, it was contended that this was error, as there was nothing to rebut. But another paragraph of the answer traversed every part of the complaint not confessed and avoided. There were material allegations neither confessed nor avoided. Held, that the defendant was not entitled to open the case, he not ’having the affirmative of the issue.</p> <p>The defendant offered to withdraw a paragraph of his answer, upon the condition that the evidence applicable to it should be stricken out. This was refused. Held, that the refusal was within the discretion of the Court.</p> <p>A defendant cannot introduce, as evidence, a paper filed in a previous action by the plaintiff against another defendant, though brought, in part, for the identical money or thing in suit in the present action.</p>

<p>Where a contract for the delivery of ten thousand bushels of corn specified that two thousand six hundred bushels of the corn was already in pons, and was put at the purchaser’s risk as to damage by rain—held, that it cannot be implied that the purchaser accepted the corn in pens as being two thousand six hundred bushels.</p> <p>Held,, also, that the vendor must hear all shrinkage, or loss, or damage of the • corn in pens, except damage by rain, until the corn was received by the purchaser.</p> <p>Where an executory contract stipulates for the delivery of a certain quality of produce, without passing title to any particular produce, the vendor is not a bailee of the produce prior to the delivery at the place and within the time fixed. The contract is discharged by the delivery of the article, of the quality mentioned.</p> <p>If, in the absence of fraud or warranty, a purchaser accepts and receives goods, he thereby not only waives defects, but he is so far concluded that he cannot recover for any patent and known defect.</p> <p>Where the contract is for the delivery of goods of a certain quality, but the particular article to be delivered is not fixed, there is no warranty that the goods when delivered shall be of the quality mentioned; and the failure to deliver goods of such quality is not a breach of warranty, but a breach of the contract.</p>

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

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

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

<p>Suit against a railroad company to recover for cattle killed by their engines. The right to recover was rested on the following facts: Near where the stock was killed, was a small brook, over which the company had built a culvert. Below the culvert the plaintiff had a pasture in which ho kept his cattle. Across the brook, below the culvert, he had made a fence of long poles. A flood came and floated driftwood through the culvert, against the fence. To prevent the accumulation of drift above the culvert in such quantities as to endanger its safety, the company aided in its passage. At sunset, the plaintiff knew the exposed situation of his fence, but would not remove his cattle. At night, the fence being borne away, the cattle passed upon the road and were killed. Held, that the plaintiff could not recover.</p>

<p>When a valid indictment has been returned by a competent grand jury to a Court having jurisdiction, and the defendant has been arraigned and has pleaded, and a jury has been impanneled, sworn, and charged with the cause, and all the preliminary things of record are ready for the trial, the jeopardy contemplated by the constitution has attached, and the defendant is entitled to a verdict.</p> <p>The defendant may, by consent, or by acts from which consent will be presumed, waive this constitutional right; or unforeseen occurrences may intervene which will operate to withdraw the privilege.</p> <p>But where the indictment is valid, and the proceedings before a Court having jurisdiction, regular, down to the time jeopardy attaches, no second jeopardy can be allowed in favor of the state on account of any lapse or error at a later stage.</p>

<p>By our practice, a warrant of attorney to confess a judgment is entered upon the record immediately preceding the judgment, and in effect becomes a -part of it. Hence, where the warrant contained a release of errors and a waiver of the right of appeal, it was held, that the defendant could not appeal in violation of its terms.</p>

<p>Suit by a railroad company upon a subscription of stock. Answer, 1. A denial of the subscription. 2. That the capital stock of the company was fixed by the act of incorporation at 5,000,000 dollars, in shares of 50 dollars each, and that they had no power to issue certificates for a larger sum, except as in the act of incorporation provided as follows: “Provided, that if the capital stock of said company any time subscribed shall be insufficient for the purposes aforesaid, of this act, it shall and may be lawful for the president and directors of said company, from time to time, to increase the said stock, by the addition of as many shares as they may deem necessary, for which they'may, at their option, cause subscriptions to be received in the manner prescribed by them, or may sell the same for the benefit of the company.” That before the cpmmencemont of the suit, the company had issued stock to the amount of 5,000,000 dollars, in shares, &c., and that said amount, &c., was sufficient, &c.; that the president, &c., have not, at any time before the commencement of the suit, increased the capital stock, &e., beyond that amount, nor was the same necessary, &c. 3. That the capital stock was limited to 5,000,000 dollars, and no more, except, &c.; that the plaintiffs fraudulently issued stock to an amount exceeding 5,000,000 dollars, the same not being then and there necessary, &c., and then and thereby rendered the original subscription to the capital stock of the company of no value, and reduced the market price of the stock, &c.; wherefore, &c. Reply, to the second paragraph, that after the issue of the stock in said paragraph mentioned, to the amount of 5,000,000 dollars, the plaintiffs ordered and directed, as by the said charter was authorized, a further issue, &c., to the amount of 1,500,000 dollars, of which, 500,000 dollars has been issued, and that the issue of the further sum of 1,000,000 dollars is authorized; and that the issue of said additional stock was necessary, &c.</p> <p>Held, 1. That the third paragraph of the answer was bad on demurrer.</p> <p>2. That the issue formed upon the second paragraph of the answer was material; and that it devolved upon the plaintiffs to prove that the stock had been increased as alleged m their reply.</p>

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

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

<p>A demurrer to a complaint, for a new trial, stating that the complaint “does not contain .and set forth sufficient facts to enable the plaintiffs to sustain said action,” though not strictly formal, is substantiaEy sufficient.</p> <p>An application for a new trial may be made by complaint, where the cause for the application is discovered after the term at which the decision was ren- , dored; but the cause thus discovered must have had an existence at the time of the decision.</p> <p>To entitle a party to a new trial after-the term, he must show sufficient matter to have entitled him to a new trial if applied for in term.</p> <p>Error in the judgment upon the original complaint, is not a sufficient cause for a new trial after term. It is too general; it does not show wherein the errors consisted, nor that they were unknown to the party during term.</p>

<p>The legislatm-e may delegate the power to organize new counties.</p> <p>The act ox March, 1857, upon this subject, is not in conflict with any provision of the constitution. No legislative power is delegated by that act.</p> <p>A single county containing the requisite area, may be divided under the act, by its own board of commissioners, acting through a single committee of freeholders.</p> <p>The Courts will take notice judicially of the area of an established county. Bor the causes for which a writ of prohibition may be allowed, the Courts must look to the common law.</p> <p>Under our system of procedure, the writ can only be used “to command the judge and parties of a suit in an inferior Court, to cease the prosecution thereof, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court.”</p> <p>Thus the writ will not be granted to prevent a county board from entering an order for the establishment of anew county, under the act of May, 1857. An appeal is the proper remedy.</p>

<p>Where a person took a contract for the improvement of a street, under the general law for the incorporation of cities, and one of the lots opposite which the street was improved was owned by a non-resident, and the assessment against it being unpaid, it was sold for a sum less than the assessment, it was held, that the contractor could not maintain an action against the city for the deficiency.</p>

<p>Every general tax-payer of the county, has such- an interest in the appropriations made by the county board, as to entitle him to the bonofits of the stat7 ute touching appeals, when he brings himself within its requirements.</p> <p>Where an appeal was taken from an order in favor of the auditor for publishing the delinquent list, it was held, that the appeal lay, whether the appellant had paid his taxes or not, if he showed that he was entitled to take it, without reference to the pro rata assessment for publishing the list.</p>

<p>In a proceeding to set aside a will, under the statute of 1852, an appeal lies from the Common Pleas to the Circuit Court.</p> <p>Section 43 of that act, giving such appeal, is not unconstitutional. The title of the act properly embraces the section, and the provision for an appeal is not special, within the meaning of the constitution.</p> <p>The provision in question was not repealed by the subsequent act authorizing appeals from the Common Pleas and Circuit Courts.</p>

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

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

<p>By our statute (1 R. S. p. 379, § 16), a suit may be instituted by an indorsee against the immediate and remote indorsers, jointly.</p> <p>If the complaint, in such case, to show failure of consideration, allege that the defendants had due notice of the suit against the maker, a paragraph of the answer traversing the allegation, is good.</p> <p>But a paragraph charging that, by agreement with the maker, the plaintiff fraudulently put off the trial from torn to term, without notice to the defendants, and without their knowledge or consent, by means whereof the defendant lost the benefit of the assignment to him, &c., was held, bad, as being inapplicable to the case made by the complaint.</p> <p>Though, as a general rale, an indorsee of a promissory note assignable under the statute, cannot recover against the indorser unless he has used diligence against the maker, yet he may allege and prove an excuse for lack of diligence.</p>

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

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

<p>Where a levy was wrongfully made upon part of a lot of saw-logs, without distinguishing what part, and the part levied upon was sold without being pointed out or separated from the rest, and the purchaser never took possession or attempted to exercise any control over the property, it was held, that an action in the nature of trespass, would not lie against the officer and the purchaser.</p>

<p>Unless otherwise instructed by the Court, the jury may render either a general or a special verdict; but upon the request of either party, the Court must direct a special verdict upon all or any of the issues; and if requested by either party, the Court must direct the jury, that if they find a general verdict, they must find specially upon particular questions of fact.</p> <p>Where a part, only, of property transported by a common carrier, is injured, and the remainder is safely carried to the point of destination, the consignee or owner cannot, in consequence of the injury to a part reject the part uninjured, and hold the earner liable for the whole.</p> <p>The carrier is not made liable for the whole, by a failure to offer to deliver the uninjured part. A carrier by railroad is not bound to make personal delivery of the property to the consignee, nor to offer to deliver it. Qucere, whether he must give notice of its arrival.</p> <p>It is the duty of the consignee to repair to the depot or place of delivery, for his goods, and the carrier cannot be sued for non-delivery unless there has been a refusal to deliver on request.</p>

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

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

<p>If a devise be made upon a condition subsequent, the estate vests in the devisee immediately upon the death of the devisor, to be defeated, however, if he refuse or neglect to perform the condition. And where a power is given to the executor to make another disposition of the estate in case of such refusal or neglect, and he proceeds under the power, a party claiming under him in a suit against the devisee for possession, must prove condition broken.</p> <p>Where the evidence showed that the devisee had offered to perform the condition, but the person on whose behalf it was made had refused to accept, and never afterwards asked performance, it was held, in support of the verdict of a jury, that the failure to perform was nota violation 'of the condition, but that the devisee was released from its performance.</p>

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

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

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

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

<p>The policy of our law is against disturbing divorces granted.</p> <p>The common-law right to set aside a judgment of a superior Court by bill in chancery, for fraud, or by complaint in the nature of such a bill, was entirely superseded by the various provisions of our code for the vacation of judgments. The statutory mode must be resorted to.</p> <p>Thus, judgments of divorce can only be set aside upon a motion for a new trial, made within the time allowed therefor.</p>

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

<p>Parol evidence is admissible to remove a latent ambiguity in a deed or will.</p> <p>And where such evidence is given, the whole, including the instrument, may be referred to the jury.</p> <p>Where there is no ambiguity, the Court must declare the legal effect of the instrument.</p> <p>There is no ambiguity in the deed copied in the opinion in this case.</p> <p>The deed conyeys the interest of each of the parties named in it, in the lands particularly mentioned in the premises, and again in the habendum.</p>

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

<p>The plaintiff, without having procured a ticket, was crossing a side track of a railroad, in the night, to got upon a passenger train at its usual place of stopping, on the main track; but by the negligence of the employds of the company, a switch had been left open, and the train was thrown upon the side track, and ran against the plaintiff and broke his leg.</p> <p>jBeld, 1. That he was not a passenger at the time of the injury.</p> <p>2. That he had the same right to cross the side track as he did, that persons have to cross a railroad upon a public street or highway.</p> <p>3. The company having the legal right to run their train upon the side track, it is immaterial whether it was run upon that track by accident or design, if run with due care. Wo greater care would bo required in case of such accident than if the train were thrown upon the track by design.</p> <p>4. If the train, in running up on the side track, was managed with due care,' the plaintiff cannot recover.</p>

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

<p>Where a will vested a fee simple in the children of the testator, with the condition that they should support his widow and one of Ms sons during life, furnishing them a residence, and provided that upon failure of such support, &c., the devisees, or either of them, might subject the land to the payment of any debts necessarily incurred for their maintenance, &c., it was held that the will did not give the widow the primary right to control the land.</p> <p>Qucere, whether leasing the land was the proper course to be pursued by the widow, upon condition broken, to subject the land, &c.</p>

<p>Where a testator devised Ms entire estate to Ms son, and provided that if he should die “without a lawful heir or heirs,” the estate should go to th'e children of his daughter, it was held, that the words lawful heir or heirs were used in the limited sense of child or heir of the body at the time of the son’s death.</p> <p>Upon the death of the son, without issue, the estate of the daughter’s children could be sustained as being taken by an executory devise.</p> <p>A fee may thus be limited after a fee.</p> <p>A conveyance by the son before his death could not destroy or affect the estate limited to the children.</p> <p>The estate thus created is not without our statute against perpetuities.</p>

<p>To lay a proper foundation, for secondary evidence, it must be shown that the original writing is lost, or destroyed by time, mistake, or accident, or is in the hands of the adverse party, who has had due notice to produce it on the trial.</p> <p>Error in excluding such evidence cannot be examined by the Supreme Court, unless the record show a motion for a new trial.</p>

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

<p>A wager upon the result of an election being illegal, the Courts will not aid the winner in recovering it in an action against the stakeholder.</p>

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

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

<p>Suit upon a subscription of stock to be paid in labor and materials within two years from the first election of directors; otherwise, payable in cash. The first paragraph of the complaint alleged neglect and refusal to perform labor, &c., for two years, &c.; that more than three years had elapsed, &c., whereby, and by reason of such refusal, the amount subscribed had become due in cash. General denial, and special paragraphs averring that the subscription was made under the original charter of the company, and after-wards the company consolidated with another company, and that defendant had never assented to the consolidation. General reply that defendant, before suit, had assented, &c. Demurrer overruled. The second paragraph of the complaint was admitted to be good.</p> <p>3eld, 1. That the demurrer reached back to the complaint, as a whole, and' as the complaint contained a good paragraph, the demurrer was properly overruled.</p> <p>2. That the first paragraph of the complaint was good after verdict, as under its averments a demand for the labor, &c., might be proved, if, indeed, such-proof was at all necessary.</p> <p>3. A verdict against the defendant in such case for the amount subscribed, in cash, is fully supported by proof that he assented to the consolidation, and made payments upon his subscription subsequently thereto, and that he had refused to perform the labor, &c. The written subscription proved itself.</p> <p>Where the charter under which a subscription was made provided that subscriptions should be collected without relief, &c., and suit is brought upon the subscription, after a consolidation with another company, judgment is properly rendered without relief, &c.</p>

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

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

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

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

<p>If a person contract with an infant to receive from him a conveyance of land, which he knows, at the time of contracting, will be executed before the infant shall have arrived at his majority, he cannot avail himself of that fact in defense of a suit upon a note for the purchase-money.</p>

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

<p>Prosecution for bastardy. On the cross-examination of the relatrix, the defendant propounded to her the following interrogatory: “Did you ever, at any time prior to the time you say you were begotten with child by the defendant, have sexual intercourse with any one 1” This question was objected to, and the objection sustained. Held, that there was no error.</p> <p>The defendant, as one of the grounds of his motion for a new trial, filed his affidavit stating that since the trial he had discovered evidence material to his defense; that he can prove by T. that the grandmother of the complaining witness was at his house but once during the said month of February, and that was on the 27th and 28th days; that this was material, because the prosecuting witness swore positively that the child was begotten at the time her grandmother was at the house of 21; and that he can prove, and did prove on the trial, that he was not at the house of the prosecuting witness at the time above mentioned; that he did not know what 21 would swear until the day after the trial, nor could he have known that it would be material on the trial to make such proof; that he never had intercourse with the prosecuting witness, and is not the father of the child. He also introduced the affidavit of 21, stating in substance that the grandmother of the prosecuting witness was not at his house in said month of February, except on the 27th and 28th days, which were Friday and Saturday. Held, that these affidavits were insufficient to authorize a now trial.</p>

<p>Prosecution in the Common Pleas for a riot. The evidence showing that the defendant had been convicted for the identical riot, before a justise of the peace, it was held, that the prosecution in the Common Pleas would not lie.</p>

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

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

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

<p>An infant without an appointed guardian, and without an estate of inheritance, living in the family of his mother, a widow, is subject to her control, as his natural guardian, and she is entitled to his wages; and where such an infant, while in the employ of a railroad company, was killed by a train, through the negligence of their agent, it was held, that an action would lie in the mother’s name, for damages. But, held, also, that as such guardian, the mother could not, it seems, assume the custody of any separate estate the son might possess.</p> <p>Section 27, 2 R. S. p. 33, authorizing such an action, is not repealed by § 784, id. p. 205. The latter section applies to adults, the former to infants.</p> <p>A railroad company are not liable, so far as the simple question of negligence is concerned, to the parents, guardians, or representatives of a servant killed upon the road, where they would not have been liable to such person, had he been injured, simply, and not killed.</p> <p>An employer is not liable to one employe for an injury occasioned by another engaged in the same general undertaking.</p> <p>A set of hands were at work for a railroad company gravelling a part of the track. The gravel was conveyed from the pit to the place where it was used, by a train of cars. The same hands loaded and unloaded the gravel, and rode back and forth upon the cars from the places of loading and discharging. While thus employed, the train, through the alleged carelessness of the engineer, ran against an ox, was thrown off the track, and one of the hands, a young man under age, killed. Held, that the engineer and the deceased were engaged in the same general undertaking, and the representative of the deceased could not recover damages.</p> <p>This case is distinguishable from Fitzpatrick v. The New Albany, frc., Railroad Co., 7 Ind. R. 436, and does not impair the force of that case.</p> <p>In this case, the Court instructed the jury that, in estimating the damages, they might take into consideration the actual pecuniary loss to the plaintiff occasioned by the. death of the son and servant, and also such other circumstances as have injuriously affected the plaintiff in person, in peace of mind, and in happiness. Held, that this was error.</p>

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

<p>Where the summons commanded the officer to summon the New Albany, fyc., Railroad Company, and the return was, “served as commanded, by copy given to conductor P., conductor on express train,” it was held, in a suit for killing stock, brought under the statute of 1853, that service was sufficiently shown.</p> <p>Where no affidavit for a continuance appears in the record, the refusal of a continuance cannot be held error on appeal.</p>

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

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

<p>Section 71, 2 R. S. p. 464, authorizes an action before a justice of the peace to recover possession of personal property taken by attachment issued from the Common Pleas, against a person other than the plaintiff, where the value of the property is not more than 100 dollars.</p> <p>A notice to take depositions “in the office of the clerk of Marshall county, in the state of Illinois,” is too vague as to place; but where the deposition was not in the record, nor shown to have been read upon the trial, and the Supreme Court had no means of determining its character, it was held that the error was not sufficient to reverse the judgment.</p>

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

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

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

<p>Where the plaintiff demurs to the answer, but, before the Court has determined the demurrer, replies thereto, he thereby waives his demurrer.</p> <p>If the Court in charging the jury assumes a material fact, it usurps the prerogative of the jury, and the judgment may be reversed, although the evidence is not in the record.</p>

<p>The note of the clerk of the Court belowupon the transcript, is no part of the record.</p> <p>The Supreme Court will presume in favor of the legality of the proceedings below, where the contrary is not shown by the party complaining thereof.</p> <p>Whore the record does not contain the evidence, the Supreme Court will presume in favor of the impropriety of an instruction, if any state of facts might have existed to which such instruction would have heen applicable.</p>

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

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

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

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

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

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

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

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

<p>A conveyance by husband and wife, the wife being under age, cannot be avoided by her, even as to herself, simply on the ground of infancy, until her arrival at majority.</p> <p>At that time, it seems, she might, by some legal mode, avoid the conveyance as to herself, to prevent the possible accruing of an estoppel.</p> <p>But such avoidance would not, of course, enable her to obtain possession of the property until after the decease of her husband.</p> <p>She might, probably, avoid the conveyance as to herself, for fraud, before arriving at majority.</p> <p>She could not have an action for alimony simply, at common law; and the common law has been followed on this point in Indiana.</p> <p>But the statute of 1857 gives such an action; and after the Court in such action has given judgment for alimony, it may set aside a fraudulent conveyance standing in the way of its collection, as in other cases.</p> <p>A conveyance will not bo disturbed for the collection of a merely nominal judgment for alimony, at least till after a refusal or failure to pay that nominal judgment without such disturbance.</p> <p>Perhaps the officers of Court might, through the judgment, reach the land for the collection of their costs, as in other cases of land fraudulently conveyed.</p> <p>In a proceeding of this kind, the Court may ascertain the cause and the circumstances of the abandonment. If it occurred under circumstances mitigating or justifying it, it would seem that an equitable case is not made out for giving more than what necessity requires for a support, in connection with the wife’s own earnings, whore the property of the husband amounted to but 700 dollars.</p>

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

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

<p>The right of property taken upon execution, may be tried before a justice of the peace, without reference to the value of the property as limiting the jurisdiction.</p> <p>The general statute defining and limiting the jurisdiction of justices does not apply to this special proceeding.</p>

<p>Where, in the organization of a railroad company, all the requirements of the charter were observed, though not in tho order prescribed, the organization was deemed sufficient.</p> <p>Where the charter required that the directors should be named in the articles of association, it was held a compliance with the requirement to adopt the articles at the time of electing the directors. But, held, also, that the requirement was only directory.</p> <p>The fact of an illegal election of directors, cannot be set up in resistance of payment of stock.</p> <p>The articles of association (see opinion) sufficiently show the name of the place from which the proposed road was to be constructed.</p> <p>Smith v. The Indiana, &c., Railroad Co., 12 Ind. R. 61, followed.</p> <p>The defendant, in a suit upon a subscription to the original stock of a railroad company, cannot demand inspection of the articles of association subscribed by him and sued upon, on file in the office of the secretary of state.</p> <p>Nor can he show by parol that he would not have subscribed, if he had supposed a particular route would be adopted.</p> <p>Representations of officers with whom the power of locating the route is not lodged, will not hind the company as to the location; and even the representations of those who have that power, are matters of opinion, upon which the subscriber has no right to rely, whore, by the legal effect of the subscription, the entire consideration of his promise was the shares subscribcd for.</p>

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

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

<p>The first item of the disposing part of the will in this case, was a bequest to the wife of the testator, of all his real estate, &c., personal estate, &e., and everything ho had or owned at the time of his decease, for her life, she paying his debts, and a certain legacy. It was then provided that said legacy should he paid by the wife, not by the executor. Other special legacies are then provided for, to be paid after the death of the wife, out of such part of the personal estate as might be in her hands at the time of her death; and if the personal estate was not sufficient for that purpose, land was to be sold, &c.; but no provision was made for a resort to the executor to obtain funds for that purpose. Certain residuary legacies are then set forth, to bo operative after the death of the wife. Then followed a provision that she should use all the personal estate, and the rents and profits of the real estate, “or so much thereof as she may require for her use and benefit;” but this is followed immediately by this language—“and may and shall have the absolute use of all my said real and personal estate, for and during the term of her natural life, and no longer;” and then again the expression occurs, that she “shall use, expend, and consume such parts of my personal estate, and the rents, issues, and profits of my real estate, as she may require for her own use and benefit.” Then followed a clause declaring that his business partnerships might he continued for the benefit of his wife as long as his executors should think the interest of his estate might require it.</p> <p>Held, that the will, as a whole, discloses that the testator intended to give his wife the absolute control of his real and personal property, for her use, during her life.</p>

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

<p>A husband made a will by which, after providing for the payment of his debts, &e., he bequeathed to his wife all the rest of his estate, both real and personal, during her life, and “to bo disposed of by her at her pleasure.” He died, leaving no child, nor father nor mother. The statute regulating descents, &e., provides that “If a husband or wife die intestate, leaving no child, and no father or mother, the whole of his or her property, real and personal, shall go to the survivor.”</p> <p>Held, that a surviving wife takes the estate, in such case, under the statute, notwithstanding a will may have been made, so far as it is not otherwise disposed of by that will.</p> <p>Section 41 of the statute regulating descents, can have no bearing upon a case of this kind.</p> <p>An amendment of a statute or section cannot he made without setting out the amended statute or section at full length.</p>

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

<p>Where judgment was rendered by default, and no motion was made to sot aside the default, nor any proceedings instituted for relief from the judgment, or to review it—held, upon the authority of Blair v. Davis, 9 Ind. R. 238, that there is nothing for the consideration of the Supreme Court, on appeal.</p>

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

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

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

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

<p>A suit under the statute regulating proceedings supplementary to execution, is not a proper mode of setting aside an illegal sale.</p>

<p>Where an indictment for having in possession counterfeit bank notes, alleges that they are in the defendant's possession, a sufficient excuse for the want of a particular description of the notes is shown.</p> <p>On the trial, the defendant cannot be compelled to furnish evidence against himself by producing the notes.</p> <p>But, nevertheless, the contents of the notes cannot be proved by parol evidence, on the trial, unless notice to produce them has been given, according to the rule of practice in civil cases.</p>

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

<p>Where a policy of insurance is an open one, and is for the insurance of such sums as shall be specified by application, and mutually agreed upon and indorsed upon the policy, it is necessary, in a pleading based upon the policy, against the insurance company, to aver that an amount had been mutually agreed upon and indorsed upon the policy.</p>

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

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

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

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

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

<p>Time given to the principal in a promissory note upon a usurious contract, without the consent of the surety, does not discharge the surety.</p> <p>But the surety, in a suit against him, may set off the amount of usurious interest paid by the principal.</p> <p>When a judgment is rendered against two defendants, before a justice of the peace, and but one of the defendants appeals to the Circuit, or Common Pleas Court, the defendant not appealing, is no party to the suit in the appellate Court, and may be a witness in that Court, for the defendant prosecuting the appeal.</p>

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

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

<p>When a demurrer specifically points out the causes upon which the party relies, it cannot be enlarged to embrace other causes.</p> <p>It is not necessary to obtain a judgment against an insolvent partner, before proceeding against equitable assets belonging to the estate of a deceased partner.</p> <p>Whore a party objects to a ruling of the Court, but does not follow up his objection by taking an exception to such ruling, the objection is waived.</p>

<p>The Court of Common Pleas has jurisdiction to appoint, in a proper case, a commissioner to make a deed in discharge of a title bond.</p> <p>The estate, or heirs of the deceased obligor, in such bond, should be taxed with the costs necessarily incident to the making of such deed; but if they be increased by improper resistance on the part of any of the necessary parties to the suit, such party may be taxed with such increase of costs.</p>

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

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

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

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

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

<p>Prior to the act of 1859, the Common Pleas had not jurisdiction, except in certain special cases, where the amount involved was 1,000 dollars, or upwards.</p>

<p>A mitten instrument acknowledging an amount of money to be due on settlement of accounts, but subject, on a contingency, to a deduction, draws interest, under our statute, upon the amount remaining after the deduction has been made.</p> <p>As a general rule of law, the landlord is not bound to repair without a special agreement, but the tenant is.</p> <p>While either party is, legally, and with reasonable diligence, making repairs, the rent still runs against the tenant.</p>

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

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

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

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

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

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

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

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

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

<p>It seems that it is in the discretion of the Court to permit, or to refuse to permit, an attorney to withdraw his appearance in a cause.</p> <p>A full appearance waives defects in process; hut a limited one, for the purpose of making objections, does not.</p>

<p>A party for whom a judgment is rendered, may, it seems, in some cases, be taxed with the costs.</p> <p>Alimony may be granted to the wife as incident to a judgment for a divorce in favor of the husband; but such an allowance will not be made, unasked. The Court cannot, in a divorce case, appoint an attorney for an adult compos mentis party to a suit, against the consent of such party, and tax a fee for such attorney with costs.</p>

<p>A promissory note, and the contract in writing out of which it arises, if both are executed at the same time, constitute but one agreement; and that agreement cannot, as a general rule, be varied, or its terms added to, by parol evidence.</p>

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

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

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

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

<p>Strong v. Clem, 12 Ind. R. 37, approved.</p> <p>Where land was sold at sheriff's sale in 1844, though irregularly, it was held that an action to recover it from the purchaser, by tho execution-defendant, or any one claiming under him, was barred in ten years; and that, by the B. S. 1852, inchoate dower in such land was abolished.</p>

<p>In a suit against a railroad to recover for stock killed, the allegation that the road was not fenced is a material one, and must be proved, where such fact is an element in the right to recover.</p>

<p>In manslaughter there may he intention to kill, arising in the sudden transport of passion, hut it may, and in this grade of offense must, he unaccompanied by malice.</p>

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

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

<p>In an action to recover personal property, a complaint sworn to, may constitute a complaint and an affidavit.</p> <p>In such an action a verdict that the plaintiff recover the property with one cent damages for its detention, is good.</p>

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

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

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

<p>A promissory note payable at a bank out of this state is not governed by the law merchant, but a bill of exchange is.</p> <p>As a general rule, a joint suit cannot be maintained against the maker and assignor of a promissory note not governed by the law merchant; but facts which will excuse a prior suit against the maker before resorting to the assignor, may justify such joint suit.</p>

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

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

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

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

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

<p>A justice of the peace is not hound, of his own motion, to require security for costs, at, or before, commencing suit, from a non-resident plaintiff.</p> <p>In actions commenced before a justice, in favor of a firm, it is sufficient if the names'of the individuals composing the firm appear in the record; and if such suit be upon a note given to the .firm, the partnership need not be proved unless the partnership, or the cause of action be denied under oath.</p>

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

<p>A party may waive tlie reading of a summons by the officer, in mating service of it; and if ho does, understanding the .nature and object of the writ,</p> <p>the service is good without reading.</p>

<p>The mayors of towns and cities have the jurisdiction, under the laws of the state, of justices of the peace.</p>

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

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

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

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

<p>Credits wrongfully made upon a promissory note, may properly be obliterated.</p>

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

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

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

<p>APPEAL from an order granting an injunction, made in vacation of the Jasper Circuit Court.</p>

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

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

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

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

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

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

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

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

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

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

<p>Conwell v. Pumphrey, 9 Ind. R. 135, adhered to.</p> <p>Under the code, judgment, in cases ex contractu, may he rendered against some, and for other of the defendants, according to the old chancery practice.</p>

<p>In an indictment for obtaining goods by false pretenses, it must appear that the goods were obtained by means of the false pretenses.</p>