Volume 14 — Indiana Reports

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

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

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

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

<p>Where the judge of the Common Pleas is counsel in a case cognizable in that Court, the suit ought to be brought in the Circuit Court.</p>

<p>Where the contracts concerning -which matters of difference submitted to arbitrators arose, did not waive relief from the appraisement law, but a clause in the arbitration bond provided that the award might be made a rule of Court, aud judgment entered without relief; held, that, under the statute of 1843, judgment was properly so rendered.</p>

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

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

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

<p>Where a contract for the sale and conveyance of land provided that the first payment of the purchase-money should he made “by the first day of August,” it was held that an offer to pay on the 31st day of My, was not premature. The language quoted is equivalent to “on or before,” &e.</p> <p>Where, by the terms of a contract for the sale and conveyance of land, the payment of the first installment of the purchase-money was to precede the execution of the deed, but the vendor refused to receive the money and exocute the deed, a complaint by the vendee for specific performance, is not bad for not containing an averment of a tender of the notes and mortgage for the subsequent installments.</p> <p>An action for the specific performance of such a contract, must be commenced in the county where the land is sitúate.</p> <p>Where the answer in such an action set up the tender of a deed, and set forth a copy of it, a demurrer upon the ground that the wife of the vendor was not joined, was hold bad, because it was not shown that he had a wife. That fact should be affirmatively shown by a reply.</p> <p>A contract to make a deed or to convey, implies that the conveyance shall give the vendee a sufficient title, in view of the provisions of the statute defining what a deed must contain.</p>

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

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

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

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

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

<p>Except where the code has otherwise provided, mutuality is essential to a set-off.</p>

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

<p>Since tlie act of 1855, the jury cannot acquit a party of costs where they find Mm guilty.</p>

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

<p>The Courts will not aid a party to rescind or annul an executed illegal contract.</p>

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

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

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

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

<p>An answer purporting to go in bar of the whole cause of action, but setting up facts in bar of a part only, is bad on demurrer.</p> <p>Assumpsit lay to recover the stipulated price due on a special contract not under seal, where the contract had been completely executed, so that only a duty to pay the money remained, and it ivas not necessary, in such case, to declare upon a special agreement. This rule is applicable to pleadings under the code.</p> <p>Evidence that the matters for which the suit is brought had been submitted to arbitrators, who had made an award in favor of the plaintiff, is irrelevant under the general issue. An arbitration and award, if relied upon, must be specially pleaded.</p>

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

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

<p>Where a defendant, to obviate the necessity of returning the indictment to the grand jury for a correction of the date at which the offense was laid as having been committed, consented to the correction in open Court, and to a waiver of record of all objection, and then pleaded to the indictment, and afterwards moved to quash on account of the correction, it was held, that the motion was correctly overruled.</p> <p>The discharge of a jury in possession of a criminal cause upon a valid indictment, not called for by imperious necessity, and without the consent of the defendant, operates as an acquittal, and bars another trial; but, as a general rule, such discharge, with the consent of the defendant, is not a bar.</p> <p>Such discharge, in the court-house, in presence of the officers of the Court, the defendant, and his counsel, entered of record by the defendant’s consent, in pursuance of the consent of the Court previously given in session, is not a bar, though the judge be absent at the time; and the record of the discharge, and of the manner of it, cannot be contradicted on a subsequent trial.</p> <p>Perkins, J.—The consent of the Court to the discharge, is not necessary. ■</p> <p>A verdict may be returned on Sunday; and the Court may sit on that day to receive it, and to receive any motion or order touching it, and the discharge of the jury rendering it.</p> <p>Error cannot be assigned upon the ruling on an application for a change of venue.</p> <p>The Courts will scarcely tolerate a second application on the same ground,-at the same term, for a continuance.</p> <p>The defendant, in a criminal case, may waive his right to bo present when the witnesses are examined; and if he voluntarily absent himself without leave, he will lie deemed to have done so.</p> <p>In this case, the defendant and his counsel having absented themselves, the Court issued a bench-warrant for the defendant, and after appointing counsel for the defendant, proceeded to the examination of witnesses in his absence. Held, that there was no error.</p> <p>The exact sums laid in an indictment for larceny as having been stolen, need not be proved.</p> <p>Where, upon the return of the verdict, it is explained to the prisoner, and he moves for a now trial and in arrest, and is fully heard upon the motions, he cannot object on appeal that he was not asked what he had to say why judgment should not be pronounced.</p> <p>If the defendant and his counsel, in a criminal case, voluntarily absent themselves for the purpose of defeating a trial, he cannot complain that his case was prejudiced with the jury by such absence.</p>

<p>A person sold land, and agreed to receive in payment certain railroad stock, at a rate which the vendee represented it to be worth in the market. The vendor gave the vendee ten days to procure the necessary amount of stock, and having received the stock within that time, he delivered a deed. Nineteen months ^afterwards, having ascertained the stock to be worth less than the vendee represented to be its value, the vendor brought suit to rescind the contract, &c. Held, that he was too late, even if he could, at any time, have made a case for rescission.</p>

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

<p>Where, in a proceeding in chancery under the former practice, there was no exception to the answer of heirs who wore made parties in lieu of their deceased parent, and no other means was resorted to to test its sufficiency, but a replication was filed talcing issue upon it, it was held that no objection could be raised in the Supreme Court on account of any variance between the answer of the original defendant and that of the heirs.</p> <p>It was a rule of evidence in chancery proceedings, that the answer of one through whom others claim must be taken, as against them, to be prima facie true.</p> <p>Under this rule, the answer of one through whom others' claim would be considered as evidence against them, so far as the facts stated were relevant to the issues made upon their answer.</p> <p>The complainant in chancery cannot introduce evidence tending to contradict a positive averment or charge in his bill.</p> <p>Whore the defendant does not profess to answer from liis own knowledge, it did not require two witnesses to overcome a denial in his answer.</p>

<p>Under the statute of frauds of 1831, a declared trust in respect to lands, could not be set up by parol against an absolute deed importing a valuable consideration on its face; for such trust was inoperative, unless expressed in writing.</p> <p>Aliter, with implied or resulting trusts.</p> <p>Where a legacy in the hands of the guardian of a married woman was used by him to purchase land, and the deed was made to her husband, with the parol understanding and agreement that the land was purchased for the wife, it was held, Hanna, J., dissenting, that the purchase-money was not the separate property of the wife, and that there was, consequently, no resulting trust in her favor.</p> <p>Resor v. Resor, 9 Ind. B. 347, distinguished from this case.</p> <p>The investment of the wife’s legacy in real estate, taking the deed in the husband’s name, and his subsequent disposition of the same estate by will, operated as a reduction to the husband’s possession of money to which he was entitled in right of his right of his wife. Hanna, J., dissented.</p>

<p>ON PETITION for a Eehearing.</p>

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

<p>A written promise to pay a sum of money was assignable by’ indorsement under tlie statute of 1838, and, therefore, where no consideration for the promise was expressed, it was held that a valid consideration must be presumed.</p>

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

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

<p>The clerk of the Circuit Court is merely a ministerial officer, and in respect to the approval of official bonds, he has no discretion except to determine whether the security offered is sufficient.</p> <p>The governor may determine, even against the decision of a hoard of canvassers, whether an applicant is entitled to receive a commission or not, whore the objection to his right to receive it rests upon the ground that a constitutional prohibition is interposed.</p> <p>If the governor should ascertain that ho has commissioned a person who is ineligible to the office, he may issue another commission to the person legally entitled thereto.</p> <p>Where a majority of the ballots at an election were for a person not eligible to the office under lite constitution, it was held that the ballots cast for such ineligible person were ineffectual, and that the person receiving the greatest number of legal votes, though not a majority of the ballots, was duly elected, and entitled to the office.</p> <p>The mayor of a city, under the general law, has jurisdiction as a judicial officer throughout the county; and the voters of the county are, therefore, chargeable with notice of his ineligibility, under the constitution, to any office other than a judicial one, during the term for which he was elected.</p> <p>A writ of mandate is the proper remedy against a clerk for refusing to approve an official bond.</p>

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

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

<p>In’ a suit upon a promissory note given for the purchase-money of land, an answer sotting up a failure of title, without showing breach of covenant or fraud, is bad on demurrer.</p>

<p>An information for keeping a house for gaming, is not bad for not giving the names of the persons who gambled.</p> <p>An information must be based upon an affidavit first filed. It is not sufficient that the information itself is verified.</p>

<p>A clause in the charter of a corporation authorizing the company to borrow money “on such terms as might be agreed upon between the parties,” empowers them to borrow at a rate of interest beyond that established by the general law.</p>

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

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

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

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

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

<p>Where an affidavit for an attachment averred a fraudulent conveyance, an answer traversing the averment is not demurrable.</p> <p>A reservation of the surplus to an assignor, where it is made to depend upon certain conditions to be complied with by the creditors, and particularly upon the condition of releasing the debtor, will avoid the deed of assignment; but the creditor may be excluded from the benefit of the fund, unless he abide the assignment and await the closing of it, for any balance that may be due him after the fund is exhausted, and the fund may be applied upon claims of other creditors, without rendering the deed fraudulent per se.</p> <p>In the absence of the requirement of a release from the creditor, the mere hypothetical reservation of the surplus to the debtor will not vitiate the assignment.</p> <p>Where the deed is legal on its face, evidence tending to show that the assignment was an honest transaction is admissible.</p>

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

<p>To constitute an appearance, there must be some formal entry, or plea, or motion, and this must bo of record, and can be tried only by the record.</p> <p>The appearance of defendants, a part of whom have not been seryed with process, at the talcing of depositions to be used in the cause,, was held not to bo such an appearance as would defeat an application to remove the cause to the Circuit Court of the United 'States, under the act of congress of 1789.</p>

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

<p>Section 14 of article 4 of the constitution literally extends to criminal prosecutions only; but in its spirit and intent, it protects a person from a compulsory disclosure in a civil suit of facts which might subject him to a criminal prosecution.</p> <p>But the statute providing that a person charged in a civil suit with talcing illegal interest may be required to answer, and that his answer shall not be used against him in a criminal prosecution for usury, is not unconstitutional.</p> <p>The section in question does not extend to mere penalties and forfeitures.</p>

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

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

<p>The proceedings of Courts are to be considered in fieri, until the close of the term at which they are entered.</p> <p>Thus where there was no answer as to a part of the claim in suit, and an interlocutory judgment was taken as to that part, and afterwards, upon the return of a verdict, the defendant moved to set aside the interlocutory judgment, and substitute the amount found by the jury as the amount for which judgment should be rendered, supporting his motion by the affidavit of the jurors that they considered the facts of the case and agreed upon their verdict as if the whole amount of the plaintiff's claim was before them; that they did not intend that the sum included in their verdict should be added to the amount of the interlocutory judgment: Held, that the Court might, upon this affidavit, rectify the irregularity, and sustain the motion.</p>

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

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

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

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

<p>If .either party to a submission to arbitration fail to perform the award, the other party has two remedies. He may have the award made a judgment of the Court designated in the agreement to submit, or he may have an action upon the arbitration bond.</p> <p>But neither of the remedies can accrue against a party who has not be„en served with a copy of the award.</p>

<p>The offices of township trustee and supervisor are lucrative, -within the meaning of § 9, art. 2 of the constitution.</p> <p>In a suit which concerns the public, the title to an office—the officer being in the exercise of his duties—cannot be questioned collaterally, even when the officer is a party to the record.</p>

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

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

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

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

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

<p>The subject of the act of 1857 entitled “An act to amend the first section of ■ an act entitled ‘An act concerning licenses to vend foreign merchandize, to exhibit any caravan, menagerie, circus, rope and wire dancing, puppet-show, and legerdemain,’ approved June 15, 1852, 'and for the encouragement of agriculture, and concerning the licensing of stock and exchange brokers,” is licenses. The act is not unconstitutional for containing more than one subject.</p> <p>The title of that act does not embrace concerts; and an information will not lie, under the attempted provision of the act touching the exhibition of concerts without license.</p>

<p>A draining company organized under the act of 1852, are not bound, upon an answer of nul tiel corporation, to prove upon the trial the existence of the corporation.</p> <p>The act is not unconstitutional.</p> <p>The rights of eminent domain and taxation, may be exercised for public purposes, where no constitutional restriction forbids it.</p> <p>There is no constitutional prohibition upon local taxation for objects in themselves local.</p> <p>This case distinguished from the school cases.</p> <p>The draining of marshes and ponds, for the promotion of the public health, is regarded as a public object, for the furtherance of which taxes may he assessed; but the draining of farms to render them more productive, is not such an object, and a corporation organized for that purpose could not levy and collect a tax.</p>

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

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

<p>No affidavit is necessary to the proper determination of a motion for a new trial based upon excessive damages, insufficiency of evidence, and verdict contrary to law.</p> <p>In suits for seduction, verdicts are seldom disturbed on the ground of excessive damages.</p> <p>Where the' evidence tends to support the verdict, it will seldom he disturbed on the ground of insufficiency of evidence.</p> <p>Time will not be given to enable a party to prepare affidavits to support his reasons for a new trial, unless in addition to a good excuse for then- non-production, it be made to appear of record that it is in the power of the party to procure sufficient affidavits.</p> <p>Where a motion for a new trial had been overruled for the want of affidavits sustaining the reasons upon which it was based, and a second motion was made and the necessary affidavits presented, the latter motion was held to have been properly overruled, because no excuse was shown for the non-production of the affidavits upon the first motion.</p> <p>Where one of the reasons upon which a motion for a new trial was based, was newly discovered evidence, the nature of which was set out in proper affidavits, and counter-affidavits were filed, directly contradictory of those affidavits, it was held that a question was presented for the Court, the decision of which the Supreme Court could not disturb.</p> <p>In a suit for the seduction of the plaintiff’s wife, her statements are not competent evidence for the defendant.</p> <p>The affidavit of a physician disclosing communications made to him, as such, by the wife, to the effect that she had had an abortion, from having had illicit intercourse with a certain person during the absence of her husband, will not sustain a motion for a new trial, based upon the discovery of such .evidence, unless it be also shown that the wife would consent to such disclosure upon the trial.</p> <p>Affidavits evidently false, or contradictory, upon their face, of the evidence upon the former trial, will not sustain a motion for a new trial upon this ground.</p> <p>Nor will the affidavit of the defendant that he can prove by A. B. and by D.— Christian name not known—that they had had sexual intercourse with the wife, of which the plaintiff was cognizant, sustain a motion for a new trial on account of the discovery of such evidence, unless it be shown by the affidavit of the proposed witnesses that they would so testify.</p>

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

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

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

<p>The complaint in this case sought to set aside an entry of satisfaction of a judgment. This was resisted on the ground that the note and mortgage upon which the judgment was rendered, were without consideration. Held, that the defense was not responsive to the complaint.</p>

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

<p>Suit upon a judgment recovered in a foreign state. The complaint was in the usual form, setting out a copy of the record of the judgment; but the record sot out contained none of the pleadings in the cause, nor did it in any manner disclose what was the cause of action or the subject in controversy. Held, that the complaint was bad on demurrer.</p>

<p>An assignment of a contract vests in the assignee all the rights, and imposes upon him all the burdens and conditions, to which the assignor was entitled or subjected under the contract. .</p> <p>A. contracted with B. for 25,000 bushels of corn. B. had contracted with C. . for 15,000 bushels. D. had contracted with O. for 4,000 bushels. A. after-wards assigned his contract to D., and guarantied the delivery of the 25,000 bushels. That contract contained a stipulation that the first corn received by A. from C. should be applied upon B.’s contract. C., with notice of the assignment, delivered 12,757 bushels to D., making no application of it to either contract. D. applied it, first, to his own contract with C. for 4.000 bushels, and the rest to B.’s contract with C. for 15,000 bushels. Held, in a suit by D. against A. upon the assignment and guaranty, that the 4,000 bushels applied by D. to his own contract with O. should have been applied upon B.’s contract.'</p> <p>The liability of a guarantor is measured by that of his principal, unless he expressly assumes a less or a greater liability.</p>

<p>A. having recovered a judgment against B. upon which an execution was issued and returned nulla bona, filed an affidavit stating the recovery of the judgment and the issuing and return of the execution, and that C. was indebted to A. 155 dollars on note and mortgage. C. was summoned to answer, but B. was not made a party. Held, that this was error.</p>

<p>In a suit to recover possession of personal property, an answer that defendant was and now is entitled to possession of the property, is bad, unless it set out the grounds of the right asserted.</p> <p>Personal property may be conveyed even without a writing, if possession accompany the conveyance.</p> <p>The fact that the owner is indebted, or even insolvent, at the time of the conveyance, will not of itself invalidate the title, if no liens have attached.</p> <p>So where possession-was taken under a chattel mortgage.</p> <p>A chattel mortgage is good as between the parlies, though not recorded within ten days from its execution.</p>

<p>Indictment for receiving stolen goods, alleging absence from the state and concealment of the person so that process could not be served, &c., to avoid the limitation. The state was permitted to prove that there was a conspiracy, with which the defendant was connected, for the commission of this species of ciime, and the jury was instructed to consider this evidence in connection with the concealment. Held, that this was error.</p> <p>Jones v. The State, ante, 120, followed.</p>

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

<p>Where a testator made his children residuary legatees, to whom al erty after the payment of debts and specific legacies, was to pass a¡ not as heirs, giving liis executor control of the property during their minoifty, it was held that § 137, 2 R. S. p. 280, did not apply so as to pass the trol of the property to the guardian.</p>

<p>Section 56 of the act for the incorporation of insurance companies, &c., approved June 17, 1852, and the act of 1855 amendatory of that section, are void—the section not being embraced by the title of the act.</p>

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

<p>A rightful title is not necessary to constitute an adverse possession such as will sustain the plea of the statute of limitations. Possession under claim or color of title is sufficient. The fact of possession and the quo animo it commenced, are the only tests.</p> <p>Possession taken and continued in good faith, under an assertion of right and a claim of title believed to he good, may be adverse, though the claim of title be under a sale for taxes prior to which the land sold was not advertised.</p> <p>When a purchaser of land from the United States, has made the final payment and is entitled to a patent, he is the equitable owner of the premises; and if an adverse possession he set up, the statute of limitations will run against such purchaser; for after becoming entitled to a patent, he might at any time obtain possession of the premises by a suit in equity.</p> <p>Under the K. S. of 1824, the collector’s conveyance of lands legally sold for taxes, invested the purchaser with an absolute estate in fee simple, even where the title of the delinquent tax-payer was simply an equitable one, derived from the United States by entry, the final payment of the purchase-money having been made, but the patent not having yet been issued.</p> <p>The patent, in such case, when issued, inured to the benefit of the collector’s grantee.</p>

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

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

<p>Where parties agree to a common-law arbitration, without fixing the time and place of rendering the award, notice of the award must bo given to both parties. This having been done, a suit may be brought upon the award in any Court having jurisdiction.</p> <p>Whore parties agree to an arbitration under the statute, they must follow the statute, unless, in given particulars, they waive its requirements. The statute requires that a copy of the award shall be delivered to each party within a certain time. And where the agreement is that the award be made a rule of Court (naming the Court), as provided by the statute, it must be filed and enforced pursuant to the agreement.'</p> <p>Or a suit may be brought upon the bond of submission. This is a branch of the statutory remedy.</p> <p>A suit pending may be referred to arbitration under a rule of Court; but as the statute makes no provision for this class of arbitrations, the proceedings must be regulated by the rule of reference, the agreement of the parties, or the common-law practice.</p> <p>The three modes are cumulative remedies, and any of them may be adopted; but when adopted, it must be pursued unless a deviation be agreed to by 'both parties.</p>

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

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

<p>The award in this case (see the opinion) was not void for uncertainty.</p> <p>There was no submission of, nor award upon, the title to real estate. See the submission and award in the opinion.</p> <p>At common law, where the matter submitted to arbitration involved a mere question of damages, the submission might be by parol, by a simple writing, or by deed.</p> <p>In a common-law arbitration, the award may bo valid-though not attested by a witness, and though copies of it are not furnished to the parties by the arbitrators. Miter, in case of a statutory award.</p> <p>All objections that could be successfully urged, either at law or in chancery, against an award, may now bo made in a suit upon it.</p> <p>Mistake of law was not one of those objections.</p>

<p>Where the name of the plaintiffs is sttch as might be probably adopted by a corporation, and the complaint does not show that they are not a corporartion, they will be presumed to be a corporation with capacity to sue.</p> <p>A defense setting up false representations, but not showing who made them, is bad.</p> <p>A promissory note given for a conditional subscription of stock, is a waiver of the condition.</p> <p>Such a note given some time after the date of the subscription, cannot be viewed as a part of the contract of subscription.</p>

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

<p>Whether an instrument is forged or not, is a question for the jury; and no proof of its forgery is necessary before it is offered as evidence.</p> <p>It seems that the identity of papers taken upon the body of a prisoner may be sufficiently proved, without identifying any particular paper, by the officers taking and having them in charge.</p> <p>The Supreme Court cannot determine whether such papers were proper evidence, or whether the admission of them as evidence injured the defendant, unless the papers are before the Court.</p>

<p>By §§ 15 and 16, B. S. 1843, p. 666, if issues of fact were evolved in a proceeding- in chancery in the Probate Court, either party could demand a trial of them by jury as a matter of right, and the Court was bound by tlie verdict unless it was set aside. The language of the statute, though in form merely permissive, is in fact peremptory.</p> <p>Where upon the return of the verdict in such case, a motion was made to set' it aside and grant a new trial, the evidence adduced upon the trial not being before the judge, the motion was held to have been properly overruled.</p> <p>If in framing an issue of fact for trial by jury, in a chancery proceeding, the plaintiff reply to the answer, he admits it to be good, and confines the inquiry to the truth of the matters at issue. Such pleadings are conducted subject to the same rules as other chancery pleadings.</p>

<p>Where the record does not properly contain the evidence, the Supreme Court cannot determine whether there was a variance between the note sued on and that produced in evidence.</p> <p>If the record does not show any amendment of the pleadings, it will be presumed that an amendment assigned for error was correctly made.</p> <p>Where the record contains no replication, it cannot be assigned for error that the Court permitted a replication to be filed after trial and judgment.</p> <p>Proceedings to try the question of suretyship do not affect the proceedings of the plaintiff.</p> <p>The judgment rendered against a surety is the same as against his principal. If a surety does’not apply for an order directing the sheriff to levy upon and exhaust the property of the principal first, &c., as provided by statute, he cannot complain on appeal that an execution might be issued against him as a principal.</p>

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

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

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

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

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

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

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

<p>Where a writing in the form of a receipt is the mere acknowledgement of the payment of money, or the delivery of a thing, it is but prima facia evidence of the fact; but if it also contain a contract to do something in relation to the thing delivered, in so far as it is evidence of that contract between the parties, it stands upon the footing of all contracts in writing, and cannot be contradicted or varied by parol; except, perhaps, that at law the same circumstances of fraud, mistake, or surprise may be shown to set it aside as might be shown in equity to relieve from a contract.</p>

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

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

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

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

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

<p>The liquor act of 1859 is entitled “An act to regulate and license the sale of spirituous,” &c., “liquors, to prevent the adulteration thereof, to repeal former laws,” &c., “and to prescribe penalties,” &c. Held, that the section of the act prohibiting the giving away intoxicating liquor to a minor is properly connected with the subject embraced by the title.</p>

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

<p>No proper exception having been taken in this case, the motion for a new trial reached nothing hut the merits as shown by the evidence.</p>

<p>The information in this case, charging that the defendant, a justice of the peace of, &c., at, &c., solemnized a marriage between, &c., and failed to return and file in the clerk’s office a certificate of the marriage, with the license therefor, within three months, &c., contrary, &c., is good.</p> <p>Section 54, 2 R. S. p. 441, by implication, repeals § 11 of the act regulating marriages, if the latter section would otherwise have any force.</p>

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

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

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

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

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

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

<p>In an action for damages for an injury done by trespassing animals belonging to several persons, the plaintiff may elect to sue all or only a part of the owner’s.</p> <p>At common law, and in the absence of any controlling statute, the owner of cattle is bound to confine them upon his own land.</p> <p>The second section of the act concerning enclosures, &c. (1 R. S. p. 292), prohibiting a recovery for animals breaking into an enclosure, unless the fence is lawful, applies only to outside fences.</p> <p>Thus in an action for damages for a trespass by animals breaking through a partition fence, it is no defense that the fence was insufficient.</p>

<p>The contrary not appearing by the record, it will be presumed that the Court trying the cause was regularly held, and the cause properly brought to trial.</p> <p>In an action for the use and occupation of premises, the plaintiff may recover what the use was worth during the occupancy of the defendant, although that sum, in proportion to the annual value, be greater than the time of the occupancy in proportion to the whole year.</p>

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

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

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

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

<p>The statute laws of another state of the United States cannot be proved by parol. They must be evidenced by certified copies from the secretary of state, or by a copy printed by state authority.</p> <p>The Court has a discretion as to the manner of proving statute laws of nations foreign to the United States.</p>

<p>Where a party has waived the performance of a condition precedent, and especially where such waiver has been acted upon, the failure to perform cannot be insisted upon as a forfeiture.</p>

<p>Where the land of a person is sold at guardian's sale, though the record does not show such person to have legally been made a party, still if there had been a reception of the purchase-money, and such acquiescence as amounts to an equitable estoppel, the record may be given in evidence, upon a suit to recover possession of the land, as a link in the chain necessary to make out the defense.</p>

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

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

<p>Where a person purchases property, and is to have a delay of payment upon executing his notes, if he fails to execute his notes the purchase-money is due immediately.</p>

<p>Where A. sells property to B., and B., by agreement, executes his notes to C., the latter is entitled to sue on the notes; and B. will not be allowed to set up the want of interest in the note of O. at the time it was executed.</p>

<p>Vancleave v. Millilcen, 13 Ind. It. 105, followed.</p> <p>In a suit for the recovery of real estate, all legal or equitable defenses, by the act of 1855, may bo given in evidence under the general denial.</p> <p>Where a person claims the benefit of an exception in the statute of limitation, he must show that he comes within it.</p>

<p>A prosecution for knowingly receiving stolen goods, must be commenced within two years from such reception.</p>

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

<p>Where a party to a contract treats it as unrescinded, and sues for a breach of it, he must set out the instrument, or a copy, as the foundation of his action. Aliter, where ho treats it as rescinded, and sues to recover back money paid under it.</p> <p>If a party sells personal property, as a lot of hogs, to be delivered at a future time, it seems he may go into the marlcet and buy them for delivery under the contract; but if, at the time of the contract, he represents that he then has the property on hand, and thereby obtains an advance of money thereon, when, in fact, he has not the property on hand, it is a fraud which will justify a rescission of the contract.</p>

<p>Sections 3 and 83 of the act to provide for the assessment of taxes in Indiana, found in 1 B. S. p. 105, are constitutional.</p>

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

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

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

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

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

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

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

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

<p>The Court should not change its record without giving a hearing to the party resisting the change, -where a hearing is asked.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>A judgment rendered upon the same cause of action by a foreign Court which had jurisdiction of the subject-matter and the parties, may be set up in bar of a suit in this state.</p> <p>Suit by judgment creditors to set aside a conveyance. Answer, setting up a former'judgment in the Circuit Court of the United States, held in the district of Indiana, in a suit between the same parties, upon the same cause of action. A transcript of the judgment was filed and made part of the answer. Demurrer overruled. Subsequently other creditors came in, who were not parties to the former suit, and, as an amendment to the bill pending, to which an answer was in, set up their judgments and asked that the conveyance be set aside as to them. Answer to this amendment, setting up the same judgment in bar, and making the copy thereof filed with the first answer a part of the second by reference. Demurrer sustained, and final judgment rendered, setting aside the conveyance as to all the creditors. Held, that, in any view of the pleadings, this was error.</p>

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

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

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

<p>In a suit upon a note and mortgage, the defendant pleaded a written release, alleging that the release was lost. Reply in denial, without verification by oath. Held, that although the want of a verification might, perhaps, excuse proof of the execution of the release, the reply was still effectual as a traverse of all other material averments in the answer.</p>

<p>In a prosecution for bastardy, the credibility of the mother of the child is necessarily a question for the jury, in weighing her testimony.</p>

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

<p>Gaming is not an act of common labor or usual avocation witbin the prohibition of the Sunday law.</p>

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

<p>Snyder y. The President, Spc., of Rockport, 6 Ind. E. 237, affirmed.</p> <p>Sections 59 and 60 of the general act for the incorporation of cities, Acts of 1857, p. 61, do not entitle the owners of property that will be injured by street improvements to have compensation for such injury assessed and tendered before the contemplated improvements proceed.</p>

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

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

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

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

<p>Barnard v. Graham, ante, 322, followed.</p> <p>Where affirmative matter in the reply covers the whole answer, and is sustained by a special verdict, the plaintiff is entitled to judgment.</p> <p>Where the amount of damages could be ascertained by mere computation, and the jury having failed to make an assessment, the Court assessed the damages, it was held, that, the merits of the cause having been properly determined, the judgment would not be reversed.</p>

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

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

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

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

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

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

<p>In crimes other than certain grades of homicide, voluntary drunkenness is no excuse for the criminal act committed while the intoxication lasts, and being its immediate result, such drunkenness being in itself a wrongful act.,</p> <p>Though there be no actual criminal intent, in such case, the law may hold the , party, by construction, guilty of such intent.</p> <p>This Court will not reverse the ruling of the Court below, refusing to grant a new trial moved for on the ground that the verdict is not sustained by the evidence, unless the verdict appears most clearly erroneous.</p> <p>Yerdict as follows: “We, the jury, find the defendant guilty as charged in the indictment, and that he be sentenced to the state prison for a term of two years. Held, substantially good.</p>

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

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

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

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

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

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

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

<p>In a prosecution for disturbing a religious meeting, tbe question whether the society is “met together” or dispersed, after the benediction, shall go to the jury, upon proper instructions as to the protection afforded by the statute.</p>

<p>Keeping a gaming house may be a continuous act; and all the time which a house is thus kept prior to the prosecution, constitutes hut one indivisible offense, punishable by a single prosecution.</p> <p>But an information will not he quashed for the reason that the.dcfondant had been previously tried upon an information charging the keeping of the same house for the same period of time.</p> <p>The Court, in such case, should proceed with the trial, until the evidence determines whether there was hut one offense or two.</p>

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

THE judgments in all these cases were reversed for the reasons given in Dodd v. Miller, in the following opinion: Appeal from the Marion Court of Common Pleas.

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

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

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

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

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

<p>The statute authorizing the practice of entering and enforcing the collection of judgments without valuation or appraisement, is not unconstitutional.</p>

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

<p>The failure of an administrator to file a second bond, upon obtaining an order for the sale of real estate, he and the Court supposing, though erroneously, that the statute had been complied with, will not render void a sale regularly made and confirmed, if the money received is faithfully accounted for.</p>

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

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

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

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

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

<p>Attachment against a foreign corporation. Debtors of the corporation, residing in this state, being garnished, they appeared and answered, admitting the indebtedness, without in all cases specifying the- nature of the evidence of the indebtedness, and in no ease claiming exemption from judgment on the ground that such evidence was paper governed by the law merchant. Judgments were rendered against them. Subsequently, the corporation made an assignment, and the assignees appeared in the attachment suit, and answered, sotting up the assignment, and claiming that the evidences of indebtedness against the garnishees had passed to them, so as to make the garnishees debtors to the assignees; but they did not show that those ev^ dences were negotiable paper. Held, that their answer was bad, and that the judgments were right.</p>

<p>Where a suit had been brought on the first of two notes for installments of the purchase-money of real estate, and judgment rendered for the plaintiff on issues made upon certain defenses, it was held, on demurrer, in a suit upon the second note, that the defendant was estopped to plead the same defenses.</p> <p>An argumentative denial is good on demurrer.</p> <p>The Circuit Court has some discretion as to the order in which causes are tried; and, the contrary not appearing, it will he presumed that where a cause was tried out of its order, good ground existed for the action of the Court.</p> <p>Suit upon a note for the second installment of purchase-money of real estate. Answer, failure of consideration. Reply, 1. A general denial of the answer; 2. An argumentative denial; 3. An estoppel by former judgment upon the same defense. Qucere, whether all the matters pleaded specially might have been given in evidence upon the general denial.</p>

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

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

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

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

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

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

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

<p>Wkere the record does not contain the evidence given on the trial, this Court will not hold the refusal of a new trial on account of newly discovered evidence to be error; for it cannot be known how far such newly discovered evidence was merely cumulative.</p> <p>In a prosecution for bastardy, the jury may consider, in determining the credibility of the relatrix, the youth of the defendant, and the testimony of the relatrix that he never had connection with her but once, previous to which she had had no intimacy with him whatever; and had not since intimated her condition to him, or asked reparation, except by instituting the prosecution.</p> <p>Where the child was born eight and a half months after the alleged single act of intercourse, it was hold that the defendant might prove that the mother-had had sexual intercourse with other persons within two weeks preceding and two weeks succeeding the alleged date of her impregnation, and that such proof should be considered by the jury in connection with her credit bility as a witness.</p>

<p>The 30th rule of the Supreme Court adhered to.</p>

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

<p>A sheriff or his deputy taking property in attachment, may keep .it himself, and receive the amount allowed by the Court therefor, or he may employ some one to keep it, pay Mm therefor, and receive the amount, collected as part of the costs, unless he pay the keeper more than the Court will allow.</p>

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

<p>Complaint by A., administratrix, against B. as executor of his own wrong, for intermeddling, &c., laying the acts on the 6th of November. Answer, 1. A general denial; 2. A denial, and averment of property in defendant; 3. Denial that ho was executor, &c. Kopiy in denial. After the evidence had been heard and the argument began, the plaintiff was permitted to amend the complaint by striking out November and inserting October. The evidence showed that the deceased died on the 2d of October, and that the plaintiff obtained letters on the 30th of that month. The jury found specially that the defendant intermeddled at all times after the death of the decedent until the last of November.</p> <p>Held, 1. That the time laid should bring the case within the statute of limitations, and that the evidence should, perhaps, show that the acts complained of preceded the grant of letters, &c.</p> <p>2. That the amendment met the evidence, and did not change either claim or defense.</p> <p>3. That the costs prior to the amendment were properly charged against the defendant.</p> <p>Where only a general objection is taken to the ruling on instructions, and they are as favorable to the appellant as he has a right to ask, the objection will not be noticed.</p>

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

<p>The water-craft law of Indiana, providing for the enforcement of liens on vessels, does not extend to contracts made and broken ont of this state, and consequently an attachment suit will not lie for a breach of such a contract.</p> <p>An action in rem would not lie at common law.</p> <p>The law of a foreign state, where such a contract was made or broken, will not be enforced in a suit upon the contract in this state, unless the law bo pleaded and proved, and even then, no further than our system of practice will enable the Courts to enforce it.</p> <p>A suit in personam, as at common law, would lie, and the action would be transitory; but to maintain it, jurisdiction of the person would have to be acquired, either by service of process or voluntary appearance.</p> <p>The filing of/an attachment-bond, and tailing depositions on behalf of a vessel, do not constitute a voluntary appearance to the suit, as one in personam.</p> <p>Semble, that the plaintiff in an attachment suit under the statute, might move for leave to amend his complaint, and to have process against the person, so as to change his proceeding to a common-law action.</p>

<p>The certificate of acknowledgment of a deed.was not had, under tho statute of 1838, for not stating that the wife was examined separate and apart from her husband, and the contents of the deed made known to her, as it is presumed, the contrary not appearing, that tho officer taking the acknowledgment did his duty in this regard.</p> <p>If the ground of objection to testimony do not appear, the objection will not be noticed on appeal.</p> <p>Where there was no motion for a new trial on that ground, the refusal of the Court to give instructions is not assignable as error.</p> <p>Where tho evidence is not in the record on appeal, it will be presumed to have sustained the verdict.</p> <p>It cannot be assigned as error that the jury did not find specially touching a given fact, if it do not appear that tho Court directed them to do so.</p> <p>Section 5 of the act organizing the Court of Common Pleas, giving that Court concurrent jurisdiction with the Circuit Court in all actions against heirs, devisees, &c., is not repealed or limited by the exception in § 11 of tho same act, nor by § 5 of the act organizing the Circuit Court.</p> <p>An exception to an authority granted by one section of a statute, cannot be held to qualify another and a different authority granted by another section in unqualified terms.</p> <p>Thus the Common Pleas has jurisdiction in actions against heirs, &c., though tho title to real estate be in issue, and the amount in controversy bo more than 1,000 dollars.</p> <p>An allegation that a person sold and convoj’od land by deed, imports a conveyance in fee.</p>

<p>An affidavit in support of a motion to set aside a default, is no part of the record unless made so by a bill of exceptions.</p> <p>The Supreme Court will not decide whether the reasons for a motion to set aside a default are a part of the record, unless it appear whether the motion was overruled because they were deemed insufficient in law, or not true in fact.</p> <p>If such reasons bo deemed a part of the record, and held sufficient in law, yet it will be presumed, in favor of the Court below, the contrary not appearing, that they were not shown to be true in fact.</p> <p>It was not meant, in the language used in Spencer v. Russell, 9 Ind. R. 157, to decide that the grounds of the decision of the Court upon the motion in that case might have been made sufficiently to appear by filing the motion and the reasons for it in writing; but only to decide that if the motion and the grounds of it had been so filed, exception to the overruling of it might have been taken in the same manner as to a ruling on demurrer.</p> <p>If, in a suit against an executor, upon a claim against a decedent’s estate, the record recites that the claim was duly entered on the appearance-docket, &c., ten days prior to the first day of the term, the defendant will be held to have had sufficient notice.</p> <p>If the record show an entry to have been made “to the satisfaction of the Court,” the Supreme Court-will presume, the entry not being before it, that it was properly made.</p>

<p>A. deposited with B., a justice of the peace, certain claims for collection, and tooli a roceipt therefor, June 22, 1855. Afterwards B. collected 65 dollars on the claims. A. transferred the receipt, by indorsement in writing, to O., February 14, 1856, of which the justice had notice in that or the ensuing month. G. demanded the 65 dollars, April 2, 1856. Payment refused. In the spring of 1855, A. held, as assignee, a note for 80 dollars which, for a full consideration, he assigned to D. who assigned it to E. In the summer of 1855, A. arranged by parol that D. should receive from the justice, as much of the proceeds of the claims as would pay him for the consideration of the assignment of the note by A., and in March, 1856, the justice paid him the 65 dollars eolloeted, and D. paid it to E. The assignee of the roceipt,. G., sued the justice for the refusal to pay the 65 dollars to him. Held, that the indorsement on the receipt amounted to no more than an equitable assignment of the claims, or the judgments when recovered, and the instrument not being assignable by statute, the assignee took no greater interest than would have passed by more delivery, without indorsement; that, hence, the transaction was, in effect, but a parol, equitable assignment, to which even the delivery of the receipt was not essential; that the arrangement previously made with D. by which he received the money collected, was also a parol equitable assignment, to the amount designated, differing from the one subsequently made to G. only in the non-essential point of the delivery of the roceipt; that the assignment to D. being prior in point of time,'lie was entitled to be first paid, notwithstanding the fact that the subsequent assignee first notified the justice of his assignment.</p>

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

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

<p>Suit by a widow against the administrator to recover 300 dollars, under § 21 of the act regulating descents. Answer, that the plaintiff, prior to her marriage with the decedent, was a widow, and had children by a former husband, and was possessed of property, real and personal, acquired by her former marriage, and the decedent was a widower having children by a former marriage, and also property acquired by such former marriage; that before them marriage, and in view of the same, in order that their contemplated marriage might not effect any change in their respective rights to the property, and that the same might descend to the children of each, as though no marriage had taken place, it was verbally agreed that the decedent should pay to the plaintiff, during coverture, one-third of the net profits of his lands for her use, independent of his control, and claim no right to the use or control of her separate property during coverture, or afterwards, but let it all go to her children by her former marriage, if not otherwise disposed of by her; and in consideration of the foregoing, the plaintiff relinquished all claim to any portion whatever of her said intended husband’s estate after his death, but agreed that it should all go to his children by a former marriage, if not otherwise disposed of by him.</p> <p>Held, 1. That this agreement may be regarded as fully executed by both parties.</p> <p>2. That it was liberal to the wife, and not void for béing by parol.</p> <p>3. That it might have been valid if made during coverture.</p> <p>4. That it was not voiá by the statute of limitations, because not to be performed within a year.</p> <p>5. That it was always competent for the husband, by an antenuptial contract, to purchase his wife’s personal fortune; and consequently he may buy her interest in his own.</p> <p>6. Antenuptial contracts to be executed after the marriage has been determined, are not destroyed by the marriage.</p>

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

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

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

<p>.APPEALfrom the Hendricks Court of Common Pleas.</p>

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

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

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

<p>An affidavit for an attachment in the words as affiant “verily believes,” is sufficient.</p> <p>Where the defendant answered and filed interrogatories, and took a rule generally for a reply, and the plaintiff replied without answering the interrogatories : Held, that the cause could not be dismissed because the interrogatories were not answered.</p> <p>Where the proceedings on an attachment do not show that the property was attached in the presence of, nor that it was appraised by, a householder, an order for its sale will be reversed.</p>

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

<p>Suit on a note. Answer, a set-off. Reply, 1. A denial. 2. A settlement at the time the note was given. One item of the set-off was of a date later than the note.</p> <p>Held, 1. That the date of an item of a set-off is not conclusive, oven if it be prima facie, evidence of the time the item accrued.</p> <p>2. That under the issues the defendant might prove all the items of Ms set-off, and the plaintiff would have to show that they were settled in the note; that if they all accrued before the date of the note, the note would be prima facie evidence of settlement; dliter, as to such as did not so accrue.</p> <p>Judgment for plaintiff. New trial granted. The defendant asked leave to demur to the reply. Held, that tMs was matter in the discretion of the Court.</p>

<p>In a suit before a justice, a motion to reject the answer was overruled, and judgment rendered for the plaintiff. On appeal to the Circuit Court, the same motion was sustained. On appeal to this Court, the clerk copied the answer into the record, as a part of the justice’s transcript; but there was no bill of exceptions embodying it. Held, that it was no part of the record.</p>

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

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

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

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

<p>The payee of a bill of exchange, after acceptance, indorsed to A. who indorsed to a bank. After protest for non-payment he took up the bill and sued the drawer and acceptor. The latter answered, 1. A general denial. 2. That the bank charged 12 per cent, for discounting the bill. 3. That the plaintiff, for a consideration, and without the defendant’s knowledge, released the drawer.</p> <p>Held, 1. That’the second paragraph was bad; that it was no concern of the defendants what discount the bank charged A.</p> <p>2. That the third paragraph was bad for uncertainty; that if the release was in writing, it, or a copy of it, should have been filed—if not, the terms and consideration should have been set out; but queers, whether if well pleaded, the paragraph would bo a bar.</p> <p>If a party demur, and pending his demurrer plead over, the pleading overrules the demurrer; but if both could stand, it would be presumed, upon a general finding, that the issues on both were referred to the Court together.</p> <p>If at the institution of a suit a writ of attachment issue, and the defendant fail to answer to it, and judgment is rendered against him, the costs of the writ are to be taxed against him with the costs of the cause.</p>

<p>The law authorizing- judgment without relief upon a class of contracts, is constitutional.</p>

<p>If the improper admission of testimony be complained of, the bill of exceptions should distinctly present the points, and the statement by the Court of such facts as may have affected the decision.</p> <p>An outstanding mortgage, where there has been no ouster of the purchaser holding under a deed, is no bar to a suit for purchase-money.</p>

<p>A contract for timber-trees, to be cut and taken away at the convenience of the purchaser, is complete, it seems, when the trees are marked.</p>

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

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

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

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

<p>The defendant cannot be compelled to answer a complaint to which a demurrer has boon sustained, unless the record made by that ruling be changed.</p>

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

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

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

<p>Complaint in two paragraphs—1. Upon a written contract for plowing and planting 40 acres of prairie land, at 175 dollars, 50 dollars payable in cash when the planting was done, and the balance payable in corn at 15 cents per bushel, from the crop, and if sufficient should not be produced, the deficiency was to be paid in cash. 2. Upon an account for plowing and planting 40 acres of prairie land, at 4 dollars and 50 cents per aere. Affidavit by defendant that there was but one contract, and motion in writing that plaintiff bo compelled to elect upon which paragraph he would roly. The motion was overruled. Held, that this was not error.</p> <p>In actions on contract, where a demand is necessary before suit, the failure to make or aver a demand is excused by an averment showing that the defendant is not in a condition to perform or offer to perform.</p>

<p>The law authorizing judgment and execution without relief from valuation laws, where such relief is waived in the contract, is valid as to promissory notes and hills of exchange. Queers, whether upon other instruments containing such waiver, judgment can be rendered accordingly.</p> <p>. Whore a party gets all the consideration he voluntarily and knowingly contracts for, he will not bo allowed to say that he got no consideration.</p> <p>The mother of a bastard may settle and dismiss a bastardy suit brought on her relation.</p> <p>A wife may be bound by the acts of her husband in reference to her separate property, where such acts are .done by her authority and approved by her.</p>

<p>Section 18 of the act regulating descents, &c., should not be so construed as to prevent a widow who maraes a second or subsequent time, from directing which of two pieces of land shall be sold on execution to pay a debt which must be paid by the sale, independent of her consent, of one or the other.</p> <p>It seems, that that section should only be applied in restraint of the right of the wife to convey her real estate in fee simple, while she has children living by a former husband who might inherit it.</p>

<p>A contract for 250 cords of “good, merchantable wood” is complied with by the delivery of 250 cords of wood of a quality, taking the whole lot together, such as is generally sold in the market.</p> <p>If the jury, in a suit to enforce a contract, find for the defendant, they indirectly find that he has complied with the contract on his part, and that he has not consented to a rescission.</p> <p>If in a suit upon a contract for the delivery of a merchantable article, the defendant prove delivery at the time, &c., and it be not shown that he afterwards sold the article to a third person, or appropriated it to his own use, or that he otherwise agreed to a rescission, a rescission is not established; and if the contract in such case be not rescinded, and the defendant be not in fault, the plaintiff cannot recover money advanced.</p> <p>To defeat such a suit, it need not be shown that the defendant set the article apart, and abandoned it to the plaintiff, or kept it delivered up to the time of suit; though it might, perhaps, be necessary to enable the defendant to recover the price of the article.</p> <p>Where the evidence is in the record, it may control the judgment without regard to irrelevant instructions.</p>

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

Davis, Moody Sp Co. brought suit on a promissory note against Young and another, filing a formal complaint. The record further shows that “ Hopkins, an attorney of this Court, comes and files an affidavit and warrant to confess judgment in this behalf, which reads as follows, to-wit.” The power of attorney, with the affidavit required by the statute, is then set out in the record, and is in all respects perfect.

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

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

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

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

<p>Upon an indictment against A. and two others unknown, for an assault and battery with intent to rob, the state was permitted to prove that during the afternoon and evening preceding the assault, which wps about nine o’clock at night, the defendant and B. and G. were seen together, and that upon those persons being brought into the presence of the prosecuting witness next day, defendant and B. were partially recognized, as two who were present, engaged in the crime; but the principal witness did not implicate nor mention B. or G. The defendant having shown that B. and G. went to their room at half after eight o’clock, offered to prove that B. was in bed at the time of the assault, &c. Held, that this evidence should have been heard.</p> <p>If misconduct of the jury, in suffering outside rumor to influence their verdict, be assigned as error, it must appear that the rumor was known to the jury at the time their verdict was agreed upon. ,</p>

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

<p>The convicts in the state prison, other than those sent to Michigan City under the act of 1859, cannot, under existing statutes, he worked outside the prison and the adjoining state grounds.</p> <p>If a cause of complaint for working them elsewhere, arise in Clark county, the Floyd Circuit Court has no jurisdiction in the suit.</p>

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

<p>In an information for maliciously killing horses, an allegation of the manner of the killing is surplusage.</p> <p>Quaere, whether duplicity in such an information is a ground for quashal under the code. --</p> <p>Where injuries to two animals are alleged to have been inflicted at the same time and place, but one offense is charged, and there is no duplicity.</p> <p>If the jury, in such case, find the defendant guilty as to one animal, and say nothing as to the other, they acquit as to the latter.</p>

<p>Complaint in three paragraphs to recover land—1. In the usual form. 2. Upon a title-bond, for a conveyance of a life estate, remainder to heirs, given by A. to his daughter B., alleging that since its execution A. had died, and that neither he nor his heirs had conveyed; that B. was also dead, and the plaintiffs wore her heir's. 3. Like the second, adding that, through the ignorance of A. and the person who prepared the bond, a mistake occurred therein by using the word heirs instead of the word children, they using the former as synonymous with the latter, and intending the latter; that B. was put in possession as tenant for life. Answer, 1. The general denial to the first and second paragraphs, and that A. did not execute the bond. 2. That A. did not execute the bond, minutely setting forth the facts relied on. 3. That after the death of A., B. and her husband instituted proceedings in chancery against A.’s heirs, on the bond, and obtained a decree and a deed in fee (the said heirs consenting thereto as an advancement), and entered upon the land and took it as their distributive share, &c., and, whilst so in possession, mortgaged the same to C., who foreclosed, and bought in the land at the sale under his decree, and O. sold the land to the defendant, who, not relying upon said sale as convoying any interest other than that which descended to B. and the wife of C. (who was also a daughter of A.), on the same day took a quitclaim deed from the other heirs of A.</p> <p>Held, on demurrer to the last paragraph of the answer, that the proceedings in chancery vested the fee simple in B., and consequently the plaintiffs had no title.</p>

<p>At common law, a suit against a physician for malpractice, sounding in tort,, did not survive to the representative of the person injured. The right of action died with the person.</p> <p>A husband had two actions against a physician for malpractice in treating his wife;1 the first for the loss of service, &c., the second, by husband and wife for the personal injury.</p> <p>Where such malpractice results in death, an action lies for damages for the loss of service from its commission to its result; and if the right of action grow out of a breach of the contract for skillful treatment on the part of the physician, it is a chose in action, and survives the death of the wife.</p> <p>As at common law, so by the code, husband and wife must join in a suit for an injury to the person of the wife, by malpractice of a physician, and the hnsband could, at common law, release the action; but as the wife, if living, could not maintain a separate action for the tort, so her administrator must join her husband in such suit; and under the statute the hnsband cannot settle the suit nor control its proceeds, independent of the administrator. But the non-joinder of the husband is not ground for a reversal, whore no objection was made below.</p> <p>The character of a witness cannot be impeached by proof of a single act of immorality.</p> <p>A physician is liable for damages arising as well from the want of skill as from neglect in the application of skill.</p> <p>On the question of damages in such cases, the common-law rule must prevail. Where the action is by husband, master, or parent, for individual loss occasioned by a tortious act towards wife, infant, or servant, the suffering of the immediate subject of the wrongful act cannot be taken into account in assessing the damages.</p>

<p>Suit to foreclose a mortgage. Answer, that the land was conveyed for a consideration by the mortgagee to the mortgagor, and mortgaged to secure the payment of the consideration; and averring that the mortgagee had no title. It seems, that the answer was bad, so far as a judgment of foreclosure was concerned.</p> <p>A general denial admits the character in which the plaintiff sues; and so does a default where that character is averred in the complaint.</p> <p>Nul tiel corporation puts in issue the existence of the corporation, at least so far as to require' proof of user; hut where the suit is upon a contract other than of subscription for stock, in which the existence of the corporation is recognized, the party being estopped to deny the existence of the corporation, cannot require proof of it, because his admission is conclusive.</p> <p>If the name in which a contract is made imply a corporation prima facie, while, in fact, the company assume to he only a partnership, the fact may be shown.</p> <p>In a suit by a corporation, it is no defense to allege a consolidation with a corporation of another state, unless the terms of consolidation or the dates or provisions of the statutes authorizing it are given.</p>

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

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

<p>A party may purchase a bill of exchange at any rate of discount; but if it be shown that the transaction was not, in its inception, real, but a mere device to evade the statute against usury, the money advanced will be regarded as a loan.</p> <p>Where the bill was drawn by a partner upon the firm, to his own order, and accepted by him in their name and indorsed to another, the question whether the payee could maintain a suit upon it at maturity, is immaterial in determining the character of the transaction.</p>