Volume 15 — Indiana Reports

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

<p>When the drawee of a bill of exchange accepts the bill, the presumption is that he has funds of the drawer, in his hands, to the amount of the bill; but that presumption may be rebutted.</p> <p>The drawee may show that he accepted and paid the bill for the accommodation of the drawer; and, then, the law will imply an undertaking, on the part of the drawer, to indemnify the acceptor, who, on such implied obligation, may have his action against the drawer.</p> <p>If one of several drawers of a bill joins in it as principal, and the others as sureties for him, and the drawee, with a knowledge of these facts, accepts and pays it, and without an} funds of the drawers in his hands, there is an implied obligation on the part of all the drawers—sureties as well as principal, to indemnify him; and he may have his action against them all, as for money paid to their use.</p> <p>When a part} objects to a ruling of the Court, and does not follow up his objection by taking an exception to such ruling, the objection is waived.</p> <p>The grounds of objection to the admission of evidence must appear to have been presented to the Court below or the objection will not be noticed in this Court.</p>

<p>Errors of law occurring during the trial, in the admission of improper testimony, must he assigned in the motion for a new trial; or they will not he considered by this Court.</p> <p>After the- Court has rendered final-judgment for the sale of property attached', it is too late for the attachment defendant to claim it as exempt from sale.</p> <p>If the attachment defendant can not have hfc property set apart as exempt, when the attachment is levied and before final judgment, he may certainly set up his claim, to hold the property exempt from sale, as a defense to the attachment.</p>

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

<p>The appellee was authorized by her charter to construct a railroad from Lawrenceburg to Indianapolis, by way of Oreensburg, with a branch from the latter place to Milford. The appellant, a citizen of Milford, made an unconditional subscription to the stock of the company, and paid it out; the company promising, that the branch should be made to Milford; which ' had not been done at the commencement of this suit. The appellant took, and still holds, his certificate of stock without any offer to cancel, or assign it to the company. Suit by appellant to recover the money paid.</p> <p>Held, that the parol promise to construct the branch to Milford, could not be pr-oven as a part of the written contract of subscription ; and hence, the money paid, could not be recovered on the ground of a breach of contract.</p> <p>Held, also, that a recovery could not be had on the ground of fraud : the parol promise and representation being, under the circumstances, no more than the expression of an existing intention to make the branch.</p> <p>Meld, also, that, under the circumstances, the company was not liable to repay the money.</p>

<p>A. sold to B. two bonds of the Cincinnati and Chicago Bailroad Company, for $500- each, payable on the 1st of May, 1859, at Cincinnati, in the State of Ohio, to John McLean, a citizen of that place, with 10 per cent, interest; which, by the law of that State, was a legal rate of interest. A. guaranteed to B. the payment of the bonds according to their tenor. Subsequently, and before the maturity of the bonds, A. took them up, substituting his own agreement to pay to B. the principal and interest of the bonds, as by his guaranty he was already bound to do in case of default by the company.</p> <p>Suit by B. upon this agreement.</p> <p>Held, that when the complaint specially sets out the consideration of the agreement sued on, a general answer of want of consideration is included in the general denial.</p> <p>Held, also, that as all the evidence that could have been given under such an answer, was admissible under the general denial, the judgment will not be reversed for the failure to reply to it.</p> <p>Held, also, that the return of the bonds to A. constituted, prima fade, a good consideration for the instrument sued on, irrespective of their.validity or invalidity.</p> <p>Held, also, -that the bonds, being payable in Ohio, are, at common law, to be regarded as made in that State; and that our statute, which provides that railroad companies may dispose of their bonds at such rate of interest as is allowed by the laws of the State where such contract is made (Rev. Stat. 1852, vol. 1, p. 417), has not changed this rule as to railroad companies.</p> <p>Held, also, that the reservation of 10 per cent, interest in the bonds being valid, and not usurious, by the law of Ohio, the guaranty of A. was also valid; and the agreement sued on, being merely substituted as a security, was not tainted with usury.</p> <p>Held, also, that, in reality, the instrument sued on amounts but to an agreement to pay a given sum of money, being the amount of principal and interest of the bonds.</p>

<p>A. recovered judgment, and sued out execution thereon, against B., a resident householder of the county, who gave up certain property to the officer upon the writ, and executed a delivery bond therefor. Afterward, and before the day of sale, he claimed the property as exempt from execution, but the officer refused to set it apart to him, and sold it. Suit by B. to recover the property, on the ground that it was exempt from sale on execution.</p> <p>Held, that the execution of the delivery bond did not estop B. from setting up his claim to have the property set apart to him, as exempt from execution, at any time before sale.</p> <p>Held, also, that the giving up of the property to the officer on the writ, was not a waiver of his right afterward to claim it as exempt.</p>

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

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

<p>The Laurel Bank was organized under the general banking-law of May 20, 1852, and located at Laurel, in Franklin County. The taxes assessed against the bank for the year 1855, remaining unpaid, the treasurer of the county seized certain personal property, owned by the bank, at the time of the assessment and levy of the taxes, to satisfy the same. Suit by E., who claimed the property by purchase from the bank, to recover the same from the treasurer.</p> <p>Held, that it was sufficient for the treasurer to show, that the bank had assumed to organize under the general banking-law, and was acting under such organization, and that the bank would be estopped to deny the regularity of its organization.</p> <p>Held, also, that the duplicate, being legal on its face, justified the treasurer in holding property seized in the legal collection of taxes; and it was not necessary for him to show a legal assessment of the taxes.</p> <p>Held, also, that the tax duplicate is not a written instrument, within the meaning of § 78 of the code ; and a copy of it need not bo filed with a pleading based upon, or referring to it.</p> <p>Held, also, that § 9, of the general banking-law of 1852, and § 10, of the amended law of 1855, which provide, in certain contingencies, for the application of interest accruing on bonds of the bank, deposited with the Auditor of State, to the redemption of the notes of the bank, construed in connection with the law of January 26, 1855 ; (Acts 1855, p." 17,) authorizing the Auditor, in certain cases, to retain the interest accruing on the bonds for the payment of taxes due from the bank ; require, that the in- . terest, if needed, should first go to the redemption of the notes of the bank; and, if not so needed, it may then be retained by the auditor for the payment of taxes.</p> <p>Held, also, that the law authorizing the Auditor of State to retain the interest accruing' upon bonds for the payment of taxes, did not repeal the general revenue law, requiring the County Treasurer to collect the taxes of the bank; nor does it absolutely appropriate the interest, at once, to the payment of the taxes; but only provides a cumulative remedy and security, for the collection of the taxes.</p> <p>Held, also, the president of the bank being assessed for the property in controversy, and not having sold it until after the lien for the taxes had attached, that it was liable to be seized for the taxes.</p>

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

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

<p>OH petition for rehearing.</p>

<p>A. sued, out an attachment against the property of B., and placed the same in the hands of the sheriff, October 16, 1854. On January 2, 1855, 0. recovered a judgment against B., upon which execution issued, and was levied the- next day upon certain goods of B. Afterward A. caused his attachment to be levied upon the same goods; the sheriff having been prevented by A.’s attorney from levying the same sooner. In March, 1855, A. recovered judgment in his attachment proceedings, and the property attached was ordered to be sold. Proceedings by A. against the sheriff, by notice and motion, to compel him to pay over to him the money realized on sale of the goods. Answer by the sheriff, that he had applied the proceeds of sale, first to the payment of O.’s execution, and had the residue in Court, &c.</p> <p>Held, that if the attachment had been in the hands of one officer, and the . execution in the hands of another, the writ first levied would have obtained the prior lien.</p> <p>Held, also, that when two writs against the same person are in the hands of the same officer, he must, unless otherwise directed, first levy the writ which first came to his hands.</p> <p>Held, also, that if the plaintiffs in the older writ direct the officer not to levy the same, it would operate as a withdrawal or waiver of their prior lien, and make it the duty of the officer to levy any junior writs in his hands.</p>

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

<p>A mortgagor can not, after the mortgaged property has been ordered to be sold on foreclosure, claim the property as exempt from execution.</p>

<p>As a general rule, every communication which the client makes’ to his legal adviser, for the purpose of professional advice or aid, upon the subject of his rights or liabilities, is to be deemed confidential.</p> <p>This rule is not confined to communications made for the purpose of enabling an attorney to conduct a cause in Court; but includes communications made by one to his legal adviser, while engaged and employed in that character, and where the object is to get his legal opinion as to his employer’s legal rights and liabilities.</p> <p>Such communications, to he privileged, must have been addressed to an ’ attorney in his professional character, with a view to legal advice, which, as an attorney, it was his duty to give.</p> <p>When the terms of a contract have been agreed upon, between the parties, and an attorney is afterward employed, as a scrivener merely, to reduce the contract to writing, and no inquiry is made of him as to its legal effect, communications made to him, while thus engaged, will not be regarded as privileged.</p> <p>Our statute, fixing the legal rate of interest, &c. (1 R. S. 1852, pp. 343,344), was not intended to inhibit a party from having two prices for his property—one a cash price, and the other a time price; but, if a price is agreed upon, and time is given, no greater rate of interest than the statute allows can* legally be contracted for.</p> <p>Under our statute usury, or illegal interest, may exist without the actual loan of money.</p> <p>When a mortgagor appears to the action to foreclose, and pleads usury in the transaction, his vendee of the mortgaged premises, with his consent, may assume the same defense.</p>

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

<p>A partner purchased the interest of his co-partner, in the partnership property, under a mistake as to the true condition of the partnership accounts, but without fraud in the party selling.</p> <p>Held, that there was no legal consideration for a promise of the partner selling, to make up the amount of the mistake.</p> <p>Held, also, that a moral consideration is insufficient to support an action.</p>

<p>To hold a party as an indorser of a promissory note, the indorsement must have been made thereon ; or, perhaps, on another paper annexed thereto, when there are many successive indorsements.</p> <p>A transfer in writing, made upon a mortgage of, “ The within mortgage and the notes therein described,” does not convey the legal title to the notes, though, under our code, the assignee might sue in his own name ; nor does the assignor, in such case, warrant the solvency of the maker of the notes.</p> <p>The assignor, in such case, impliedly warrants that the notes have not been paid to him ; yet if they have in fact been paid to him, he is not liable on the contract of assignment, blit only for the consideration received by him for the transfer..</p> <p>Parol agreements made cotemporaneously with a written assignment, can not be admitted to vary or extend the effect of the assignment as written.</p>

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

<p>Judgment was rendered against the defendants below, upon default, for the foreclosure of a mortgage. At a subsequent day, of the same term, they appeared, and moved to set aside the default, because the complaint contained more than one cause of action, and because it did not show where or when the mortgage was recorded.</p> <p>Held, that the defendants were not entitled to their motion, because they failed to show any reason why they did not appear and plead to the action.</p>

<p>Suit by A., as assignee of B., on a promissory note executed by the Bail-road Company. Answer : That the note was given for services rendered by B., the payee, as agent of the company to procure subscriptions of stock; that, in the exercise of such agency, he had fraudulently, and without the knowledge of the company, received reward from persons subscribing lands for stock, for procuring their lands to be taken by the company.</p> <p>Held, that the agency in behalf of the subscribers was inconsistent with the agency for the company; was an act of bad faith, and worked a forfeiture of all right to compensation from the company.</p> <p>EeU, also, that the same principle would apply, though the agency for the company extended only to the procuring of propositions for subscriptions of stock.</p>

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

<p>Query .•'■Whether a judgment can be amended or changed by the judge or Court, after the term at which it was rendered, unless there be something to amend by ?</p> <p>The parent can only sue for such injuries to his child as occasion loss of service; for all other injuries the child must sue.</p>

<p>APPEAL from the Stmten Common Pleas.</p>

<p>-APPEAL from the Cass Common Pleas.</p>

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

<p>Suit upon a promissory note. Before answering, defendant moved, upon affidavit, to set aside the service of summons for irregularity, but filed no bill of exceptions to the ruling of the Court. Answer: That the note was given for the amount of a subscription to the stock of the Evansville, Indianapolis and Cleveland Straight-Line Railroad Company; which subscription was conditioned, that it should not be payable until work should be commenced on the end of said road south from Indianapolis: that the note sued on, was given upon the representation of the agents of the company, that such work had been commenced, when, in fact, it had not.</p> <p>Neld, that the affidavit and copy of the summons were no part of the record, not having been made so by bill of exceptions.</p> <p>Held, also, that the commencement of the work, at the point named, was a condition precedent to the right of the company to demand the subscription ; and the note, having been obtained upon the false representation that this condition had been complied with, was void.</p>

<p>APPEAL from the Blacltford Common Pleas.</p>

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

<p>Proceedings to foreclose a junior mortgage. Certain parties who held a prior mortgage, made to indemnify them as indorsers for the mortgagors, were made defendants; and appeared, and set up, by way of cross bill, that they had paid certain sums of money on account of said indorsements, which they asked to have decreed a prior lien. The mortgagors admitted the claim; but the plaintiffs replied, averring that the notes, which defendants claimed to have paid as indorsers, had been fully paid off and discharged; and, in a second paragraph, that the said notes had been fully paid and discharged by one Qibson. The prior mortgagees traversed the material allegations of these replications.</p> <p>Held, that it was sufficient, to entitle the prior mortgagees to the relief they asked, that they had taken up the notes upon which they were indorsers, by the proceeds of new notes of their own; and whether these last had been paid, was immaterial.</p> <p>Held, also, that, if the replications of the plaintiffs be understood to mean, that the notes had been repaid to the indorsers, then, they were properly traversed; but if they are to be understood as averring only that the notes had been paid to the original holders, then they are not inconsistent with the answer, and are not reached by the traverse of “ material allegations.”</p>

<p>It is incumbent on the pleader to show, on the face of his complaint, that he has joined the proper parties to the action.</p> <p>In a suit by an assignee of a promissory note, it must be shown in the complaint, whether the assignment was by indorsement in writing or by delivery only; and if by the latter method, the assignor must be made a defendant.</p> <p>In an action for money received by one for the use of another, it is not necessary for the plaintiff to aver, in terms, that he is the legal owner of the money; it is sufficient if he avers, that the defendant is indebted to him for money received to his use.</p> <p>If a demurrer is directed to the whole complaint, and there is one good paragraph, the demurrer should be overruled.</p> <p>When a defect of parties appears on the face o.f the complaint, the objection must be taken by demurrer, and not by answer.</p> <p>If the grounds of objection to the admission of evidence are not presented to the Court below, the objection will not be available in this Court.</p>

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

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

<p>APPEAL from the Grant Common Pleas. ■</p>

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

<p>APPEAL from "the Delaware Common Pleas.</p>

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

<p>Suit to enjoin the treasurer and auditor of Jefferson county from the collection of taxes assessed upon real estate for the year 1857; upon the ground that the assessment upon which the tax levy was based, was made under the act of February 13,1851, which it was claimed had expired by its own limitation.</p> <p>Held, that the act of February 13, 1851, was repealed by the act of June 18, 1852, entitled “an act repealing all former acts of the legislature except those therein named.” 1 B. S., p. 430.</p> <p>Held, also, that by § 4^¡ of the act of June 21, 1852 (1 B. S., p. 115), the appraisement made under the law of 1851 was re-adopted, as the grand levy of the State, but that the limitation of five years was not revived.</p> <p>Held, also, that if the appraisement and valuation made under the law of 1851, had ceased, in 1857, to be equal and uniform, the legislature and not the Courts must provide the remedy.</p>

<p>A., sold to B., a lot of washed wool, for forty-six cents per pound, to be paid for on September 11, and delivered on September 20, 1857. Suit by A., alleging a readiness to deliver the wool, and a failure on B.’s part to pay for it; and that, after notice to B., he had sold the wool at auction for twenty-five cents per pound. B. answered that there was some unwashed wool in the lot which A. refused to throw out, and hence he refused to receive and pay for it.</p> <p>Held, that though this Court might be of opinion that, sitting as jurors, they would have found the facts differently, yet the well-settled rule of this Court is against disturbing the verdict.</p> <p>Held, also, that the Court below erred in instructing the jury that if the auction sale of the wool was not in good faith, but a mere sham, the plaintiffs could not recover; and that the instruction should have been so shaped as to relate to the measure of damages.</p>

<p>On July 10, 1858, a petition for the improvement of a certain street in the city of Indianapolis, was presented to the Common Council, and the work ordered to be done, two-thirds of the members voting affirmatively; the appellee, being the owner of property abutting on said street, and failing to pay the amount estimated to be due from him to the contractor, a precept was issued against him, and he appealed to the Common Pleas Court; and there pleaded, that the owners of two-thirds of the whole line of lots, &c., had not petitioned for said improvement. Eeply, that two-thirds of the council voted for the ordinance requiring the improvement to be made.</p> <p>Held, that two-thirds of the council having voted for the ordinance, it was binding, although the proceedings on the petition may not have conformed to the provisions of the statute.</p> <p>Held, also, that the improvements named in § 66, of the act of March 9, 1857 (Acts 1857, p. 63), are so referred to, and treated of, in § 67, that the reference in § 68, to the “ improvements mentioned in the preceding section,” will legitimately embrace the improvements ordered by the council in the case at bar.</p>

<p>Suit by A., to enjoin the collection of a judgment against himself and B., upon the ground that he was a surety for B., in the note upon which the judgment was rendered, and that he had become such surety in consideration that the payees had, cotemporaneously therewith, agreed, that B., who was then in the employ of one of them, should be continued in such employ until he could, from his earnings, pay said note ; that B. had been discharged without cause, &e.</p> <p>Held, that the agreement by which the note was to be paid out of the earnings of B., not being in writing, constituted no part of the contract, and could not be given in evidence to vary its terms.</p> <p>Held, also, that the surety was as much bound by the terms of his contract as was the principal.</p>

<p>The act of March 1, 1853 (Actá 1853, p. 113), which provides, that in actions for compensation for animals killed or injured by cars, locomotives, or other carriages of any railroad company in this State, the justice of the peace before whom such action is prosecuted, “shall cause at least ton days’ notice to be served on the railroad company defendant, by service of summons by copy on any conductor of any train passing through said county,” is confined to actions against the corporation: such service of process will not, when there is no appearance, authorize a judgment against individuals, although they may represent themselves to be lessees, and to have charge of the rolling stock of the road.</p>

<p>Suit against the railroad company for causing the death of 8-, by running their cars over him, while crossing the railroad track upon a public highway. The Court instructed the jury, that though deceased was in fault in being upon the railroad track, yet if the company’s agents were guilty of gross negligence in running over him, by which is meant a want of such care as very prudent persons take of their own concerns, the plaintiff was entitled to recover.</p> <p>Held, that if deceased’s own negligence and want of ordinary care contributed to his death, the company can not be held liable, although guilty of negligence, unless that negligence was so gross as to imply a willingness to inflict the injury.</p> <p>Held, also, that the want of such care as very prudent men take of their own concerns, does not constitute such gross negligence as would render the company liable, if deceased, by his own negligence, contributed to his death; while the exercise of such care would render the company excusable, although deceased was also without fault.</p> <p>Held, also, that 1B. S. 1852, § 3, p. 426, was repealed by 2 B. S. 1852, § 784, p. 205 ; and that by the latter section, when the death of one is caused by the wrongful act of another, the representatives of the former can maintain an action only in cases where the former might, had he lived, have maintained an action for the injury.</p>

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

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

<p>On March 25, 1837, A. and B. became sureties on the bond of an administrator, in the penalty of $10,000, conditioned for the faithful discharge, by the administrator, of the duties of his trust. In March, 1838, the administrator procured an order of the proper Court for the sale of real estate, to pay debts, and executed another bond,, in the penalty of $4,000, with O. and D. as sureties thereon, which was conditioned for the faithful accounting and proper application of the proceeds of such sale. The administrator, having sold the real estate, and applied the proceeds to his own use, A., one of the sureties on the original bond, was forced to pay a large sum of money to creditors of the estate. Suit by A. to compel O. and D. to contribute.</p> <p>Held, that the bond given on the order for sale of rfal estate, was subsidiary to the original bond, and not a primary security, and that no suit could be maintained on it until the penalty of the original bond was exhausted.</p> <p>Held, also, that the sureties upon the second bond did not assume the relation of co-sureties with those upon the first, and hence were not liable in an action for contribution.</p>

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

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

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

<p>A married woman can not transfer her separate personal property without the consent of her husband.</p> <p>It is not necessary, in order to evidence the husband’s consent, to the transfer of a promissory note, the separate property of the wife, that he should join in the indorsement; but such consent may be shown by other evidence.</p>

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

<p>A. leased certain premises to B., and, on the same day, G. signed an agreement, indorsed on the back of the lease, whereby he guarantied the , payment of the rent, as stipulated, in case of non-payment by B. Suit by A., against B. and G., upon the lease and guaranty, for the rent.</p> <p>Held,, that the undertaking- of the guarantor was distinct from that of the principal and collateral thereto, and that the parties were improperly joined.</p> <p>Held, also, that notice should have been given to the guarantor, of the default of his principal, within a reasonable time thereafter, unless facts existed which dispensed with such notice.</p>

<p>In a suit against an administrator and his sureties, on his bond, a general judgment is, perhaps, authorized by the statute; but if the judgment should, in such case, be entered as non-repleviable by the principal, and repleviable by the sureties, the error is not available in this Court, where no motion was made, in the Court below, to correct the judgment.</p>

<p>APPEAL from, the Shelby Common Pleas.</p>

<p>Suit, against the Board of Commissioners of Decatur County, for medical services rendered to paupers of Washington township in said county. The claim was presented to the hoard for allowance, but was rejected on the ground, that the board had contracted with, and appointed, another physician to attend the poor of said township.</p> <p>Held, that under 1 R. S. 1852, § 10, p. 102, the plaintiff had his option;. either to appeal from the action of the board, or to bring suit.</p> <p>Held, also, that as the complaint avers that the plaintiff was employed by the township authorities, having conifol of matters connected with the-poor, it was sufficient in a proceeding before a justice.</p> <p>Held, also, that while it is, perhaps, the duty of the township authorities to-provide relief for those in temporary need, it does not follow that they may disregard the contracts of the county board, and employ another person to attend the poor.</p>

<p>In September, 1854, The Trustees of the Town of Gonnersville, assessed against Gcmwell, President, dfc., for taxation, the entire capital stock of the bank. Suit against the bank to collect the tax.</p> <p>Held, that the stock in question was the property of the individual stockholders, and not, in any sense, the property of the corporation.</p> <p>Held, also, that the corporation was liable to be taxed for corporate property only, and the individual corporators for the shares of stock held by them, in the counties where they respectively resided.</p> <p>Held, also, that in the absence of an express statute, the individual stockholders would be, alone, liable to be taxed for their shares of railroad stock.</p> <p>Held, also, that, as a general rule, corporation stocks, as other personal property, are taxable,' under our statute, to the individual owners, in the counties in which they severally reside.</p>

<p>It is the general rule that the covenants in a deed can not be controlled, in their legal effect, by evidence of cotemporaneous parol agreements; but an independent parol agreement, disconnected with the written contract, may, in some cases, be made cotemporaneously with, and in all cases after, the written contract.</p> <p>Where land is conveyed with full covenants, but is, at the time, in possession of a tenant, a parol agreement to accept the deed, and the tenant’s possession as the possession of the purchaser, is valid; and such an agreement will be inferred, nothing appearing to the contrary, where the purchaser has full knowledge of the tenancy, and the rights of the tenant.</p> <p>In such cases, the vendor is entitled to all rent past due-at the time of sale, and the vendee to all that falls due afterward.</p>

<p>APPEAL from the Lake Common Pleas.</p>

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

<p>-APPEAL from the Henry Common Pleas.</p>

<p>APPEAL from the While Common Pleas.</p>

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

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

<p>A father procured certain real estate to be conveyed to his son, who, in consideration of such conveyance, entered into an agreement in writing, not under seal, to maintain the father, during his life, and to pay certain sums to his brothers and sisters; and, to secure the performance of said agreement, executed a mortgage on the land. Afterward, the son conveyed the land to D., and the father, as an inducement to such purchase, entered into an agreement, in writing, with the son to receive a given sum, to be paid by a certain time, in discharge of the agreement for his maintainance ; ■and D. agreed, in writing, with the son, to pay the amount named, and actually paid a portion of it, but failed to pay the whole amount by the day named. Suit by the father to recover the land, or to have the same charged with his maintainance.</p> <p>¡kid, that the time agreed upon for the payment of the sum agreed to be taken in discharge of the contract for maintainance, was not made, or regarded hy the parties, as of the essence of the contract.</p> <p>Held, also, that though the agreement of D., was not, in terms, a contract with the father, yet it was for his benefit, and could have been enforced by him, and constituted a good consideration for the release of the contract for maintainance.</p> <p>Held, also, that, as the contract for maintainance was not under seal, nor a conveyance of lands or any interest therein, it could, therefore, be discharged or modified by an agreement not under seal.</p> <p>Held, also, that a breach of all the terms of the contract of maintainance, could not have occurred until the death of the father, and as, after partial breach, a new contract was made and money received upon it, the father could not disregard or annul it, without having tendered the money received upon it. ,</p>

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

<p>In the year 1851, the appellee filed in the Probate Court, her petition, or bill in chancery, showing, that in consideration of the release by her of a dower estate in certain lands, her son had agreed to convey to her a life estate in certain other lands; that she had been put in possession, and made improvements, and that he had died without making such conveyance ; prayer for a specific performance.</p> <p>Held, that the proceeding was essentially one in chancery, and that, as a Court of equity, the Probate Court had jurisdiction.</p> <p>Eeld, also, that the suit was properly brought in the county where the defendant resided, though the land was in another county.</p>

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

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

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

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

<p>APPEAL from the Bush Common Pleas.</p>

<p>Under the code, actions against the hail, upon forfeited recognizances, like suits upon ordinary contracts, must be brought in the county where the defendants, or one of them, has his usual place of residence.</p>

<p>APPEAL from the Huntington Common Pleas'.</p>

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

<p>APPEAL from the Davies Common Pleas.</p>

<p>APPEAL from the Oarroll Common Pleas.</p>

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

<p>APPEAL from the La Orange Common Pleas.</p>

<p>Pending proceedings supplementary to execution, and while a demurrer to the complaint was yet undisposed of, the execution debtors made a general assignment for the benefit of all their creditors.</p> <p>Held, that the creditors, by instituting their proceedings, acquired a lien on the fund intended to be reached, which the defendants could not divest by making an assignment; though at what precise point such lien attaches, is not decided.</p>

<p>Where, in an action before a justice of the peace, the justice has jurisdiction of the cause of action, and the defendant appears in answer to process, and contests the case on the merits, instead of pleading in abatement, under oath, to the jurisdiction of his person, he is estopped from making that issue in the appellate Court.</p> <p>If the want of jurisdiction does not appear on the face off the papers, the question must be raised by plea in abatement under oath, upon which an issue can be formed and tried, and not by motion to dismiss.</p>

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

<p>A street may be shown to exist in a town or city, whether incorporated or not, by a public plat, together with user by the public, or a sale of adjoining- lots b3 the proprietor:</p> <p>Or, by proof of a parol dedication to the public, accompanied by user by the public:</p> <p>Or, by proof of acts of the owner evidencing- a dedication, as by selling lots on opposite sides of a strip suitable for a street, and standing by and seeing it used by the public:</p> <p>Or, by proof of a taking by lawful authority for the public use.</p>

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

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

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

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

<p>Justices of the peace have jurisdiction in actions to recover the possession of real estate, only where the relation of landlord and tenant exists; or, where there has been an unlawful or forcible entry into lands, and either a peaceable or forcible detainer thereof; or, where having peaceably obtained possession, one unlawfully and forcibly keeps the same.</p>

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

<p>A., by his note, promised to pay to B., $500, “in good notes, which (as tho note expressed it) is to be due in eighteen months from this date.”</p> <p>Held, that the notes in which payment was to be made, were intended by the expression, “which is to be due in eighteen months,” and that suit would lie on the note of A. before tho expiration of that time, parol evidence not being admissible to establish a different interpretation.</p>

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

<p>Suit upon a promissory note. Apswer: that the note was given for the purchase-money of real estate, sold by the plaintiff to the defendant, and that, afterward, the contract was canceled, and the real estate re-conveyed; the vendor releasing all liability for the purchase-money.</p> <p>Held, that it sufficiently appeared, from the answer, that the note sued on had been canceled.</p>

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

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

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

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

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

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

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

<p>Where! the record does not show that the motion for a new trial was in writing, the insufficiency of the evidence to sustain the verdict, is not available as error, in this Court.</p>

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

<p>A road which has been, used by the public uninterruptedly for twenty years, becomes a public highway; and its width, as used at the end of tha't time, is the established width of the road.</p>

<p>A. and B. executed a chattel mortgage to secure certain debts, owing by them jointly, to 0. Subsequently D., in consideration that C. would release certain of the mortgaged property, executed to him a written guaranty for the payment of the amount of his debt. Suit upon the guaranty.</p> <p>Eeld, that the guarantor was not liable for a private debt owing by A. to C., especially if such debt accrued after the date of the guaranty; but that the guaranty must be construed to embrace the mortgage debt only.</p>

<p>Suit by wards on the bond of their guardian. Pending a motion by the guardian to dismiss the action, the judge, out of Court, informed him and his attorney that they might go home, as he should sustain the motion. Subsequently, and in the absence of the defendant, he overruled the motion, tried the cause, and gave judgment for plaintiffs. The guardian afterward moved to have the judgment set aside, on the ground of surprise, but Ms motion was overruled. He then filed a complaint to review the judgment, which was also refused, and from this judgment he appeals.</p> <p>Held, that an appeal lies in such cases to this Court.</p> <p>Held, also, that the refusal to set aside the first judgment for surprise, was such error in the proceeding as entitled the defendant to have the judgment reviewed.</p> <p>Held, also, that until the removal of a guardian from his trust, the statute does not authorize a suit by his wards, on his bond, for the recovery of money in Ms hands.</p> <p>Semble. That in a suit against a guardian by his ward for failure to report, as required by law, the statute does authorize a judgment for ten per cent, on the amount of trust funds in his hands.</p>

<p>Surprise may be a ground for a new trial.</p>

<p>A grantee of land having accepted a conveyance therefor and taken possession under it, can not, while he retains such possession, justly refuse to pay for it.</p> <p>A deed of conveyance executed without a seal, though defective at the time of its execution, is made valid and effectual by the acts March 1, 1855, and December 23, 1858.</p>

<p>APPEAL ii-omVermillion Circuit Court.</p>

<p>APPEAL from the Clay Common Pleas. -</p>

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

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

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

<p>Suit upon a promissory note against A. and 3. A. answered that he was surety for 3. on said note, and that before the commencement of the suit, B. had fully discharged and satisfied the same. B. answered that 0., the payee of the note, and plaintiff’s assignor, was treasurer of the city of Fort Wayne ; that defendant, as his successor in said office, receipted to him for a certain sum of money belonging to said city, and became chargeable therewith; that after the giving of said receipt, 0. had withdrawn a portion of said money from the hank in which it was deposited, and that before and at the time of making said note, it was agreed that whatever sum G. had not accounted for in such settlement, should go in discharge of said note. Prayer, that the amount so withdrawn by Q., might be recouped from the note.</p> <p>Held, that the answer of the surety, that the note had been discharged and satisfied, was not. equivalent to a plea of payment, and was bad as averring a conclusion of law.</p> <p>Held, also, that a plea of payment, or of accord and satisfaction, must show to whom payment or satisfaction was made.</p> <p>Held, also, that a cotemporaneous verbal agreement can not he admitted to vary the terms, or legal effect, of a written agreement.</p> <p>Held, also, that if B. never received the money from his predecessor in office, he was not liable to the city for it, and not having paid ic to the city for the use, and at the request, of G., he could not recoup the amount against his note.</p>

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

<p>APPEAL from the Elhhart Common Pleas.</p>

<p>In a prosecution for riot, one defendant, being on his trial separately, may introduce his co-defendants as witnesses in his behalf.</p> <p>Qucare. Whether the record of an acquittal of one defendant, brought about b}’’ the testimony of the others, could be given in evidence on the trial of the latter.</p>

<p>Petition to the Board of Commissioners of Warren County, for a change of boundary between that county and Fountain. The board, having heard the evidence, refused to order the petition to be filed and continued, and refused to permit any record to be made of their proceedings on the petition. Proceedings, by mandate, in the Circuit Court, to compel the board to make such record.</p> <p>Held, that a record should have been made by the commissioners, of their action on the petition, so that an appeal could be taken, if desired.</p> <p>Held, also, that they might be compelled, by mandate, to make such record.</p> <p>Held, also, that the merits of the petition must be tried on appeal, and not on a return to the mandate.</p>

<p>A recital in the record, that instructions were given and excepted to, or refused and excepted to, does not constitute a good exception, unless signed by the party or his attorney.</p>

<p>Suit by the appellees against the appellant on a promissory note, alleged to have been made by him, by the name of Gasten.</p> <p>Held, that the note was correctly declared upon.</p> <p>Held, also, there being no general denial, and no denial under oath, that the note made & prima facie case for the plaintiffs.</p> <p>Held, also, that a note is pmna facie evidence of a settlement of accounts to its date.</p>

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

<p>In an affidavit for a continuance, it is not' enough for the party asking the continuance to state, that he has used due diligence to obtain the testimony ; the facts constituting such “ due diligence ” must be specially set out.</p> <p>After the Court has passed upon the application for a continuance, it is not error to refuse leave to amend the affidavit.</p> <p>If the maker of a promissory note, tainted with usury, procures a third person to pay the note for him, and gives to such person a new note for the amount thus paid, he can not, in a suit upon such note, set up the usury in the original note.</p>

<p>Where adjoining landed proprietors agree by parol upon a boundary between them, different from the true boundary, without any consideration except the mutuality of the agreement, it is not binding, unless acted upon to such an extent, as to make it inequitable for either party to set up the true boundary; as where improvements have been made on the faith of the agreement.</p> <p>Such a parol agreement, based upon a valuable consideration, where it is so far performed as to be taken out of the statute of frauds, might be valid, and be enforced in a court of equity.</p>

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

<p>In a suit for breach of covenant, it is sufficient to aver the breach negatively, in the words of the covenant; but such averment does not necessarily involve the right to recover more than nominal damages, and would not constitute a defense to an action for purchase money, beyond the amount of one cent.</p>

<p>Neither the common law, nor the statute of 1843, authorized the assignment of a judgment, so as to enable the assignee to proceed thereon in his own name.</p> <p>The statute now in force (2 B. S. 1852, p. 335), seems to make such assignment vest the title in the assignee, and authorizes him to bring any action thereon, in his own name, which could have been brought by the judgment plaintiff.</p> <p>An assignment of a judgment simply tranfers it to the assignee.; and no liability, as to the solvency of the judgment debtor, attaches against the assignor, in the absence of fraud or express stipulation; it stands upon the same ground as the transfer of any personal chattel.</p>

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

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

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

<p>The general rule is, that evidence founded upon a mere comparison of hand-writings, hy witnesses, is not admissible to prove the genuineness of a signature, or writing.</p> <p>If, however, a witness has previous knowledge of the handwriting, from having seen the person write, or from authentic papers derived in the course of business, he may, in corroboration of his testimony, compare the writing in question with other signatures, known to he genuine.</p> <p>Where the antiquity of the writing makes it impossible for any living wit-, ness to swear he ever saw the party write, comparison with documents known to be in his handwriting is admissible.</p>

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

<p>Suit to recover damages for fraud in the sale of real estate. The fraudulent representations were made to an agent, who assigned his interest in the cause of action to his principal.</p> <p>Held, that the assignment by the agent was of no legal effect, as the cause of action was in the plaintiff without an assignment.</p> <p>Gollins v. Nave, 9 Ind. 209, doubted as authority.</p>

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

<p>A plea of the statute of limitations, filed on the first calling of the cause, after the complaint, to which it was pleaded, was filed, should not be rejected, as having been filed too late.</p> <p>A statute limiting an action upon “ a specialty or any agreement, contract, or promise in writing,” does not embrace a judgment; and a plea, setting up such a statute to an action founded upon a judgment, is wholly irrelevant, and may properly be rejected on motion.</p> <p>Upon the death of one of two joint debtors, the creditor has the right to collect his claim at law, from the survivor, or, at his option, to proceed in equity against the estate of the deceased.</p> <p>A neglect to pursue the surviving debtor until he becomes bankrupt, or for any particular period of time, so long as the claim is not barred by the statute of limitations, can not affect the right of the creditor to make his claim , out of the estate of the deceased joint debtor.</p> <p>A promissory note might, under the old system of practice, be equitably assigned, without indorsement, so as to vest the equitable interest in the assignee, and entitle him to proceed upon it in equity; and by our present statute he can, in such case, sue in his own name.</p> <p>Possession of a promissory note is prima fade evidence of ownership, and prima fade entitles the holder to payment.</p> <p>The motion for a new trial was entitled “Kimball v. Whitney,” and proceeds : “the plaintiff moves the Court,” &c.</p> <p>Meld, that as it sufficiently appears from the reasons assigned in the motion, that it was intended to be made on behalf of all the plaintiffs, the Court will so regard it.</p> <p>A judgment in the Court below may be reversed as to part of the appellants, and affirmed as to others.</p> <p>In a proceeding in chancery, by creditors, to subject assets to the payment of their respeotive claims, if the assets be insufficient to pay the claims in full, they must be applied ratably to all the creditors establishing their claims.</p>

<p>APPEAL from the Vanderburg Common Pleas.</p>

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

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

<p>Our statute requiring that where the judge of a Circuit Court is absent for more than three days, his court shall he adjourned until Court in course, only applies to cases where the judge is absent without a regular adjournment, and does not prohibit an adjournment for more than three days-</p> <p>If property be taken from the person of another by violence or putting in ' fear, against the ■will of such person, such taking is robbery.</p> <p>As the degree of force, in the taking, necessary to'constitute robbery is not described in the statute, it is only necessary that the taking should be by means of force; and where several combine to push one rudely about, an^ while his attention is thus drawn away, take his money, it is robber^^</p>

<p>The contract of indorsement of a promissory note is governed by the law of the State where the indorsement is made.</p> <p>If there is no evidence to show where the indorsement was made, or where the note was delivered, the contract is presumed to have been made in this State, and this as well where the payee is a foreign corporation as a natural person.</p>

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

<p>A corporation is a creature existing not by contract, but by statute, and where its rights or modes of action are marked out by statute, they can not be changed even by the contracts of the corporators.</p> <p>The regulations in the charter of a corporation, touching the increase of stock, supersede contracts, and govern in making such increase.</p> <p>Under the charter of the Ohio Insurance Company, which provides that the directors shall have power to increase the stock of said company to a given limit, on such terms and conditions, and in such manner, as to them shall seem best, the existing stockholders have no exclusive right to take the increased stock in amounts proportionate to the several amounts of the original stock held by them.</p>

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

<p>A. and B. being sureties for 0. upon a certain debt, agreed in writing, in consideration that G. would pay said debt out of certain moneys owing to her, that they would effect an insurance on the life of her son for her benefit, for two thousand dollars, or in case of his death before such insurance was effected, that they would pay her said sum of two thousand dollars. Suit by 0. upon the agreement.</p> <p>Held, that as 0. was already liable to pay the debt, her promise to pay it out of a particular fund imposed no additional obligation upon her, neither did it operate to the benefit of the sureties as an assignment of the debt due to her.</p> <p>Meld, also, that in order to constitute an ,assignment, either in law or in equity, there must be such an actual or constructive appropriation of the subject matter assigned, as to confer a complete and present right on the assignee, even where the circumstances do not admit of its immediate exercise.</p> <p>Meld, also, that a covenant, on the part of the debtor, to apply a particular fund in payment of the debt, so soon as he receives it, will not operate as an assignment.</p> <p>Meld, also, that as the promise of G. to pay the debt out of a particular fund conferred no benefit on the sureties, and imposed no loss, trouble, inconvenience, or charge upon her, it was insufficient, as a consideration, to support the promise of the sureties to effect the insurance.</p>

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

<p>Depositions of witnesses, who are residents of a county adjoining that in which a cause is pending, can not be used in evidence on the trial of such cause, unless the witnesses are shown to be within some one of the exceptions mentioned in § 250 of the code.</p> <p>The admissibility of a deposition may be tested as well after as before the commencement of the trial, in case the deposition itself does not disclose the ground of objection.</p>

<p>A judgment was rendered below, upon a warrant of attorney, waiving the benefit of the appraisement laws, when neither the warrant, nor the contract upon which it was based, authorized such a judgment. The defendant, without attempting to correct the error below, appealed to this Court, and, pending the appeal, the error was corrected in the lower Court.</p> <p>Held, that in consequence of the failure of the appellant to make any effort, in the Court below, to be relieved of that portion of the judgment complained of, he must pay the cost of the appeal.</p>

<p>Proceedings, by habeas corpus, to obtain a discharge from the custody of a constable. The officer returned to the writ, that he held the petitioner in custody by virtue of a capias ad respondendum, issued by a justice of the peace; to which the petitioner replied, denying the truth of the matters charged in the affidavit on which the capias issued. On the trial, no proof was made of the truth of the matters charged in the affidavit, but it did appear that twenty-four hours had not elapsed since the arrest.</p> <p>Held, that the defendant was entitled to a trial on the capias within twenty-four hours after being brought before the justice, and could not give special bail unless the trial was continued; and that, hence, § 111 of the code, awarding the writ of habeas corpus to persons under arrest for want of special hail, has no application to the case.</p> <p>Held, also, that the plaintiff, in the capias proceedings, could not be required, on a writ of habeas corpus thus issued, to appear and prove the truth of the matters alleged in the affidavit for a capias.</p>

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

<p>APPEAL from the La Grange Common Pleas.</p>

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

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

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

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

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

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

<p>Suit upon the second, or additional bond of an administrator, given on application of the former surety to be discharged. Answer : that at the time of the execution of said second bond, said administrator had in his hands certain moneys belonging to said estate, and that afterward no money or other assets came to his hands.</p> <p>Held, that the surety on the second bond, was liable for failures of duty on the part of the administrator, occurring after the execution of such bond, if not before; as for a failure to account for moneys before that time in his hands.</p> <p>Held, also, that it was not competent for the surety to prove declarations of the administrator, made before the execution of the second bond, tend-ding to show that he had converted the money, then in his hands, to his own use.</p>

<p>Suit upon a promissory note, given for a retainer, and for services to be rendered by an attorney at law in a certain prosecution for perjury. Subpoenas were issued for defendant’s witnesses, and a consultation held as to the’ sufficiency of the indictment, which resulted in the discovery of a defect, which being suggested to the prosecutor, he entered a nolle prosequi. The.defendant pleaded a failure of consideration.</p> <p>Held, that the retainer of the attorney was a good consideration for the .promise to pay the stipulated amount.</p> <p>Held, also, that as the attorney did all that was required of him in the premises, and was not in default in the performance of his part of the contract, he was entitled to recover the amount of the note.</p> <p>Held, also, that evidence of the value of the services rendered was properly rejected.</p> <p>Held, also, that a cause will not be reversed for errors in giving or refusing instructions when the judgment is right on the merits.</p>

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

<p>The disabling provision in § 2, Art. 6, of the new Constitution, which ordains that “no person shall be eligible to the office of clerk, recorder, or auditor, more than eight years in any period of twelve years,” literally applies to periods of time under the new Constitution, and not to terms of office.</p> <p>The tenth subdivision of the schedule to the new Constitution, construed in reference to the disabling clause in § 2 of Art. 6, aided by a recurrence to the history of the time of the adoption of the new Constitution, shows that it was the intention of the convention which framed it, that those officers who held over under the new, should be regarded as doing so by virtue of their popular election under the old Constitution; and that such holding, as to term, should be regarded as a holding under the new Constitution.</p> <p>The time served under the new Constitution, pursuant to an election under the old, must be regarded as a part of the eight years to which a clerk is limited under the former.</p> <p>The limitation to eight years, in § 2 of Art. 6 of the new Constitution, does not embrace time served in either of the offices named in said § 2, under a pro tem. appointment, or a simple holding over to fill a vacancy, according to the provisions of § 11, Art. 2, of the same.</p> <p>The term “eligible,” as used in the new Constitution, relates to the capacity of holding, as well as to the capacity of being elected to an office.</p> <p>As the disability in this case was one of which the voters were bound to take notice, and a general election, fixed by law, is not vitiated by a failure of the officer to make the publication required by law, the successor, fairly elected, is entitled to the office.</p>

<p>Chancery causes, under the old practice, were decided in the appellate Courts on the weight of evidence, and hence the evidence was required to be by deposition, and not oral, and to be placed in the record.</p> <p>Adult parties might, undoubtedly, waive these rules of practice, and be bound by the waiver, but it is error for a Court, trying a chancery cause, to admit oral evidence against infants, which is not placed in the record.</p> <p>The mere proof of handwriting to exhibits, and writings made part of the pleadings, is excepted from these rules, and might be made by parol; but the execution of promissory notes mentioned in the complainant’s bill, but not made exhibits, could not be proven orally.</p> <p>Under our present code the practice is different, and a decree against an infant will not be reversed because the evidence is not in the record.</p>

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

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

<p>APPEAL from tbe Grant Common Pleas.</p>

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

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

<p>Suit by A. against the owners of a steamboat to recover the value of a package of money, intrusted by him to the clerk of the boat to be transported to another port.</p> <p>Held, that an answer averring want of authority in the clerk to receive and carry such package, without compensation to the owners of the boat, and without their knowledge, is not bad as amounting to the general issue, there being no averment in the complaint that the defendants were engaged in the business of carrying packages of money for hire. .</p> <p>Held, also, that the liability of the carrier in such cases, is to be determined by an inquiry into the nature and extent of the employment and business in which he holds himself out to the public as engaged.</p> <p>Held, also, that proof of the usage of the clerks of such boats to receive and carry such packages from one port to another without hire, in the expectation that such boat would be preferred by the parties in their shipments of freight, is insufficient to bind the owners. First, because no certain or fixed standard of remuneration is shown, nor that the consignee of the package would be liable to make any return for the risk and labor incurred; and, second, because it is not shown that such usage had grown up with the consent of the owners of vessels, or that it was more than a mere accommodation usage.</p>

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

<p>APPEAL from the La Forte Circuit Court.</p>

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

<p>Suit upon a note, given for the purchase money of land. Answer: that a deed was to have been made on the payment of the note, and that it had not been made or tendered. The written agreement of sale was neither pleaded nor proved.</p> <p>Held, that though a good defense ma;y have existed, it was not got before the lower Court, so as to be noticed on appeal.</p>

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

<p>Suit upon a promissory note. Answer, by way of set-off, that the defendant had delivered to the plaintiff a note, on one A., to be collected and accounted for, and that the plaintiff had negligently failed to sue, until A. became insolvent. The receipt given by plaintiff for the note was conditioned that he should account for the same, or deliver it to an attorney for collection.</p> <p>Held, that the plaintiff was bound to use reasonable diligence in the management of said note, according to the terms of his receipt.</p> <p>Held, also, as the question of diligence must be determined by the facts in each case, and no precise time can be fixed as being sufficient to support an averment of non-performance, unless the non-performance could be averred at a day so remote as to authorize the Court to infer negligence, that the negative averment in the answer, that due diligence was not used, was sufficient.</p> <p>Held, also, that the note having been delivered to the plaintiff only twelve days before the next approaching term of the Court having jurisdiction, and ■the maker living some miles distant, the plaintiff would not be liable, as for negligence, for not suing in such Court.</p>

<p>APPEAL from the Bush Common Pleas.</p>

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

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

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

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

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

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

<p>An attorney who appears as amicus enrice, can not take an exception to the ruling of the Court.</p> <p>The filing of a demurrer, by the defendant, constitutes a full appearance to the action, and is a waiver of any defects in the service of the summons.</p>

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

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

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

<p>The criminal law of this State is entirely statutory, and not of common law origin.</p> <p>Under our statutes, the grand jury is a local tribunal, and can not inquire into offenses committed out of its jurisdiction.</p> <p>The crime of larceny, perpetrated in another State, is not transplanted with the goods, into this State, so as to become an offense against this State, punishable here; but only so as to enable us to return the criminal to the proper vicinage for punishment.</p>

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

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

<p>A single act of adultery, committed by tbe wife, is not, of itself, a “living in adultery,” within the meaning of 1 B. S., § 32, p. 253, which provides that if a wife shall have left her husband, and shall be living, at the time of his death, in adultery, she shall take no part of his estate.</p> <p>The fact that the crime was once committed, under circumstances showing a deep degree of abandonment, may, with the other circumstances of the case, be submitted to the jury, to enable them to determine as to her course of life at the time of her husband’s death.</p>

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

<p>An award, rendered in an arbitration, entered into under the provisions of chapter 3, p. 227, of the Code of 1852, is void unless a copy thereof is delivered, by one of the arbitrators, to each of th'e parties or left at his last usual place of residence, within fifteen days after the signing of such award.</p> <p>Where separate demurrers are filed to several paragraphs of an answer, and are passed upon by the Court collectively, an exception to the ruling of the Court is sufficient, without stating that it was taken to the decision upon each particular paragraph.</p>

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

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

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

<p>The school trustees of the city of Fort Wayne having incurred a debt for the erection of a school house, the city council ordered the city treasurer to pay it out of the general funds in the city treasury. The appellee, a tax payer of the city, enjoined the payment of the money.</p> <p>Held, that under the act of March 5, 1855, the city had power to make provision for the payment of the debt incurred by her school trustees in the erection of the school house, but that she could only do so by a tax assessed, levied, and collected for that specific purpose.</p>

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

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

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

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

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

<p>Under the code, a vendor of real estate maj^ enforce his lien for purchase money, without having first obtained a judgment at law; but if he should resort to his legal claim first, he does not thereb3r waive his right ultimately, if necessary, to resort to his equitable remed3r against the property sold.</p> <p>A vendor’s lien is waived by accepting personal securit3r on a note given for the purchase money, whether such security is given in pursuance of the contract of sale, or b3r subsequent'agreement, unless such security is taken for a purpose which shows that the equitable lien was not thereby waived. ‘</p>

<p>Where the administration of an estate is transferred to the Circuit Court, on account of the interest of the judge of the Common Pleas, under § 10 * of the act establishing such Courts, the Circuit Court has jurisdiction and power to do any act in relation thereto, which could have been done " by the Court of Common Pleas, had the administration remained in that Court.</p> <p>The widow of a decedent has sufficient interest in his estate, to authorize her to apply for the removal of the administrator.</p> <p>Pfeglect, on the part of an administrator, to file an account for nearly a year after the time fixed by the Court for that purpose, he having money in his hands belonging to the estate, and not paid over according to law, is sufficient, of itself, to authorize his removal.</p>

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

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

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

<p>The administrator of the legal holder of a note has the right to assign it.</p> <p>So also, in a note payable to A., as administrator of B., the words “administrator,” c&o., may be regarded as desariptio personas, and a valid transfer be made by A.</p> <p>A. transferred a note to B., by delivery, for a debt which was less than the amount of the note, and directed that the difference should be paid to his, B’s, wife.</p> <p>Held, that the equitable title to the note passed to B. by the transfer, and that he might sue upon it, without joining his wife as a plaintiff.</p> <p>Held, also, that while it might be proper to render judgment against the equitable assignors, that they be barred of any claim upon the note, it is not essential, and such assignors would be barred without any formal judgment.</p>

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

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

<p>A judgment will not be reversed for a defect which has not, in some manner, been brought to the attention of the Court below.</p> <p>A promissory note was transferred by the following indorsement: '• I assign the within to A. to secure him as security to B.”</p> <p>Held, that the indorsement was sufficient to vest the title to the note in A., and to enable him to transfer the note to another.</p> <p>Held, also, that if a bill or note be indorsed as a collateral security, that is an adequate consideration to enable the party to sue thereon, though he advanced no new credit on the bill or note.</p>

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

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

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

<p>APPEAL from the Vanderburgh Common Pleas.</p> <p>APPEAL from the Clinton Circuit Court.</p> <p>APPEAL from the Cass Circuit Court.</p> <p>APPEAL from the Tippecanoe Circuit Court.</p> <p>APPEAL from the Vigo Circuit Court.</p> <p>APPEAL from the Boom Circuit Court.</p> <p>APPEAL from the Floyd Circuit Court.</p> <p>APPEAL from the Washington Common Pleas.</p>

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

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

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

<p>Complaint to foreclose a mortgage executed by the railway company to a trustee, to secure the payment of certain bonds. The mortgage was conditioned that after default in the payment of the principal, or of any in- ■ terest on said bonds, the trustee might lease the lands; or at his option, he might, and upon request of the holders of one-half of the bonds he should, cause the lands to be sold at public auction. The charter of the company contained no express grant of power to acquire, hold, mortgage or dispose of real estate, and the lands included in this mortgage were not such as were needed or used in the operation of the road. The bonds were issued after the law of January 20, 1852, (1 B. S., § 2, p. 427,) authorizing railroad companies to receive lands in payment of subscriptions of stock, went into effect.</p> <p>Held, that a demand of the interest due upon the bonds by the holder thereof, at the place where they were payable, was sufficient, without any demand by the trustee.</p> <p>Held, also, that it has been since the organization of the State government, and still is, the settled policy of our law makers to discourage the accumulation of real estate in the hands of corporations.</p> <p>Held, also, that the railroad company, prior to the taking effect of the law of January 20, 1852, had no power primarily to acquire title to lands, other than for the immediate purposes of the road, and the defendants being es-topped to deny that the company did acquire title to the lands, it must be presumed that such title was acquired under § 2 of that act.</p> <p>Held, also, that the power to mortgage, conferred by the act of 1851, (Local Laws, 1851, p. 43), had reference only to such lands and property as the company could lawfully acquire, and could not therefore have included such as were not necessary to the purposes of the road.</p> <p>Held, also, that the question as to what is a reasonable time for the sale of lands taken for stock, as required by § 2 of the act of 1852, supra, is in each case more a question of fact than of law.</p> <p>Held, also, that a mortgage creating a lien in a manner, for a time, amount, and purpose, not inconsistent with such statute, may be valid, as the power to mortgage is not inconsistent with the duty to sell.</p> <p>Held, also, that as the'sale of the lands by the trustee without judicial proceedings, as provided for in the mortgage, is forbidden by statute, it was his duty to pursue the remedy provided by law for the foreclosure of mortgages.</p> <p>Held, also, that a proper construction of the mortgage authorized a foreclosure for a failure to pay interest, though the principal was not yet due.</p>

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

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

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

<p>Indictment under § 38 of the Crimes’ Act, for unlawfully and feloniously keeping and maintaining, for the purpose of thereby gaining money and articles of value, a gaming apparatus, known as a billiard table, and suffering and procuring a certain person to play the game of billiards thereon, receiving money therefor, &c.</p> <p>Held, that as the keeping of a billiard table, for the purpose of wagering any article of value thereon, is specially prohibited by § 74 of the act defining misdemeanors, it must be held that such tables are not within the meaning of § 38 of the Crimes’ Act.</p>

<p>A person appearing as amicus curia, can not take an exception to the ruling of the Court.</p> <p>The payee of a note who has assigned it in writing, is not a necessary party to an action on the note; but, though joined improperly, unless prejudice results to the other defendants, the error will not be noticed.</p> <p>The record of a mortgage may, in an action for foreclosure, be given in evidence without accounting for the absence of the original.</p>

<p>A. executed to B. a bill of sale of personal property, and also a mortgage upon real estate, to indemnify him for moneys paid as replevin bail upon certain judgments against A. Suit by B. to foreclose the mortgage upon the real estate. A. answered, that B. had realized out of the sale of the personal property, &c., an amount greater than the amount of his debt, and that said mortgage was paid. B. replied that he had, at the request of A., appropriated the proceeds of the personal property, &c., to the payment of debts owing by A. to other persons, and that the amount of his mortgage debt was still unpaid.</p> <p>Held, that the reply was responsive to the defense, and was not a departure.</p>

<p>APPEAL from an order, at Chambers, of the Judge of the Vigo Common Pleas.</p>

<p>'APPEAL from tbe Hendriehs Common Pleas.</p>

<p>Suit by an. assignee upon promissory notes, and to foreclose a mortgage securing them. The notes were assigned in writing, but there was no written assignment of the mortgage.</p> <p>Held, that the assignment of the notes carried with them the mortgage security.</p> <p>Held, also, that as it appeared from the complaint that all the notes remaining unpaid were held by the plaintiff, the mortgagee was not a necessary party defendant.</p> <p>Held, also, that as against one who purchased the land subject to the mortgage, no proof of a record of the mortgage was necessary.</p>

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

<p>Suit to recover for injuries received, -while standing on the platform of one of the stations of the railroad company, by the falling of wood from a train of the company, passing- the station, alleged to have been carelessly loaded, run and managed. The defendant answered : 1. That the injury -was the result of the plaintiff’s own negligence; 2. That the train was skillfully loaded and managed; but, that by reason of frost upon the rails, and a down-grade, it could not be checked in passing the station, and that the injury happened without any fault of the defendant.</p> <p>Held, that if the injury was the result of carelessness on the part of the plaintiff, and could have been avoided by the exercise of ordinary vigilance, he was not entitled to recover.</p>

<p>A. having procured, the allowance of a claim against the estate of B., the administrators appealed therefrom to the Supreme Court. Pending the appeal, a final report was filed by the administrators, showing a balance in their hands ; which was distributed among the heirs, and the estate finally settled. Complaint by A., in the Court of Common Pleas, to set aside the settlement for fraud, averring that the pendency of the appeal prevented him from making the application, within three years after the settlement.</p> <p>Held, that the Court of Common Pleas had jurisdiction of the cause.</p> <p>Held, also, that the disability mentioned in 2 R. S., § 116, p. 275, relates to the competency of the party interested in the settlement to sue, and not alone to a disability to prosecute his claim within the three years.</p> <p>Held, also, that the pendency of an appeal from the allowance of a claim is not such a disability, nor would it prevent the claimant from instituting proceedings to set aside the settlement.</p> <p>Held, also, that if a settlement should be made without in some manner finally disposing of the debts against an estate within the knowledge of the administrator, the creditors would be barred from any further action against such administrator, after three years, even though the claim should he upon a judgment of record.</p>

<p>Points not made by counsel in some of the briefs, will be considered as waived, in the suit in which the briefs are filed. (28th rule.)</p> <p>This rule may appear harsh, but if a party is dissatisfied with a decision of the Court below, the ground of his dissatisfaction ought to be pointed out, and applied to the particular ruling complained of; even if the trouble is not taken to refer to authorities in support of the points made.</p>

<p>The records of a Court are within its control during the term, at least where all parties still remain in Court.</p>

<p>APPEAL from the La Grange Common Pleas.</p>

<p>A. sold to B., hy executory contract, certain real estate, for which B. was to pay $2000. Before the payment was to be made and the deed executed, B. notified A., in writing, that he would not perform the contract.. Suit by A. for damages.</p> <p>Held, that the damages which A. might have sustained by reason of his inability to perform other bargains, made by him on the faith of B.’s performance of his contract, were too remote to be allowed, especially in the absence of fraud.</p> <p>Held, also, that it was not competent for B. to prove that other persons had offered to purchase the land, soon after he had declined taking it, at the same price he was to pay.</p> <p>Held, also, that on the failure of B. to perform his contract, he became liable to A. for the difference between the then value of the land and the contract price.</p> <p>Held, also, that had A. proceeded for a specific performance, the amount of his recovery must have been the purchase money and interest; to be enforced, first, by a sale of the land, and second, by execution against B. for the balance.</p> <p>Held, also, that in determining upon the value of the land, the general cash value must be taken, and not its value for a particular purpose, or on time.</p>

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

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

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

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