Volume 16 — Indiana Reports

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

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

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

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

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

<p>An offer to confess a judgment may be served upon the attorney of record in the cause, and such service will bind the client.</p> <p>An offer to confess for a given sum, and “ accrued costs,” is good under the statute.</p>

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

<p>An executor can not by an entry on the appearance docket allow a claim in his own behalf against the estate of his testator, but, if he proceeds under the statute, his claim must pass upon the issue docket and be set down and tried as any other adversary proceeding.</p> <p>In setting the case down for trial on the issue docket, there must be an adversary party named, either by the claimant, in his complaint, or by the Court.</p> <p>Either party may claim a jury for the trial of the issues thus formed.</p>

<p>S. was allowed and paid by the hoard of commissioners two and one half per cent, on the county orders redeemed by him- as county treasurer, in the belief, on the part of the board, that under R. S. 1843, § 90, p. 195, he was entitled to such allowance. Suit by the hoard to recover back the amount thus paid.</p> <p>Held, that the treasurer was not entitled to the per cent, named, for redeeming county orders with the revenue collected on the tax duplicate.</p> <p>Held, also, that money voluntarily paid under a mistake of law, without fraud 'or mistake of fact, can not, in ordinary cases between individuals, be recovered back.</p> <p>Seld, also, that where the board have jurisdiction to decide at all, the decision, whether right or wrong, can not be regarded as void; but is binding, unless appealed from, or avoided in some legitimate way.</p> <p>Held, also, that as the acts of the board were not void, but within the general scope of their authority, the money allowed and paid to the treasurer, under a mere mistake of law, as to the liability of the county, can not be recovered back.</p>

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

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

<p>Where the maker of a promissory note is inquired of, by a person proposing to take an assignment of the note, as to the validity thereof, and answers that he has no defense against it, he is estopped from setting up any defense against such person, or his assignee.</p>

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

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

<p>Suit for the value of animals killed by the cars of the railroad company.</p> <p>The evidence showed that the animals were killed between two named geographical points, and upon some railroad, by the rolling stock thereof, but did not show, in terms, that they were killed in Shelby county, nor ■ „ by the railroad company defendant.</p> <p>Held, that as the Court below knew judicially the boundaries of the county, i it will be presumed that the first point was correctly determined.</p> <p>Held, also, that as the evidence tends to support the .finding in relation to the killing by the cars of defendant, the judgment will not be reversed.</p>

<p>An action of foreclosure will lie upon a mortgage for interest due upon the notes secured thereby, though no part of the principal is due.</p>

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

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

<p>Suit by the Trustees of the Vincennes University against Judah, to recover the value of certain bonds of the State of Indiana, and the coupons thereto attached, received by him as the attorney of the University and converted to his own use. Answer, admitting the reception and detention of the bonds, and setting up by way of set-off, or counter claim, that the trustees were indebted to him in a large sum for services as attorney, in conducting suits for them to establish their title to the Seminary township in Gibson county, and in procuring the passage of the law compromising said claim by the issuing of said State bonds, and for expenses necessarily incurred in procuring the passage of said law, under the order of tho trustees, by which alone said bonds were procured. Keply: 1. That the defendant unlawfully and corruptly converted and disposed of said bonds to his own use. 2. That defendant, in 1843, expressly agreed to prosecute plaintiffs’ said claim for $900 for services and outlays; that the amount had been fully paid to him, and that tiic outlays mentioned in the answer were the same intended by said contract. 3. As to tho fees charged in said answer, that in 1853, a resolution was passed by the trustees, and accepted by the defendant, allowing him for his services rendered and to be rendered, a sum equal to one fourth of the net proceeds of said suit, to be paid pro rata out of the proceeds of said suit as the same should be paid into the treasury of said board ; that at the time of the conversion of said bonds, no portion of said proceeds had been paid into said treasury, and that defendant was not entitled to any fees until such proceeds, or some part thereof, should be so paid in. 4. As to the expenditures, that the friends of the State University contributed as much as defendant to the passage of said law; that defendant unlawfully and corruptly incurred said expenses in hiring certain persons to aid him in improperly influencing members of the Legislature, and to bribe such members, without the knowledge or consent of said trustees; and that when said unlawful and corrupt acts became known to them they repudiated the same.</p> <p>Held, that it was manifestly the intention of the code, that‘parties litigant might, and perhaps should, determine in each suit all matters in controversy between them which could legitimately be included therein, keeping in view substantial rights.</p> <p>Held, also, while it is not determined whether a set-off or counter claim can, under our code, be pleaded to an ordinary action for the conversion of property, that in this case the pleadings developed such a necessity for an accounting between the parties as made it right to admit the defense.</p> <p>Held, also, that the first reply was good as an argumentative denial of the answer.</p> <p>Held, also, that the agreement set up in the second paragraph of the reply could not have contemplated or included the services rendered in the suit against the State, as the law authorizing suit had not then been passed.</p> <p>Held, also, that the contract set up in the third paragraph ’of the reply could not have included the services rendered and expenses incurred in procuring the passage of the law; as such services are not embraced in the employment of an attorney to conduct a suit.</p> <p>Held, also, that objections to a pleading for duplicity or redundancy must be taken by motion, not by demurrer.</p> <p>Held, also, that as the Court can not judicially know whether or not there are proper and legitimate modes of using money in procuring the concurrence of the members of the Legislature in such a settlement, it can not say that the averment of the answer, that the passage of the law was procured by the expenditure of said money was immaterial or vicious.</p> <p>Held, also, that an issue can not be made collaterally, nor by the State directly, to determine the conduct and motives of members of the Legislature :</p> <p>But, quare: If a party judicially seeking his rights under and by virtue of a statute, avers, in his pleading, that the statute owes its existence to illegal and immoral practices, would he not thereby deprive himself of the right to recover ?</p> <p>Held, also, that when knowledge was brought home to the trustees, of the fraudulent and immoral acts of their agent, they might have refused to receive any more of the bonds, and, by a proper course, rendered valueless those in the hands of their agent, or any other person having notice.</p> <p>Held, also, that alter knowledge of the fraudulent acts was brought home to the trustees, they could not avail themselves of the benefit, and cast aside the burdens of the compromise.</p> <p>Held, also, that the Courts will often refuse their aid to execute a contract, which, if executed, they will in like manner refuse to relieve a party from.</p>

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

<p>Proceedings by creditors to set aside a mortgage alleged to have been fraudulently made by the debtor. The mortgagor, mortgagee, and an assignee of the mortgage were made defendants. The mortgagor was defaulted, and the other defendants answered by general denial.</p> <p>Held, that the wife of the mortgagor was not a competent witness to prove declarations of the mortgagee, tending to show his knowledge of the fraudulent purpose with which the mortgage was executed.</p> <p>Held, also, that notwithstanding the default against the mortgagor, the other defendants having traversed the complaint, it was incumbent on the plaintiffs, in order to a recovery, to establish, by proof, their ease as stated in the complaint; and hence the testimony proposed to be given by the wife tended to authorize the recovery of a judgment against her husband.</p> <p>Held, also, that the mortgagee was not a competent witness in behalf of his co-defendants, to prove that the mortgage had been received by him in good faith, as such testimony tended to defeat a recovery against him, and was matter in which he was jointly interested with his co-defendants.</p>

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

<p>"Where in proceedings for the foreclosure of a mortgage, part only of the notes secured are due, if the property is 'found by the Court to he susceptible of division, the Court must specify by metes and bounds the particular portion to be sold.</p>

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

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

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

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

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

<p>The consent of the indorser of a promissory note that suit against the maker may be postponed, need not be in writing, nor based on a consideration, in. order to continue the liability of the indorser.</p> <p>Where time has been granted, and the license is afterward revoked by the indorser, the indorsee must bring suit against the maker within a reasonable time after notice of such revocation; as the case then stands, as to future time, as if no such consent had been given.</p>

<p>Where a change of venue is granted in a criminal cause, the record of the proceedings must show, affirmatively, that the original indictment was, in accordance with the requirements of the statute, deposited in the clerk’s office of the county' to which the cause was sent.</p>

<p>Suit upon a subscription of stock. The complaint made no reference to any written contract of subscription, and did not aver any assessment or call by the directors.</p> <p>Held, that the complaint did not show a good cause of action.</p>

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

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

<p>Money and notes held by the branches of the Bank of the State of Indiana are capital stock, and are not taxable for municipal purposes.</p>

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

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

<p>The only effect of an appeal to a Court of Error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, the judgment,' until annulled or reversed, is binding upon the parties, as to every question directly decided.</p> <p>It is no bar to an action upon a judgment, that the judgment has been removed by writ of error to a Superior Court.</p>

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

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

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

<p>A Master Commissioner is not authorized to grant an injunction.</p>

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

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

<p>Where land is offered for sale by the Commissioners of the Sinking Fund, on a mortgage given to secure a loan from that fund, and is for a want of a cash bidder bought in by the .State, and then reoffered and sold on credit, the mortgagor has no right of redemption.</p> <p>The purchaser, if he immediately pays the amount demanded on the purchase, and gives the required security for the balance of the purchase money, can not be deprived of the benefit of his purchase, by the mere delay of the agent of the State to execute the formal certificate of purchase prescribed by the statute.</p> <p>A party who seeks the interposition of the Courts to avoid a sale of lands, except perhaps in the case of tax sales, assumes the onus of showing that he is entitled to the relief asked.</p> <p>The act of 1845, authorizing the Auditor of State, upon complaint filed by the purchaser, to issue his warrant to the sheriff of the proper county, directing him to put the purchaser in possession, does not impair the obligation of the contract, in the case of mortgages made before the passage of the act, but only provides a cumulative and more speedy remedy.</p> <p>The law of 1831, regulating sinking fund sales, expressly authorizes a resale immediately after the land is bid in by the State, and provides for no redemption of the land, or reinstatement of the mortgage, by the original mortgagor; and this statute was not repealed by the law of 1845.</p> <p>The question as to the time of payment of the overplus bid by the purchaser, beyond the amount paid by the State, is between the State, or her officers, and the original mortgagor.</p> <p>The issuing of the writ to put the purchaser in possession is a ministerial and not a judicial act, on the part of the Auditor of State; and the judicial review of the sale must take place on an application to enjoin the execution of the writ.</p>

<p>Errors of law occurring at the trial are waived, unless again brought to the attention of the Court in the motion for a new trial.</p> <p>A pleading stricken out on motion, will not be regarded as part of the record, unless made so by bill of exceptions.</p> <p>A contract which is personal in its character, and which would terminate with the death of the party making it, as a contract for personal services, though for an indefinite period, or for a term of years, might, by the • death of the party, be performed within one year; and hence, is not within the fifth subdivision of § 1, of the Statute of Frauds,</p> <p>A motion for judgment upon the pleadings constitutes no part of the record, unless made so by bill of exceptions, or by the order of the Court. When an amended answer is stricken from the files, on motion, the original answor stands as though no amended answer had been filed.</p>

<p>Courts of Common Pleas have concurrent jurisdiction with Circuit Courts in suits for divorce.</p>

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

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

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

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

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

<p>A complaint by surviving partners should set out the names of all the partners, and show how the parties suing became survivors.</p> <p>In a suit by an assignee upon a warehouseman’s receipt for goods left in store, the assignor must be made a defendant to answer as to his interest.</p>

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

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

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

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

<p>Where a new contract is entered into for the payment of a precedent debt, upon which interest has accrued, and by the new contract usury is taken or reserved, the “ principal,” which the creditor may recover under our usury law, (1 B. S., § 4, p. 344) is the amount of the -principal of the precedent debt, with legal interest thereon, up to the time of the making of the usurious contract.</p> <p>A plea, setting up usury in the new contract in bar, not only of the illegal interest taken or reserved thereon, but of the legal interest which had accrued upon the precedent debt, is bad, because the facts are pleaded in bar of too much.</p>

<p>An action brought to recover notes alleged to have been placed in the hands of an attorney for collection, or the proceeds thereof and the statutory penalty of 10 per cent., is not a proceeding for the removal or suspension of an attorney, and hence an appeal will lie to this Court from a judgment in favor of the attorney.</p> <p>After a cause has been submitted by agreement, without objection to the assignment of errors, it is too late to ask a dismissal because the names of all the parties are not set out, as required by Bule 20.</p> <p>Where an answer is sufficient on its face, defects in the bill of particulars filed therewith can not be reached by demurrer.</p> <p>If several causes of action are improperly joined in different paragraphs of a complaint, the objection should he taken by demurrer to the.whole ' complaint, and not to each paragraph supposed to be misjoined.</p> <p>A demurrer to one of several paragraphs, for a misjoinder of causes of action in the different paragraphs, may be stricken out on motion; and perhaps an error committed in refusing to strike it out might be corrected in the Supreme Court.</p> <p>Parties having claims in the hands of an attorney for collection, have a right, upon reasonable demand, to an accounting, and may maintain an action for a refusal to account.</p>

<p>An execution debtor, at the time of the levy of an execution upon his property, and at the time of the sale thereon, had left the house where he had resided with his family, to avoid criminal process, and though frequently seen in the county, his usual whereabouts were unknown. His property remained in the house he had lately occupied, but his family were temporarily at the house of his brother.</p> <p>Held, that these facts did not justify the conclusion that the execution debtor had ceased to be a resident householder, or had lost his right to the benefit of the exemption law.</p>

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

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

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

<p>A stockholder, or member of a corporation, is a competent witness in behalf of the corporation.</p>

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

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

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

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

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

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

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

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

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

<p>Persons contracting with an association, by what purports to be a corporate name, are estopped to deny the legal existence of the corporation at the date of the contract.</p> <p>That the corporation has ceased to exist, or was not a corporation at the commencement of a suit upon the contract, may bo answered in abate- ' ment, but not in bar of a recovery.</p>

<p>The name of an assignor of a promissory note, made a defendant to answer as to the assignment, need not he noticed in an offer by the maker of the note to confess a judgment for.a given sum, as the offer is, of itself, an admission of the assignment and a waiver of any further proceedings.</p>

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

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

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

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

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

<p>When a continuance is asked on the part of the State in a criminal prosecution, on account of the absence of a material witness, it must be shown that some degree of diligence has been exercised to procure the testimony.</p> <p>The matter is left very much to the discretion of the Court, whose duty it is, on the one hand, to see that the laws are properly executed against offenders, and on the other, that they have a trial without unnecessary delay.</p>

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

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

<p>A. by Ms will directed that whatever notes or claims he might, at his death, have on Ms son B., should be canceled and delivered up to him; but that such claims must be due in the son’s own right to the testator.</p> <p>Held, that the will must be construed to discharge only such debts as the son might individually and solely owe to the testator, and that a note executed by the son and another, as principals, was not discharged.</p>

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

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

<p>Money paid under a mistake of law, but without fraud and with a full knowledge of the facts, can not be recovered back.</p> <p>So a promise to pay a supposed debt, though made under a mistake of law as to the party’s liability, is binding, and may he enforced.</p>

<p>Where a judgment is taken by default, in a Court of Record, the summons and the return thereon become a part of the record, but where there is an appearance and trial, these make no part of the record unless incorporated by some known mode of proceeding.</p> <p>To embody them in a written motion is not such mode.</p>

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

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

<p>A plea of usury which purports to answer the whole cause of action, when the facts pleaded are a bar to a part only of the claim, is bad on demurrer.</p> <p>An answer setting up in bar of the action that the defendant was a surety on the contract sued upon is bad, as that fact can only go to the direction of the officer in levying the writ to be issued on the judgment.</p> <p>A plea setting up an unauthorized alteration of the note sued upon is, in substance, a plea of non est factum., and if not verified by affidavit is equivalent to the general denial.</p> <p>Evidence under the general denial is restricted, by the .code, to that which tends to negative what the opposite party is bound to prove.</p> <p>Where the defendant answers, to an action upon a note, the general denial not verified by affidavit, the plaintiff is only bound to prove the existence of such a note as he has declared on, the execution of it, as copied in the complaint, being admitted; and hence, the defendant can not give evidence of an alteration of the note.</p>

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

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

<p>When a complaint, or the bill of particulars filed therewith, contains .one good cause of action, it is not subject to demurrer.</p> <p>If the defendant answers by the general denial, he admits the capacity of the plaintiff to sue.</p>

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

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

<p>Quiere: "Whether a ease where judgment has been rendered by default, in an attachment proceeding, on publication of notice, is an exception to the rule that errors of the Court below will not be reviewed in this Court, where no motion was made to set aside the judgment.</p> <p>In an attachment proceeding under the code, notice by publication of the pendency of the suit may be given before the writ is levied.</p>

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

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

<p>The city having made a subscription to the stock of the New Albany and Sanduslcy Giiy Junction Railroad Go., and issued her bonds therefor, a suit was brought by B. and 21 against the city and the railroad company to enjoin the collection of taxes assessed to pay the interest on said bonds. A compromise was agreed upon between the city and the company, by which the bonds were to be surrendered and the subscription canceled; in consideration of which, the city, by an ordinance of the Common Council, agreed, among other things, to pay all costs of the suit brought by B. and 21, “ and also the fees of the attorneys of said B. and 21, as agreed between them and their said attorneys, and said city and attorneys of said railroad company.”</p> <p>Held, that the ordinance did not bind the city to pay the fees of the attorneys of the railroad company.</p>

<p>A lease of lands for a term of three years, or less, though in writing and sealed, may he surrendered by a writing not under seal.</p>

<p>Suit upon a subscription to the stock of the North Western Christian University, made payable in lumber. The subscription was not dated, nor was the time of its execution averred.</p> <p>Held, that as the date of the subscription was not material but was matter of form merely, the objection could not be raised by demurrer.</p> <p>Held, also, that the charter of the university authorized the subscription. Where the ground' of objection to the admission of testimony is not pointed out to the Court, it is not error to overrule the objection.</p> <p>Where in a suit upon a written instrument there is no plea denying the execution of it under oath, evidence tending to negative its execution is • not admissible.</p> <p>If the subscriber had complied with the requirements of the university charter by paying the interest upon his subscription and securing the payment of the principal, by reason of which he was not liable to be sued upon his subscription, the burden of proving those facts was upon him.</p>

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

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

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

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

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

<p>As the general law of 1852 for the incorporation of cities does not prescribe by what name existing corporations adopting its provisions shall be known, they might, and the Court may presume they did, retain their former corporate names.</p> <p>The Court can not judicially know the corporate name of a city thus organized.</p> <p>A person contracting with a city, for the improvement of a street in such city, is bound to take notice of the provisions of the general law regulating such improvements; and must also ascertain whether the Common Council have so conducted the letting, as to render the property holders liable for the improvement.</p> <p>The corporation can not be made liable for work done in the improvement of streets, except as to the crossings of streets and alleys, though the contract may have been let by the Common Council without the requis- . ite petition from the property holders.</p> <p>Queers: Whether the individual members of the Common Council would, in éuch case, be liable to the contractor for the work done by him.</p>

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

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

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

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

<p>In a proceeding for the foreclosure of a mortgage, where part only of the installments secured by it are due, the Court must inquire and find whether the mortgaged premises are susceptible of division, and such finding must be entered of record.</p>

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

<p>Where a party places his name upon the back of a negotiable promissory note, creating a liability in favor of the payee, the presumption is that he intends to assume the liability of an indorser, and nothing more; but this presumption may be controlled by parol evidence, showing that he in fact intended to assume the liability of'a maker, in which case he will be regarded as a, joint maker.</p> <p>Where a party is shown to have signed a note as a surety, he may be charged as a joint maker.</p>

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

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

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

<p>Where land is sold by an administrator subject to existing liens, the purchaser takes subject to the liens, and the land continues liable for the payment of them; but the Court may order a sale for the purpose of discharging the liens, and in such case, the purchaser takes the land relieved from the liens, although not fully paid; the residue, after the application of the purchase money, remaining a claim against the estate.</p> <p>If a sale is made subject to an existing lien, and the holder of such lien agrees to pay for the property a sum in addition to the lien, such sale would operate as an extinguishment of the lien.</p>

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

<p>An agreement to extend, the time of payment of a promissory note, in consideration of usurious interest, is not binding, and will not discharge a surety.</p> <p>Qumre: Whether a review of a judgment should in any case he granted, on the ground of newly discovered evidence alone.</p>

<p>Where the Circuit Court is adjourned before the close of the term, to a day in vacation, the reasons of the adjournment must appear in tho record.</p>

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

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

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

<p>The Courts of Common Pleas have jurisdiction of actions where the sum demanded exceeds one thousand dollars.</p> <p>In an action for money paid in discharge of a judgment, at the request of the judgment debtor, a transcript of the judgment need not be filed with the complaint, as the payment of the money, and not the judgment, is the foundation of the action.</p> <p>In an action against several as owners ‘of a steamboat, for supplies, the assessor’s list, showing to whom the boat was assessed, together with proof that one or more of the persons charged as owners had given in the boat for taxation, is admissible upon the question of ownership.</p> <p>The powers of masters of boats, engaged in the commerce of our western, inter-State, navigable rivers, are determined by the maritime law; our statute upon that subject not having enlarged their powers to contract as agents of owners.</p> <p>A master of a boat has power to bind the owners for necessaries, and in matters incident to his particular business; and this business being known, his general powers as agent of the owners are matters of law, of which those dealing with him must take notice; and if they contract with him outside of those powers, no special authority being shown, they can not hold the owners liable on such contracts. *</p> <p>The master has no power, simply as such, to indorse or execute bills and notes binding the owners.</p> <p>Where the plaintiff sues for the price of supplies by way of attachment against the boat, to enforce a special lien, he must prove that there was at least an apparent necessity for their procurement by the master; and no reason appears to the Court why the rule should not be the same in a suit against the owners personally, but this last point is not decided.</p> <p>When it appears from the character of the items sued for, that they were not necessaries, the plaintiff must prove the authority of the master to purchase for the owners.</p>

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

<p>The words, “ and this was all the testimony or evidence offered in the case,” are not sufficient, in a bill of exceptions purporting to set out the evidence, to repel the presumption of other evidence.</p>

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

<p>Notes payable to order, but not at a bank in this State, though negotiable, are not governed by the law merchant as to diligence against makers and rights of defense.</p> <p>The expression, “ chartered bank,” was inadvertently used in Mix v. The State Bank, 13 Ind. 521, in stating what notes are put by the statute on the footing of inland bills of exchange.</p> <p>Where the names of indorsers appear upon a note, without any date, the indorsements will be presumed to have been made at the date of the note.</p> <p>Where, at the time of the execution of a note not governed by the law merchant, but still negotiable, third persons place their names on the back of it, in the absence of the prior indorsement of the payee, their liability is, prima facie, that of indorsers; and there would be no variation in this rule when applied to notes negotiable by the law merchant.</p> <p>Where indorsers place their names upon the back of a negotiable note at the time of its execution, in the absence of the prior indorsement of the payee, perhaps parol evidence is admissible to rebut their prima facie liability as indorsers, and show it to be that of makers; but where the payee first indorses the note, evidence is not admissible to rebut such .prima fade liability of the subsequent indorsers.</p>

<p>A bill of exceptions which purports to set out the evidence, must contain the words, “ this was all the evidence given in the causethe words, “the following was all the evidence produced by either party,” are not sufficient.</p> <p>The other points can not be more briefly stated, than in the opinion itself.</p>

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

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

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

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

<p>The possession of a note by the payee, is prima facie evidence that he is the owner of it, although there may be on the note a special indorsement of it by him to a third person ; and he may, if he thinks proper, strike the name of such indorsee from the note.</p> <p>When the question is asked a witness, with a view to his impeachment, whether he did not make certain statements out of Court on the same subject, and differing from his testimony in Court, and he answers that he has no recollection of having made them, evidence offered for the purpose of showing that he had made such statements is inadmissible.</p>

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

<p>■ A., being himself the administrator of the estate of B., filed a claim against said estate, which was entitled and docketed, “ A. v. The Estate of B.” The record states that the “ defendant ” appeared, answered, and went to trial. After the filing- of the transcript, the appellant represented to this Court, by petition, that as guardian of the only heir of B., he had appeared and made the defense below, and asked leave to prosecute the appeal.</p> <p>Held, that after the showing made by his petition, the guardian could not be heard to object that no adversary party was named in the claim.</p> <p>In a suit upon a lease made by “ A., as agent for B.,’’ the latter is properly described as the lessor.</p> <p>Where one of two joint debtors has deceased, a judgment against the survivor is not a bar to proceedings against the estate of the other.</p>

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

<p>Suit by the payees of a bill of exchange against the drawer and acceptor; the bill haying been indorsed by the payees, and returned unpaid. The drawer answered, that he, together with said payees, were sureties for the acceptor, and known to each other as such ; and that he had paid his contributive share to the holder. The Court instructed the jury that the drawer was liable to reimburse the payees, notwithstanding he may have been only an accommodation drawer; and that the plaintiffs, as in* dorsers, having mutually contributed to pay the bill, could, by mutual consent, have their names inserted as payees, in the blank left for the name of the payee.</p> <p>Held, that the instruction was erroneous, for assuming that the plaintiffs were not original parties to the bill, but indorsers only, and that a blank had been left in the bill, as to the name of the payee, which was filled up after its dishonor.</p> <p>Held, also, that as the pleadings showed the controversy to be between the drawer and drawees of a bill, the consideration could be inquired into.</p>

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

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

<p>Suit by the guardian of an insane person to set aside a deed made by his ward, on the ground that the grantor was of unsound mind at the time of its execution. On the trial, the Court instructed the jury that the question of the ward’s unsoundness of mind was one of fact, for their determination, and that they might take into consideration the ward’s appearance before them. The deed was executed some two years before the trial.</p> <p>Held, that as the evidence is not in the record, the Court can not say hut that such a comparative mental condition of the ward, at the time of making the deed, and at the time of the trial, may have been shown, as would justify the instruction.</p> <p>Held, also, that though the impression made by the appearance of the alleged lunatic upon the jury may have been exceedingly slight, the Court can not say but that it should have had its effect, when considered in connection with other evidence.</p> <p>Where the record does not show for what reason an instruction was refused, nor exclude the presumption that it was for some other reason than its supposed illegality, this Court will presume that the ruling was correct.</p> <p>Where a party assigns causes for a new trial, the Court can not look beyond them, and grant a new trial as of right, under the statute.</p>

<p>Where promissory notes are pleaded as a set-off, a replication denying the defendant’s title to the notes, and particularly setting out the facts showing the title to be in another, is good.</p> <p>A set-off may be replied to a set-off.</p> <p>A departure in pleading is not a ground of demurrer; the objection must be taken by motion. Will v. Whitney, 15 Ind. 194, overruled upon this point.</p>

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

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

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

<p>In an action by the State upon a forfeited recognizance, a copy of the recognizance must be filed with the complaint.</p>

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

<p>In complaints before a justice of the peace, the same fullness, certainty and formality of statement is not required, as is demanded in complaints in the superior courts.</p> <p>If a party does a wrongful act, or a rightful one in a negligent, wrongful manner, whereby injury happens to another, such act being the proximate cause, the party committing the act may be liable for the injury. Negligence consists in the omitting to do something that a reasonable man would do, or the doing something that a reasonable man would not do ; in either case causing, unintentionally, mischief to a third party.</p>

<p>An application for a continuance on the ground of- absent witnesses should not he granted unless the party applying shows that he has used due diligence to obtain their testimony.</p>

<p>Whether a suit can he maintained, or not, against the owner of an uninclosed lot which formed part of a public common, who dug a pit thereon and left it insufficiently covered, for the value of a gelding which fell into the pit and was killed, depends upon the probability there was that such accident might happen from leaving the pit exposed, considered, perhaps, in connection with the usefulness of the act or thing causing the danger.</p> <p>If the probability of injury was so strong as to make it the duty of the owner of the lot, as a member of community, to guard that community from the danger to which the pit exposed its members in person and property, such owner is liable to an action for loss accruing through his neglect to perform that duty.</p> <p>Under the circumstances of the case, the probability of injury to others from leaving the pit thus exposed, was not only strong, but amounted almost to a certainty.</p>

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

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

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

<p>Where a complaint is unobjectionable in form and substance, and the defendant has been ruled to answer on a day fixed, and on that day the rule has been extended to another, on which last a further extension of the rule is asked, which is objected to by the plaintiff, there is no error in the refusal to permit the defendant to file a demurrer to the complaint.</p> <p>When the Court has once extended the rule to answer, it is within its discretion to allow further time or not.</p>

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

<p>Suit by A. upon two promissory notes. Answer: that the notes were given for a part of the purchase money of certain real estate; that A. had not conveyed and had no title. Beply : that the land was held by A. by title bond from B., together with other lands, upon which a part of the purchase money had been paid; that A. had assigned the bond to one 0., reserving the land sold to defendant, and that G. had assumed to pay the balance of the purchase money ; that 0. assigned the bond to 2). upon the same terms ; that a deed was made by B. to 22. for all the land, who conveyed to defendant the tract bought by him, and took up his title bond from A.; that defendant had notice of these several transfers, and still occupied the land under his purchase. It appeared in evidence, that a judgment had been taken by B. against 22. for the purchase money unpaid, and that in consideration that 22. would convey to him his forty acre tract, the defendant had paid on that judgment $200.</p> <p>Held, That without some averment that the persons responsible to B. for the purchase money were unable to pay the same, there was no obligation resting on the defendant to make such payment; but that he might have insisted upon the other portions of said land being exhausted, before B. could have disturbed him.</p>

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

<p>The party haying the burden of the issue has the right to open and close the argument, and in opening must disclose all the points on which he relies, and if in the close any pew point, or fact, not disclosed in the opening, he referred to, the adverse party has the right to reply thereto, and this closes the argument in the case.</p> <p>Unless there he some special reason justifying it, the Court has no power to disregard the statutory rules in this respect.</p>

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

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

<p>Where a lease of land is for a term within the statute of frauds, and for that reason required to be in writing, and the lessee executes notes to the lessor for the rents, and takes possession of and occupies the premises leased during the term, the question whether the contract could have been enforced if either party had refused to perform it before the expiration of the term, is not involved, and the lessee is liable to pay the notes.</p>

<p>The terms “public indecency,” as used in § 22 of the “Act defining Misdemeanors,” &c., do not sufficiently define any public offense ; and consequently no act is made criminal by their employment in the statute.</p>

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

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

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

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

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

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

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

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

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

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

<p>Ofi the trial of this cause below, the Court permitted the plaintiff to read in evidence parts of a book having the following title page, viz., “ By authority of the General Assembly; Statutes of the State of Ohio of a general nature, in force August, 1854, with references to prior repealed laws. Collated and compiled by Joseph B. Swan. Published in pursuance of the act of April 18, 1854. Cincinnati: H. W. Derby, <$• Co. 1854.”</p> <p>It appeared from the next page of the book, that the copyright had been secured by the publishers.</p> <p>Held, that it sufficiently appeared that the book was a printed statute book of the State of Ohio, purporting to have been printed under the authority of that State.</p>

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

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

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

<p>If the Court, without the consent of the defendant, discharge the jury to whom a criminal cause has been submitted before verdict, no imperious necessity rendering such discharge necessary, it works an acquittal.</p> <p>The Court is not bound to discharge the jury because the defendant consents to such discharge ; and should not discharge them on the consent of defendant’s attorney alone.</p> <p>Nor is the Court bound to discharge the jury because of the voluntary absence of the defendant during the trial, he' having been present at its commencement, but may proceed to verdict in his absence.</p> <p>If the defendant escapes after sentence and before execution, he may be retaken, brought into Court, identified and re-sentenced.</p>

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

<p>The Court should not allow a second motion for a new trial for the same cause, or causes ; but there is no reason why the Court, in the exercise of a sound discretion, may not, at the same term, allow a second and even a third motion, for causes which the party in the exercise of proper diligence had failed to discover until after his original motion was determined.</p>

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

<p>An express dedication of property to a public use is made by a direct appropriation of it to such use.</p> <p>A dedication of property to public uses may be implied from the acts of the owner.</p>

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

<p>An unliquidated demand growing out of unsettled co-partnership accounts, may, the partnership having been dissolved, be pleaded as a set-off.</p>

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

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

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

<p>Section 24A of the code, which allows the party producing a witness to' impeach him, by showing that he has made statements different from his present testimony, does not authorize such impeachment unless a proper foundation has first been laid, by asking the witness whether he made the statements imputed to him; calling his attention to the time, place, and person involved in the supposed contradiction.</p>

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

<p>Suit against the owners of a steamboat upon certain bilis and notes made and accepted by the master, and purporting to have been given for the use of the boat, for insurance, &c.</p> <p>Held, that prima fade the master had no authority to bind the owners to the payment of the bills or notes.</p> <p>Held, also, that he had no right as master, though himself a part owner, to insure for the other joint owners.</p>

<p>Where property seized by a sheriff on execution is replevied from his possession, and a judgment is afterward rendered in his favor for a return, the execution plaintiff may join with the sheriff in an action on the replevin bond.</p> <p>Qucere: Whether the sheriff might not sue alone, as trustee, or assign the bond to the execution plaintiff.</p> <p>If a judgment of return in a replevin suit can be impeached by the sureties for fraud, in making their defense to an action on the bond, it must be for the fraud of the defendant in that suit, and not for the fraud of the plaintiff in letting the judgment go.</p> <p>In an action on a replevin bond, for a failure to return the property according to the judgment, if the property could have been returned and was not, but was converted, interest on the value of the property from the date of the judgment of return may be allowed as damages.</p>

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

<p>The affidavits of jurors themselves are not admissible to impeach their verdict, and a fortiori, an affidavit of a stranger as to the statements of jurors, when not under oath, ought not to be received.</p>

<p>Where the assignor of an account is made a defendant to answer as to his interest, and appears and confesses the assignment, his interest is not adverse to that of the plaintiff, and he is not a competent witness for the plaintiff to prove the claim.</p> <p>Suit on an assigned account, begun before a justice of the peace, and appealed to the Circuit Court. After the assignor had answered, confessing the assignment, the plaintiff dismissed the suit as to him; and thereupon, on motion of the debtor, the case was dismissed as to him also.</p> <p>Held, that when the assignor went out of Court, by the dismissal of the cause as to him, his answer went with him; and there being then a defect of parties, the action of the Court in dismissing the cause was not erroneous.</p>

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

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

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

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

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

<p>Where the maker of a promissory note is inquired of by a person who has already purchased the note, as to its validity, and answers that the note is all right, and that he will pay it, he is not estopped by such promise to contest the validity of the note ; as the assignee did not take it upon the faith of his statements.</p>

<p>The erasure of a writing does not, per se, prevent a suit upon it, as parol evidence is admissible to explain the circumstances and purpose of the erasure.</p> <p>The organization of corporations for the purpose of constructing plank, McAdamized, or gravel roads, is a matter properly connected with the subject expressed in the title of the act of May 12, 1852, viz., “An act authorizing the construction of plank, McAdamized and gravel roads.”</p> <p>A person -who has, in connection with others, subscribed stock upon articles preliminary to the organization of a corporation, can not afterward, without the consent of the other subscribers, withdraw his subscription.</p> <p>Such subscriber may, perhaps, refuse to sign the articles of association, where the statute requires such articles to be signed and recorded, but the corporation having come into legal existence may collect his subscription to the preliminary articles.</p>

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

<p>Indictment for rape. The defendant applied for a continuance of the cause, on account of the absence of a witness, by whom he expected to prove that the prosecutrix was the keeper of a house in which another female was kept, who had, for money, had illicit intercourse with the proposed witness, and that the prosecutrix had received a part Of said money, with full knowledge, &c.</p> <p>Held, that evidence of a particular act of immorality is not admissible to impeach a witness, or affect his general character.</p> <p>Held, also, that as the evidence given on the trial is not in the record, this Court can not say that the Court below erred in'refusing the continuance.</p> <p>On the calling of the cause for trial, the defendant presented an affidavit showing that one F., who was preparing to assist in the prosecution, had been employed by him to make his defense, and that he had disclosed to said attorney the facts in the case, and the evidence for his defense, and moved the Court to refuse the said F. leave to assist in the prosecution.</p> <p>Held, that the attorney should not have been permitted to take part in the prosecution; that to sanction such a course would be to defeat the very purpose for which Courts were organized, viz., the administration of justice.</p>

<p>A., after providing in his will for the payment of certain legacies, and prescribing the share which his widow should have, in lieu of her legal inter-' est, disposed of the residue of his property as follows : “ to my daughters, B., 0and D., each, one third of the residue of my estate, real, personal and mixed, to be held by them as tenants in common, in fee simple, share and share alike; provided, that should my said wife bear me another child, or children, then my estate, except the portion devised to my wife, Shall be hold by the said B., G., and _D., and by such child' or children, in equal shares ; and upon the decease of any of said devisees, then the said residue of my estate to be divided equally among the survivors; or their descendants, or held by them as tenants in common, in fee simple, as circumstances may legally require.” ifo other child was born to the testator; and after his decease, his daughters G. and D. died without issue.</p> <p>Seld, that the will did not make an executory devise, hut that the estate vested in the devisees on the death of the testator.</p> <p>Seld, also, that it does not manifestly appear from the tenor of the will, that it was intended to create an estate in joint tenancy, and, under-the statute, unless such intention is expressed, the estate must be construed to he a tenancy in common.</p> <p>Seld, also, that thnjus accresceridi did not govern, at the death of Q. and D., but the general law of descents.</p>

<p>Suit for goods sold and delivered. Answer: that the plaintiff, a wagon maker, and the defendant, a worker in iron, agreed together that defendant should take from the plaintiff such work as he might need in plaintiff’s line of business, during the year 1859, and that plaintiff should receive of defendant, in payment therefor, work and materials in his, defendant’s line of business, at his shop, &c.; that all the items sued for were furnished under said agreement, and that defendant has been at all times ready and willing to do any labor or furnish any materials, in his line of business, in payment for said articles, but plaintiff has neglected and refused, &c.</p> <p>Held, that the contract set up in the answer was valid and binding, and constituted a good defense to the action.</p>

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

<p>Where the general denial is pleaded in bar, the defendant is not in a position to plead in abatement to the jurisdiction of the Court over his person; and such a plea is bad on demurrer.</p> <p>Where time is given, beyond the term, to file a bill of exceptions, and the bill is not filed within the time limited, the Court can not, at a succeeding term, allow the bill to be filed nunc pro tunc, without notice to the adverse party.</p> <p>Qucere: Whether the Court has power to make such an order even on notice to the adverse party.</p>

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

<p>ABPEAL from tbe Warren Circuit Court.</p>

<p>Suit against the makers and indorsers of a promissory note, made, and payable, in Illinois.</p> <p>Held, that as the note was not payable to order or bearer in a bank in this State, no cause of action was shown, under our law, against the indorsers.</p> <p>Eeld, also, that if the indorsements were made in Illinois, and governed by the law of that State, such law should have been pleaded.</p>

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

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

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

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

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

<p>Suit against A., to recover damages for turning the plaintiff’s sheep out of his, A.’s, field, and driving them so far away that they strayed and were lost.</p> <p>Beld, that if the sheep broke into A.’s field, he had the right to turn them out into the highway, but had no right to drive them so far away as to cause their loss.</p> <p>Held, also, that if A.’s cattle knocked down a partition fence, and thereby the sheep of his neighbor escaped into his field, he would have no right to turn them out into the highway. Hekl, also, that if A.’s cattle knocked down a partition fence, and thereby the sheep of his neighbor escaped into his field, he would have no right to turn them out into the highway.</p>

<p>Where instructions given by the Court are signed by the judge, and filed, they become a part of the record without being incorporated in a bill of exceptions.</p> <p>A party, where there is to be a general verdict, has a right to have a response to particular questions of fact, the same being pertinent and involved in the issues; but the Court may control the form of the questions, and the manner of propounding them, and need not require them to be answered in the form prepared by counsel.</p> <p>A specific performance of an agreement for the conveyance of real estate, can only be enforced where the agreement has been executed upon a valuable consideration; a good consideration, merely, is not sufficient.</p> <p>In the year 1832, A. had born to him an illegitimate son, whom he recognized as such, and named B. The maternal grandfather of B. threatened a legal prosecution against A., and to settle the matter, A. gave to the mother $200, and entered into an agreement in writing, with the grandfather, by which the latter was to keep the child until he became fourteen years of age, his mother consenting and giving up all claim to the child, and A. was, at a future time, to convey a certain tract of land to the said bastard, B.</p> <p>Held, that under the provisions of the statute then in force, A. was liable to be charged with the maintenance of the child, in a prosecution by the mother, or, upon her default, by the overseers of the poor, and was further liable to a suit by the mother for damages.</p> <p>Held, also, that the amount paid to the mother did not in any way affect A’s liability to be sued for the maintenance of the child, and such liability furnished an ample valuable consideration to support his agreement to convey the land.</p> <p>Hdd, also, that the suit was well brought in the name of 3., the contract having been made for his benefit.</p> <p>Held, also, that a suit for specific performance is not within the statute providing for new trials without cause, in certain cases.</p>

<p>A tender of the price paid hy a purchaser at sheriff’s sale is not necessary, in order to maintain an action to set aside the sale and annul the deed.</p> <p>The statute requires that no more land shalTbe sold hy the sheriff than is necessary to satisfy the execution, unless the same is not susceptible , of division, and a duty is thus imposed upon him which he may not omit. In the absence of contrary, proof, however, it will be presumed that he discharged his duty in this respect.</p>

<p>The clerk of the Circuit Court is not entitled to an allowance from the Board of Commissioners, for receiving and disbursing moneys on individual account; as upon judgments, or in the settlement of estates.</p> <p>Nor is he entitled to compensation for indexing the books in his office.</p>

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

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

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

<p>In a prosecution for larceny, proof of the voluntary intoxication of the accused, just before, and at the time of; the commission of the alleged offense, is not admissible in his behalf.</p> <p>In cases, both civil and criminal, where malice is an ingredient of the charge, it seems that simple intoxication may be given in evidence to rebut it; but this principle does not seem to be extended to the ingredient of intention.</p>

<p>The State of Indiana has jurisdiction over all persons and all private property within her borders, and may subject both the one, and the other, to her judicial power; but she cannot thus subject either persons or property not within her jurisdiction.</p> <p>Where a copy of a summons regularly issued by the proper plerk, against a person who is a resident of this State, is left by the officer charged with the service of such summons at the then place of residence of such person, the service is not regarded as constructive, but actual.</p> <p>“ The usual or last place of residence,” means the residence into which the person, still a resident of this State, has moved, in this State, last before the service of process.</p> <p>Application to set aside a judgment, rendered at a former term, on the ground that the defendant was absent from the State when the copy of the summons was left at his residence, and had no actual notice of the pendency of the suit until after judgment. The affidavit did not show any meritorious defense, nor any excuse for not making the application at the same term at which the judgment was rendered.</p> <p>Feld, that the affidavit did not make a case that authorized the vacation of the judgment.</p>

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

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

<p>An. animal was killed by the freight train of tbe railroad company, at a place where a small town was being built up, and used as a station. The road had been fenced at this point, but a gap had been opened by some one in front of the town, It was not shown with distinctness whether the town was laid out up to, and along the railroad, or at some distance back.</p> <p>Held, that this Court is not authorized to say, in opposition to the finding of the Court below, that the railroad company was not in fault in not closing up the fence.</p> <p>Held, also, that the statute awarding damages to the owners of animals killed or injured by the rolling stock of any railroad company, applies to animals killed by freight, as well as passenger, trains.</p>

<p>An appeal will not lie to the Supreme Court from the action of the Court, or judge, below, in granting a temporary restraining order.</p>

<p>In actions against a railroad corporation whose principal office is not within this State, the summons must be served thirty days before the term to which it is returnable, or the cause must be continued.</p> <p>Perhaps, where process has been served ten days before Court, the defendant should be deemed to be properly in Court, unless it is made to appear that the principal office of the company is not in this State.</p>

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

<p>Suit against the trustees of the Wabash and Brie Oanal to recover damages occasioned by the flowing of water upon the lands of the plaintiffs, resulting from the raising of a dam across the Wabash river.</p> <p>Held, that the damages sued for were not occasioned by the taking of land or materials, in the sense of the internal improvement act of 1836, and were not recoverable in the special mode therein prescribed, but in an action on the case at law, and hence the two years limitation did not apply. f</p> <p>Held, also, that an individual may use his own land as he pleases, so that he is reasonably careful that such use shall not injure third persons; and this doctrine applies to the use of streets by cities, and highways by the State and counties, through their officers, and is to some extent applicable to private corporations.</p> <p>Held, also, that there are many consequential injuries that may happen to others from the legitimate use of one’s own property, for which there is no redress.</p> <p>Damages resulting from the grading of streets and highways, so far as they consist in rendering the passage to and from adjoining lots more inconvenient and expensive, fall within this class.</p> <p>Held, also, that there are consequential injuries resulting from the use of one’s own, or of another’s, property, which will render the person causing them liable to pay damages ; as an unauthorized obstruction, or nuisance, in a street or Highway, occasioning special damage; or a nuisance injurious to the health and comfort of others, erected on one’s own land.</p> <p>Held, also, that the diversion of surface water from the land of another, by excavations on one’s own, and the backing of water upon the lands of another, by means of- dams, &c., were injuries for which an action would lie at common law.</p> <p>Held, also, that injuries by backing water seem to be embraced in the constitutional inhibition against injuring property by legislative authority, without,making compensation.</p>

<p>Demurrer to an answer in the following form, viz., “The plaintiff demurs to the first, second, third and fourth paragraphs of defendant’s answer, - and assigns for cause of demurrer that they do not state facts sufficient to constitute a defense to the action.”</p> <p>Held, that the demurrer was not separate to each paragraph named, but joint, arid, to the entire answer; and if any one paragraph was good, the demurrer should have been overruled.</p> <p>In a plea of payment, an averment of the place of payment is matter of form, and not of substance ; and where a place of payment is stated, the party is not precluded from proving payment at a different place.</p> <p>Where, in a suit by the payee of a promissory note, the note is given in evidence, the defendant may give in evidence indorsements of payments thereon, though unsigned, without proof of the handwriting in which they are made : the burden being on the plaintiff, from whose possession the note comes, to explain by whom and for what purpose the indorsements were made.</p> <p>Where the ground of objection to the admission of evidence does not appear to have been pointed out to the Court below, the objection will not be noticed in the Supreme Court.</p>

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

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

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

<p>Suit to recover money alleged to have been paid to a constable, on an execution against the plaintiff, as surety for the defendant. On the trial, the Court refused to instruct the jury, on application of the defendant, that the plaintiff could not recover unless the money was paid on an execution against the defendant, on which the plaintiff was surety lor the defendant; and instead thereof, instructed the jury that the essence of the action was the payment of the money by the plaintiff on the defendant’s debt, and for his benefit, and that it was immaterial whether the money ' was paid on an execution against the defendant on which the plaintiff was surety.</p> <p>Held, that the instruction moved by the defendant was pertinent to the 'issue, and should have been given, and that the instruction given was inapplicable to the evidence.</p>

<p>Information in the nature of a quo warranto, against a plank-road company, charging a forfeiture of its franchises. The information did not give the date of the organization of the corporation, or show under what statute it was organized and acting.</p> <p>Held, that when a corporation does, or omits, acts which amount to a forfeiture of its charter, or exercises powers not conferred by such charter, an information may be sustained against it.</p> <p>Held, also, that the information should have informed the Court under what law the corporation was organized and acting, so that it might be known what the duties and powers of the corporation were.</p>

<p>Where a criminal cause is sent from one county to another, on change of venue, the record must show that a transcript of the proceedings in the ' Court from which the change is taken, was filed in the Court to which it is taken; and such transcript must show, among other things, the ' empanneling of the grand jury, and the return by that body of the indictment into Court.</p>

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

<p>Indictment, in one count, for larceny, and in another for robbery. The felonious act charged was the taking of a certain pocket-book, containing a lot of bank notes of various denominations, of the value of $81. Both counts alleged that the notes were in the possession of the defendant, or of some person to the grand jury unknown. , •</p> <p>Held, that the State was not authorized to give parol proof of the contents of the bank notes, without first showing that they had been lost or destroyed, or that notice had been given to the defendant to produce them.</p>

<p>The proviso to § 3 of the act of March 1,1859, (Acts 1859, p. 91) which ■ authorized the Court of Common Pleas, when the Circuit Court of the county was in session at the time the former should have been held, to hold its term on the Monday succeeding the time of the Circuit Court, was repealed by the act of March 5, 1859, (Acts 1859, p. 84), which went into force October 1,1860.</p> <p>The proviso fell with the law to which it was a proviso, and was not continued in force as an independent enactment.</p>

<p>An agreement not to buy or bring forward any set-off, against the price to be paid for work being done for the party so agreeing, though made in consideration of a deduction from the price of the work, is not binding.</p>

<p>Suit by an assignee upon a promissory note. The complaint averred that the defendant executed the note to the payee, who indorsed it to the plaintiff. Answer: That the indorsement of the note was without consideration, and for the purpose of avoiding answers to interrogatories, and that the plaintiff had no interest in the note.</p> <p>Held, that the legal conclusion from the averments of the complaint, was that the legal ownership of the note was in the plaintiff, and it was not enough for the defendant to controvert this legal conclusion, without specially controverting the facts upon which it rested, or showing other facts inconsistent therewith; as that the real interest remained in the payee, or had passed from the plaintiff to a third person.</p>

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

<p>A. having a judgment against a bank, organized under the general law of the State, in which he was also a stockholder, and as such liable to the creditors of the bank to an amount equal to his stock, agreed that such amount should be applied to the satisfaction of his judgment; and, on motion of the bank, satisfaction was accordingly entered.</p> <p>Held, that A. would be hable to creditors of the bank to the amount of his stock, notwithstanding he might have credited that amount on his judgment, and hence there was no consideration for his agreement, and satisfaction should not have been entered.</p>

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

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

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

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

<p>Semble, that one claiming the separate and entire ownership of lands, can not claim to be made a defendant .to a proceeding for the partition of the lands, instituted by others claiming to hold as tenants in common.</p> <p>A. disposed of his property, by will, as follows: “I also direct that the whole of my estate, both real and personal, except which will pay my just debts and funeral expenses, shall be and remain the absolute property of my beloved wife, if she shall be living at the time of my decease. But if she shall not survive me, then that the real estate be given absolutely to Nathan Otis.....and Susannah Wildowner, share and share alike, after the death of my beloved wife.....I direct again, at the death of my beloved wife, that what personal property may remain, be divided between Nathan Otis Thayer and Susannah Wildowner, share and share alike.”</p> <p>Held, that the construction of a will depends not so much upon any rigid principles of law, as upon what appears, by the will, to have been the testator’s intention ; which is not to be collected from any particular clause, but from the whole will, taken together.</p> <p>Held, also, that it was the intention of A. to devise to his wife, in case she survived him, a life estate only in the real estate, with remainder to the persons named in the will.</p>

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

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

<p>Suit for false imprisonment. Answer: that defendant was, at the time, &c., acting as marshal of the city of Lafayette, and as such, on view, arrested the plaintiff for violating city ordinances. Three ordinances of the city were set out, viz., one against intoxication, &c.,-and fixing a fine therefor, not exceeding twenty-five dollars; one against disturbing the peace of the city by loud and unusual noises, &c.; and one requiring the marshal to suppress all breaches of the peace, and arrest all persons, with or without warrant, found violating any of the ordinances of the city, in his view, and conduct them before the mayor for trial. It was averred that plaintiff was found by the marshal drunk, and disturbing the peace of the city by loud and unusual noises, on the Sabbath day, and, the mayor’s Court not being in session, was conducted by him to jail, and after five hour’s imprisonment was released on parole, and on the next day appeared before the mayor and was fined for drunkenness.</p> <p>Held, that there is no statute making drunkenness a crime, or a misdemeanor ; and that so far as it was an offense against the city ordinance, the statute prescribes that a penalty majr be recovered in a suit at law; in collecting which, the city has the right to require the defendant to give a recognizance for his appearance, or that he remain in custody.</p> <p>Held, also, that there is no authority for imprisoning a man for an uncertain time, because he may be subject to a penalty, to be recovered in an action in the nature of an action of debt.</p> <p>Held, also, that if the power exists in the ministerial officer to arrest, on view, it is subject to the statutes of the State, and general known principles of law, which require the officer to take the prisoner, forthwith, before a tribunal having jurisdiction, and prefer a complaint against him.</p>

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

<p>Suit by an indorsee of a promissory note against a remote indorser, alleging the insolvency of the makers. Answer : that at the time of making the indorsement, defendant took from his indorsee a writing, showing that the note was assigned without recourse. The Court instructed the jury that a -party receiving a negotiable note or bill of exchange, before maturity, in good faith, in the usual course of business, and without fraud, is not bound by equities which exist between the parties of which he had no notice.</p> <p>Held, that the instruction was erroneous.</p>

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

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

<p>The Legislature has the power to authorize a committee to sit in vacation.</p> <p>The Legislature may prescribe rules as to the custody of the public moneys, and the granting of pardons, &c.</p> <p>A membership in the committee authorized by the act entitled, 11 An act making general appropriations, &c., and providing for a committee to audit claims,” &c., approved May 31, 1861, (Acts, Special Session, 1861, p. 3,) is not an office, within the meaning of the Constitution, but only a special appointment to perform a particular act of service.</p> <p>The State Auditor has not, by virtue of the Constitution, a claim of right to the discharge qf any given service.</p> <p>A statute may be repealed by implication, and such repeal is not within Art. 4, § 21, of the Constitution.</p> <p>The act of May 31, 1861, supra, does not deprive the auditor of any of his duties, but only prescribes how military claims must be certified, before he is authorized to issue a warrant for their payment.</p>

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

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

<p>Where the general denial is pleaded to a suit by a corporation, the de facto existence of the corporation is admitted.</p> <p>If an issue of law, upon a demurrer to a paragraph of the answer, is submitted to the Court at the same time with the issues of fact for trial, and the finding of the Court is for the plaintiff, the demurrer must be regarded as having been sustained, but without exception.</p>

<p>leav™g certain real estate in the City of Indianapolis, which descended to his heirs, and which was afterward assessed by the city to “A.’s heirs.” In 1855, the real estate was partitioned by a decree of Court among the several heirs, and some of it had been sold to third persons. In 1858, the city treasurer advertised the several pieces of real estate, on which the taxes had been assessed, for sale, for the taxes then delinquent.</p> <p>Mid, that the assessment was not fatally defective.</p> <p>Held, also, that it was not the duty of the assessor to examine the records of the Court, to ascertain if partition had been made ; and prior to the act of 1859, (Acts 1859, p. 160,) it was not the duty of the clerk of the Court to communicate the fact of partition to the auditor, or any one else.</p> <p>Held, also, that taxes due the pity were saved by § 80 of the act of 1857, (Acts 1857, p. 70.)</p>

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

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