Volume 17 — Indiana Reports

The noto being joint, the judgment against Downing was an extinguishment of the note and debt. It was merged in the judgment. Woodworth v. Spofford, 2 McLean, 168; Clinton Bank of Columbus v. Hart, 5 Ohio R. 33; 18 Johns. R. 481.

AEEEAL from the Miami Circuit Court. (1) Semble, that one claiming- the separate and entire ownership of lands, can not be made a defendant to a proceeding- for the partition of the lands, instituted by others claiming as tenants in common. Baker v. Riley et al., 16 Ind. 479.

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

<p>Errors in £he amount and form of the assessment and judgment below, will not be noticed in the Supreme Court, when no application has been made to the Court below, to correct the alleged error.</p>

<p>On January 22, 1856, A., by his agreement in writing, sold, and agreed to convey to B., lot No. 70, in Woods’ addition to the city of Indianapolis, for the sum of $800; $400 of the purchase money to be paid March 1, 1856, and (he residue March 1, 1857; a deed to be made on the paj'ment of the first installment of the purchase money, and the residue to be secured by a mortgage on the premises. The first payment was not made on March 1, 1856, nor was a deed then tendered. On May 2, however, B. paid $400, and the agreement was so far modified, as to extend the time of making the deed until May 2, 1857. A. and wife, at the same time, executed to B. a mortgage upon lot No. 71, in said addition, the separate property of the wife, to secure the payment of said sum of $400, so paid by B. on the purchase of lot 70. Cotemporaneously with the execution of said mortgage, B. executed a written agreement, reciting the making of the mortgage, and conditioned that the same should be void, on the conveyance of lot No. 70 to him, on or before May 2, 1857. Before the time last named, A. died intestate, without having conveyed said lot, leaving his widow' and one child his heirs surviving. B. continued in the occupation of said lot No. 70, without having paid or tendered the balance due on the lot. Suit by an assignee of B. upon tho mortgage, to recover the $400.</p> <p>Held, that the mortgage and written instrument, being cotemporaneous, and having reference to the same subject matter, must be held to he one contract; and that the original agreement was not annulled by the new, but merely modified as to time of payment, and by securing the making of a conveyance by a mortgage on another Jot.</p> <p>Held, also, that the suit, though based upon a mortgage, was in fact a suit to recover purchase money, advanced upon a contract for the sale of real estate, and the plaintiff could not recover, unless B. had placed himself in a position to rescind the contract; and this he had not done, as he still held possession of the premises, under the contract of sale.</p>

<p>APPEAL from the Crawford Common 1 leas.</p>

<p>Suit against A. and B. upon a promissory note. The defendants answered, separately: 1. Usury, going to the entire note ; 2. Want of consideration. Reply to the answer setting up usury, that defendants had before that time filed their bill in chancery, alleging the matters now set up in the first • paragraph of their answers, and asking that the plaintiff be enjoined from collecting said note; that upon the hearing of said chancery cause, it was decreed that plaintiff be enjoined from enforcing the collection of said note, except as to the sum of $296, with interest from the date of the note. Afterward, A. withdrew his answer, and a default was entered against him.</p> <p>Held, that the defendants having instituted a suit to cancel the note, as usurious, and having obtained a decree establishing the alleged usury in part only, could not afterward go behind the decree, and set up the same defense to the residue of the note.</p> <p>Held, also, that had the answer of A. stood, neither of the defendants could have been a witness for the other, because the defense set up by each, had it succeeded, would have defeated the action as to both.</p> <p>Held, also, that in actions ex contractu., a plea by one defendant enures to the benefit of all the defendants who do not plead; and if one of several defendants succeeds, upon a plea going to the merits of the action, the plaintiff is precluded from obtaining any benefit from a default suffered by the other defendants; and, hence, notwithstanding the default as to A., he was still jointly interested in the defenses pleaded by B., and was not a competent witness to prove them.</p>

(1) A petition for a ro-hearing was filed in this case, January 20, 18G2. The point presented in the petition was, “whether § 3, of the act of February, 1855, (Acts 1855, p. 158,) is not unconstitutional and void, because it is not embraced in the title of the act.” The petition was overruled, February 4, 1862.

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

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

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

<p>Ads wife died testate, and by her will bequeathed to B.,' Q., and D., each, the sum of $2C0, but left no property out of which the legacies, or any part of them, could be satisfied. After her decease, A. entered inio an agreement, in writing, with the legatees, by which he agreed 'to pay to them the several sums bequeathed to them by his wife, in consideration, 1. of one cent; 2. of the love and affection he bore his deceased wife, and the fact that she had done her part in the acquisition of his property ; and 3. that she had expressed her desire by her will, that they should have said sums of money. Suit upon the agreement. Answer: want of consideration.</p> <p>Held, that the doctrine that inadequacy of consideration, will not vitiate an agreement, does not apply to a mere exchange of sums of money, the values of which are exactly fixed; but to the exchange of something of indefinite value, for money, or for some other thing of indefinite value.</p> <p>Held, also, that a consideration of one'cent will not support á promise to pay six hundred dollars ; but such a contractos so unconscionable as to be void, on-its face. . ' '</p> <p>Held, also, that the wife’s,will imposed no obligation on Á. to pay the legacies out of hiá property.; and as his wife had none of her own, out of which they might be paid, his promise to pay them was not legally binding upon him.</p> <p>Held, also, that where a claim is legally groundless, a promise made upon a compromise of, it, ,or of a suit upon it, is not binding.</p> <p>Held, also, -that'the love A. bore his wife, and her services in the acquisition ofJirS property, were not good considerations to support his promise to pay the -legacies, first, because they were past considerations ; and, second, because they constituted no consideration for a promise to pay money to , a third person.</p>

<p>A rule of Court requiring a party desiring written instructions, only, to be given to the jury, to notify the Court of such desire before the trial commences, is repugnant to the laws of this -State.</p> <p>Where the Court has had timely notice of the desire of one of the parties that written instructions, only, shall be given to the jury, it is error for the Court to accompany such written instructions with verbal explanations, and illustrate them by reading from books ; and such error was not, in this case, cured by a direction from the Court to the jury, to consider the verbal explanations and illustrations withdrawn.</p>

<p>If a judgment be satisfied, the power to sell under it ceases; and should a sale take place in virtue of an execution upon such satisfied judgment, even a bona fide purchaser without notice would acquire no title.</p> <p>"Where a judgment is joint against two defendants, both are regarded as principals, unless by proof, aliunde, one of them is shown to be surety for the other; and when one of such defendants, claiming to be surety for ,the other, pays off the judgment, without any judicial determination of the question of his suretyship, he can not have execution for his use on the judgment.</p>

<p>The laws of the State in which lands are situated, must control in acquiring and transferring the title thereto.</p> <p>In order to the transfer of lands by a devise, the will must, in its execution, proof, &c., conform to the law of the place where the land is situated; unless a different mode is recognized by the local law.</p> <p>An executor derives his power to act as such, in reference to the transfer of immovable property, from a compliance with the law of the place where he attempts to operate under the will, and not from the will alone.</p> <p>Where local laws exist, in regard to executors appointed in another State, the same must be at least substantially complied with, before the executor can there be recognized as such.</p> <p>The curative statutes enacted by our Legislature to heal certain defects in sales made b3r executors, only embrace the proceedings of such persons as have acted, or attempted to act, under the laws of this State, either by original appointment under the same, or by conforming thereto, if appointed without the State. And, hence, can have no application to a case where executors, appointed and qualified in another State, proceed to sell lands in this State, under a power contained in the will, without attempting to conform to the laws of this State on the subject of foreign wills.</p>

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

<p>The charter of the City of Madison (Local Laws, 1848, p. 89,) provides for the election of an assessor on the first Monday in April, and requires him forthwith, after his election, to make out the tax list of persons and propert)'-, and to complete the same by the first of July following, and that time shall not be allowed for that purpose beyond September first, following. The collector is, however, authorized, while engaged in collecting the taxes, to list persons and property which the assessor failed, or omitted, to list. The charter also authorizes a tax upon bank stocks.</p> <p>Held, that under these provisions of the charter, persons, or property, becoming taxable after the first of September, as bank stock created after that time, could not be listed for taxation, since the assessor can not be said to have failed or omitted to list, that which did not then exist as a subject of taxation.</p> <p>Held, also, that the provision of the city charter which authorizes a tax upon bank stocks, is controlled, as to the stock of the Bank of the State of Indiana, by the charter of that bank, which in express terms exempts such stock from taxation for municipal purposes; and this exemption relates to all legal modes of taxation.</p>

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

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

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

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

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

<p>APPEAL li-om the Clark Circuit Court.</p>

(1) The record of the appointment of the pro tempore judge, in this case, was as follows: “And afterwards to wit: on Saturday, the ninth day of February, A. D. 1861, the same being the sixth judicial day of the February term aforesaid, the following proceedings were had herein, to wit: Now comes John M. Wilson, Esquire, and files the following appointment, to wit: State of Indiana, Howard, County, ss : I, John Oreen, Judge of the Court of Common Pleas, do hereby appoint John…

<p>A. died testate in the year 1854. One clause of his will was in these words: “The homestead, on lots Nos. 7, 8, 10,11 and 12, block No. 18, Fwing’s addition to the town of Fort Wayne, and north half of back lot No. 3, containing about eight acres, part of the east half N. W. qr. Sec. 11, Town. 38, R. 12, E. (balance to William O. Ewing, Jr., as hereafter provided) and the rents and profits of one half of all the improved or productive real estate that I own with Qeo. W. Ewing, or otherwise, or an amount equal to one half of all my interest therein, to be set apart as dower for my beloved wife, Esther Ewing, during her life; and first, out of said rents, the taxes and necessary repairs are to be paid: and likewise, to have half my share of any dividends I may be entitled to on bank stock; and likewise so much of the furniture of the homestead as she will need and desire to keep, say one half or two thirds, with a horse and buggy and sleigh, and a wagon and a pair of horses and necessary harness, and two cows, — likewise Ohe cart and harness. The one third or excess of furniture, that she will not need, I desire her to give to our adopted son, William Q. Ewing, Jr., if he is alive — if not, then to my nieces, Mary L., Lavina Ann, and Catherine Esther Ewing. Said William Q. Ewing, Jr., to have my best saddle horse, saddle and bridle, and my clothing. My gold watch I give to my nephew, William, 6. Ewing, of Cincinnati.” The widow elected to take under the law, then in force, her interest in the real estate of which her husband died seized, instead of the provision made for her by the will, in lieu of such legal interest; and at the same time, so far as she could, elected to take the personal property bequeathed to her by the will.</p> <p>Held, that words occurring more than once in a will, must be presumed to be used always in the same sense, unless a contrary intention appears by the context, or unless the words be applied to different subjects ; and as the word “likewise” is often used in this will in the sense of “also,” that must be taken to be its meaning, in the clause introducing the bequest of personal property to the widow.</p> <p>Held, also, that considering the word “likewise” to mean “also,” and the fact that the technical word “ dower,” in the phrase “ to be set apart as dower,” is used after the devise of the interest in the realty, and before the bequest of the personalty, and the further fact that if the bequest of the personalty to the widow is considered as a life estate only, it would prevent a final disposition of the personal property so bequeathed, (no other disposition being made of it,) it would appear to be “ plain,” within the meaning of the statute, that the phrase “to be set apart as dower,” relates only to the realtj', and not to the disposition of the personalty.</p> <p>Held, also, that the widow took an absolute title to the personal property bequeathed to her, notwithstanding her renunciation of the provisions of the will, as to the realty.</p>

<p>Trial and judgment at a regular term of the Circuit Court, in October, 1860. By adjournment, that term of the Court was continued until November, in the same year. At the adjourned term, an appeal was prayed, granted and perfected, by giving- bond, Sea. Motion by the appellee, in the Supreme Court, to dismiss the appeal, or for an order that the appeal should not operate to stay proceedings upon execution.</p> <p>Held, that under the statute providing for adjourned terms] (Acts 1858, p. 37,) the adjourned term must he deemed a part of the regular term, and every step may be taken at such adjourned term, that might have been taken at the regular term.</p> <p>Held, also, that where the Court is continued from the regular term to an adjourned term, the proceedings may be said to he in fieri, until the close of the adjourned term, and the records are, consequently, completely under the control of the Court.</p>

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

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

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

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

<p>It is not necessary that the answer of the defendant in replevin should claim a return of the property; but if the case made by the evidence, authorizes a return, it may be awarded by the Court, after verdict.</p> <p>A judgment of return can not be awarded, where the evidence fails to show that the property was delivered to the plaintiff in replevin, or, where there has been a failure to assess the value of the property.</p> <p>A. and B. entered into a written contract, whereby the former agreed to purchase of the latter a stock of merchandise, then in store, at the cost price thereof. A. was to take up certain notes given by B. to divers persons, at a rate not exceeding what the stock would pay if distributed among- them and A., according to the amount of their several claims against B. -; or, if such an arrangement could not be made with the creditors, then A. was to give B. his note, for such an amount as would have been coming to the creditors if they had accepted the arrangement. Possession of the goods was given to A., the day following the execution of the agreement.</p> <p>Held, that the contract was not an agreement to sell, merely, but an actual sale, upon a consideration to bo performed at a future day.</p> <p>An action of replevin will not lie to recover the possession of goods from one who has purchased them in good faith, of a wrong doer, without a previous demand by the true owner.</p>

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

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

<p>A person purchasing of a commissioner appointed to sell' real estate, in-proceedings for partition, is not entitled to a deed under the statute, until the purchase money has been paid.</p> <p>A., as commissioner, &c., executed to B. a certificate, as follows: “I do certify that B. has purchased the following real estate, (desci'ibing it,) for the price of, &c., for which he has given his notes with security, and that he is entitled to a deed for the same when this sale is confirmed by the Court.” The sale was confirmed by the Court, and without making a deed, A. sued for the purchase money.</p> <p>Held, that the certificate did not purport to be a contract, binding upon A., and did not bind him to cause a deed to be made, but simply certified that the purchaser would be entitled to a deed, if the sale was confirmed; and a tender of a deed before suit for the purchase money, was not necessary.</p>

<p>On August 29, 1856, a locomotive and train of gravel cars were standing, temporarily, on the railroad track, at a station on the line of said road; and about the time the train started to back down the road, two persons, a father and son, started to come up toward the station on the railroad track, from a mill, a short distance below. As the train approached them, the son stepped off the track, but perceiving that his father was still on the track, and in the way of the- advancing train, the son stepped back, and took him off the track, hut was not. able, himself, to avoid the train, but received an injury, resulting in the loss of his leg. The train was not moving faster than four miles per hour, and the persons managing the train, when they perceived that both persons did not leave the track, reversed the engine, and made every effort to stop the train.</p> <p>Held, that the injury complained of did not result from any want of care, on the part of the company, or her employees, and hence, 'the company was not liable for damages, ^</p> <p>Held, also, that when a, plaintiff is in fault, but the defendant is aware of it in time to avoid injuring him, by reasonable diligence, the failure to use such diligence is held to be, alone, the proximate and immediate cause of the injury.</p> <p>Held, also, that in this class of cases, the complaint must show, by averment, that the plaintiff was not in fault, but that the wrongful act of the defendant, alone, was the proximate cause of the injury. ■</p>

<p>TIi» personal representativos of a person whose death was caused by the wrongful act of another,-can maintain an action therefor onl y where the deceased might, had he lived, have maintained an action for an injury, the result of the same act or omission ; and this he could not have done, if his own misconduct contributed directly to the tortious act or omission from which the injury resulted.</p> <p>The rule of thejjornmon law, that it must appear that the person committing the tortious act has been prosecuted criminally to conviction, before a civil suit can be maintained for the injury, does not prevail in the United States.</p>

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

<p>Suit against a physician, for malpractice. The complaint averred that the defendant was a practicing- physician, and, as such, was called on by the plaintiff to visit and treat his child ; bu contained no averment of any special consideration for the undertaking of the physician, nor any allegation of duty, on which he undertook, &e.</p> <p>Held, that though no special consideration was alleged, the promise to pay a reasonable reward was implied, fiorn the employment; and the duty, on the part of the physician, to exercise a reasonable degree of care and skill, resulted from the character in which he assumed to act.</p> <p>Held, also, that the complaint was good, on motion in arrest, the defects, if any, being cured by the verdict; in support of which it will be presumed that the plaintiff in employing the defendant, became bound by an implied promise, to pay him what his services were worth.</p>

<p>Where the jury have, with a general verdict, returned answers to interrogatories propounded to them, and the party against whom the general verdict is 'rendered has moved for judgment in his favor on the . special findings, and excepted to the overruling of his motion, no motion for a new trial is necessary in order to bring the ruling- in review in the Supreme Court.</p> <p>Suit against a father for necessaries furnished to, and attendance upon, his minor son during his last sickness, and the expenses of his burial, alleged to have been furnished at the request of the father. The jury found a general verdict for the plaintiff and in answer to special interrogatories, found specially, 1. That the son left his home voluntarily. 2. That he was twenty years of age. 3. That he was in good health, and capable of supporting himself, when he loft his father’s house.</p> <p>Held, that the defendant was not entitled to a judgment on the special findings, as they wore not inconsistent with the allegation that the services were rendered at his request.</p>

<p>Where there is an entire failure of title to real estate conveyed with covenants of warranty, the measure of damages for a breach of the -cov enants, in the absence of fraud, is the purchase money and interest.</p> <p>If the eviction is partial only, the damages will bear the same proportion to the whole purchase money, that the value of the part to which the title failed bears to the whole premises, estimated at the price paid.</p> <p>The fact that the land was bought for a particular purpose, which was known to the vendor, can make no difference in respect to the rule of damages for a breach of the covenants.</p> <p>Qitcere: Whether the vendee might not rescind the contract, on a failure of the title to that part which constituted the principal inducement to tho purchase.</p> <p>The basis of damages in case of a partial failure of title, should be the relative general value of the part to which the title has failed, compared with the whole, without limitation of the purposes to which it may be applied, or for which it may have value.</p>

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

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

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

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

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

<p>Jurisdiction over the person of the defendant, may ho conferred by pleading to the merits without raising the question;but no consent of parties can confer jurisdiction over the subject matter of a suit.</p> <p>Actions against railroad companies lor injuries to animals, must, under the statute, be brought in the count}' where the injury was done, and in the absence of proof upon this subject, the jurisdiction of the Court over the subject matter of the case is not made to appear.</p>

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

<p>Where a note is made payable in specific articles, the creditor, on the coming due of the note, may designate a place of delivery, and notify the debtor thereof, and he will then bo bound to make delivery at that place ; but if the creditor neglects to designate a place of delivery, then the debtor must, at once, after the note has become due, select a proper place, within the reason and spirit of the contract, notify the creditor thereof, if his locality is known, and make delivery at that place, and thus discharge the debt. . '*</p>

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

<p>A judgment directing the sale of real estate on a vendor’s lien, in the-first instance, unless the vendee has no personal property out of which the judgment might he made, is erroneous.</p>

<p>gu¡t j.0 ,.eoover certain real estate, which the plaintiff had been induced to subscribe to the stock of the company, through the false and fraudulent representations of her agent. The complaint averred that the plaintiff was ready and willing, and offers to bring said slock into Court., to be disposed of in such manner as the Court may direct. The Court below, on motion of the defendant, ordered the plaintiff to furnish the defendant with inspection of the certificates of stock by him subscribed, the motion being founded on the pleadings alone, and there being no evidence of notice to the plaintiff to produce. For the failure of the plaintiff to comply with this order, the cause was dismissed, without prejudice.</p> <p>Held, that § § 305 and 30G of the Code (2 R. S., p. 97), relate to papers which the adversary party desires to use in evidence, and not to papers of which a mere inspection is demanded, and which are set forth or referred to in the pleadings.</p> <p>Held, also, that at common law the rule is, that where the form of action, or the pleadings, gives, the party notice to be prepared to produce a written instrument, no other notice to produce it is necessar)'; and §§ 305 and 306, supra, were not intended to change this rule.</p> <p>Held, also, that § § 305 and 306, supra, construed with § 363 (2 R. S., p. 120), authorize the Court, for disobedience of an order to produce papers, either to “allow parol evidence to he given of their contents,” or “ to exclude the evidence, and punish the party refusing,” or, to dismiss the suit without prejudice.</p>

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

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

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

<p>It appears from the record, that one A., judicially known to the Supreme Court to have been the judge of the Court below, began the term of the Court at which this case was tried, and made rulings in the case. After- . ward, and before the day of the trial, the record shows that the Court was held by one B., “acting judge of said Court,” but contains no record of the manner or purpose of his appointment- as such. A motion for a new trial having been overruled, thirty days were given to prepare a bill of exceptions, which was prepared within the time limited, and signed by B., as judge.</p> <p>Held, that in the absence of evidence, or judicial knowledge, of the right of B. to sign the bill of exceptions, as judge, such right can not be presumed to exist.</p> <p>Held, also, that it should appear from the record, or be within the judicial knowledge of the appellate Court, that the inferior tribunal before which a case was tried, had authority to act in the premises, either legally, or in fact; and as it does not appear so in this case, the whole proceedings were without law, and can not be maintained.</p>

<p>Where a debtor has claimed the benefit of the exemption law, and three hundred dollars’ worth of property has been set off to him, it may afterward be sold by him, discharged from the lien of the execution.</p> <p>Where a debtor has not three hundred dollars’ worth of property, upon which an execution might attach, it being all personal property, it does not become subject to the lien of the execution.</p>

<p>Section 15 of tho act fixing the timos of holding' the Courts of Common Pleas, (Acts 1859, p. 84,) authorized a Court to be held in Tippecanoe county, in December, 1860, the law having gone into force in October of that year; and did not require that the Courts should begin, under that law, in the order of the months named, viz., March, June and December.</p>

<p>A., by her will, directed that her property should be sold by her executors, and the proceeds, after paying certain other legacies, distributed as follows, viz: To her daughters, B., G., and I)., the sum of three hundred dollars each; the residue of her estate to be divided equally among her said daughters, share and share alike. G. died before the testatrix, leaving one son, her only heir, surviving. At the time of the execution of the will, the testatrix held lands, but disposed of the same before her death. The executor having paid (he debts, and a portion of the legacies, brought into Court a balance of $852 for distribution ; and, thereupon, the guardian of the minor son of G. filed a petition against B., alleging, that in the lifetime of the testatrix, she gave to B. and I)., in,lands and money, their full share of the estate, with an agreement that such advances should be in full discharge of the bequests to them, and asking that B. and D. be excluded from the distribution. It appeared in evidence, that the testati ix had advanced to B. and J}., the sum of one hundred dollars each, and also certain lands, valued at four hundred dollars; and there was evidence tending to show, that the lands and money were given, and received by them, in full of their legacies, and of their shares in the estate.</p> <p>Held, that under § 13, 2 R. S., p. 313, the legacy to G. did not lapse by her death, in the lifetime of the testatrix, but vested in her son.</p> <p>Held, also, that the money and land received by B. and D., must be regarded as an ademption of their respective legacies of three hundred dolíais.</p> <p>Held, also, that where a parent, or other person in loco parentis, bequeaths a legacy to a child, or a grandchild, and afterward, in his lifetime, gives a portion to, or makes a provision for, the same child or grandchild, without expressing it to be in lieu of the legacy, if the portion so received, or the provision made, be equal to, or exceed the amount of the legacy; if it be certain, and not merely contingent; if no other distinct object be pointed out; and if it be ejusdem generis; then it will be deemed an ademption of the legacy.</p> <p>Hebl, also, that the doctrine of constructive ademption does not apply to a devise of a mere residue; and parol evidence not being admissible to show that advancements were intended to operate as an ademption of a residuary legacy, the residuary interest given by the will to Brand D. can not be regarded as adeemed, by the land and money advanced to them.</p>

<p>If, after the indorsement of a promissory note, the name of another maker is added to the note, without the knowledge or consent of the _ indorser, the latter is discharged from his liability on the note.</p> <p>An assignment of error in these words, viz., “The judgment should have been for the defendant instead of the plaintiff, and should have sustained the motion for a new trial,” though not artistically drown, is sufficient to bring in review the decision of the Court on the motion for a new trial.</p>

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

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

<p>In the year 1854, the G/'ti/ of Jeffersonville, acting under the general huv of 1852 for the incorporation of cities, contracted with one 0-, to grade and gravel a street in said city. The work was performed by the contractor, and in the year 1860, a suit was brought in the name of the city, to recover an assessment against one of the property' holders for said wo'rk.</p> <p>Held, that the city was a more nominal party, the contractor being the party beneficially' interested, and hence a set-off against the city could not be allowed.</p> <p>Hell, also, that the suit could not he maintained, as Ihe remedy' for the collection of street assessments had been changed by' the act of 1857, which was re-enacted in 1859, and is still the law.</p> <p>Held, also, that the bringing of this action, though erroneous in form, will, under 2 R. S., § 218, p. 77, save the claim of the plaintiff from the bar of the statute of limitations.</p> <p>The remedy now given for the collection of assessments for the grading and graveling of streets, viz., by precept issued by the mayor and clerk, under the direction of the council, is constitutional.</p> <p>The issuing of the precept is a ministerial act, and may he performed by any person upon whom the law may cast the duty ; the judicial determination of the case is had upon appeal.</p> <p>Judicial acts, within the meaning of the Constitution, are such as are performed in the exercise of judicial power, and must, hence, be performed by a court, touching the rights of parties, or property, brought before it by volunlaiy appearance, or, by the prior action of ministerial officers.</p> <p>A ministerial act. is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of of the act being done.</p>

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

<p>Where a party amends his pleading after a demurrer has been sustained to it, he can not complain of the action of the Court on the demurrer.</p> <p>Under § 364, 2 B. S., p. 120, the plaintiff may dismiss his suit in vacation, by filing a written dismissal with the clerk, as effectually as if dismissed in open Court.</p>

<p>Where there a,re two paragraphs in a complaint, to one of which affirmative answers only arc pleaded, while the other is denied, if the plaintiff introduces any evidence having a fendency to support the latter paragraph, he is entitled to open and close the argument.</p> <p>If the jury find for the plaintiff, upon one paragraph of his complaint, and do not, in terms, find upon the other paragraph, the plaintiff, having introduced evidence in support of the latter, and taken judgment on the verdict, will have as effectually' precluded himself from bringing another suit for the same matter, as if there had been an express finding against him on the other paragraph.</p> <p>In cases where there are several issues, any one of which being found for the defendant would defeat the plaintiffs’ right to recover, all the issues must be found for the plaintiff, or he can not recover.</p> <p>A party can not repudiate a contract on the ground of fraud and, at the same time, retain the benefits derived from it; but must, when he discovers the fraud, restore, or offer to restore, to the other party, what he has received, and failing lo do ihis, he affirms the contract.</p>

<p>APPEAL from the R 'pipy Circuit Court.</p>

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

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

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

<p>A set-off may be pleaded to an action by an administrator.</p>

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

<p>P. gave' a.mortgage to D. upon real estate, to secure the payment of $100, on or before November 15, 1859, and $140, on or before August 19,1860, the purchase money of the mortgaged premises. No note, bond or other instrument was made by P. for the payment of said sums. On July 27, 1860, P., D. and L. made a verbal agreement, by which L, was to purchase the mortgaged premises, subject to the mortgage, assume the payment of the mortgage debt, and pay D. $50, on demand; D. agreed, on his part, to extend' the payment of the balance of the mortgage debt, until July 1, 1861. In accordance with this agreement, L. purchased the mortgaged premises, and paid D. the $50. Before the expiration of the time agreed upon, D. brought a suit for the foreclosure of the mortgage against P. and L. L. answered, setting up the foregoing facts.</p> <p>Eeld, that the agreement was valid and binding, and suspended D.’s right to foreclose until the expiration of the time to which payment was agreed to be extended.</p> <p>Eeld, also, that a suit to foreclose is an appeal to the equity powers of the Court; that the suit in this case was brought in bad faith, in fraud of the rights of L., and that upon the defense set up being established, it should have been dismissed without prejudice.</p>

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

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

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

<p>Suit bjr an assignee upon a promissory note. Answer : that the payee of the note had notified defendant, that the alleged assignment to the plaintiff was not valid, and that he must not pay, &c., and asking that the payee be made a party.</p> <p>Meld, that under 2 R. S., § 23, p. 32, the application to have the payee made a party should have been made upon affidavit, before answer.</p>

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

<p>To an action of replevin for a horse, the defendant answered that at and before the commencement of the suit, and until the horse was taken upon the writ, the same was in another county, &c.</p> <p>Held., that the question presented by the answer was one of fact, in abatement, and must have been pleaded, or it would have been waived.</p> <p>Held, also, that pleas in abatement must be filed in their order, and Can not be pleaded either with, or after, pleas in bar.</p> <p>Where the interest in the cause of action is transferred, pending the suit, no additional pleading is required, except, perhaps, to show the transfer.</p>

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

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

<p>On the trial of a prosecution, for bastardy, it appeared that the child was born on September 18, 1858. The defendant offered to prove that in the first week in November, 1'857, the relator had had sexual intercourse with another man.</p> <p>Held, That the testimony was rightly rejected.</p>

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

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

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

<p>A judgment having been regularly entered by default, on the second day of the term, the defendant appeared on the fifth clay, and moved, on affidavit, to set the default and judgment aside. The affi lavit disclosed the defense of usury, and alleged that defendant had, before the first day of the term, emploj-ed counsel, upon whom he relied to make his defense, &c. Held, that such motions are left, in great part, to the discretion of the Court below, and that there was no abuse of such discretion in overruling the motion, the affidavit being defective in not showing that the facts were disclosed to the attorney.</p>

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

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

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

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

<p>APPEAL from the Bloc1 ford Circuit Court.</p>

<p>One defendant can not bo examined as a witness for another, where the matter proposed-as evidence tends to defeat the action as to all the defendants.</p> <p>Where a cause is submitted to the Court for trial, there being an issue of law" upon demurrer undisposed of, it will be presumed that the issue was decided in the general finding; but it is error to proceed to the trial of issues of fact before a jury, when issues of law remain undisposed of.</p>

<p>A mechanic’s lien can be enforced, under our statute, for work done and materials furnished in the erection of a school-house, built by order and contract of a township trustee.</p>

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

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

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

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

<p>Suit to foreclose a mortgage bv an assignee holding two, of three, mortgage notes. The defendant answered, that the assignee of the second note, being a person oilier than the plaintiff, had sued and obtained judgment for the amount, and for foreclosure, &c.; no record of the judgment was fded with, or made a part ol¡ the answer.</p> <p>Eehl, that (he answer was bad, and that a demurrer thereto was correctly sustained.</p>

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

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

<p>Where the deposition of a witness residing in a county adjoining to that in which a cause is pending, has been taken by agreement of the parties, it may be read in evidence on the trial, without showing any reason for the non-production of the witness.</p> <p>The Supreme Court will presume in favor of the instructions of the Court below, where the evidence is not in tlje record, if in a supposable state of facts under the issues, they would have been correct.</p>

<p>APPEAL from the S cubm Circuit Court.</p>

<p>An amended paragraph vras filed to an answer while the jury was being empanneled, and was not brought to the attention of the opposite party until the. evidence had been heard. The plaintiff, by leave of the (lourt, then filed a, reply to the answer, the jury were re-sworn, and the evidence again heard.</p> <p>Held, that there was no error in permitting the filing of the reply.</p> <p>In an affidavit for the continuance of a cause, on account of the absence of a witness, the defendant attempted to excuse his want of diligence, by showing that the note sued on was given for a. balance found by tho witness, as an accountant, to be due the plaintiff on the dissolution of a co-partnership, and that a mistake occurred in such accounting, which the witness could not ascertain without an examination of the books, and that he had not had time to do so, &c.</p> <p>Held, that the affidavit did not show a valid excuse for the failure to procure the attendance of the witness.</p> <p>In a proceeding for the foreclosure of a mortgage, the original mortgage was filed with the complaint, but was not given in evidence to the jury. After a verdict for the plaintiff, the Court entered a decree of foreclosure, &c.</p> <p>Held, that after 'the jury had found the amount due to the plaintiff upon the mortgage, it was the duty of the Court, if the evidence warranted it, and the party desired it, to order the foreclosure, and for that purpose the mortgage was before the Court.</p>

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

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

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

<p>The word “ screwed ” does not of itself import sexual intercourse, but it may, in certain localities, be used to impute the charge of whoredom, and where that is the case, a complaint for slander founded upon such a use of the word should affirmatively allege its import at the time and place it is used.</p> <p>The following words, spoken of an unmarried female, are slanderous, viz., “ She is in the family way, and I can prove by A., that she has been taking camphor and opium pills to produce an abortion.”</p> <p>After the jury has been sworn, and a portion of the evidence heard, in an action for slander, it is too late for the plaintiff to amend by inserting an entire new set of words, essentially different from those previously alleged, and of themselves constituting a new cause of action.</p> <p>Where, in an action for slander, the defendant, under a plea of justification, hits proved facts and circumstances tending to show the truth of the charge uttered, but has not attempted to impeach the general character of the plaintiff, it is not competent for the plaintiff to introduce evidence of good character.</p>

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

<p>A. entered into a contract with the Board of Commissioners of Greene county, to build a bridge across Eel river, “according to the plans arid specifications on file in the auditor’s office; ” the third payment on thó work was to be two thousand dollars, and was to be paid when the stone work was completed. At a regular meeting of the board, held December 5, 1859, it was ordered, “that the treasurer pay to A. two thousand dollars, it being the third payment on said contract.” The auditor refused to issue the warrant, and to a proceeding by A. to compel him to do so, be answered, that after the board had' allowed said sum to A., the abutment on the east side of the creek, by reason of inartificial construction, had fallen into the river; that the board, having been called- together, rescinded the order for the payment of said sum, &c.</p> <p>Bell, that the allowance made by the board was an admission that the work ljad been done in accordance with the terms of the contract; and the allowance thus made, could not, especially in the absence of, and without notice to, A., bo rescinded by the board.</p> <p>Held, also, that even if the auditor could have g-onc behind the allowance of the board, there was nothing in his’answer to show that the abutment was not built according to the plans referred to in the contract.</p>

<p>Where, to an action by a corporation, the defendant pleads the general issue, he admits the capacity of the plaintiff to sue, and can not, at the same time, plead mil tiel corporation, because a plea in abatement can not be pleaded in connection with a plea in bar.</p>

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

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

<p>A. having executed a mortgage upon certain real estate, afterward sold the premises to B., who agreed to pay for the same by discharging the notes and mortgage given by A.; and to secure the performance of his agreement, executed to A. a mortgage upon the same premises. Suit by A. against B., to foreclose the mortgage.</p> <p>Eeld, that the mortgage from B. to A., was not a mere mortgage of indemnity', upon which A. could not maintain an action until he had paid the-notes assumed to be paid by B.; hut that upon the failure of B. to pay the purchase money, in the manner stipulated, an immediate right of action accrued to A. upon the mortgage.</p> <p>Eell, also, that the covenant of B. in the mortgage, to pay the notes of A., was sufficient to authorize an order for execution over against him, if the mortgaged premises did not satisfy the debt.</p>

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

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

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

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

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

<p>A. died in 1847, testate, leaving a widow and children. By his will, he directed that all his real and personal estate should remain in the hands of his wife, until his youngest child should become of age, in trust for the support and education of his children; and that when his children should all have arrived at the age of twenty-one years, an equal division should be made among them of what might remain undisposed of. Tho will expressly reserved to the widow “ all the rights given her by law.” In 1853, the widow intermarried with one B., and took with her to his house the personal property she had received under the will of her first husband. In 1858, B. died, leaving his widow surviving, and still charged with the trusts under the will of A., one of his children not having attained his majority. Suit by the widow against the estate of B., to recover the value of the personal property which belonged to her in trust for A.’s children, under the will of her first husband.</p> <p>Held, that the widow of A. was entitled, as her statutory rights, reserved to her by the will, to take $150 of the personal property, and such distributive share of the remainder as the statute gave her, (in addition to the use of one third of the real estate,) which she could dispose of as she pleased.</p> <p>Held, also, that she had a right, under the will, to occupy the remaining two thirds of the real estate, jointly with the children, and to possess and use the personal property in the cultivation of the real, and to expend tho income for the education and support of the children; tho surplus, if any, being added to the stock, for the use of the children.</p> <p>Held, also, that she would not be accountable for such of the personal property as should bo lost, destroyed or consumed in the using, at least, where reasonable care was exercised by her.</p> <p>Held, also, that if the portion which the widow was entitled to take in her own right, was not separated from that which she hold in trust for her children until the time fixed for tho final distribution, she would take in the same proportion, including the increase and income derived from the whole.</p>

The power of the common council is derived from the charter. It has no power except that expressly granted, or necessarily implied, in the charter; a'nd such power, to be valid and binding on the corporation, or third persons, must be exercised strictly according to the requirements of the charter. 8 Ind. 34; 1 Bill, (N. Y.) 545; 2 id. 466; 24 Barb. (S. C. B.) 427; 2 Sold. 92; 3 Denio, 249; 2 Dutch. 594.

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

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

<p>Suit to recover the possession of personal property, alleged to have been wrongfully taken and unlawfully dehi.nod by the defendant. Answer: 1. Property in the defendant 2. Properly in :i third person. 3. Denial. The jury returned a verdict, as follows, viz., “We, the jury, find lor the plaintiff; find the property in the horse to be in him, and that lie is entitled to the possession, &c. We also find the value of the horse to be $125.”</p> <p>Held, that the verdict sufficiently covered all the issues in the case.</p> <p>The defendant asked the Court to instruct the jury as follows: That to enable the plaintiff to recover, the jury should be satisfied from the evidence that he has a genevnl. or special property in the horse in controversy, and a right to his immediate possession, and that the evidence proves either an unlawful taking, or an unhra ful detention of the horse by the defendant.</p> <p>Hell, that the instruction was strictly correct, and should have been given.</p>

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

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

<p>APPEAL from the Parl'e Circuit Court.</p>

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

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

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

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

<p>Where a railroad company has securely fenced their road, except at certain places where the owner of the land is permitted to' erect draw bars or gates, for his own convenience in crossing said road, and by reason of the neglect of such land owner to maintain such bars or gates, his stock passes upon the railroad track and is killed, the company are not liable for the damages sustained.</p> <p>The tenant of the land owner, occupying the lands, and using the crossing, or way, would be subject to the same rule of decision.</p>

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

<p>An answer professing to set up a total, and showing, at most, only a partial failure of consideration, is bad.</p>

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

<p>A., B. and O. executed to D. a written obligation, by which they acknowledged themselves to be bound to the said.N. in the sum of $4000, which they jointly and severally promised to pajr. The condition of the obligation was stated to be, that D. had agreed to furnish from time to time, for twelve months from date, to A., such amounts of money as he might desire, to carry on the milling business, not exceeding said Sum of $4000. A., on his part, agreed to ship to D., for sale, all flour manufactured at his mill during the year, and to pay to D. ten cents per barrel for selling, and three cents per barrel for storage, and also such commissions for the use of the money as might be agreed upon. Suit by D. upon the agreement.</p> <p>Held, that B. and O. were not bound by the contract for the repayment of any part of the sums of money advanced to A.; but that they only engaged that A. should ship the flour, and pay the stipulated commissions and storage.</p>

<p>Information charging that the defendant failed and refused to take and subscribe an oath attached to a certain tax list, known as “ Statement No. 1,” when the same was presented to him by the assessor on, &c.</p> <p>Held, that no offense was charged in the information, the character of the affidavit which the defendant, refused to sign not being shown with sufficient certainty.</p>

<p>Prosecution for an assault and battery with intent to commit murder. The indictment charged “that A., on, &c., at, &c., did then and there unlawfully and feloniously, in a i;udo, insolent and angry manner, touch and strike one B., with intent then and there unlawfully and feloniously, and with premeditated malice, to kill and murder the said B., by shooting him in the back with a gun loaded with powder and shot, which gun the said A. then held in his hands,V &c.</p> <p>Held, that the words “with intent,” &c., as used in the indictment, sufficiently expressed the meaning of the word “purposely,” as used in the statutory definition of murder; and that the word “feloniously,” in the connection in which it was used in the indictment, was identical in its import with the word “purposely.”</p>

<p>•ARPEAL from the Marion Common Fleas.</p>

<p>Suit for a divorce, by a husband against his wife, charging cruel treatmem., &c. The defendant answered, admitting the allegations of the complaint,; and an agreement was made and filed by the parties, relating to the disposition of their children and property. The cause was submitted to the Court upon the pleadings and said agreement, without other evidence, and 'a divorce was refused.</p> <p>Held, that under the general chancery practice, a default did not, in suits for divorce, as in other suits, supersede the necessity of proof, or lighten the burden resting on the plaintiff to establish the charges preferred; but a default, acknowledgment, or consent for judgment, by the defendant, it was generally supposed, settled the case as against him, so that he could not complain of any lawful disposition the Court might afterward make of it.</p> <p>Held, also, that it would appear to follow that if the defendant, being the wife, should admit of record the charges in the complaint entitling the plaintiff to a divorce, she would deprive herself of the right, under our statute, to an order for alimony, during the pendency of the proceedings.</p> <p>Held, also, that the public interests, and the rights of third persons not before the Court, require that the State shall exercise some control over the marital relation, and that suits for divorce are not mere actions between the t parties to the marriage contract, to be governed by the ordinary rules of I procedure in civil suits ; and hence, our law requires the prosecuting attorney to resist all applications for divorce, that are not otherwise defended.</p> <p>Held, also, that the Court below did not err in refusing a divorce.</p>

<p>Suit upon a promissory note. Answer: want of consideration, specially setting out the facts. The plaintiff moved to strike out the answer, as a false and sham pleading; and in support of his motion filed affidavits which tended to show the several matters alleged in the answer to be untrue; and the defendant having declined to affirm his belief as to the truth of his answer, or to give any evidence that the same was true, or that it was filed in good faith, the Court sustained the motion.</p> <p>Held, that neither the motion nor the affidavits made any part of the record, on appeal, there being no order of the Court or bill of exceptions making them such.</p>

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

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

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

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

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

<p>Where a defendant appears and pleads in bar of the action, he can not afterward object to the jurisdiction of the Court over his person,</p>

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

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

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

<p>A. having a marc in the possession of B., which O. desired to purchase, agreed to sell her to G. for $70, if he would give his note therefor, payable at a given time, with such surety thereon as B. would approve. G. offered to B. a note with surety, but which did not boar interest, nor waive the benefit of the valuation laws. Upon objection being made to these defects, O. took a pen and wrote in the note the words, “with interest,” and then agreed that lie would take the mare, and if A. was not satisfied with the note, when he should see it, he would return the mare to him. A. declined to receive the note, and having demanded of G. to return the mare, brought this suit to recover her.</p> <p>Belli, that the alteration of the note by the insertion of the words, “ with interest,” without the consent of the surety, discharged him from any liability thereon, and left the note without surety, and hence not such a one as the contract called for.</p> <p>Beld, also, that the title to the mare never passed to G.</p>

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

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

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

<p>Where an illegal tax has been voluntarily paid by the tax payer, under a, mistake of law, it can nob be recovered back.</p>

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

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

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

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

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

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

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

<p>The Christian name of the plaintiff was erroneously stated in the summons, but in the complaint was correct. On the return of the summons, the plaintiff had leave to amend it by the complaint.</p> <p>Held, that there was no error in permitting the amendment.</p>

<p>Suit for an accounting, and the settlement of a co-partnership. The cause being at issue, was, upon the written consent of the parties, and by order of the Court, referred to two persons. The agreement of reference, and the order of the Court, provided that if the arbitrators differed in opinion upon any question of fact or law, they should make a minute in writing of the point, for the decision of the Court. An award was made, and two points upon which the arbitrators differed were referred to the Court for determination. On the return of the award, the plaintiff moved to set it aside : 1. Because the arbitrators failed to report the facts of the case. 2. Because they disregarded pertinent evidence. 3. Because they did not pass upon the individual accounts of the parties. 4. Because they did net make a division of the notes and accounts of the firm. 5. Because they appointed other persons to examine the books of the firm. 6. Because they acted upon statements of the defendant, which plaintiff has since discovered to be false, though he could not by diligence have proved them false at the hearing.</p> <p>Held, that if the reference of the cause was made under §§ 349, 350, 351 of the code, then the report of the referees could only be reveiwod by the Court for matters appearing upon the face of the report, including all hills of exceptions taken before the referee; but if the reference.was to arbitrators, as at common law, then objections to the award might be shown by extrinsic evidence.</p> <p>Held, also, that the intention seems to have been to make a common law reference to arbitrators, rather than a trial by referees under the code.</p> <p>Held, also, that none of the objections to the award were well assigned; no fraud or corruption was charged, and a mere mistake of judgment is not sufficient to vacate an award, at common law.</p> <p>Held, also, that the arbitrators had power to appoint other persons to examine the books.</p> <p>A request of the Court to state a special finding, made after the Court has commenced to render its judgment, comes too late. Perhaps, also, the request should be accompanied with notice to the Court that the party intends to take the cause to the Supreme Court, upon the finding.</p> <p>Perhaps, where a suit pending and at issue is referred by a rule of the Court to arbitrators, the award, if defective, should, like a verdict in such cases, be sent back to the arbitrators, on motion of the dissatisfied party, for correction.</p>

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

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

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

<p>In an action for slander, tlie parties, by mutual agreement, evidenced, by their respective bonds, referred the controversy to the arbitrament of certain persons, whoso award, it was agreed, should be made a rule of the Court in which the 'suit was pending. The arbitrators having heard the case, made an award, in. which they found that some slanderous words had been spoken by the defendant of the plaintiff, and directed that the defendant should pay the costs of the suit, accrued and to accrue, including the costs of arbitration. The defendant accepted the award, and, at the next term of the Court, set it up, by way of answer puis darrein continuance to the complaint.</p> <p>Held, that the award was valid, and settled the terms of tlio judgment; but that the defendant, instead of sotting up his award by way of answer, should have filed and proved the submission and award, as a paper in the case, on which the Court should have rendered judgment according to the terms of the" award. %</p>

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

<p>Errors of law occurring on the trial, which do not appear to have been in some way brought to the attention of the Court below, will not be noticed in the Supreme Court.</p> <p>Where personal property is sold by a person not at the time in the possession of it, there is no implied warranty of title.</p>

<p>Where the mortgagor lias sold his equity of redemption in the mortgaged premises, he is not a necessary party to a bill for foreclosure, but the order of sale, in such case, should be limited to the mortgaged premises, and no personal judgment taken against the holder of the equity of redemption.</p>

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

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

<p>A. and B. entered into a contract by which the former agreed to purchase and deliver to the latter one thousand sheep. The contract was reduced to writing, and was signed by A., and by two other persons as sureties for him, but was not signed by B. Suit by B. against A. and his sureties, alleging a failure to deliver the sheep. Answer, by the sureties: 1. That they executed the agreement upon the consideration that B. should also execute the same on 1ns part, and that he neither signed the agreement, nor paid the money agreed to be advanced thereon. 2. That B. did not notify them of the acceptance of their guaranty, nor that he had given credit thereon.</p> <p>Held, that the recital in the agreement of the payment of one thousand dollars by B., as part of the consideration of the contract, was not conclusive, but that the fact of the payment might be inquired into.</p> <p>Held, also, that if the sureties executed the agreement upon the consideration that B. should also execute it, and thus become mutually bound with A. for the performance of its conditions, they had a right to insist upon its execution by him, or to claim the benefit of his failure.</p> <p>Held, also, that the pleadings did not make a case in which notice to th« sureties of the acceptance of the security was necessary.</p>

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

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

<p>Where there has been a special finding by the Court below, and such finding, together with the evidence upon which it was based, is set out in the record, it is not necessary that “ all the evidence given in the cause,f should be sot out, in order to determine the correctness of the special finding.</p> <p>Where there is a special agreement, or direction, as to the application of payments made by a debtor to his creditor, they must be so applied, unless a different appropriation is made by consent of the parties.</p>

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

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

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

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

<p>A demurrer in the following form, viz., “ Gomes now said plaintilf and demurs to the second paragraph of the defendant’s answer, and says that the same is not sufficient in law to enable the defendant to sustain his said defense, or to bar the plaintiff’s complaint,” is bad, as no statutory cause of demurrer is assigned.</p> <p>Suit by a distributee of a testator, against the son and executor of the testator, to obtain distribution of certain personal property claimed by the son'by gift from the father, in his lifetime. The plaintiff asked the Court to instruct the jury, that if the property was in the possession of the son as agent for his father, before the time the gift is claimed to have been made, and no apparent change of ownership took place, there was no valid gift; which the Court modified, by striking out the words, “ there is no valid gift,” and inserting the words, “it is evidence tending to prove that there was no valid gift.”</p> <p>Held, that the instruction, as asked, was properly refused, and that as given, ■it was as favorable to the plaintiff as he could legally ask.</p> <p>The delivery of a chattel is necessary to pass the title by gift, but the delivery must be according to the nature of the thing given ; and if the property is at the time of the gift in the possession of the donee, as agent for the donor, it is not necessary that the donee should surrender to the donor his actual possession, in order that the latter may re-deliver the same to him in execution of the gift; but if the donor relinquishes all dominion over the thing given, and recognizes the possession of the donee as being in his own right, and the latter accepts the gift, and retains possession in virtue thereof, the gift is complete.</p> <p>There is no presumption of unfair dealing from the fact that the parties occupy to each other the relation of father and son, but the burden of proving fraud, undue influence, or unfair dealing, rests upon him who alleges it.</p> <p>A party has the right, if properly asserted, of having all modifications 'and explanations of instructions reduced to writing.</p>

<p>In a prosecution for forgery, the indictment alleged that on, &c., at, &c., the defendant did unlawfully, &c., give, barter, sell, utter, publish and put away, to one B., sixteen false, forged and counterfeit bank notes, the genuine of which bank notes were current at the time, in the State of Indiana, and which purported to be genuine, and were for, &c., each, and issued by the Winstead BanJc of Connecticut, payable to “ E. Seymour, or bearer.” Copies of the notes were sot forth in the indictment. On the trial, the defendant offered to prove that at the October term, 1860, of said Court, in a c<ose of the State against him, on an indictment for forgery, then on trial, the witnesses gave testimony in reference to the same.bank notes, and tho same transaction mentioned in the indictment upon which defendant was then being tried. The Court having refused to allow the testimony to be given, the defendant then offered in evidence the record of a conviction, for the purpose of showing that he had been once tried and convicted for the same offense. The record offered, showed that a person of the same name had been tried and convicted on an indictment for a forgery in all respects similar to the one now charged, except that the notes in the former case were charged to have been payable to “ E. lymour or bearer.”</p> <p>Held, that the record of the alleged former conviction, viewed as an isolated item of evidence, was properly rejected; as the counterfeit notes described in the former case did not correspond with those described in the pending indictment; but that viewed in connection with tho parol evidence offered to show the offenses to have been, in fact, identical, the record was competent, and should have been admitted, even though the two items of evidence were offered separately, and not technically in order.</p> <p>Held, also, that it was not necessary to the full description of the offense charged, to allege that the genuine notes were current, and that such an averment was mere surplusage.</p> <p>Held, also, that it is not necessary, where the trial is upon the original indictment, that the record should show that it had been recorded, compared with the original, and certified by the judge.</p> <p>Held, also, that an order that the defendant should stand committed until tho fine and costs wore paid or replevied was erroneous so far as the order related to the costs.</p>

<p>An agreement not to sue for a limited time upon a promissory note, is no bar to an action on the note, commenced within the time limited.</p>

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

<p>Motion for a new trial, for the following causes, viz., “1. Irregularity in the proceedings of the Court. 2. Error of law occurring at the trial, and excepted to by the defendant.’'’</p> <p>Held, that the causes assigned were too general to present any point for the consideration of the Supreme Court.</p> <p>A. transcript of a judgment containing no plácito, showing the style and term of the Court in which, and the place where, the judgment was rendered, will not support an action.</p> <p>The certificate of the judge, required by § 286, 2 R. S., p. 93, to be attached to the transcript of a foreign judgment, to authorize the admission of such transcript in evidence, must show that the person so certifying was judge of the Court in which the judgment was rendered.</p>

<p>Suit upon the transcript of a judgment rendered by a justice of the peace in the State of Ohio. The judgment appeared to have been rendered by confession, the’ transcript reciting: “Now comes A., with a power of attorney to confess judgment; whereupon the defendant, by his attorney, waived the issuing and service of process, and confessed judgment,” &c. The transcript was certified to be a full, true and complete copy, &c., by a justice of the peace of “Ashland, formerly Richland, county, Ohio;” who further certified that he had the legal custody of the docket in which said judgment was recorded. A certificate was appended by the clerk of Ashland county, stating that the justice whose certificate was attached to the transcript was an acting justice of said county, duly commissioned, &c., and that his signature was genuine, and his certificate in due form of law, &c. A certificate was also attached by the clerk of Richland county, stating that the justice before whom said judgment was rendered, was, ■ at the time, an acting justice of the peace of Richland, now Ashland, county, duly qualified, &c.</p> <p>Meld, that though the' record of the justice was informal, and perhaps irregular, it was sufficient as the basis of an action, and sufficiently showed that the justice had acquired jurisdiction of the person of the defendant.</p> <p>Held, that the certificates to the transcript were in due form of law, and the transcript was, under 2 R. S. 1852, § 279, pp. 90, 91, admissible in evidence, without the authentication of a judge.</p>

<p>Petition to the county board for the location of a county road, the route of which was described as follows, viz., “commencing at the State road leading from Washington, Daviess county, to Bedford, Lawrenos county, Indiana, at sections sixteen and seventeen, and running on the line between Barr and Washington townships, due south, or as nearly so as it can run to get a good road, to intersect the Alfordsville road.” After viewers had been appointed, and had reported in favor of the road, a remonstrance was filed, claiming damages. Viewers having reported against the claim for damages, the remonstrants appealed to the Circuit Court, and there moved to dismiss the proceedings for want of a sufficient petition.</p> <p>Held, that if the petition was so insufficient as to form no basis for the action of the board, an objection thereto would be fatal at any stage of the proceedings.</p> <p>Held, also, that a petition for the location of a highway passing through but one county must, under our statute, set out the names of the owner's, or occupants, or agents, of tlio lands through which the proposed highway would pass; and in the absence of such requisite in the petition, the board is not authorized to act upon the same.</p>

<p>APPEAL from the Movqan Common Pleas. v</p>

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

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

<p>Suit by the Board of County Commissioners against A., the former treasurer of the county, alleging that while he was such treasurer he collected, between the third Monday of March and the first Monday of August, of a certain year, taxes due said county to the amount of, &e., upon which there was chargeable by law ten per cent., as damages, which he was bound as such treasurer to collect and account for to the auditor, and pay into the treasury; that he failed to receipt to said auditor for the same, or to pay the same into the treasury, or otherwise legally to account therefor. Answer : 1. That at the June term of the board, held on, &c., the defendant settled in full with said board, and accounted for all taxes and penalties due and owing to said county. 2. That the cause of action did not accrue within three years next before the bringing of the suit.</p> <p>field, that the treasurer was required by § 13 of the act relative to county treasurers, (1 R. S. 1852, p. 501,) to make an annual settlement with the board at their June term ; and the board, having by law a supervisory control over the finances of the county, had power to settle with the treasurer, and to bind the corporation by such settlement.</p> <p>Held, also, that the complaint can not he Understood to charge the' treasurer with having collected the ten per cent, damages; and hence the case made was not within the exception to sub. § 2 of § 211, 2 K. S., p. 75, by which an action is allowed Within six years, against an officer, or his representatives, for money collected in an official capacity.</p>

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

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

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

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

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

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

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

<p>An indictment for selling liquor in a less quantity than a quart must specify the quantity sold; and this is not done with sufficient accuracy, where the quantity is charged to have been “ two glasses.”</p>

<p>The lien of a mechanic for work done or materials furnished in the construction of a house, only takes effect from the time of filing his notice in the recorder's office.</p> <p>Fixtures used in, and attached to, a building used for manufacturing purposes, will pass by a mortgage of the freehold.</p> <p>Whether a mechanic’s lien, like a vendor’s, would be waived by taking collateral security, is regarded as doubtful; but certainly the taking of tho note of the debtors, in their co-partnership name, indorsed by some of them individually, would not waive the lien, as no additional security would bo acquired.</p>

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

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

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

<p>In a proceeding to enforce a mechanic’s lien, after the jury had been sworn, and the evidence heard, the Court permitted the plaintiff to enter a dismissal as to some of the defendants, so far as a personal judgment was sought against them, but to continue them as parties to the proceedings to enforce the lien.</p> <p>Held, that there was no error in this.</p> <p>Errors of law occurring on the trial, as in the refusal to grant a continuance, or in the admission of improper evidence, must be assigned in the motion for a new trial, or they can not be noticed on appeal.</p> <p>Motion for a new trial upon the following grounds, viz., 1. “For irregularities in the proceedings of the Court, and abuse of discretion, by which the defendants were prevented from having a fair trial. 2. On account of accident and surprise, which ordinary prudence could not have guarded against. 3. Errors of law occurring at the trial, and excepted to.”</p> <p>Held, that the reasons assigned were too vague and indefinite to bring any question to the attention of the Court.</p>

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

<p>APPEAL from the Speneer Common Fleas.</p>

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

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

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

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

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

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

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

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

<p>A judgment can not be reversed for error committed in sustaining or overruling' a demurrer for misjoinder of causes of action.</p> <p>Where there has been a trial without an issue, in the Court below, the defect must be brought to the attention of that Court, before it can be noticed in the Supreme Court.</p>

<p>Section 90 of the act to revise the rules and practice in criminal cases, (2. E. S. 1852, p. 372,) which provides that “ all persons who are competent to testify in civil actions,” shall also be competent witnesses in criminal cases, was intended to adopt the law as it then stood, upon the subject of the competency of witnesses in civil actions; and hence the law of 1861, (Acts 18G1, p. 51,) admitting parties to testify in civil actions, does not apply to criminal cases.</p>

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

<p>An information for a felony, in the Court of Common Pleas, must show that the defendant is in custody on a charge of the felony for which the information is filed, and must negative the finding of an indictment against him.</p>

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

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

<p>Suit by A. against B., the mortgagor, and 0., the owner of the equity of redemption, to foreclose a mortgage. C. answered that A. had purchased the land of a railroad company and conveyed it to B.; that the title of the company came to be disputed, and that if was agreed by A., in consideration that O. would purchase the mortgaged premises, and assume the payment of the mortgage, that he, A., would procure from the grantor of the railroad company a conveyance to 0., to cure said supposed defect in the title, and that the time of payment of the mortgage should be extended until such conveyance was obtained; that A. had never procured said deed, &c.</p> <p>Held, that the answer presented a good defense to the action.</p>

<p>Suit upon a promissory note. Answer: that the note was given for the purchase money "of real estate sold by title bond, and that the deed, which was to have been executed on payment of the note, had not been tendered. On the trial, the truth of the answer being established, the Court held the case under advisement until a deed could be made and tendered, and then gave judgment for the plaintiff.</p> <p>Held, that this was erroneous.</p> <p>Heltl, also, that the doctrine that a specific performance will be decreed where the party is able at the rendition of the decree to perfect title, only applies to cases where some secret defect is discovered in the title, previously unknown, perhaps, to either party, and does not operate to excuse a party from doing all in his power to fulfill his contract.</p>

<p>Suit for the purchase money of real estate. -Answer: that the premises were, at the time of the conveyance, incumbered by a lien for taxes, which the defendant had been compelled to pay.</p> <p>Held, that the answer was bad for not showing that the convej'ance contained a covenant against incumbrances.</p> <p>The recovery of a general judgment upon the notes secured by a mortgage is no bar to an action of foreclosure upon the mortgage.</p> <p>The act of 1859 gives the Court of Common Pleas a jurisdiction unlimited as to amounts.</p>

<p>Suit against the sureties of an administrator, on a bond given btr him on an application to sell real estate, to recover the proceeds of the land sold. Answer: that the administrator, in his lifetime, fully paid and accounted for all of said moneys, except the sum of $>892, which the defendant as his, surety had since paid in full. Beply : that after the payment of said alleged balance by the surety, a further accounting took place in the Court of Common Pleas, in the matter of said estate,' and by the judgment of said Court said administrator was found in arrears, over and above said supposed balance, in the sum of $1,125.</p> <p>Held, that the reply was a departure, as the money therein sought to be recovered was not shown to have been of the proceeds of the real estate sold, for which only the surety was liable.</p>

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

<p>Where real estate is sold by title bond, the purchaser is not, in the absence of a stipulation to that effect, entitled to the possession of the land before the time for making the conveyance, and though he may have entered into possession with the consent of the vendor, the latter may resume his possession at any time, on demand.</p> <p>Where the vendee of real estate enters into possession under the contract of purchase, with the consent of the vendor, such entry does not constitute him a tenant.</p> <p>A reply averring a demand of possession after entry, and before suit brought,, is sufficiently certain, on demurrer.</p>

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

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

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

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

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

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

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

<p>In proceedings for a new trial under § 356 of the code for causes discovered after the term, the record of the previous trial is not the foundation of the suit, and hence, a transcript thereof need not be filed with the complaint.</p>

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

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

<p>At common law, even where the statute of frauds required a contract to be in writing, and it actually was so, it was not necessary that a copy of tho writing should bo made a part of the declaration, nor that it should even be averred that the contract was in writing.</p> <p>The averments of a pleading may be made certain by reference to diagrams filed with, and made part of, the pleading.</p>

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

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

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

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

<p>Suit by A. against B., C. and D., alleging that before that time he had a judgment against B. and 0., who were also indebted to certain other persons, and that it was agreed between the plaintiff and defendants, that if plaintiff would enter satisfaction of his said judgment, and would pay said other debts, the defendants would execute to him a note for the amount of said judgment and said debts, to be discounted by the Ohio Insurance Go., for his benefit; that plaintiff did accordingly enter said satisfaction and pay said debts, and the defendants, on their part,, executed said note, with the said D. as surety thereon, payable to the Ohio Insurance Go.; and the said company refused to discount the same, wherefore the defendants became liable to pay the amount thereof to the plaintiff, &c.</p> <p>Belli, that the note was made for the benefit of A., though payable to the insurance company, and was valid notwithstanding the company declined to receive and discount it.</p> <p>Held, also, that as the beneficial interest of the noto was in A., he was entitled to sue thereon in his own name.</p> <p>A motion for a new trial on the ground that the verdict is not sustained by sufficient evidence, will not present any question of “excessive damages," as that is made by statute a distinct cause for a new trial.</p> <p>A prayer for judgment in a complaint upon a promissory note for the amount of the note and interest thereon, is good, without summing up the amount of principal and interest.</p>

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

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

<p>Suit upon a promissory note. Answer: that the plaintiff was not the owner of the note ; but that one A. was the owner, the said A. having, before that time, agreed to receive, and the said .plaintiff to deliver to him, the said note, in full settlement for certain professional services rendered by A. for the plaintiff.</p> <p>Held, that A.’s right to sue for the value of the alleged services was neither suspended nor extinguished by the agreement to receive the note, broken as it was b3r the plaintiff, and therefore the title to the note, and the right to sue upon it, remained in the plaintiff.</p>

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

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

<p>It is no part of the duty of a clerk to place among the orders of the Court which he is directed to enter, the reasons or causes which influenced the Court in directing such order; hut if the ruling is objected to, it should go upon the record by a regular exception taken and signed.</p> <p>Suit upon a bill of exchange against the drawer and acceptor, the complaint alleging, as to the acceptor, that he accepted the said bill in writing, &c. Answer, by the acceptor, under oath, that he “did not undertake and promise as averred,” &c.</p> <p>Meld, that the answer did not put in issue the execution of the acceptance.</p>

<p>The holder of a claim as collateral security may sue on it, and hold the money when collected in place of the note or evidence of debt, even though the debt on which the collateral security was given is not yet duo.</p> <p>An answer to a suit upon a note held as collateral security, alleging that the note was assigned for the security of the plaintiff and one A., who is not joined as plaintiff, is bad, unless it be averred that the interest of A. in the note still existed at the time of the suit.</p> <p>The word “contract'’ as used in §23 of the act to authorize and regulate the business of general banking, (Acts 1855, p. 39,) which provides that “contracts made by such association and all bills,” &c. “shall be signed by the president or vice-president, and cashier thereof,” is employed in a limited, and not in its broad sense; and does not include a contract of indorsement of a note, which may, according to the usage of banks, be made b)’ the cashier alone.</p> <p>Where a promissory note is assigned as collateral security for a debt less than the amount of said note, the maker of the note may obtain and have a set-off against the payee to the amount of the excess of the note above the debt on which it was assigned as collateral.</p>

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

<p>Suit against the Bank of Gosport, a freo bank organized under the law of 1855, upon a bill of exchange drawn by “ A. B., Pres.,” and alleged to be the bill of said bank, of which the said A. B. was then and there . president. The bill was indorsed by the drawee in blank, and also contained a subsequent special indorsement, which had been erased. Answer, in denial, with.an agreement that all matters of defense might bo given in evidence under it.</p> <p>Held, that § 18 of the free bank law of 1855, (Acts 1855, p. 23,) which requires that the place where a bank is located, if not a county seat, shall contain not less than one thousand inhabitants, is probably merely directory, but if not, the defendant was not, in this case, in a position to make such a defense.</p> <p>Held, also, that -while it is the province and duty of the Court to construe statutes and interpret the language employed by the law makers, jmt the object to be arrived at is the intention of such law makers ; which must be derived, if possible, from the act itself, or, from that when considered in connection with other statutes upon the same subject; or, from those things together with cotomporaneous construction of, 'or usage under, said statute.</p> <p>Held, also, that in carrying on the ordinary, or daily, business of banking, under said free banking law, such as drawing, indorsing, and accepting bills of exchange, giving certificates of deposit, &c., either the president or cashier is authorized to bind the institution, in the absence of any specified manner of transacting said business in the articles of association.</p> <p>Held, also, that under the agreement to admit all defenses under the general denial, the assignment of the bill to the plaintiff was not admitted by the failure to deny it under oath.</p> <p>Held, also, that a statement made voluntarity by a witness, and received over the objections, if properly presented, of the party who introduced the witness, in reference to matters which the opposite party could not, and the party introducing him did not, call out, should not be considered as legitimate evidence merely because it was given on the principal examination.</p> <p>Held, also, that the evidence of the cashier that the drawing of the bill was a transaction not known to the books of the bank, was not sufficient to relieve the bank from the presumption arising from the face of the bill that it was the bill of the bank, as the president might have received the proceeds for the use of the bank and failed to pay them over.</p> <p>Held, also, that as the blank indorsement of the payee of the bill was followed by a special indorsement to a person other than the plaintiff, and as this, last indorsement, though erased, was necessary to support the protest, which was recited to have been made at the request of the last indorsor, the possession of the bill after maturity by the plaintiff, he not being known in the chain of title before that time, nor as a holder, did not. raise any presumption that he had acquired title before it became due.</p>

<p>A Circuit judge having been of counsel in a cause pending in his Court, set the same for trial before a judge of the Supreme Court, who appeared at the time designated, being in regular term time, heard some arguments and made some orders therein as to making new parties, &c. The Supreme judge not having appeared further in said cause, the samo was again set for trial by the judge of the Circuit Court, before a judge of another circuit. This was done by agreement of the parties, entered of record. The cause was accordingly heard before the judge last designated, who, after repeated adjournments, from time to time, and not within any regular term of said Court, decided the same, and rendered judgment for plaintiff, over a motion for a new trial by defendants.</p> <p>Held, that the judgment thus rendered was valid and binding; that said judge last designated had full power under the act of March 1, 1855, (Acts 1855, p. 61,) to adjourn the hearing of said cause from time to time, although some of said adjournments might have been to a day beyond a regular term of said court.</p> <p>jHeld, also, that an order of the Circuit Court continuing said cause to another term, while the same was pending before the judge designated to try the same, was without authority.</p>

<p>The act of June 4,1861, (Acts Spec. Sess. 1861, p. 79,) providing for the redemption of real property sold upon execution, &c., ko far us the same was intended to apply to sales on judgments rendered upon contracts existing at and before its passage, is in conflict with Art. 1, § 10 of the Constitution of the United States, which prohibits the passage of any law impairing' the obligation of contracts.</p>

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

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

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

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

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

<p>Suit by a railroad company upon a promissory note. Answer: that on March 14, 1855, defendant subscribed for twenty shares of the stock of said company, of $50 each, upon the express condition that the final location of the road should cross White river, near Martinsville, and run within one mile of Gosport, and continue down on the west side of said river to the town of Spencer, and that before the bringing of this suit, said companjr had finally located said road on the east side of said river; that said promissory note was given in consideration of said subscription, &c. Reply : that the said road had been located, in pursuance of the condition of said subscription, on the west side of White river, &e. The note was dated September 25,1856.</p> <p>Held, that the condition of the subscription was waived .by the giving of . the note.</p>

<p>A. and B. entered into an agreement, in writing, by which A. agreed to sell and convey to B. a certain town lot, in consideration that B. would convey to him eighty acres of land in Jasper county. The land was to be selected as follows, viz., B. was to furnish to A. five hundred acres of land in said count}', from which A. was to select an eighty acre tract; and when so selected, and a deed made for the same, then A. was to convey to B. the town lot, and give him possession at a given time. Suit by B. for a specific performance of the agreement, alleging that he had said five hundred acres of land, and furnished a description thereof to A., and requested him to make a selection therefrom, which he failed and refused to do, and by reason of such refusal he could not make and tender a deed, &c.</p> <p>Held, that an application for a specific performance is addressed to the sound legal discretion of the Court, and as B. had not tendered a conveyance fer any particular tract, and did not make any averment as to the value of the lands, or give any description of the lands furnished to A., from which to choose, a case was not made in which the Court could determine whether a specific performance could, or not, be equitably decreed.</p>

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

<p>Suit by A. against B., before a justice of the peace, upon a writing as follows, viz., “Twelve months after date, I promise to pay to the order Of A., the sum of eighty dollars and fifty cents, value received; but should the beast prove unsound, a deduction to be made by two disinterested persons.” Signed by B. This instrument had been assigned in writing to A., and G., the assignor, was made a defendant to answer as to his interest ; but, on motion of the defendant, his name was stricken out. Answer: 1. That the note was given for the price of a horse, which was represented and warranted to be sound, &c.; that, in fact, said horse was unsound, &c.., by reason of which the consideration of said note had failed. 2. That after defendant had discovered the unsoundness of the horse, he had requested G. to select an appraiser, which he refused to do, and that defendant then had said horse appraised, and tendered to G. the amount of such appraisement, and now brings the same into Court, &c. The defendant also filed a paper stating that he waived the general denial put in by ’ statute, and all matters of defense, except those by him specially pleaded.</p> <p>Held, that the general denial which is put in by statute, without pleading, before justices of the peace, may be waived by the defendant by putting his waiver of record.</p> <p>Held, also, that the defendant, having expressly waived the general denial, was entitled to open and close the case.</p> <p>Held, also, that by moving to dismiss C. as a nartv to the suit, the defendant waived any rights that might have accrued to him if C. had remained a defendant, and G., by submitting to be thus dismissed, without objection, would be as fully concluded by the judgment as if ho had continued a party to the record.</p> <p>Held, also, that there was nothing in the writing to prevent proof being made of a warranty of the horse, but when a warranty was once established, the contract prescribed the remedy for a breach, viz., by deduction from the amount of the note, and neither party could insist upon a return of the horse.</p> <p>Instructions given or refused by the Court below, to which the counsel of the party objecting has appended an exception, by writing thereon “given and excepted to,” or “refused and excepted to,” signed by counsel, can not be regarded as part of the record unless signed by the judge also.</p>

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

<p>Suit upon a promissory note. Answer: 1. That said note was given in compromise of a pending prosecution for bastardy, fraudulently instituted by the plaintiff against the defendant, in which she falsely represented that defendant was the father of her child; and that the consideration of said note had failed, in this, that subsequently to the giving of said note, it was agreed between plaintiff and defendant that if said child was not born before a given time, that said note should be delivered up and canceled, and that said child was not born before tbe said time limited.</p> <p>2. That said note was obtained by fraud and false representation, in this, that the same was given in compromise of a prosecution for bastardy, in which plaintiff fraudulently and falsely charged the defendant to be the father of her child, she well knowing that one A. B. was the father of said child.</p> <p>Held, that so far as the first paragraph of the answer averred a want of consideration, it was bad.</p> <p>Qucere: Whether the consideration shown in the first paragraph of the answer for the alleged agreement to surrender the note was sufficient, and if so, could such agreement be set up as a defense to the action on the note.</p> <p>Held, also, that the second paragraph of the answer was good.</p>

<p>A. being the owner of certain lands, gave a written power of attorney to B., authorizing him to sell, assign, transfer, trade and dispose of said lands, either for cash or in exchange for other property. He was to continue to act as such attorney for eighteen months, and to receive for his services one half of all he might make out of said property over a certain price, and where other property was taken in exchange, the compensation was to be determined by getting other persons to estimate the value of the property so taken. B. having by an exchange procured a certain mill property, rented the same to 0-, who was dispossessed by a lessee of A., on the ground that B. had no authority to rent said lands. Suit by O. to recover possession.</p> <p>Held, that as the evidence as to the authority of B. to rent the premises was conflicting, it was competent for O. to prove that B. had acted as the agent of A. in renting other lands taken by him in exchange under his power of attorney.</p> <p>Held, also, that under the letter of attornej1', B. had such a power, coupled with an interest, as gave him authority to rent, at least until such time as he and his principal should close their accounts.</p>

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

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

<p>Suit by a widow for partition of the lands of which her husband died seized, and which by his will he attempted to dispose of to his minor children, who were made defendants. A guardian ad litem was appointed for all the minor defendants but one, who had not been served with process, but whose testamentary guardian had been served. Answer by the guardian ad litem, that the plaintiff was not entitled to anjr share of said lands, because of an ante-nuptial agreement, and of the execution of said will, by the husband, disposing of said land. The agreement pleaded provided that the husband was to have the right to dispose of his lands, by will or otherwise, as he might please, provided that if he died first his wife was to bo provided with a home and a support on tho home farm during- her life, and also to have what might remain of any property she might bring to him, she taking care of his children while they were willing to stay with her. Another clause provided that tho wife should take care of said children, or cause them to be taken care of and provided for, if the husband should die before they are able to’take care of themselves, and that she should also pay the taxes and keep up the farm, &c. The will of the husband devised the land to his minor children. A demurrer having been sustained to this answer judgment was rendered for the plaintiff, without proof, for want of an answer.</p> <p>Held, that it was erroneous to render judgment for want of an answer, without proof; and that the Court might have compelled the guardian to put in an answer, or in default thereof have removed him.</p> <p>Held, also, that tho provisions of the ante-nuptial contract were intended to, and did, exclude the wife from claiming that interest in the lands, which she would otherwise have been entitled to under the law.</p> <p>Held, also, that the service of process upon the testamentary guardian was sufficient, under the statute regulating partition suits, to bring his ward before the Court.</p>